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Flashcards in Property Law - Claiming Deck (124):
1

What are the three conditions to make a claim, AFTER following/tracing?

Receipt of property, retention of property and not a BFP

2

When could a tracing claim still be made in dissipation?

If Jones v De Marchant applied

3

What type of claim can persist even after dissipation, regardless of Jones v De Marchant?

Knowing receipt

4

What is the nature of the claim for the trust property?

Specific/substitutive performance of T' duty

5

What two duties are breached when trust property is misappropriated?

'Stewardship' duty and duty to act in B's exclusive interests

6

What is a 'stewardship' duty?

T duty to act in an authorised way

7

Banton v CIBC Corp

If property in which Bs have an equitable interest generates income, they an claim this too

8

If property in which Bs have an equitable interest generates income, they an claim this too

Banton v CIBC Corp

9

If trust asset survives in its original form in T's hands, name four things B can do

Ask for an account, falsify the account, ask court to force T to fulfil his duties or force T to transfer legal title to new Tq

10

What section of what Act allows Bs to force T to retire and transfer legal title to new Ts?

S.19 and 20 TOLATA

11

What judge and in what case highlighted how holding T to account is a right, preceding any order?

Lord Millett in Libertarian Investments v Hall

12

What is the link between a claim in KR and a claim when trust assets survive in original form in hands of a 3rd volunteer?

Both place 3rd as CT for B

13

Westdeutsche v Islington LBC on trust asset in original form in hands of 3rd volunteer

Lord B-W said innocent must return property, and if acting in bad faith then additional duty to account AS IF HE WERE A T

14

What would 3rd need to have knowledge of, and at what time, to be liable to account to Bs AS IF HE WERE a T?

Knowledge of breach of trust whilst property is in his hands

15

If 3rd acts in bad faith, with notice of breach of trust, what two claims does B have?

KR and proprietary claim

16

Clark v Cutland

KR in ADDITION to tracing claim - not separate

17

KR in ADDITION to tracing claim - not separate

Clark v Cutland

18

Independent Trustee Services v GP Noble Trustees, per Lloyd LJ

Refer to innocent 3rd as CT, as long as no duties on power to deal with assets UNTIL he has notice

19

Refer to innocent 3rd as CT, as long as no duties on power to deal with assets UNTIL he has notice

Independent Trustee Services v GP Noble Trustees, per Lloyd LJ

20

What did Lloyd LJ say in regard to 3rd volunteers in Independent Trustee Services v GP Noble?

Refer to innocent 3rd as CT, as long as no duties on power to deal with assets UNTIL he has notice

21

How could traceable proceeds of trust assets in T's hands otherwise be expressed?

T holding profits from a breach of fiduciary duty, then held on CT for Bs

22

What type of substitution is it when Bs money is used to buy a new asset?

Clean substitution

23

State Bank of India v Sood

3rd is usually protected by overreaching

24

3rd is usually protected by overreaching

State Bank of India v Sood

25

Wright v Morgan

Bs can adopt/claim traceable proceeds in specie, or secure monetary value of property dispersed by lien on new asset

26

What did the court require Bs to be to adopt traceable proceeds in Wright v Morgan?

Unanimous

27

Why is it an issue that Bs be unanimous before adopting/claiming traceable proceeds?

If Bs are minors, they cannot be unanimous

28

Trustee Act 1925 s.57

Allows application to court to held authorise sale

29

S.19 TOLATA

Bs can replace T

30

Allows application to court to held authorise sale

Trustee Act 1925 s.57

31

Bs can replace T

S.19 TOLATA

32

Foskett v McKeown

Lord Millett restates Wright, so equitable ownership through adoption OR equitable lien

33

What is equitable ownership?

Specific performance claim

34

What is an equitable lien?

Asking T to replace money wrongfully dispersed, secured by traceable proceed similar to a charge

35

What happens if the equitable lien over the new asset does not cover entirety of money dispersed?

Personal debt of T to B

36

What judge in what case restated Wright v Morgan?

Lord Millett in Foskett v McKeown

37

What is another word for Bs?

Cestuis que trustent

38

What type of charge is possible if we are concerned with a bank account?

ONLY a lien

39

Why may a lien be potent?

If Bs can trace into a number of different sets and funs, allows B to locate his contribution in any part of the mixture

40

Foskett v McKeown general

Insurance policy

41

Re Diplock general

Charity payments

42

Insurance policy

Foskett v McKeown

43

Charity payments

Re Diplock

44

Why does Re Ziplock not conflict with Foskett?

Brought at a time when trying and claiming thought to be the same

45

VC Scott in Foskett in CoA

Equity between two Bs is parti pass if money of both used to buy new asset

46

What case states that Equity between two Bs is pari passu if money of both used to buy new asset

Foskett v McKeown

47

What happens if T mixes his own and B's money to buy a new asset?

B takes proportionate equitable ownership or lien

48

Why is the split proportionate if T mixes own money and B's to buy a new asset?

Tracing is evidentiary, not punitive

49

Why did children have to share pay-out in Foskett?

They were volunteers, and equity does not assist a volunteer

50

Paul Davies v Davies general

Entire property

51

Paul Davies v Davies judgment

All held on trust for Bs, subject to counter-claim for T expenditure

52

Why was the entire property found to be held on trust for Bs in Paul Davies v Davies?

But for trust money, T wouldn't have been able to buy property at all

53

Entire property

Paul Davies v Davies

54

What case shows what happens when T uses B money to buy property in Ts name, with a mortgage?

Paul Davies v Davies

55

What is the outcome if Bs money is used to buy a new asset, and traceable proceeds are in the hands of 3rd volunteer with notice?

KR

56

What is the outcome if Bs money is used to buy a new asset, and traceable proceeds are in the hands of 3rd volunteer w/o notice?

Need to give it back

57

Re Montagu's Settlement

3rd volunteer with traceable proceeds needs to give up new asset

58

3rd volunteer with traceable proceeds needs to give up new asset

Re Montagu's Settlement

59

Re Diplock on mixture of B's and X's money to buy a new asset

If 3rd acts in bad faith, B has priority, but if innocent then pari passu

60

What happens if there is a mixturre of B and X (innocent) money to buy new asset?

Pari passu

61

What happens if there is a mixture of B and X (bad faith) money to buy new asset?

B has priority

62

What case gives the priority rules for when there is a mixture of Bs and X money to buy a new asset?

Re Diplock

63

What rules apply if the traceable proceeds in the hands of bad faith 3rd volunteer are improvements to land?

Usual rules apply - B can claim proportionate ownership in property if improvement increases value, or lien if it doesn't

64

What rules apply if the traceable proceeds in the hands of innocent 3rd volunteer are improvements to land?

If no increase in value, B has no claim, but if increase then lien only if equitable to do so

65

Two cases on when traceable proceeds in hands of 3rd volunteer are improvements to land?

Re Diplock and Foskett v McKeown

66

What case gives priority rules for when traceable proceeds are improvements to land in hands of 3rd?

Re Diplock

67

Foskett v McKeown general

Insurance policy

68

Foskett v McKeown on improvements to land

Lord B-W says IF there is any claim at all, it would be a lien

69

Re Diplock general

Charity payments

70

Re Diplock on traceable proceeds being improvements to land

If no increase in value, no claim against innocent, but increase then lien only if equitable to do so

71

What case explores the 'lottery' situation for traceable proceeds in the hands of 3rd volunteer?

Foskett v McKeown

72

What did the children try to argue in Foskett v McKeown (lottery)?

Would have used their own money if they had known

73

Why did the court reject lottery argument of children in Foskett?

Choice of what money to use was T's, not the children's, so distinguished from lottery

74

H&M on what happens if lottery situation and traceable proceeds in hands of 3rd volunteer

Probably restricted to a lien if 3rd is innocent

75

Lord Millett on lottery situation and traceable proceeds in hands of 3rd volunteer

Full claim against innocent 3rd would be an 'affront to our notions of justice'

76

What judge in what case stated full claim against innocent 3rd would be an 'affront to our notions of justice'?

Lord Millett extra-judicially

77

In what circumstance could C claim trust money traced into discharge of a previous debt, contracted in order to obtain money for a specific asset?

Would need to fall within backwards tracing claim or dissipation

78

What is the remedy if T uses trust money to pay off a debt secured on T's property?

Subrogation

79

What is subrogation?

A legal fiction reviving the debt with the effect that C steps into the shoes of the original creditor

80

What is the lien in a subrogation remedt?

A NEW equitable lien, but content and priority resemble the original mortgage, reviving it

81

What are the two requirements for subrogation?

Money used ONLY to pay secured debt and revival cannot be on more favourable terms than it was originally

82

Banque Financiere de la Cite v Parc judgment

Metaphorical use of 'revival' and 'transfer' in subrogation

83

What case and who highlighted that the use of 'revival' and 'transfer' in subrogation is metaphorical?

Banque Financiere de la Cite v Parc, Lord Hoffmann

84

Boscawen v Bajwa general

Funds to secure discharge, no registration

85

Banque Financiere de la Cite v Parc general

Metaphorical

86

Boscawen v Bajwa judgment

Allowed mortgagee whose loan is used to repay another debt to subrogate the debt and rely on charge

87

What case allowed mortgagee whose loan is used to repay another debt to subrogate the debt and rely on charge?

Boscawen v Bajwa

88

What two categories of assets should be distinguished to answer WHY B can claim at all?

Original trust asset and traceable proceeds

89

What is the justification for B's claim over original trust asset?

Consent - S INTENDED T to hold asset for B, and T must have agreed. Also, original consent persists for 3rd

90

Why doesn't consent work to justify B's claim over traceable proceeds?

S didn't intend T to hold traceable proceeds for B

91

What did Lord Millett say in Foskett to justify B's claim over traceable proceeds?

Proprietary right 'subsists' in traceable proceeds

92

What did Lord Browne-Wilkinson say in Foskett to explain how to perceive B's claim over traceable proceeds?

Focus on B's interests as interests in the trust fund

93

Lord Millett extra-judicially on subsisting interest in traceable proceeds by B

Such persistence is not a fiction, because abstractly the interest is exactly the same

94

Why did Lord Millett say the subsistence idea of the proprietary right of B in traceable proceeds is not a fiction?

Abstractly, the interest is exactly the same

95

H&M on inability to justify B's claim over traceable proceeds

NEW property, and no obligation owed to Bs for it before, so not the same

96

Why do H&M argue it is hard to justify B's claim over traceable proceeds?

NEW property, and no obligation owed to Bs for it before, so not the same

97

Why doesn't the 'vindication of property rights' argument work for B to claim traceable proceeds?

Would only relate to original asset

98

What is the main conceptual issue with the vindication of property rights argument justifying B's claim to traceable proceeds?

Argument is conclusory, rather than explaining where B's rights come from

99

What are the three main arguments to justify B's claim to traceable proceeds?

Consent, profiting a wrongdoer and unjust enrichment

100

what is the consent argument for B's claim to traceable proceeds?

T agreed to hold original trust assets AND traceable proceeds

101

Where does the consent justification for traceable proceeds fail?

3rd wasn't a party to the original agreement between T and B

102

What is the profiting a wrongdoer justification for B claiming traceable proceeds?

Analogous to common law tort of conversion - D strictly liable for unlawful interference, regardless of fat, because shouldn't profit from wrongdoing

103

What is the profiting a wrongdoer justification analogous to?

Common law tort of conversion

104

Foskett v McKeown on UE justification of claim over traceable pocks?

Claim against 3rd not based on UE

105

How do H&M criticise Lord Millett in Foskett on UE?

Categorical error that property and UE can't be in issue in a single claim, and for analysing claims to traceable proceeds in hands of 3rd in the same was as when in the hands of a T

106

Who criticises Lord Millett in Foskett for making a categorical error in regard to UE, and for analysing traceable proceeds claims in the same way for 3rd and Ts?

H&M

107

Birks on UE

Supports it - one of the causative events leading to proprietary claims is UE

108

Who argued UE is not mutually exclusive from law of property?

Birks

109

What academic is an advocate of the UE justification for B's claim to traceable proceeds?

Birks

110

What are the three requirements for BFP?

Bona fide, purchaser for value and without notice, where actual or constructive notice are enough

111

What scale of knowledge is applicable for BFP

Baden scale of knowledge

112

What kind of knowledge if sufficient to remove BFP defence?

Any on Baden scale

113

Midland Bank v Green on purchaser for value in BFP test

Usually no enquiry into adequacy of consideration

114

Usually no enquiry into adequacy of consideration

Midland Bank v Green

115

Banque Belge v Hambrouck general

Cohabitation with lover

116

Cohabitation with lover

Banque Belge v Hambrouck

117

Banque Belge v Hambrouck judgment

Cohabitation insufficient to be 'value' for BFP defence

118

Why was cohabitation in Banque Belge v Hambrouck insufficient for value?

Mere factual exchange

119

Independent Trustee Services v GP Nobles Trustees general

Divorce, consent order interrupted

120

Divorce, consent order interrupted

Independent Trustee Services v GP Nobles Trustees

121

Independent Trustee Services v GP Nobles Trustees judgment

Value in agreement not to pursue further actions, but can be retrospectively retracted

122

What case showed value for BFP can be retrospectively retracted?

Independent Trustee Services v GP Nobles Trustees

123

Midland Bank v Green on notice

Per Lord Wilberforce, notice is separate from question of bona fide

124

What judge in what case stated that notice and bona fide are two separate questions?

Midland Bank v Green, per Lord Wilberforce

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