This article reviews Roger Cotterrell's landmark paper, 'Trusting in Law: Legal and Moral Concepts of Trust'. That paper identified a shift from a moral conception of trusteeship based on the notion of a settlor reposing personal trust in a trustee, to an amoral systems-based conception of trusteeship, in which personal entrustment is largely absent. This article examines contractualised trusts, containing widely drawn exemption clauses, which commonly underpin commercial arrangements. It identifies two developments which have the potential to limit the amorality of the contractualised trust. The first is a reaffirmation of the existence of a non-excludable core of fiduciary obligations. The other is an enhanced understanding of the trustee's accountability, owed to the court as well as to the beneficiaries, for the due administration of the trust. The developments demonstrate that equity has the resources to overcome contractual overreach in trusts law.

The aim of this paper is to illustrate Denis Ong’s facility for identifying the hard questions of trusts law with reference to his analysis, in Trusts Law in Australia, of a settlor’s intention to create a trust. As we will see, this is not a simple matter of ascertaining, from writing or other evidence, that an intention to create a trust has been manifested. A court may have to go further in some cases and consider whether the settlor possessed a genuine intention to create a trust, or whether the intention is, in some sense, counterfeit. This may be because the putative trust is a sham. Even if it is not a sham, there may be other reasons why the arrangement put in place by a settlor cannot be characterised as a trust. Recent decisions, considered later in this paper, have highlighted the distinction between true and counterfeit intention.

[Professor Peter Birks contributed significantly to the development of private law in Australia. This article traces Birks’ thinking about unjust enrichment by reference to notable High Court decisions, including Pavey and Roxborough. It does so through the perspective of Birks’ own ideas on the subject, as they evolved over the years. This article concludes that Australian private law is not the bleak, undifferentiated law of wrongs — based on unconscionable conduct and with no special place for unjust enrichment — that Birks proposed. Rather, it is partly because of Birks’ contributions that Australian law is better structured than he perceived.]

Presented as part of the iGniTe First Year Summer Launch Program on June 21, 2018 at 4:00 p.m. in the Clough Undergraduate Learning Commons, Room 152.