Liability of strangers Flashcards
Dishonest assiatnce?
Claim for accessory liablity – dishonest assistance – the third party acted deliberaty to to help plan or cover it up and acted objectively dishonestly throughout.
- There was a trust in existence
- The trustee committed a rbeahc of that trusts
- Defendant assisted the trustee to commit that breach of trust
- The defendanst assiatnce was dishonest
- Assiatnce must be more than minimal
Remedies for dishonest assistance
- Liable for loss occasioned by breach
- Profits they aquire by reason of their participation
- Participation must be real ir effective cause of profits – BUT FOR IS NOT ENOUGH.
A claim against the receipient of traceable procees of a breach of trust – knowing receipt
Recipietn liability?
Reciepeient liability – third party has knwoleges making it uncocincbale to rewtain the funds – requires ana ssessment of knowledge
- ) A misapplication of trust property (or property held in another fiduciary capacity) (b) Beneficial receipt by the defendant of the misapplied trust property or its traceable proceeds (c) Knowledge on the part of the defendant that the property they received was misapplied trust property or its traceable proceeds
- CANT BE REICPET BY A BANK UNLESS OVERDRAFT
Fault requirement – knowledge
- As soon as the reicpent has knwolegde they ust restore the rpoerty to the trust
(a) Actual knowledge
(b) Willfully shutting one’s eyes to the obvious
(c) Willfully and recklessly failing to make such inquiries as an honest and reasonable man would
make
(d) Knowledge of circumstances which would indicate the facts to an honest and reasonable
man
(e) Knowledge of circumstances which would put an honest and reasonable man on inquiry
Alternative claims
