LegalResearchFoundation

When money is transferred to another party without consideration, there is a rebuttable presumption that the funds are held by the transferee on a resulting trust for the transferor. This is a default rule which gives effect to the presumed intention of the transferor when actual intention is not evident. This article argues that it is anomalous to assert a continuing beneficial interest in money that has been transferred to another and that the relationship of a resulting trust with other legal concepts is problematic. This is explored with respect to gifts simpliciter and transfers from parent to child. With regard to the latter, the presumption of resulting trust may be displaced by a presumption of advancement. However, the boundaries of advancement are controversial, particularly if the recipient is a young adult. There is a further tension between the operation of a resulting trust and the right of survivorship under a joint tenancy. It is argued that in these and other settings it is questionable whether the presumption of a resulting trust should be invoked as a prima facie response to a voluntary transfer.

This article sets out the law governing when parental failures to act might result in criminal charges. It documents the New Zealand cases on the public record over the last 30 years in which parents have been criminalised for omissions in relation to their children, noting a trend over time to increasingly criminalise parenting mistakes in New Zealand. Whilst deliberate assaults on children and sustained patterns of parental neglect have always been prosecuted, it was not the case traditionally that mistakes by parents that are better categorised as isolated instances of supervisory neglect rather than child abuse received a criminal justice response. Indeed, the heavy costs of such a response and the possibility of other less damaging mechanisms for accountability suggest that we may have expanded the criminal scrutiny of parenting decisions too far.

The Treaty of Waitangi is New Zealand's most important constitutional document. This article contends that part of its constitutional importance lies in its ability to sustain conflicting and contradictory narratives about the legitimacy of New Zealand's legal and political system. These duelling narratives are ever-present in attempts to determine the Treaty's contemporary legal effect and political salience, and are by and large accommodated by New Zealand's unwritten constitutional structure. Calls for New Zealand to adopt a written constitution fail to account for the Treaty's inherently ambiguous and unsettled constitutional status, ultimately preferring and entrenching one narrative over another. The article argues that such proposals for reform are misconceived unless they draw on lessons from our current unwritten constitutional practice.