121816
Description
Mind Map by Vicky Babs, updated more than 1 year ago
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Created by Vicky Babs
almost 11 years ago
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Third Party Liability
- Selbourne LJ Barnes v Addey
- knowing receipt
- Westdeutsche Landesbank - D's can be liable
for knowing reciept
- Beneficiaries can get their money back
from anyone but equity's darling
- Re Montague's ST - McGarry liability for knowing
receipt comes with Baden 1-3
- El Ajou - for D to be a constructive
trustee, there must be:
- disposal of trust property in breach of
trust/fiduciary duties
- Polly Peck - transferring money to
Cyprus was disposal
- Lipkin Gorman - spending money at
playboy was disposal
- Polly Peck - transferring money to
Cyprus was disposal
- beneficial reciept of trust assets
- Belmont Finance - Rule covers company directors
- Ajip - banks/agents not liable as they do not benefit - Millet J
- Belmont Finance - Rule covers company directors
- D knew the money was traceable to trust funds
- Eagle Trust - no need for
dishonesty/participation
- Carl Zeiss - knowing of a claim that there was a
trust is not knowledge
- Eagle Trust - no need for
dishonesty/participation
- BCCI v Adekunle - test is now unconscionability
- disposal of trust property in breach of
trust/fiduciary duties
- El Ajou - for D to be a constructive
trustee, there must be:
- Beneficiaries can get their money back
from anyone but equity's darling
- critiques
- Burke - we should have a strict liability test
with a defence of change of positions
- Applied in Lipkin Gorman
- Applied in Lipkin Gorman
- Burke - we should have a strict liability test
with a defence of change of positions
- Westdeutsche Landesbank - D's can be liable
for knowing reciept
- dishonest assistance
- Baden Delveaux
- 4 tests for liability
- existence of a trust
- dishonest/fraudulent design of the trustee
- assistance in the fraud from a third party
- stranger must have known of the fraudulent design
- 5 categories of knowledge -
per Gibson J
- 1) actual knowledge
- 2) Nelsonian knowledge -
deliberately closed their minds
to actual knowledge
- 3) willfully and recklessly
failed to enquire
- 4) knowledge of the circumstances that
they did have would suggest the truth
- Selangor, Karak Rubber - guilty
because they should have known
- Selangor, Karak Rubber - guilty
because they should have known
- 5) knowledge of the circumstances which
would lead a reasonable man to enquire
- Agip - D's were put on notice so
had knowledge
- Agip - D's were put on notice so
had knowledge
- 1) actual knowledge
- 5 categories of knowledge -
per Gibson J
- existence of a trust
- Lipkin Gorman - 1-3 only should be
applied for dishonest assistance per Alliot J
- Brunei - Nicholls LJ says OBJECTIVE test for knowledge
(with consideration of what D knew)
- Twinsetctra - Lords say Ghosh type combo test for knowledge
- Barlow Clowes - Hoffman claims that Twinsectra says the same
as Brunei and that critics misunderstood. test os objective
- Barlow Clowes - Hoffman claims that Twinsectra says the same
as Brunei and that critics misunderstood. test os objective
- Twinsetctra - Lords say Ghosh type combo test for knowledge
- Brunei - Nicholls LJ says OBJECTIVE test for knowledge
(with consideration of what D knew)
- 4 tests for liability
- critiques
- Andrews - dishonest assistance is unnecessary and
over-complicated. All case law could be solved through tort and
crim
- Yeo - Agrees with Andrews. Hoffman's 'clarification
of Twinsectra is, with respect, unconvincing'
- Andrews - dishonest assistance is unnecessary and
over-complicated. All case law could be solved through tort and
crim
- Baden Delveaux
- knowing receipt
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