Karteikarten
Tracing
Karten in diesem Stapel (24)
- 1Common LawOnly someone with legal title can trace at common law so Bs would be unable to do this.
CL only gives proprietary claim. - 2Re Diplock1. Fiduciary relationship
2. Equitable proprietary interest in property being traced.
F relationship need not be between claimant and defendant as long as there has been one somewhere in the process.
Cant be traced if spent paying off other unsecured debts. - 3Westdeutsche Landesbank Girozentrale v Islington London BCFiduciary relationship from Re Diplock approved by House of Lords.
- 4Foskett v McKeownObiter - no logical justification for insisting on fiduciary relationship
- 5Bishops gate Investment Management v HomanPaying money into overdrawn bank account = dissipated and cannot be traced.
- 6Tracing into hands of 3PsNot someone who:
Good faith
No knowledge
Provided consideration
(Equity's darling) - 7Innocent volunteersThose who have not provided consideration. If still have property then a proprietary claim can be made.
- 8Re Hallett's EstateIf claimant's £ is paid into wrongdoer's acc there is an equitable charge on the account for amount paid in
UNMIXED FUNDS
If property has been bought claimant may elect to take property or have charge over it for amount of his £ used in purchase. - 9Re Hallet's Estate Presumpt. HonestyMIXED FUNDS
Still able to trace into account and have equitable charge over it.
Ct of App - any withdrawals must be treated as payments of H's own money.
A T cannot deny he acted as a good T so he must have dissipated his own money not the B's. - 10Re OatwayIf T spends part of MIXED FUNDS on something traceable then dissipates balance of funds in the acc poss to rebut Re Hallett's presumption that they spent their money first.
Following Re Hallett's an honest T would not buy property for himself out of mixed fun and then dissipate B's money. - 11Salson v RussoB may be able to cherry pick if between them and the wrongdoer. Don't leave the T with all the cherries.
- 12Roscoe v WinderIf wrongdoer spends B's money and then pays money in of his own this cannot be seen as a repayment to the B. Why would T pay back via his own account? B would not have equitable right on property which they know is not theirs.
- 13Bishops gate Investment Management Ltd v HomanAffirmed Roscoe v Winder.
If account is exhausted during the intermediate period, the B's cannot trace at all. - 14Re Diplock's EstateApplying Sinclair v Brougham:
SAVING ACC. Two funds share the mixture in the account rateably. - 15Re Clayton's CaseCURRENT ACCOUNT
First payment in will be first payment out. Applied between 2 trusts and between a trust and an innocent contributor. - 16Barlow Clowes International Ltd v VaughanReluctantly confirmed Re Clayton's is good law, although subject to any contrary intention which courts are ready to find.
"Need only be applied when it is convenient to do so and when its application can be said to do broad justice... to competing claims." - 17Re Clayton's Case Not to be applied when...1. Contrary to the express or implied intentions of claimants;
2. It was impractical; or
3. It would cause injustice.
* Rule does not apply as between Bs and Ts who has mixed trust funds with funds of his own. - 18Charity Commission v FramjeeDisapplied Clayton's Case when distributing assets of a fundraising website. Rateable distribution should be applied most of the time.
- 19Foskett v McKeownWrongdoer fund + T's fund used to acquire new asset? B is entitled to either claim proportionate share of asset or enforce a lien.
Reiterated Re Diplock - pari passu (rateable share)
Proprietary remedies are enforcing proprietary rights and should not be discretionary (unless inequitable - Re Dip) - 20Used to improve innocent volunteer's asset?No value added: dissipated and can't trace.
Value added: obiter in Foskett - entitled to at most a proprietary lien over asset.
May have defence that inequitable to enforce it - Re Diplock and donations to hospitals. - 21Boscawen v BajwaSecured debt paid off?
Debt can be revived in favour of claimant as though original lender, allowing them to take charge on SAME TERMS to secure debt. - 22Re Montagu's SettlementNo personal action against an innocent volunteer who dissipated trust property before he was aware that it was t property.
- 23Re Diplock (AGAIN) Wrongly paid out fundsWhere £ is wrongly paid out in admin of an estate a personal action is available against recipients even where innocent volunteers.
NOK able to use personal action to recover balance from charities even when proprietary claims weren't possible. - 24Lipkin Gorman v Karpnale Defence of change of position1. Recipient disenriched - spent money in reliance of payment
2. Expenditure must be extraordinary - wouldnt have spent it but for getting claimant's funds.
3. Recipient must act bona fide - reasonably believe that they're entitled to assets received.
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- Beschreibung
- Equity and Trusts Karteikarten am Tracing , erstellt von Laura Millward am 29/01/2018.
- Erstellt von
- Laura Millward
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- 2
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