Express Trust Creating and Performing the Trust PDF

Because if it isn't then we don't actually have a trust and what the settlor has tried to 9/5/24 achieve will actually be unsuccessful. How we're going about that process should make the trust enforceable and e ective in equity. But maybe there are some situations where y...

Because if it isn't then we don't actually have a trust and what the settlor has tried to 9/5/24 achieve will actually be unsuccessful. How we're going about that process should make the trust enforceable and e ective in equity. But maybe there are some situations where you can't do what you're trying to do. E.g. trying to avoid obligations to creditors. Express Trust: Creating and Performing the Trust LAWS2500/8010 EQUITY AND TRUSTS DR MICHAEL NANCARROW 1 Up until now we've mostly seen the powers and duties of the trustee but that's a story that will continue in another lecture when we look at the powers of investment and the rights of trustees etc. Introduction Enforceability of an express trust Not infringing Must have been public policy validly created depends on the 3 prohibitions (constituted) certainties Title to the trust + Some trusts must property must be comply with Properly declared properly vested in statutory the trustee formalities 2 Certainties E.g. statutory payments of objects (the bene ciaries in an express trust) into your super. But there's of intention also speci c legislation subject matter involved in 1 superannuation.  9/5/24 To complete the gift is important because Equity will not assist a volunteer The Complete Constitution of Express Trusts Complete constitution of a trust is important because: Until constitution the beneficiaries have no interest in the trust property and, being volunteers, cannot seek equity’s assistance to enforce the trust: Until the legal title to the property is formally transferred to the trustees they have no legal power to deal with the trust property in any way; they cannot sell mortgage, invest or lease it and they are unable to distribute it to the beneficiaries OFFICE | FACULTY | DEPARTMENT 3 3 Methods of Creating an Express Trust 4 2  9/5/24 Self-declaration of trust OFFICE | FACULTY | DEPARTMENT 5 5 S 23C Conveyancing Act This section goes on to talk about a declaration of trust 6 23C Instruments required to be in writing (1) Subject to the provisions of this Act with respect to the creation of interests in land by parol— (a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law, (b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will, (c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person’s will, or by the person’s agent thereunto lawfully authorised in writing. (2) This section does not affect the creation or operation of resulting, implied, or constructive trusts.(3) For the purposes of this section, a requirement for writing may be satisfied in electronic form and a requirement for writing to be signed may be satisfied by electronic signature. https://legislation.nsw.gov.au/view/html/inforce/current/act-1919-006#sec.23C 6 Even though equity looks to substance and not form (meaning that it will not just look at the formalities for enforcing rights). We'll also see that if in fact the formality mechanism is being used to give e ect to a fraudulent purpose or scheme equity will not enforce it. 3  As we've seen personalty can arise as property that is both 9/5/24 tangible intangible that equity will recognise. We've seen choses in possession and action. Formalities for inter vivos trusts by declaration inter vivos means during the lifetime of the settlor (who originally owns the property) Personal property; declaration of trust over personalty need Real property: s23C(1)(b) Conveyancing Act requires a not be in writing although the transfer of this type of interest declaration of trust over land to be manifested or proved by once it is already subsisting must be in writing – s23C(1)(c) some writing (see also Lecture on Express Trusts) OFFICE | FACULTY | DEPARTMENT 7 7 Trust created by transfer (1) A declaration of trust: trustee taking property in capacity as trustee not beneficiary (2) A valid trust of the intended trust property to the intended trustee A transfer maybe invalid at law but valid in equity OFFICE | FACULTY | DEPARTMENT 8 8 We've got these writing requirements but will equity be prepared to recognise exceptions? In Last v Rosenfeld we had the plainti and the defendant who were joint tenants of the house and the plainti s transferred their interest in the house to the defendants at cost price. They previously orally agreed to transfer their interest to the defendants in return for the promise that the interest would be transferred back. It was 4 between these two families and sometimes these unusual transactions can arise.  But one of the requirements was that if the defendant did not occupy the house within 12 months then the property would be re-transferred. Instead of occupying the house the defendant sold it to a third party who took a mortgage form the defendants. So the 9/5/24 question arose about the enforceability because this had been an oral agreement so of course the requirements of 23C of the Conveyancing Act came into play. Exception to statutory writing requirements: Last v Rosenfeld 2 NSWLR 923 (SB 15.4a 394) HOPE J ‘The mere fact that the trust only arises upon some event occurring after the transfer of the property does not prevent the enforcement of the trust if that event occurs ‘…whether the defendant’s obligation can properly be described as trust or not, I think that the circumstances are such that the defendant’s reliance upon the absolute nature of the written contract and transfer and lack of writing to defeat the plaintiff’s claim constitute fraud…’ Are the actors trying to perpetrate a fraud by what they're doing? This also applies to oral trusts concerning interests in land as well. Note (TB 396): Principles apply to oral trusts on interests in land OFFICE | FACULTY | DEPARTMENT 9 9 What's important about the Rosenfeld case is not just the idea that there's a formality requirement in Equity (if the lack of that is being used to e ect a fraud) then the Court of Equity will not accept that. The outcome is that just because the writing requirement isn't ful lled does not mean that you're not bound by your undertaking. Incompletely Constituted Trusts 10 What is the scenario if we have a purported trust that has not been completely constituted? 5  9/5/24 General principles for incomplete trusts By declaration: If the trust fails, settlor continues to hold property of own behalf By Transfer: Where property successfully transferred to would-be trustee, trustee holds property on resulting trust for settlor and must re-transfer to the settlor But what if the settlor is no longer alive? The Court is recognising the existence of a trust because the express trust didn't e ectively come into being. OFFICE | FACULTY | DEPARTMENT 11 11 Non-simultaneous declaration and vesting Declaration of trust made subsequent to the transfer will be ineffective If a declaration of trust is made before the transfer of property to the intended trustee, the subsequent transfer will be sufficient to complete the previously incomplete trust. What he's referring to in the TB is an agreement to a trust. When there's an agreement to trust then that will cure the process. In another source it's pointed out that if the intended bene ciary has given value (valuable OFFICE | FACULTY | DEPARTMENT 12 12 consideration) then that will cure the process. So to have some practical examples where we don't have a properly constituted trust but we do have an agreement to trust and is there a way that could be enforced by a purported bene ciary? Yes, if consideration is given in that situation. But we're talking about an agreement to trust not where a trust has been properly constituted. 6 The law of trusts has an interesting relationship with other areas of law. E.g. if it's set up to do something clearly contrary to wider claims of the society we live in and the basis of our society then that means that the trust will fail. e.g. if 9/5/24 it's prejudicial to the administration of justice, a trust to commit a legal wrong, prejudicial to the status of marriage (defeat the institution of marriage). Trust fails because it offends public policy Prejudicial to the administration of justice Prejudicial to the status of marriage See now Family Law Act 1975 (Cth) Restrictions on alienation A trust expressly or impliedly prohibited by statute Restrictions on alienation; that there is a strong conviction that property must OFFICE | FACULTY | DEPARTMENT 13 be alienable because it needs to be used. It needs to be able to harness the 13 economic capabilities that it gives rise to. What has been done to deal with this is the development is the rule against perpetuities. Meaning that the property must vest in the hand ultimately in the hands of the bene ciaries. Trusts and Bankruptcy s37A Conveyancing Act 1919 (NSW) (TB 252/SB 399) S121(1) Bankruptcy Act 1966 (Cth) (TB 253) Transfers to defeat creditors Voluntary alienation to defraud creditors voidable Transfers that are void (1) Save as provided in this section, every alienation of property, (1) A transfer of property by a person who later becomes a bankrupt made whether before or after the commencement of (the transferor) to another person (the transferee) is void against the trustee in the Conveyancing (Amendment) Act 1930, with intent to defraud the transferor’s bankruptcy if: creditors, shall be voidable at the instance of any person thereby prejudiced. (a) the property would probably have become part of the transferor’s estate or would probably have been available to creditors if the property had not been (2) This section does not affect the law of bankruptcy for the time transferred; and being in force. (b) the transferor’s main purpose in making the transfer was (3) This section does not extend to any estate or interest in property alienated to a purchaser in good faith not having, at the time of the alienation, notice of the intent to defraud creditors. (i) to prevent the transferred property from becoming divisible among the transferor’s creditors; or https://legislation.nsw.gov.au/view/html/inforce/current/act-1919- 006#sec.37A (ii) to hinder or delay the process of making property available for division among the transferor’s creditors. Note: For the application of this section where consideration is given to a third party rather than the transferor, see section 121A. https://www.legislation.gov.au/Details/C2022C00259 Australian Financial Security Authority https://www.afsa.gov.au/ 14 But if I move my property in such a way that it tries to put a distance between my property and my creditors (so that it can't be touched, since it's for the bene ciaries) then is that possible? We'll encounter s37A of the Conveyancing Act 1919 and s121 Bankruptcy Act 1966 (Cth). 7  s109 the inconsistency provision- it has no e ect to the extent of that inconsistency (constitutional law). But here we don't have s 109 (Trusts 9/5/24 and Bankruptcy). You'll only be regulated by the Bankruptcy Act if it has jurisdiction over you aka you're a bankrupt person under that Statute. Statutory public policy: Marcolongo v Chen HCA 3 (SB 15.6.2b 400) French CJ, Gummow and Bell JJ …’the better view of the terms employed in s37A is that…the term “defraud” was designed to reproduce the meaning of the expression ‘delay, hinder or defraud’ in the Elizabethan statute (Statute 13 Eliz 1c 5, enacted 1571) (a) Important to refer to caselaw on the Elizabethan Statute(b) s37A should receive a liberal construction in effecting the purpose of suppressing fraud (b) s37A should receive a liberal construction in effecting the purpose of suppressing fraud Notes (TB 402): (1) Many other statutes include anti-avoidance provisions empowering courts to set aside dispositions, including trusts made with the purpose of defeating a court order Notes (TB 402): (2) A voluntary transfer of property for illegal purposes raises the possibility that the transferee holds on resulting trust for the transferor OFFICE | FACULTY | DEPARTMENT 15 15 So despite these various features, Marcolongo applied to have the transfer set aside using 37A but it was set aside because it was intended to defeat a creditor against Ying (Chen). Trusts and Discrimination An express trust can define the What is the di erence between an class of beneficiaries in terms of express and private trust? gender, religion, sexual orientation or some other way Express trusts will be upheld on the ground that the law favours freedom of disposition Modern equal opportunity and anti- discrimination legislation does not apply to private trusts Should we have freedom to dispose of our property in nexus with discrimination law? OFFICE | FACULTY | DEPARTMENT 16 16 Marcolongo v Chen HCA 3; had an unsatis ed award of damages against a company (Lyn) for building works against Lyn. Since an integral structural part of the support (building) had a ected her property. Yang a director of Lyn and a NZ resident approved the transfer by Lyn of a property subject to another development which was Lyns only substantial asset. 8  (You can see that there was a move here trying to move Lyns assets away from Marcolongo). Yang's husband (Chen) had been detained in China and Yang was concerned about steps the Chinese Government would take 9/5/24 against her family and their assets. Chen had persuaded Yang that the transfer of the property to him was in her best interests. Trusts and Perpetuity: Implication of the Rule Against Perpetuities (RAP) Rule against indestructible trusts Rule against remoteness of vesting (rule against perpetual duration) Perpetuities Act 1984 (NSW) s 16 (2) Where, by a settlement, there is Perpetuities Act 1984 (NSW) s 7(1): a disposition for a purpose, the statutory perpetuity period of 80 Applies to non-charitable purpose perpetuity period applicable to the years trusts disposition shall, for the purposes of the rule against perpetual trusts, be 80 years from the date on which the settlement takes effect. OFFICE | FACULTY | DEPARTMENT 17 17 Property must vest in the RAP or else it will be invalid. Trustee Powers and Duties OFFICE | FACULTY | DEPARTMENT 18 18 The trustee may be given discretion to do things, but the way they go about the performance of their work they have duties to comply with and all of their decision making is directed towards the best property that they're in control of managing. 9 But what can bene ciaries do if they suspect that the trustee is not up to the task?  They might be able to delay when they sell the trust property (discretionary power). Bene ciaries will normally receive income from invested trust properties before 9/5/24 they ultimately take the property. It's not just being held there for no reason. The trust generated income but the trust can also make decisions about distributing that income within the trust- whilst being mindful of tax implications. Trustees powers and duties E.g. must sell Duty = what Power = what trust property = trustee must do trustee can do duty But able to delay Choices about Must invest trust sale to best time what to invest in funds = duty = power = power OFFICE | FACULTY | DEPARTMENT 19 19 Sources of Trustee Duties and Powers 1. The trust deed – most 2. Legislation – Trustee Act important source 1925 (NSW) If you (the settlor) give Modern states have the someone (a trustee) property money and bureaucratic Might be overridden by trust for the benefit of someone organisations to enact deed or it might override trust else (beneficiary/object), not specific legislation to produce surprisingly you are going to optimal outcomes, rather deed – read legislation carefully tell them what you expect than just relying on ad hoc them to do with that property decisions by courts. OFFICE | FACULTY | DEPARTMENT 20 20 The trust deed is what the trustee is being told what they can and can't do. (It's the most important document). 10  9/5/24 Sources of Trustee Duties and Powers There are other types of relationships but the duciary relationship is core to a trust 4. Fiduciary 3. Case law obligations Decisions of judges Some case law with equitable Detailed (i.e. word clarifies 1. and 2. jurisdiction processor, not which can never be handwritten) trust completely free from Many of these pre- deeds date modern statutes ambiguity. OFFICE | FACULTY | DEPARTMENT 21 21 Duty to adhere to the terms of the trust Not surprisingly, the To do so, you have to first duty is to do what read the terms of the you are told J trust deed Sample discretionary family trust If trustees are not Departure from terms sure of meaning of a of trust allowed in term, approach court: some situations Trustee Act, s63 NOTE: all sections in this lecture are from the Trustee Act 1925 (NSW) OFFICE | FACULTY | DEPARTMENT 22 22 If a trustee is not sure to a meaning of the term then under s63 a trustee can approach the Court under the Trustee Act s63. 11  9/5/24 Duty to get in trust assets I.e. that their legal title is enforceable and acknowledged Because trusts are always over property, trustee needs to ensure they have the legal title to that property, e.g. become registered if shares or land etc. Enforce debts where appropriate. OFFICE | FACULTY | DEPARTMENT 23 23 Ongoing management duties Re Lehman Brothers International 1 BCLC 487 SB 17.3.4a Duty to invest Facts: LB provided financial service. Some client money was in trusts, but some was treated as unsecured loans to firm Duty to keep assets separate – don’t with simply a contractual obligation to repay (cf trustee mix with own or other trusts obligations). The firm did not adequately separate client money from its own or from other clients’. Firm became insolvent in GFC/sub-prime crisis (bad mortgages) Decision: OFFICE | FACULTY | DEPARTMENT 24 24 Lehman Brothers International; it was a global operation and they had various corporate entities in numerous places and they were involved in nancial trading that was playing at the edfe of risk hedge funds etc. (even in Singapore) and they were basically doing things that were out of control and in 12 this action they were trying to look at the keeping of seperate accounts and so on. The sums involved were astronomical.  J Briggs (pg. 430 SB) In the imperfect and complex world [of this case] the facts are falling short on what should of been done and the shocking underperformance has occurred for a number of reasons for which two stand out 9/5/24 1. Lehman failed to identify as client money and therefore also failed to segregate vast sums received from or on behalf a signi cant number of clients. $3B USD. Duties to keep accounts and give information to beneficiaries Duty to keep and render Other trust documents? No accounts – accounts with all general right to see them but relevant info on property and can apply to court to inspect financial affairs; this is not all Duty to give information to some documents. If information about the trust e.g. beneficiaries beneficiary/object thinks it does not include trustees’ something has been done reasons for exercising a wrong, they will want to see discretion. trust documents. If discretionary, depends on size. Generally, people should If it is a fixed trust i.e. know so trustee can be beneficiary entitled to specific monitored, but not if impractical Definitely allowed to see trust amount, they must be told they or if not appropriate given kind deed have rights under the trust of trust e.g. Segelov v Ernst Young Services, 17.18 Textbook. OFFICE | FACULTY | DEPARTMENT 25 25 2. There were also problems with their a liates. Lehman had also failed to segregate these funds amounting to 146 million USD. It's a case that's a record of nancial travesty. The rm became insolvent and it's an example where trusts have been mixed with other assets. Schmidt v Rosewood 2 AC 709 SB 17.3.6C Facts: because the father had set up trusts in a variety of jurisdictions Son of Russian oil executive wanted to see trust documents because he thought impropriety had occurred. It was a discretionary trust, but he was the only possible object of a power of appointment (i.e. only person who trustees had a discretion to give things to). Trustees said that as it was a discretionary trusts (he may or may not get property) he had no vested interests and therefore no proprietary interest in trust documents. Not clear if Schmidt applies in Australia What is clear: Can see deed, accounts, records of distribution but not letters between trustees, to other beneficiaries, agendas and minutes of trustee meetings, confidential info (e.g. memo of wishes or trustee brief to counsel) and reasons for a decision. Do not have to disclose reasons – easier to understand justification for this re: non-prof trustees (embarrassment etc) than prof. trustees who take on obligations for pay OFFICE | FACULTY | DEPARTMENT 26 26 Lehman Brothers is an example of inadequate record keeping and it reenforces the idea as to why that's important. It wasn't Lehman's money the money was on trust for the clients. Therefore it was the clients' money. We're not clear the extent to which Schmidt has been applied in Australia- but we 13 can see the deeds, the account but not necessarily the minutes and letters between trustees and the trustees are not necessarily required to disclose their reasons.  9/5/24 Duties of performance Strange how the duty of care here is not a tortious duty. Fun fact that the Duty of care proceeds the common law in Equity. Duty to act impartially: between individual Duty of care: this is not beneficiaries and a tortious duty of care classes of beneficiaries – don’t put everything Applies to day-to-day E.g. not allowed to let one in a pot and mix it up. Trustee standard = management, not ordinary prudent beneficiary purchase trust We are in the trustee investment which is property at a lower price business person: defined by legislation than others: Tanti v Carlson. duty of care section of Speight v Gaunt the bento box; duty is (see further on) Income v capital higher and remedies beneficiaries – duty to act ‘fairly’ between beneficiaries: are different Re Mulligan Now see s14B( c) Trustee Act 1925 (NSW) OFFICE | FACULTY | DEPARTMENT 27 27 Duties of performance cont. they cannot delegate the position of trustee even to each other. But the deed Duty to act personally may make provisions concerning this. Trustees are personally chosen for who they are (trusted friend, experienced professional etc) Cannot delegate, including to each other (exception: absent from NSW, s64 or if deed allows it). Must act unanimously – trusteeship is a single office; jointly and severally liable for decisions; one breaches = they all breach; no indemnity if not unanimous Must not act under dictation, including by beneficiaries, (subject to exception in deed) Must not fetter own future decisions Can appoint agents (e.g. banker, lawyer, stockbroker, real estate) s 53 not responsible for default if employed in good faith: s53(3). In s53 of the Trustee Act they (the trustees) can appoint agents. As a legal professional your clients will sometimes 28 28 want you to make decisions for them concerning the trust. But that is not your role- your role is to give legal advice that informs the making of the decision not to make the decision for them. 14  9/5/24 de ne debentures; a long-term security yielding a xed rate of interest, issued by a company and secured against assets. Duties of performance: Duty of Care and Duty to act Personally SPEIGHT V GAUNT SB 17.3.9A Pg. 440 TB Facts: (to invest money in debentures) Trustee employed a stockbroker to invest trust money. Stockbroker stole money. Beneficiaries sued trustee. Decision: UK Court of Appeal found that the trustee has not breached its either its What is that standard -duty of care nor -had the trustee not exercises its duty to act personally of an ordinary person of business by today's Jessel MR standards? The trustee is not required to do more than an ordinary person of business in the conduct of the trust business Lindley JJ A trustee cannot delegate his trust but can employ persons to do that which an ordinary person of business would employ an agent to do NB. See also Superannuation Industry (Supervision) Act 1993 (Cth) and Corporations Act 2001 (Cth). (SB 446) 29 29 There was evidence of discrepancies in the handwritten paperwork by the stockbroker that might have alerted the trustee to the theft at an earlier stage. The Court of Appeal found on the facts that the trustee had not breached its duty. Duties of performance cont. Rather than distributing the income of the trust they may decide to keep the money in the trust. Clearly moderated by trust deeds for professionals and usually non- professionals too – which clause of trust deed on iLearn? Duty to consider exercise of Act gratuitously: no profit rule = no powers: powers do not have to be profit to be made by exercised (they are powers not fiduciary/trustee duties) but trustees must at least If no remuneration, can be agreed consider exercising them (and can by trustee and sui juris then decide not to) e.g. to beneficiaries, by the court under distribute income. inherent jurisdiction or statute (but not in NSW?) Fiduciary duties: apply to all trustees – see chapters 10 Exception in trust deed or court’s No self-dealing – cannot acquire inherent jurisdiction e.g. trust assets even if fair price widow/trustee buying family home Fair dealing rule – beneficiary can sell their interest to trustee, but court will scrutinise. OFFICE | FACULTY | DEPARTMENT 30 30 In terms of the duciary duty; if we're thinking about breaches then the d can't act gratuitously (no pro t rule) there's a no self dealing rule i.e. they can't acquire trust property at a bargain price because they're in the know. But also appreciate that these rules are subject to the terms in the trust deed. 15  9/5/24 All of these powers typically operate under the deed. Trustees’ powers They won’t make them exercise but if trustee does, court will make Dispositive If that does not sure they do it power = giving cover what properly: Power = money to trustee wants to Courts are Good faith, real & authority or Administrative reluctant to genuine discretion to beneficiaries powers e.g. Main source of do, check consideration of e.g. power of power = trust statute and then interfere in deal with trust appointment i.e. power to sell, consider asking discretion, for property lease or insure deed discretionary purpose for which appointing trust property for a court order powers that power given, and consistently with (choosing) (s81) or trustees have not ulterior terms of trust. someone to get variation of trust purpose. If trustee gives property (s86A-C) reasons (and does not have to) court can review them but not to rem ake decision, only to determ ine point above. OFFICE | FACULTY | DEPARTMENT 31 31 If the trust deed is not available then we need to look to the legislation. See s81 and s 86A-C in variation of a trust but the discussion in Brain is not adequate on those provisions. Court review of trustee powers KARGER V PAUL VR 161 SB 17.3.10.1A Facts: Testatrix left property on trust for husband for life, capital to go to niece, but trustees had ‘absolute and unfettered’ discretion to transfer capital to husband at his request. Trustees were husband and solicitor. Husband asked & was given. No independent inquiry about niece’s financial position; relied on husband’s knowledge. Suggestion transfer was for husband’s GF’s benefit. Held: Low bar for trustees Appropriate for superannuation trusts? McGarvie J The focus is limited to whether the discretion was exercised in good faith, upon real and genuine consideration and in accord with the purposes for which the discretion was conferred. i.e. The court is concerned with whether the discretion exercised but is not concerned with how it was exercised. Courts will examine whether a discretion has been exercised irresponsibly, capriciously or wantonly. OFFICE | FACULTY | DEPARTMENT 32 32 Well what is the implication beyond small private family trusts to trusts like superannuation trusts. 16  9/5/24 Court review of trustee powers FINCH V TELSTRA SUPER PTY LTD (2010) 242 CLR 254 SB 17.3.10.1B Facts: Large modern superannuation trust. Member was told he was not eligible to receive disability benefits under fund’s rules. Was the refusal the exercise of a discretion by the trustees that the court could set aside because it was not made in good faith, upon real and genuine consideration & in accordance with purpose for which discretion was conferred or was it just a decision based on facts? Held: Was this rejection or refusal under the discretion of the trustee? Decision of trustee not discretionary but in accordance with the terms of the trust instrument French CJ, Gummow, Heydon, Crennan and Bell JJ The trustee was required to form an opinion and this was not a matter of discretionary power, it was an ingredient in the performance of a trust duty The judges noted the public significance of superannuation and the impact of statutory regulation and not likely to be immunised from judicial control without clear contrary language NB. Good example of importance of reading the trust deed and other documents. OFFICE | FACULTY | DEPARTMENT 33 33 Here is a clear example from the HCA concerning superannuation trusts indicating the parameters of discretions from reading the trust. The trust was regulated in a way that family trusts were not and there's also oversight by the Court concerning trusts and what they're doing largely in the public interest. Trustees are not volunteers they are bene ciaries making a contribution and that's what the court is re ecting to us in this case. 17