Unit 5 – Equity and Trusts Suggested Answers - January 2013
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III. KNOWING Assistance .. ·I·
WHEN IS A STRANGERA CONSTRUCTIVETRUSTEE? 453 WHEN IS A STRANGER A CONSTRUCTIVE TRUSTEE? A CRITIQUE OF RECENT DECISIONS SUSAN BARKEHALL THOMAS• 1his articleexplores the conceptualdevelopment of Cet article explore le developpementconceptuel de third party liabilityfor participation in a breach of responsabilite civile dans la participation a fiduciary duty. 1he authorprovides a criticalanalysis l'inexecution d'une obligationfiduciaire. L 'auteur of thefoundations of third party liability in Canada fournit une analyse critique des fondations de la and chronicles the evolution of context-specific responsabilitecivile au Canada et decrit /'evolution liability tests. In particular, the testsfor the liability d'essais de responsabilites particulieres a une of banks and directorsare developed in their specific situation.Les essais de responsabilitedes banques el contexts. 1he author then provides a reasoned des adminislrateurssont particulierementdeveloppes critique of the Supreme Court of Canada's recent dans leur contexte precis. L 'auteurfournit ensulte trend towards context-independenttests. 1he author une critique raisonnee de la recente tendance de la concludes by arguing that the current approach is Cour supreme du Canada pour /es essais inadequateand results in an incoherentframework independantset particuliersa une situation.L 'auteur for the law of third party liability in Canada. conclut en pretendant que la demarche actuelle est inadequateet entraine un cadre incoherentpour la loi sur la responsabilitecivile au Canada. TABLE OF CONTENTS I. IN1R0DUCTION . • • • • . • . • . 453 II. KNOWING PARTICIPATION ......••...........•....•..... 457 A. BANKCASES . 457 B. APPLICATIONOF TIIE "PuT ON INQUIRY" TEST .....•...... 459 C. CONCEPTUALPROBLEMS Wl11I THE "PuT ON INQUIRY" TEST • . • . • • • . • . • . • . 463 D. CONCLUSIONSFROM PART II . 467 III. KNOWING AsSISTANCE .. ·I·............................ 467 A. THEAIR CANADA DECISION . • • • . • . 468 IV. -
Cambridge University Press 978-1-316-62194-3 — Equity and Trusts in Australia Michael Bryan , Vicki Vann , Susan Barkehall Thomas Index More Information INDEX
Cambridge University Press 978-1-316-62194-3 — Equity and Trusts in Australia Michael Bryan , Vicki Vann , Susan Barkehall Thomas Index More Information INDEX accounts of profits, 54–5, 169 limitation statutes, 84–5 remedies for. See remedies allowances, 57–8 unclean hands, 86–8, 168 for breach of trust breach of confidence, 197 beneficiaries, 206 ‘but for’ test, 65–6, 333 calculation of, 55–7 administration of trust and, acquiescence, 85–6 207 calculation of equitable as equitable defence to creditors’ rights and, 313–14 compensation, 60–1 breach of trust, 329–30 differences between fixed breach of fiduciary duty, overlap with laches, 85–6 and discretionary trusts 63–5 advancement for, 207 breach of trust, 61–3 presumption of, 357–9 ‘gift-over’ right, 208–9 calculation of equitable agency indemnification of trustees, damages trusts and, 210–11 311–13 causation standard, 65–6 aggravated damages, 68 interest, trustees’ right to common law adjustments to Anton Piller order, 39 impound, 314 quantum, 66–8 Aristotle, 4 investment of trust funds, categories of constructive trusts, assessment of equitable 297, 299 371 damages, 51 ‘list certainty’, 227 as remedy to proprietary in addition to injunction or sui juris, 278, 312 estoppel, 380–2 specific performance, 51 trust property and, 208 as restitutionary remedy in substitution for injunction trustees’ right to recover for unjust enrichment, or specific performance, overpayment from, 315 380–2 51–2 breach of confidence, 17–18, 47, Baumgartner constructive assignments 50, 68 trusts, 375–9 equitable property, 138–9 defences to. See defences to common intention, family future property, 137–8 breach of confidence property disputes and, gifts, 133–6 remedies for. -
CLAIMS AGAINST THIRD PARTIES Jeremy Bamford & Simon Passfield, Guildhall Chambers
CLAIMS AGAINST THIRD PARTIES Jeremy Bamford & Simon Passfield, Guildhall Chambers A. Introduction 1. This paper supports and provides the references for the Wonderland Ltd case study1 which will be considered during the seminar. 2. The aim of the case study is to explore claims which go beyond the usual fare of the office- holder’s statutory remedies by way of transactions at an undervalue, preference, s. 212 misfeasance claims, wrongful or fraudulent trading or transactions defrauding creditors. Instead we explore claims against third parties, where there has been a breach of the Companies Act and/or breach of fiduciary duty by directors, unlawful dividends being used as an example. B. Dividends 3. There are usually 3 potential grounds for challenging dividend payments: 3.1. the conventional technical claim made under the Companies legislation that dividends have not been paid out of profits available for that purpose and that the dividends have been paid in breach of the Companies legislation; 3.2. that the internal regulations of the company were breached and/or 3.3. breach of the common law maintenance of capital rule. We consider these in turn. B1 Part VIII CA 1985 4. In the case study the dividends were paid between 1 Sep 2007 and 1 March 2008. The relevant law is therefore Part VIII Companies Act 1985 (ss. 263 – 281 CA 1985)2. 5. A distribution of a company’s assets (which includes a dividend) can only be made out of profits available for the purpose (s. 263(1) CA 1985)3 being its accumulated, realised profits, so far as not previously utilised by distribution or capitalisation, less its accumulated, realised losses, so far as not previously written off in a reduction or reorganisation of capital duly made (s. -
2019 Review Succession & Probate
AYCHT 27/7/2019 2019 review Succession & Probate Au‐Yeung Cheng Ho Tin solicitors –CPD 28 July 2019 Tak Wong 1 遺囑效力 Date Neutral Citation No Pltf Remarks 2019-04-11 [2019] CFI 925 CHU PONG Limited will 08, LA. Consent Rv LA YUEN probate Proof due execution: sol fail Irrational will (to stranger) 2019-02-01 [2019] CFI 238 TAI PUI SHAN Proof due execution: subpoena. DONNA Normal pattern. sol pass §21 presumption of revocation §26 late amend pleading revocation §34 2019-01-28 [2019] CFI 103 CHEUNG TAI 2 informal wills of same date. s.5(2) SHING Cumulative, not inconsistent. All interested : parties & not oppose. Both admitted to probate. 2 1 AYCHT 27/7/2019 遺囑效力 Date Neutral Citation No Pltf Remarks 2018-12-19 [2018] CFA 61 CHOY PO B v G evidence 3 limbs T/C.gap§11 CHUN fact-specific. No proper basis will instruction §18. will invalid 2019-04-18 [2019] CA 452 MOK HING Same B v G 3 limbs T/C. CHUNG fact-specific Yes proper basis. Choy Po Chun distinguished. Will instruction direct / rational Sol > sol firm. Will valid. 3 親屬關係 Date Neutral Citation No Pltf Remarks 2018-08-08 [2018] CA 491 LI CHEONG Natural dau, 1. DNA 2. copy B/C, rolled-up hearing directions 2018-10-18 [2018] CA 719 LI CHEONG Probate action in rem nature, O.15 r.13A, intended intervener, dismiss 2014-07-03 MOK HING CCL:spinster 1.no adopt §89 2.yes CHUNG i-tze 3.yes IEO s2(2)(c) 4.DWAE案 2018-10-19 [2018] CA 713 MOK HING CCL adoption v i-tze, apply to file CHUNG obituary notice, Ladd, dismiss 2019-04-18 [2019] CA 452 MOK HING CCL no formalities (adoption/i-tze) CHUNG §52, all 7 appeal grounds no merit. -
Key Facts and Key Cases
KEY FACTS KEY CASES Equity & Trusts 25726.indb i 18/11/2013 10:40 KEY FACTS KEY CASES The Key Facts Key Cases revision series is designed to give you a clear understanding and concise overview of the fundamental principles of your law course. The books’ chapters refl ect the most commonly taught topics, breaking the law down into bite- size sections with descriptive headings. Diagrams, tables and bullet points are used throughout to make the law easy to understand and memorise, and comprehensive case checklists are provided that show the principles and application of case law for your subject. Titles in the series: Contract Law Criminal Law English Legal System Equity & Trusts EU Law Family Law Human Rights Land Law Tort Law For a full listing of the Routledge Revision range of titles, visit www.routledge.com/law 25726.indb ii 18/11/2013 10:40 KEY FACTS KEY CASES Equity & Trusts Chris Turner and Judith Bray Routledge Taylor & Francis Group LONDON AND NEW YORK 25726.indb iii 18/11/2013 10:40 First edition published 2014 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2014 Chris Turner and Judith Bray The right of Chris Turner and Judith Bray to be identifi ed as authors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. -
Unconscionability As an Underlying Concept in Equity
THE DENNING LAW JOURNAL UNCONSCIONABILITY AS A UNIFYING CONCEPT IN EQUITY Mark Pawlowski* ABSTRACT This article seeks to examine the extent to which a unified concept of unconscionability can be used to rationalise related doctrines of equity, in particular, in the areas of (1) unconscionable bargains, undue influence and duress (2) proprietary estoppel (3) knowing receipt liability and (4) relief against forfeitures. The conclusion is that such a process of amalgamation may provide a principled doctrinal basis for equity’s intervention which has already found favour in the English courts. INTRODUCTION A recent discernible trend in equity has been the willingness of the English courts to adopt a broader-based doctrine of unconscionability as underlying proprietary estoppel claims and the personal liability of a stranger to a trust who has knowingly received trust property in breach of trust. The decisions in Gillett v Holt,1 Jennings v Rice2 and Campbell v Griffin3 in the context of proprietary estoppel and Bank of Credit and Commerce International (Overseas) Ltd v Akindele4 on the subject of receipt liability, demonstrate the judiciary’s growing recognition that the concept of unconscionability provides a useful mechanism for affording equitable relief against the strict insistence on legal rights or unfair and oppressive conduct. This, in turn, prompts the question whether there are other areas which would benefit from a rationalisation of principles under the one umbrella of unconscionability. The process of amalgamation, it is submitted, would be particularly useful in areas where there are currently several related (but distinct) doctrines operating together so as to give rise to confusion and overlap in the same field of law. -
Sharing Homes: a Discussion Paper
The Law Commission (LAW COM No 278) SHARING HOMES A Discussion Paper Presented to the Parliament of the United Kingdom by the Lord High Chancellor by Command of Her Majesty November 2002 Cm xxxx The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Toulson, Chairman 1 Professor Hugh Beale QC Mr Stuart Bridge Professor Martin Partington CBE Judge Alan Wilkie, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This Discussion Paper was first published online on 18 July 2002. The text of this Discussion Paper is available on the Internet at: http://www.lawcom.gov.uk 1 At the date this report was signed, the Chairman of the Law Commission was the Right Honourable Lord Justice Carnwath CVO. ii THE LAW COMMISSION SHARING HOMES A Discussion Paper CONTENTS Paragraph Page Executive Summary vi PART I: INTRODUCTION 1 The shared home 1.6 2 A property-based approach 1.23 6 PART II: THE CURRENT LAW 9 Introduction 2.1 9 Trusts of land 2.4 10 Legal and beneficial ownership of the shared home 2.10 11 Legal title – joint tenancy 2.12 11 Beneficial ownership- joint tenancy or tenancy in common 2.16 12 Resolution of disputes between trustees and beneficiaries 2.23 14 Dealings with third parties 2.27 15 Occupation of the shared home 2.32 17 Where a person has an interest under a trust of land 2.34 17 Matrimonial home rights 2.37 18 Orders regulating -
KNOWING RECEIPT of FRAUDULENT FUNDS & KNOWING ASSISTANCE in BREACH of TRUST in ESTATES & TRUSTS by Justin W
KNOWING RECEIPT OF FRAUDULENT FUNDS & KNOWING ASSISTANCE IN BREACH OF TRUST IN ESTATES & TRUSTS by Justin W. de Vries1 INTRODUCTION In equity, a third party who receives money from a fiduciary, in breach of the fiduciary’s trust obligations to a beneficiary, is liable in a personal action brought by the beneficiary.2 The beneficiary does not need to show that the third party recipient committed fraud or was dishonest in acquiring the funds. The beneficiary must simply show that the third party recipient knew, or should have known, that the trustees were acting in breach of the terms of the trust when they made the transfer.3 In other words, the beneficiary must show that the third party knowingly participated in the fraud. The equitable basis for this action is the principle of unjust enrichment: there is no reason that the third party recipient should be enriched by the misappropriated property at the expense of the beneficiary. Where this occurs, the third party recipient may be compelled to return the misappropriated funds.4 The ability to pursue a third party via the claim of unjust enrichment is a useful tool for wronged beneficiaries. It is especially important where the fraudulent trustee has disappeared or died and restitution cannot be obtained from him. There are, of course, defences to the claim of unjust enrichment. Where the third party recipient does not receive notice of the trust, nor could he have otherwise known about the trust, then the 1 Justin de Vries can be reached at 416-640-2757 (Toronto) or 905-844-0900 (Oakville) or by email at [email protected]. -
STRANGER LIABILITY: a QUESTION of CONSCIENCE PROPERTY OR STANDARDS? by Kerrell Ma* PART ONE Introduction Trustees Have Some Onerous Duties
STRANGER LIABILITY: A QUESTION OF CONSCIENCE PROPERTY OR STANDARDS? by Kerrell Ma* PART ONE Introduction Trustees have some onerous duties. Their principle duty is to discharge themselves by accounting to their beneficiaries for the trust property. That duty or a duty akin to it should not be imposed lightly on any persons other than an express trustee, unless those persons' actions in relation to the trust property are such that they ought to attract such a duty. Furthermore, before equity imposes a liability on persons other than an express trustee (referred to as strangers to the trust) for participating in a breach of trust or breach of fiduciary duty there should be a clear reason for so doing. Is it because of: 1.the unconscionable behaviour of the stranger in relation to the property; or 2. the stranger's fault in not realising that the dealing with the property constitutes a breach of trust or fiduciary duty or that any assistance rendered enables a breach to be committed; or 3. the stranger's notice in respect of the breach; or 4. the stranger's unjust enrichment by receipt of property, or for more than one of these reasons? Judges and academics cannot agree on the underlying basis for the obligations imposed on strangers for receipt of property received in breach of trust or in breach of fiduciary duties or for the rendering of assistance in such breaches.1 It is then no small wonder that with the offering of different paths, the law in relation to constructive trust liability for strangers to trusts is in disarray. -
The End of Knowing Receipt
The End of Knowing Receipt Robert Chambers* Introduction The law regarding personal liability for knowing receipt of assets transferred in breach of trust or fiduciary duty has received an extraordinary amount of academic and judicial attention over the past 30 years.1 Yet despite this flurry of attention (or perhaps because of it), the law in this area remains in a muddled and unsatisfactory state. There are disagreements over the various elements of the cause of action, which stem from a lack of consensus over the basic nature of the liability: is it a form of restitution of benefits received, compensation for losses caused, or something else? Part of the problem is the language used in this area. Words and phrases, such as “the first limb of Barnes v Addy”, “liability to account as a constructive trustee”, or even “knowing receipt” itself, tend to obscure more than they reveal. While complex concepts do require specialist terminology, it is possible to speak plainly in this area and reveal more. A frequently quoted statement of the essential elements of liability for knowing receipt was by Hoffmann LJ in El Ajou v Dollar Land Holdings plc:2 “This is a claim to enforce a constructive trust on the basis of knowing receipt. For this purpose the plaintiff must show, first, a disposal of his assets in breach of fiduciary duty; secondly, the beneficial receipt by the defendant of assets which are traceable as representing the assets of the plaintiff; and thirdly, knowledge on the part of the defendant that the assets he received are traceable to a breach of fiduciary duty.” While succinct, each part of this statement raises questions about the nature and ambit of knowing receipt. -
Restitution from Banks Jonathon P
ABSTRACT Restitution From Banks Jonathon P. Moore Christ Church, Oxford Submitted to the Board of the Faculty of Law, University of Oxford, for the Degree of Doctor of Philosophy Hilary Term 2000. This study analyses certain controversial issues commonly arising when a claim for restitution is brought against a bank. Chapter 1 considers the equitable claim traditionally labelled ‘knowing receipt’. Three issues are discussed: (i) the basis in principle of the claim for ‘knowing receipt’; (ii) whether the claim requires proof of fault on the part of the recipient; and (iii) whether the claim can be brought in relation to the receipt by a bank of a mortgage or guarantee offered to the bank in breach of trust or fiduciary duty. The conclusions are (i) that ‘knowing receipt’ is often a claim in unjust enrichment, though the dishonest recipient will also be liable for an equitable wrong; (ii) that when the unjust enrichment version of ‘knowing receipt’ is in issue, the claim should be one of strict liability; and (iii) a claim in unjust enrichment can be brought against a bank to defeat its interest in a mortgage or guarantee offered in breach of trust. Chapters 2 to 4 concern a concept within the law of unjust enrichment that has come to be called ministerial receipt. A ministerial receipt is a receipt of money or property by an agent on behalf of his or her principal. Banks often receive money as agents on behalf of account holders. Chapters 2 and 3 analyse that concept as it is dealt with at common law and in equity respectively. -
Claims Against Third-Party Recipients of Trust Property
Cambridge Law Journal, 76(2), July 2017, pp. 399–429 © Cambridge Law Journal and Contributors 2017. This is an Open Access article, distributed under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike licence (http:// creativecommons.org/licenses/by-nc-sa/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the same Creative Commons licence is included and the original work is properly cited. The written permission of Cambridge University Press must be obtained for commercial re-use. doi:10.1017/S0008197317000423 CLAIMS AGAINST THIRD-PARTY RECIPIENTS OF TRUST PROPERTY DAVID SALMONS* ABSTRACT. This article argues that claims to recover trust property from third parties arise in response to a trustee’s duty to preserve identifiable property, and that unjust enrichment is incompatible with such claims. First, unjust enrichment can only assist with the recovery of abstract wealth and so it does not assist in the recovery of specific property. Second, it is difficult to identify a convincing justification for introducing unjust enrich- ment. Third, it will work to the detriment of innocent recipients. The article goes on to show how Re Diplock supports this analysis, by demonstrating that no duty of preservation had been breached and that a proprietary claim should not have been available in that case. The simple conclusion is that claims to recover specific property and claims for unjust enrichment should be seen as mutually exclusive. KEYWORDS: trusts, third parties, proprietary claims, knowing receipt, res- titution, unjust enrichment, Re Diplock. I. INTRODUCTION According to orthodox trust principles, where property is transferred in breach of trust, a beneficiary can either bring a proprietary claim to recover the property or a personal claim against a knowing recipient of the trust property (hereinafter, the combination of these two claims will be referred to as the “equitable regime”).