Soton Equity and Trusts - alastairhudson.com

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) The specific rule for current bank accounts *Clayton’s Case (1816) 1 Mer 572 - first in, first out w.r.t current accounts c) The retreat from Clayton’s Case in relation to current bank accounts Re Ontario Securities Commission (1985) 30 DLR (4d) 30 - proportionate share. Re Registered Securities [1991] 1 NZLR 545 **Barlow Clowes International v. Vaughan [1992] 4 All ER 22, [1992] BCLC 910, per Woolf LJ: There is no reason in law or justice why his depredations upon the fund should not be borne equally between [the parties]. To throw all the loss upon one, through the mere chance of his being earlier in time, is irrational and arbitrary, and is equally a fiction as the rule in Clayton’s Case. When the law adopts a fiction, it is, or at least it should be, for some purpose of justice. To adopt it here is to apportion a common misfortune through a test which has no relation whatever to the justice of the case. **Russell-Cooke Trust Co v Prentis [2003] 2 All ER 478 Commerzbank AG v IMB Morgan plc [2004] EWHC 2771 Birks [1993] LMCLQ 218 d) Tracing into pension fund rights Clark v Cutland [2003] 4 All ER 733, [2003] EWCA Civ 810 Cf. Foskett v McKeown [2000] 3 All ER 97 4. Loss of right to trace Reading: Hudson, para 19.5.5 Roscoe v. Winder [1915] 1 Ch. 62 - cannot claim more than lowest intermediate balance. *Bishopsgate Investment Management v. Homan [1995] Ch 211 Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 (Ch), [2005] All ER (D) 397 Re BA Peters plc, Atkinson v Moriarty [2008] EWCA Civ 1604, [2010] 1 BCLC 142, [15], per Lord Neuberger 5. Theft Reading: Hudson, section 19.8.3 Bishopsgate v. Maxwell [1993] Ch 1, 70 - stolen money can be traced in equity Westdeutsche Landesbank v. Islington (supra) L. B-W: ‘I agree that stolen monies are traceable in equity.’ 86
D. REMEDIES AFTER TRACING Reading: Hudson, section 19.6 1. Charges 2. Liens 3. Constructive trusts 4. Subrogation 5. ‘Swollen assets’ charge 1. Introduction to tracing remedies – charge, lien or constructive trust? Reading: Hudson, para 19.6.1 2. Charges, liens and proportionate shares Reading: Hudson, paras 19.6.1 and 19.6.3 Re Tilley [1967] Ch 1178 Paul Davies Pty Ltd v. Davies [1983] 1 NSWLR 440 Re Ontario Securities Commission (1985) 30 DLR (4d) 30 - proportionate share. *Barlow Clowes International v. Vaughan [1992] 4 All ER 22, [1992] BCLC 910 - rolling charge approach. 3. Constructive trusts in relation to tracing: is unconscionability necessary? Reading: Hudson, para 19.6.2 **Westdeutsche Landesbank v Islington [1996] AC 669 Re Diplock [1948] Ch 465 Cf. Chase Manhattan v Israel-British Bank [1981] Ch 105 Cf. Attorney-General for Hong Kong v Reid [1994] 1 AC 324 *Foskett v McKeown [2001] AC 102 Allen v Rea Brothers Trustees Ltd [2002] EWCA Civ 85 4. Subrogation Reading: Hudson, para 19.6.4 Subrogation is the substitution of one claim for another - e.g.: where X uses Y’s money to pay off a debt owed to Z, Y can occupy the place of Z and claim the money as though the debt were owed to Y instead. *Boscawen v. Bajwa [1995] 4 All ER 769 Wenlock v. River Dee Co. (1887) 19 QBD 155 5. Swollen assets theory Reading: Hudson, para 19.6.5 Space Investments Ltd v. Canadian Bank [1986] 3 All ER 75, 76-77; [1986] 1 WLR 1072, 1074 - per Lord Templeman:- ‘In these circumstances it is impossible for the beneficiaries interested in trust money misappropriated from their trust to trace their money to any particular asset belonging to the trustee bank. But equity allows the beneficiaries, or a new trustee appointed in place of an insolvent bank trustee … to trace the trust money to all the assets of the bank and to recover the trust money by the exercise of an equitable charge over all the assets of the bank … that equitable charge secures for the beneficiaries and the trust priority over the claims of customers … and … all other unsecured creditors.’ 87
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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
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Lord Browne-Wilkinson in Westdeutsc
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(2) Trusts as opposed to merely mor
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(3) after all valid claims in (2) h
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Topic 2. CERTAINTY OF OBJECTS Readi
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10) Mechanisms for eluding the “a
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Topic 3. THE BENEFICIARY PRINCIPLE
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(C) Alternative interpretations of
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**Leahy v. Att.-Gen. for New South
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purpose of blocking the house up an
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Topic 4. THE CONSTITUTION OF TRUSTS
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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 and 64: (b) where the company is a public c
Page 65 and 66: 6) Profits from theft Reading: Huds
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: C. EQUITABLE TRACING Reading: Hudso
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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