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Equity law > Accessories > Flashcards

Accessories Flashcards

1
Q

Test for Dishonest Assistance

A
  1. Breach of trust or fiduciary duty
  2. Defendant factually assisted in the breach
  3. The defendant acted dishonestly by the standards of ordinary people [objective] (Tan)
  4. No need for realisation
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2
Q

Tan v Twinsectra

A

Tan created fault-based liability [objective]

Twinsectra decided the defendant must have realised his act was dishonest [subjective]

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3
Q

Test for Knowing Receipt

A

El-Ajou

  1. breach of fiduciary duty
  2. beneficial receipt by D can be traced back to C
  3. D’s knowledge that receipt (property) is traceable to breach of FD

Agip
received for own benefit

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4
Q

Baden Delvaux: Shades of Knowledge

A

Actual Knowledge: DA + KN
1. Actual knowledge
2. shutting one’s eyes to the obvious
3. Wilfully and recklessly failing to make inquiries as an honest and reasonable person would
Constructive Knowledge: Notice
4. knowledge of circumstances which indicate facts to reasonable and honest person
5. knowledge…on inquiry

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5
Q

BCCI v Akindele

A

“unconscionable to retain benefit”

should this be a single test for knowledge like dishonesty?

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6
Q 
Constructive Trusts
Herbert Smith (No2)
A

English law provides no clear and all-embracing definition of a constructive trust

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7
Q

Constructive Trust

Classification

A
  1. A person acting in accordance with the trust or fiduciary engagement
  2. A person acting against the trust or fiduciary arrangement from the start
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8
Q

Paragon Finance (Millet LJ)

A

distinction between a trust and a catch-phrase

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9
Q

Starglade v Nash

A

dishonesty is not a pre-requisite for liability (knowing receipt)

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10
Q

Dishonest Assistance

Remedies

A

Ultraframe (UK)

Joint and several liability compensate for loss

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11
Q

Constructive Trust

Salaam (No3)

A

‘equitable relief’
‘fully subject to fiduciary obligation’
‘strict liability’

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12
Q

Notice

Arthur v Attorney General

A

notice is of equitable interest (competing)
Thus a proprietary claim
KR is unconscionable = equitable fraud
Thus personal liability = personal claim

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13
Q

Notice

Eagle Trust plc

A

D can have actual notice and not know it
Ought to have known
lower standard

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14
Q

Notice

Re Montagu’s Settlements

A

constructed and imputed notice is not appropriate to decide man’s conscience

Should we consider conscience?

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15
Q

Unjust Enrichment

A
  1. D has been enriched
  2. Enrichment gained at C’s expense
  3. D’s enrichment was unjust
  • Changed bona fide position = not liable
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16
Q

Insolvency

A

Holder goes bankrupt

C has priority over creditors (proprietary claim)

17
Q

Recipients

A
  1. donees who do not purchase the property

2. those with notice of breach of trust or fiduciary duty

18
Q

Abu-Saleh

A

factual assistance as well as dishonesty

19
Q

Labelling

A

Dishonesty and knowledge
Third Rivers DC (Hirst)
‘gradually darkening spectrum’

20
Q

Weavering Capital

A

“incompetent best”

21
Q

A.B.Douglas - Group Seven

A

Sham Loan

Rescission from C lead to constructive trust

22
Q

Manifest Shipping

A

“Blind eye knowledge”

23
Q

Simon Gardner

A

Notice and knowledge overlap (especially in commercial contexts)

24
Q

Knowing Assistance and Receipt

Lord Nicholls

A

D = mostly persons/entities
e.g. banks who voluntarily enter agreements with trustees thus should owe a duty of care.
Knowing Assistance should not be required as there is a fiduciary duty

When D is not under a fiducial duty of care cases should be claimed in negligence

25
Q

Barnes v Addy

A

Strangers are not to be made constructive trustees…agents of trustees in transactions…unless agents receive …property or assist with knowledge in a dishonest and fraudulent design.

26
Q

Speight v Gannit

A

“prudent businessman”

- steps to protect themselves

27
Q

Simon Gardner

Broad liability

A

Is this advantageous?

Solicitors and banks are essential in both committing and consent to fraudulent activity

28
Q

Bink

A

Shadowy liability of commercial life

29
Q

Mitchell and Waterson

A

The law regards D committing DA as constructive trustees even when they are not because the the trustee’s liability is duplicated. (attached to DA).
Seen as secondary liability to the breach of trust.
Same for KR as they are attached to the receipt.

30
Q

Accessory Liability and Commercial Transactions

A

Akindele
Actual knowledge not constructive knowledge is required.
Suggestion there should be a single test.
Basis of the Claim:
1. dishonestly assisted in the breach of fiduciary duty
2. knowingly received funds traceable to C

31
Q

Thomas

Unconscionability

A

Unconscionability is subjective which is dangerous for the law

32
Q

Agip and Dishonesty

A

The line between honest and dishonest is blurred by Baden-Delvaux

33
Q

Novoship

A

secondary profits

34
Q

Trustee de son tort

A

Mara v Brown

trustee by his own wrong

35
Q

Twinsectra and Strict liability

A

KR is receipt based

36
Q

Types of dishonesty

A

Twinsectra (Millet LJ):

  1. defendants point of view of morality (Robin Hood)
  2. dishonest by ordinary decent people [objective - Tan]
  3. combined - realisation of dishonesty (Ghosh)

Equity law (6 decks)

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