Soton Equity and Trusts - alastairhudson.com

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Yugraneft v Abramovich [2008] EWHC 2613 (Comm), [2008] All ER (Comm) 299, para [373], per Clarke J: liability is “as a fiduciary unconscionable for him to retain the benefit of it” (d) Alternative approaches not following Reid nb: Lister v. Stubbs (1890) 45 ChD 1 [now over-ruled by Reid] Halifax Building Society v Thomas [1996] Ch 217, 229 (applying Lister v Stubbs) A-G v Blake [1997] Ch 84, 96, per Sir Richard Scott V-C **Sinclair Investments (UK) Ltd v Versailles Trade Finance Group plc [2011] EWCA Civ 347, Lord Clarke MR:- “… it seems to me that there is a real case for saying that the decision in Reid … is unsound. In cases where a fiduciary takes for himself an asset which, if he chose to take, he was under a duty to take for the beneficiary, it is easy to see why the asset should be treated as the property of the beneficiary. However, a bribe paid to a fiduciary could not possibly be said to be an asset which the fiduciary was under a duty to take for the beneficiary. There can thus be said to be a fundamental distinction between (i) a fiduciary enriching himself by depriving a claimant of an asset and (ii) a fiduciary enriching himself by doing a wrong to the claimant. Having said that, I can see a real policy reason in its favour (if equitable accounting is not available), but the fact that it may not accord with principle is obviously a good reason for not following it in preference to decisions of this court”. Cadogan Petroleum plc v Tolly [2011] EWHC 2286, Newey J Horn v Commercial Acceptances Ltd [2011] EWHC 1757 (Ch), Smith J (e) Avoidance of liability by directors under Companies Act, s.176 **s.176 Duty not to accept benefits from third parties (1) A director of a company must not accept a benefit from a third party conferred by reason of– (a) (b) his being a director, or his doing (or not doing) anything as director. (2) A “third party” means a person other than the company, an associated body corporate or a person acting on behalf of the company or an associated body corporate. (3) Benefits received by a director from a person by whom his services (as a director or otherwise) are provided to the company are not regarded as conferred by a third party. (4) This duty is not infringed if the acceptance of the benefit cannot reasonably be regarded as likely to give rise to a conflict of interest. (5) Any reference in this section to a conflict of interest includes a conflict of interest and duty and a conflict of duties. 5) Agreements to develop property, constructive trust and equitable estoppel Reading: Hudson, sections 12.3.2 and 13.3 Pallant v Morgan [1953] Ch 43 Holiday Inns v Broadhead (1974) 232 EG 951 *Banner Homes Group plc v Luff Development Ltd [2000] Ch 372 Thames Cruises v George Wheeler Launches [2003] EWHC 3093 (Ch) Kilcarne Holdings v Targetfellow (Birmingham) Ltd [2005] EWCA Civ 1355 Button v Phelps [2006] EWHC 53 (Ch) **Cobbe v Yeoman’s Row [2008] 1 WLR 1752 *Thorner v Major [2009] 1 WLR 776 64
6) Profits from theft Reading: Hudson, para 12.4.3 Attorney-General’s Ref (No 1 of 1985) [1986] QB 491; Theft Act 1968, s.5(3) *Westdeutsche Landesbank v Islington [1996] 1 AC 669 Cf. Att-Gen for Hong Kong v. Reid [1994] 1 All ER 1 Box, Brown & Jacobs v Barclays Bank [1998] Lloyd’s Rep Bank 185, 200, per Ferris J (thief does not ordinarily acquire property rights) Shalson v Russo [2003] EWHC 1637, [110], per Rimer J (ditto) Cf. Proceeds of Crime Act 2002, s.6 (Assets Recovery Agency) 7) Profits from killing Reading: Hudson, para 12.4.2 In the Estate of Crippen [1911] P 108 8) Contract for the sale of property Reading: Hudson, para 12.6.2 Lysaght v Edwards (1876) 2 Ch D 499 (contract for sale of land) Lloyds Bank v Carrick [1996] 4 All ER 630 (assumption of constructive trust) Neville v Wilson [1997] Ch 144 (ditto, personalty) Shaw v Foster (1872) LR 5 HL 321 (any fiduciary obligations are limited: trustee may protect own position) Chang v Registrar of Titles (1976) 137 CLR 177 (doubts Lysaght because purchase may not be completed but constructive trust may nevertheless seem to bite) *Jerome v Kelly [2004] 2 All ER 835, [2004] UKHL 25 (may be merely a trustee sub modo) 9) Statute may not be used as an engine of fraud Reading: Hudson, para 12.3.4 *Rochefoucauld v Boustead [1897] 1 Ch 196 *Paragon Finance plc v. Thakerar & Co [1999] 1 All E.R. 400 (the equity in Rochefoucauld is a constructive trust) 10) Is the doctrine of constructive trust coherent? Consider the various competing forms of constructive trust we have encountered:- Westdeutsche Landesbank v Islington – based on conscience Att-Gen Hong Kong v Reid – based on (i) equity looks upon as done that which ought to have been done (ii) the evil practice of accepting bribes and (iii) may lead to a personal liability over and above the proprietary liability Boardman v Phipps – avoidance of conflicts of interest Lloyds Bank v Rosset – common intention by agreement or by understanding Neville v Wilson / Jerome v Kelly – contract transfers equitable interest by constructive trust although nature of obligations take effect sub modo Rochefoucauld v Boustead – based on avoidance of fraud Royal Brunei Airlines v Tan – a personal liability to account (see next section) Cobbe v Yeoman’s Row – remedial constructive trust? Given that these forms of constructive trust arise on different bases, is the doctrine coherent? If not, does it matter? 65
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University of Southampton Law Schoo
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Lay-out of materials These “Lectu
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Formative assessment - (i.e. non-as
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How to study for this module 1. Uni
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Common law and equity were always d
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(E) The rudiments of express trusts
Page 13 and 14: Lord Browne-Wilkinson in Westdeutsc
Page 15 and 16: (2) Trusts as opposed to merely mor
Page 17 and 18: (3) after all valid claims in (2) h
Page 19 and 20: Topic 2. CERTAINTY OF OBJECTS Readi
Page 21 and 22: 10) Mechanisms for eluding the “a
Page 23 and 24: Topic 3. THE BENEFICIARY PRINCIPLE
Page 25 and 26: (C) Alternative interpretations of
Page 27 and 28: **Leahy v. Att.-Gen. for New South
Page 29 and 30: purpose of blocking the house up an
Page 31 and 32: Topic 4. THE CONSTITUTION OF TRUSTS
Page 33 and 34: Richards v. Delbridge (1874) L.R. 1
Page 35 and 36: *s. 53 (1) (b): "A declaration of t
Page 37 and 38: Topic 5. THE DUTIES OF TRUSTEES & B
Page 39 and 40: [Considered in detail in relation t
Page 41 and 42: (a) to any special knowledge or exp
Page 43 and 44: ule does not afford the right to th
Page 45 and 46: Burrell v Burrell [2005] EWHC 245,
Page 47 and 48: (F) Judicial control of trustees’
Page 49 and 50: 1) Specific Restitution Harris v Ke
Page 51 and 52: EQUITY & TRUSTS PART II TRUSTS IMPL
Page 53 and 54: Topic 6. RESULTING AND QUISTCLOSE T
Page 55 and 56: (b) (c) father and child Bennet v.
Page 57 and 58: II. QUISTCLOSE TRUSTS Reading: Huds
Page 59 and 60: e. … other commercial-contract la
Page 61 and 62: (c) The nature of the constructive
Page 63: (b) where the company is a public c
Page 67 and 68: Topic 8. TRUSTS OF HOMES General Re
Page 69 and 70: (5) Each case will turn on its own
Page 71 and 72: Ferguson, ‘Constructive trusts -
Page 73 and 74: *Pascoe v. Turner [1979] 2 All ER 9
Page 75 and 76: inging up the children is no doubt
Page 77 and 78: first sight this may seem surprisin
Page 79 and 80: (ii) Cases looking to the character
Page 81 and 82: *Niru Battery Manufacturing Co v Mi
Page 83 and 84: Hudson, 20.5.2. Hudson, Securities
Page 85 and 86: C. EQUITABLE TRACING Reading: Hudso
Page 87 and 88: D. REMEDIES AFTER TRACING Reading:
Page 89 and 90: e) Is change of position now equita
Page 91 and 92: 2) The four heads of charity in Pem
Page 93 and 94: (c) (d) (e) Gifts for relief of dis
Page 95 and 96: (D) Advancement of education. Readi
Page 97 and 98: (H) Requirement of the exclusivity
Page 99 and 100: THEORETICAL PERSPECTIVES ON EQUITY
Page 101 and 102: Polly Peck International v Nadir (N
Page 103 and 104: Concepts Contract Torts Property Fi
Page 105 and 106: of what has been called unjust enri
Page 107 and 108: actions, then the claimant should b
Page 109 and 110: o Recovery of an enrichment will no
Page 111 and 112: £200,000 on Static plc shares whic
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