Property Law - Compensatory Liability of Trustees for Breach of Duty Flashcards Preview

Law Second Year > Property Law - Compensatory Liability of Trustees for Breach of Duty > Flashcards

Flashcards in Property Law - Compensatory Liability of Trustees for Breach of Duty Deck (161):
1

At what stage in AIB did court calculate liability by loss caused by breach?

CoA

2

What case shows the disapplication of basic rules on substitutive performance?

Target Holdings v Redferns

3

Declaration setting out Ts duties and powers is binding

Cowan v Scargill

4

what case made it clear a substitutive performance claim is not dependent on T committing a breach?

Eaves v Hickson

5

What are the three types of accounting order a court can make?

Order for account in common form, order for account on wilful default and order for account of profits

6

What judge in what case said Ts can even be exempted from liability from gross negligence and recklessness unless P change it

Millett LJ in Armitage v Nurse

7

What did Staughton J say it was not wrong to pay attention to in Nestle v Nattiest?

Relationship and circumstances of life tenant and remainder man to ascertain appropriate actions

8

What was the 'cause of action' test?

Required a previous action to rely on before it could be invoked before court

9

Santander UK v RA Legal Solicitors judgment

If Ts negligence caused loss, T cannot be excused if it would have been carried out despite them being reasonable

10

What case suggests no more stringent test for fiduciaries than contract breakers?

Martin v Goldfarb

11

What case shows prohibitory injunctions can be a remedy for breach of duty?

Fox v Fox

12

Name at least three cases on exemption clauses for compensatory liability

Re Wynn; Re Coxen; Adams v Adams; Armitage v Nurse; Seton v Dawson

13

Hong Kong elderly brother and sister

Hayim v Citibank

14

What two cases on negligent failure to review and diversify trust instruments should be contrasted?

Re Mulligan; Nestle v Natwest

15

What was the ratio in Re Brogden previously thought to be due to?

'Cause of action test' pre-1964

16

Re Brogden

No punitive award

17

Youyang Pty Ltd v Minter Ellison judgment

Distinguished Target by reference to Millett - pay WHOLE amount, even what would have been lost had T complied with obligation

18

What three cases show relevant considerations if breach occurs due to T taking erroneous legal advice?

Re Allsop; Cherny v Neuman; Wills v Cooke

19

AIB Group (UK) v Mark Redler judgment of Supreme Court

Lord Toulson gave special significance to 'commercial trust'

20

Brudenell-Bruce v Moure general

Disrepair of property

21

Martin v Goldfarb

No reason to treat fiduciaries more stringently than contract-breakers - no higher damage merely because claim is for breach of duty

22

armitage v Nurse on exemption clauses

Ts can be exempted from liability for BoT as long as S knew and approved, including gross negligence unless P change it (Millett LJ)

23

What case did Brudenell-Bruce v Moure follow?

Barlett v Barclays Bank

24

In what jurisdiction was Youyang v Minter Ellison?

Hight Court of Australia

25

In what year and what document did Law Com suggest distinction between lay and professional Ts?

Law Com 2003 Consultation Paper

26

Exemption clauses can be binding on matters of fact as long as conceptually certain

Re Coxen

27

How do Mitchell and Millett believe AIB should have been argued?

Like CoA - apply Target

28

Clause excluding responsibility/duty until death 'understandable and explicable'

Hayim v Citibank

29

Snell's Equity

Bs carries burden of proving surcharges and T burden of proving discharge

30

If court finds T has personal liability to B and trust is absolute, what form of order is made?

No need to reconstitute fund - T can transfer assets or pay straight to B

31

T held liable for unauthorised distribution prompted by forged DoC - not dependent on T committing a breach

Eaves v Hickson

32

In what case and what judge said strong microscope needed to distinguish reparation claim from common law damage claim?

Bartlett v Barclays Bank per LJ Bingham

33

What case explains calculating award for reparation claims?

Sanders v Parry

34

If court finds T has personal liability to B and trust is still on foot, what form of order is made?

Reconstitute fund

35

What is surcharging?

Act authorised, but negligent, so it remains on the accounts but T pays Bs compensation

36

Re Mulligan general

Ts did not diversify equities, in order to favour life tenant

37

When can a B push for substitutive performance and how is it remedied?

Unauthorised distribution, remedied by falsifying the documents

38

Adams v Adams

Cannot oust jurisdiction of court by preventing Bs from applying to court in trust document

39

Hagan v Waterhouse

Proprietary tracing claim against 3rd w/o exhausting T remedies allowed

40

What two cases/academic sources suggest more stringent test for fiduciaries than contract breakers?

Conson Enterprises v Boughton; H&M

41

Law Com 2003 Consultation Paper

Lay Ts can rely on exemption clauses, not professional Ts when conduct is so unreasonable, irresponsible and incompetence that it would be unfair to B

42

H&M on stringent test for fiduciaries compared to contract breakers

Can be appropriate to treat different Ts differently, e.g. more equality in family trust between T and B than commercial

43

Wills v Cooke

If advice was for Ts personal protection, B can only sue T, but if on behalf of trust Bs, then B can sue for themselves by joining Ts as codefendant if they refuse to sue

44

Millett on Re Patten, adopting

Should be called 'right to decide whether to complain or not'

45

Jones v Lewis

allowing unauthorised disbursement when insisting on performance would be inequitable - if a 'T is robbed'

46

What judge in Nestle v Natwest said a Misunderstanding of trust terms and failure to conduct review insufficient to lead to reparation

Staughton J

47

Norberg v Wynrib

Allowed exemplary damages in Canada

48

What judge and in what case highlighted how substitutive performance is a restitutionary, personal obligation

Street J in Re Dawson

49

What is an order for account on wilful default?

Account of what Ts have received and what would have got without their breach

50

If court finds T has personal liability to B and there are new trustees, what form of order is made?

Old Ts need to transfer assets/pay money to new Ts

51

Eaves v Hickson

T held liable for unauthorised distribution prompted by forged DoC - not dependent on T committing a breach

52

What case gives a 'but-for' causation test for reparation claims?

Target Holdings v Redferns

53

How did Lord Browne-Wilkinson characterise the trust in Target Holdings?

A bare trust inside a commercial trust

54

Cowan v Scargill on remedies for breach

Declaration setting out Ts duties and powers is binding

55

what is an order for account on wilful default for?

Reparation claims

56

What is the issue with the judgment in Target Holdings?

Relies on causation, but claim is not founded on breach of duty - it is based on continuing obligations

57

If Ts negligence caused loss, T cannot be excused if it would have been carried out despite them being reasonable

Santander UK v RA Legal Solicitors

58

When is T discharged from duty to provide entire property to B?

When exercise of the power of appointment is authorised

59

No ousting of jurisdiction of courts on pure matters of law

Re Wynn

60

Bartlett v Barclays Bank general

Controlling share - 99.8%, property speculation

61

Bs don't need to prove act/omission caused loss as not a breach claim

Cocker v Quayle

62

Scots law doesn't allow ousting of gross negligence liability

Seton v Dawson

63

What are Canadian reparation claims subject to, and according to what case?

Novus actus - Hodgkinson v Simms

64

Armitage v Nurse on ousting duties

Not all can be ousted - 'irreducible core of obligations'

65

Cherny v Neuman

Need to consider if adviser was given full and accurate info when Ts breach was due to erroneous legal advice

66

What case shows difference between Ts seeking legal advice for personal protection and on behalf of trust Bs?

Wills v Cooke

67

What case says the special relationship of T means more stringent test than for contract breakers?

Conson Enterprises v Boughton

68

When did Law Com suggest a professional T could not rely on an exemption clause?

when conduct is so unreasonable, irresponsible and incompetent that it would be unfair to B

69

Target Holdings v Redferns judgment

HoL decided that C has to show that if D had acted with authorisation, it would have made a difference

70

Millett on AIB

Could have been reached through orthodox principles - discharge of duty by producing authorised substitute

71

What report of Law Com rejected Seton v Dawson - Scots law on gross negligence liability

Report 2006

72

what case shows a reparation claim is dependent on assertion that T has committed a wrong?

Partington v Reynolds

73

Who questions traditional/commercial trust distinction drawn by Lord B-W in Target Holdings?

Millett extra-judicially

74

Fox v Fox

Prohibitory injunctions are a remedy

75

What case showed HoL characterising a bare trust inside a commercial trust as falling outside basic rules on substitutive performance claims?

Target Holdings v Redferns

76

AIB Group (UK) v Mark Redler general

Re-financing, first charge £300,000

77

What section of what Act allows courts to excuse breaches in trust management and unauthorised distributions?

Section 61 Trustee Act 1925

78

Why can Millett's opinion on AIB not be accepted, and according to who?

Hayton and Mitchell - both CoA and SC rejected orthodox principles used by trial judge

79

Beever

Punitive damages should never be awarded as looks to policy goals of deterrence

80

What is an account surcharged on the basis of?

'Wilful default'

81

Street J in Re Dawson

substitutive performance is a restitutionary, personal obligation

82

Target Holdings v Redferns on reparation claims

'But-for' causation test

83

No 'cure', unlike Target Holdings

Youyang Pty Ltd v Minter Ellison

84

Youyang Pty Ltd v Minter Ellison general

No 'cure', unlike Target Holdings

85

What did Street J in Re Dawson say a substitutive performance claim is not limited by?

Remoteness

86

Libertarian Investments Ltd v Hall general

Two-step process to accountability of Ts

87

Seton v Dawson

Scots law doesn't allow ousting of gross negligence liability

88

what is an order for account in common form for?

Substitutive performance claims, but maybe also reparation

89

What case says No reason to treat fiduciaries more stringently than contract-breakers

Martin v Goldfarb

90

AIB Group (UK) v Mark Redler judgment of CoA

Agree on trial judge's result, but not analysis - all unauthorised, but liability calculated by loss caused by breach

91

allowing unauthorised disbursement when insisting on performance would be inequitable - if a 'T is robbed'

Jones v Lewis

92

If Ts cause same damage to B by respective breaches, what happens?

Both jointly and severally liable

93

Who said a breach of trust is not an 'equitable counterpart of breach of contract at common law' and where?

Lord Millett extra-judicially

94

What case makes it clear a calculation for reparation includes loss of chance?

Sanders v Parry

95

Who highlighted incoherence of causal link requirement in Target Holdings?

Millett, extra-judicially

96

What case does Re Patten tie in with and how?

Saunders - both let Bs act inconsistently with Ts wishes

97

Bs can adopt Ts actions and treat them as authorised

Re Patten

98

What is falsifying the documents?

Cancelling out entries of unauthorised distributions

99

Nestle v Natwest per Staughton J

Misunderstanding of trust terms and failure to conduct review insufficient to lead to reparation

100

Law Commission 2006 Report

rejected scots law prohibition on ousting gross negligence liability from exemption clauses

101

Hayim v Citibank general

Hong Kong elderly brother and sister

102

Bartlett v Barclays Bank on substitutive performance

No deduction for tax that would have been payable but for Ts unauthorised distribution

103

Cannot oust jurisdiction of court by preventing Bs from applying to court in trust document

Adams v Adams

104

Ts who cause same damage to B by respective breaches are both jointly and severally liable

Charitable Corp v Sutton

105

Re Coxen

Exemption clauses can be binding on matters of fact as long as conceptually certain

106

Cocker v Quayle

Bs don't need to prove act/omission caused loss as not a breach claim

107

What did Law Com 2006 Report suggest on exemption clauses?

Paid T needs to make S aware of meaning and effect of clause, but no further

108

what is an order for account in common form?

Submit accounts on property, costs, distribution and what is left

109

Penner on AIB

Judges didn't consider falsification, and commercial/traditional trust distinction is wrong - doesn't matter to right to falsify if trust continues/has failed/been completed

110

What judge in Libertarian Investments Ltd v Hall gave a two-step process to accountability of Ts?

Lord Millett

111

what was the two-step process given in Libertarian Investments Ltd v Hall?

Account is RIGHT of B, and is first step to identifying and quantifying trust fund deficit, not remedy in itself

112

What judge and in what case highlighted how accountability of Ts to B is not a remedy in itself?

Lord Millett in Libertarian Investments Ltd v Hall

113

Hodgkinson v Simms

Canadian claims are subject to nous actus

114

What is an order for account of profits for?

Claim to hand over gains

115

What two things are needed for a reparation claim?

Remoteness cap and causal link

116

At what stage in AIB did the court apply orthodox substitutive performance rules?

Trial judge

117

Millett extra-judicially on Target Holdings

Problem was cured. Highlighted incoherence of causal link requirement. Questioned distinction between 'traditional' trusts and commercial ones

118

Nestle v Natwest general

Tracker fund

119

Section 61 Trustee Act 1925

Courts can excuse breaches in trust management and unauthorised distributions - three stage test of fairness, honesty and reasonableness, with burden on T

120

Re Allsop

need to consider standing of legal advice and value of property affected when breach occurred due to T taking erroneous legal advice

121

What two cases show a duty can be ousted completely in a trust?

Hayim v Citibank; Armitage v Nurse

122

Ts can be exempted from liability for BoT as long as S knew and approved, including gross negligence unless P change it

Armitage v Nurse

123

Who highlighted how judges in AIB didn't consider falsification, and found commercial/traditional trust distinction wrong?

Penner

124

What case allows proprietary tracing claim against 3rd without needing to exhaust T remedies?

Hagan v Waterhouse

125

Give two cases which show unauthorised disbursements are allowed in some cases, exonerating T

Re Patten; Jones v Lewis

126

What case shows Bs carry burden of proving surcharges and T burden of proving discharge

Snell's Equity

127

No deduction for tax that would have been payable but for Ts unauthorised distribution

Bartlett v Barclays Bank

128

Why is it explained no punitive damages for breach of duty?

Closer to breach of contract, where exemplary damages are not given: Johnson v UNISYS

129

Law Commission 2006 Report on 2003 Consultation Paper

Rejected due to costs and tendency to defensive trusteeship

130

What happens if T appoints to an unauthorised object?

T cannot rely on discharge of duty and must make reparation in some way - either sue object, substitutively perform or reparation

131

Need to consider if adviser was given full and accurate info when Ts breach was due to erroneous legal advice

Cherny v Neuman

132

Partington v Reynolds

Depending on assertion that T has committed a wrong

133

Name two cases on a negligent failure to review and diversify trust instruments

nestle v Natwest; Re Mulligan

134

How is an unauthorised distribution remedies?

Falsifying the documents

135

Conson Enterprises v Boughton

special relationship of T means balance should favour person wronged by breach, unlike contract breakers

136

Hayim v Citibank judgment

Clause excluding responsibility/duty until death 'understandable and explicable'

137

What is an order for account of profits?

T has to account for specific gains

138

What case confirmed no need to prove act/omission for substitutive performance claim?

Cocker v Quayle

139

Re Mulligan judgment

Court ordered T to pay difference between current value and would-be value if had performed duty

140

Re Wynn

No ousting of jurisdiction of courts on pure matters of law

141

AIB Group (UK) v Mark Redler judgment of trial judge

BoT, so payment only to extent action was unauthorised, e.g. only £300,000

142

What jurisdiction allows exemplary damages for compensation, and according to what case?

Canada, Norberg v Wynrib

143

Re Patten

Bs can adopt Ts actions and treat them as authorised

144

Why did Law Com 2006 Report reject prohibition on ousting gross negligence liability from exemption clauses?

No clear distinction in English law between gross and ordinary negligence

145

What is substitutively performing Ts duty?

Paying current market value of trust property to substitute obligation

146

If an individual has no beneficial interest, what is their status for compensation for breach of duty?

No locus standi to bring a claim

147

Who said Punitive damages should never be awarded as looks to policy goals of deterrence?

Beever

148

Charitable Corp v Sutton

Ts who cause same damage to B by respective breaches are both jointly and severally liable

149

Target Holdings v Redferns general

Fraud - docs later but money early

150

Johnson v UNISYS

Exemplary damages not given for breach of contract

151

Sanders v Parry

Calculate award for reparation by loss suffered by Bs, including loss of chance

152

Bartlett v Barclays Bank per LJ Bingham

Strong microscope to distinguish reparation claim from common law damage claim

153

How is a reparation claim similar to BoC?

Asking if a reasonable T could have done it

154

Court ordered T to pay difference between current value and would-be value if had performed duty

Re Mulligan

155

How does a substitutive performance claim show a striking contrast with BoC claim?

Can take account of increases in market value

156

Who can sue for compensation for breach of duty?

B, T against co-T/former Ts and T of a sub-trust against main trust T

157

Who said it can be appropriate to treat different Ts differently?

H&M

158

Brudenell-Bruce v Moure judgment

T not liable for reinstatement of disrepair of property when greater than enhancement of property value

159

When is a reparation claim brought, and how is it remedied?

Loss claimed by B, translated into accounting item by 'surcharging'

160

need to consider standing of legal advice and value of property affected when breach occurred due to T taking erroneous legal advice

Re Allsop

161

HoL decided that C has to show that if D had acted with authorisation, it would have made a difference for substitutive performance claim

Target Holdings v Redferns

Decks in Law Second Year Class (74):