Advanced Equity and Trusts Law - alastairhudson.com

More documents

Recommendations

Info

developed in relation to traditional trusts which are applicable only to such trusts and the rationale of which has no application to trust of quite a different kind.’ 3) Loss as the foundation for the claim Target Holdings v. Redferns [1996] 1 AC 421 Re Massingberd’s Settlement (1890) 63 LT 296 4) Loss in relation to investment Nestle v National Westminster Bank plc (No 2)[1993] 1 WLR 1260, [1994] 1 All ER 118 (C) Remedies for breach of trust. Reading: Hudson, section 18.3 **Target Holdings v. Redferns [1996] 1 AC 421, [1995] 3 All ER 785 HL per Lord Browne- Wilkinson:- ‘Courts of Equity did not award damages but, acting in personam, ordered the defaulting trustee to restore the trust estate. If specific restitution of the trust property is not possible, the liability of the trustee is to pay sufficient compensation to the trust estate to put it back to what it would have been had the breach not been committed. Even if the immediate cause of the loss is the dishonesty or failure of a third party, the trustee is liable to make good that loss to the trust estate if, but for the breach, such loss would not have occurred. Thus the common law rules of remoteness of damage and causation do not apply. However, there does have to be some causal connection between the breach of trust and the loss to the trust estate for which compensation is recoverable, viz the fact that the loss would not have occurred but for the breach.’ There are therefore three forms of remedy here: � proprietary obligation, � obligation to restore trust fund, � compensation. (D) Defences to breach of trust. Reading: Hudson, section 18.4 1) Lack of a causal link between breach and loss Target Holdings v. Redferns [1996] 1 AC 421 2) Breach committed by another trustee Townley v Sherborne (1633) Bridg 35; (1633) W & TLC 577. Brice v Stokes (1805) 11 Ves Jr 319 3) Failure by beneficiary to alleviate loss Nacional del Cobre de Chile v Sogemin Metals Ltd [1997] 1 WLR 1396 4) Release Lyall v Edwards (1861) 6 H & N 337; (1861) 158 ER 139 BCCI v Ali [2000] 3 All ER 51 5) Trustee exemption clause Armitage v Nurse [1998] Ch 241 Bogg v Raper (1998) The Times, 12 April Wight v Olswang [2000] WTLR 783 Walker v Stones [2001] QB 902 6) Excuses for breach of trust www.alastairhudson.com | © professor alastair hudson 30
Trustee Act 1925, s.61: “If it appears to the court that a trustee … is or may be personally liable for any breach of trust … but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the court in the matter in which he committed such breach, then the court may relieve him either wholly or partly from personal liability for the same.” Chapman v Browne [1902] 1 Ch 785 Re Evans (Deceased) [1999] 2 All ER 777 7) Action not in connection with fiduciary duties Ward v Brunt [2000] WTLR 731 Galmerrow Securities Ltd v National Westminster Bank plc [2002] WTLR 125 8) Concurrence by beneficiary Re Pauling’s Settlement Trusts [1962] 1 WLR 86, at 108, per Wilberforce J. General reading Hudson, Equity & Trusts, Ch. 9 “Investment of Trusts” Thomas and Hudson, The Law of Trusts, Ch. 52 “Investment of private trusts”, extract provided in reading materials. SEMINAR MATERIALS These seminar materials are different from other materials on this course. Because this area crosses disciplinary boundaries, these materials contain a brief text to guide your study, together with “learning activities” (as the teaching jargon calls them) to help you through the issues, and four questions for us to consider in detail in the seminar. 1. INTRODUCTION: HOW INVESTMENT TRUSTS WORK Specific reading Hudson, Equity & Trusts, section 9.1 Thomas and Hudson, The Law of Trusts, chapter 52 (extract provided in reading pack) One the key commercial uses of the trust is as a means of investment. This topic includes not only principles of traditional trusts law but also principles of financial regulation which are applied specifically to professional trustees selling investments to the public and to particular types of trust such as pension funds and unit trusts. As a student of this topic you are therefore required to understand how investment professional use trusts and to differentiate between the means by which the law governing investment trusts differs from ordinary trusts law. The structure of an investment trust A trust is a flexible means of managing property, whether that property has been settled by one settlor or by a number of settlors. There are usually a number of investors involved in an investment trust with each of those investors being a settlor of that trust: each investor is a settlor because it is these investors who provide the trust property. Unlike an ordinary trust, the investors provide different amounts of property at different times: this is because, in the marketplace, new customers join the investment trust from time-to-time. The trustee is the person who has invented the trust – deciding on the amount of money which it hopes to raise from the public, deciding on the types of investment which the trust will make, and then advertising those products to ordinary investors. The trustee will usually be a financial institution or a bank which will manage a large number of trusts simultaneously: each trust will be aimed at a different market sector (whether people wishing to make ethical www.alastairhudson.com | © professor alastair hudson 31
Page 1 and 2: ADVANCED EQUITY AND TRUSTS Universi
Page 3 and 4: Aims and objectives Syllabus This c
Page 5 and 6: TOPIC 1. THE FOUNDATIONS OF EQUITY
Page 7 and 8: Reading: Hudson, section 2.2 The fo
Page 9 and 10: � Equity will not permit statute
Page 11 and 12: (B) Certainty of Subject Matter. Re
Page 13 and 14: equity the property was theirs. Yet
Page 15 and 16: TOPIC 3. FOUNDATIONAL TECHNIQUES OF
Page 17 and 18: Reading: Hudson, section 5.6.1 Cann
Page 19 and 20: 3. Do equitable doctrines protect p
Page 21 and 22: Learoyd v Whiteley (1887) 12 App Ca
Page 23 and 24: (i) The original, negative form of
Page 25 and 26: **O’Rourke v Derbyshire [1920] AC
Page 27 and 28: ecommendation. He signed the papers
Page 29: *Cowan v. Scargill [1985] 2 Ch. 270
Page 33 and 34: Specific reading Hudson, Equity & T
Page 35 and 36: para 47-18) of a specified kind 13
Page 37 and 38: appropriately and to keep records a
Page 39 and 40: � Therefore it may be possible to
Page 41 and 42: TOPIC 6. EQUITY AND COMMERCE (1): S
Page 43 and 44: See also:- (1985) 101 L.Q.R. 269 (P
Page 45 and 46: participants goes into bankruptcy.
Page 47 and 48: drafted to make it clear that all c
Page 49 and 50: to consider the importance of Quist
Page 51 and 52: therefore it is said that the oblig
Page 53 and 54: there is some identifiable benefici
Page 55 and 56: (H) THE LIMITATION OF TRUSTEES’ O
Page 57 and 58: these moneys for any other purpose
Page 59 and 60: detail - Quistclose trusts, retenti
Page 61 and 62: Finn, “Fiduciary Law in the Moder
Page 63 and 64: Collective investment schemes are e
Page 65 and 66: 6 REGULATION OF COLLECTIVE INVESTME
Page 67 and 68: The market abuse regime relates to
Page 69 and 70: 1. Evaluate the changes which Lord
Page 71 and 72: 3) The corporate opportunity doctri
Page 73 and 74: Joan asked why only one profit esti
Page 75 and 76: epresentee. It may well be that if
Page 77 and 78: TOPIC 10. BREACH OF TRUST (I): DISH
Page 79 and 80: (4) knowledge of circumstances whic
Page 81 and 82:
Sullivan told his assistant, Malone
Page 83 and 84:
*Re Oatway [1903] 2 Ch. 356 - benef
Page 85 and 86:
d) When must the change of position
Page 87 and 88:
Crafty advised Albert to use the ot
Page 89 and 90:
Reading: Hudson, para 15.4.1 Gissin
Page 91 and 92:
All three of them decided to buy a
Page 93 and 94:
Lim v. Ang [1992] 1 WLR 113 Walton
Page 95 and 96:
TOPIC 14. TRUSTS OF HOMES (III): OT
Page 97 and 98:
childhood friend and solicitor, Fla
Page 99 and 100:
National Westminster Bank v. Kostop
show all

Advanced Equity and Trusts Law - alastairhudson.com

Create successful ePaper yourself

Delete template?

Save as template?