Property Law - Knowing Receipt and Dishonest Assistance Flashcards
(208 cards)
1
Q
What two cases suggest UE can run concurrently with KR claim?
A
Dubai Aluminium v Salaam; Re Esteem Settlement
2
Q
Why would a UE claim be preferable for C if allowed concurrently with KR?
A
No need to prove fault
3
Q
What case applied unconscionability and thus affirmed BCCI v Akindele?
A
Charter v City Index
4
Q
Belmont Finance v Williams Furniture (No.2)
A
All on Baden scale counts, and dishonest not necessary
5
Q
What are the two core duties of KR?
A
Core restorative duty immediately, or liable to account if dealt with property inconsistently
6
Q
Farah v Say-Dee is from what jurisdiction and court?
A
High Court of Australia
7
Q
In what case did Lord Hoffmann clarify Twinsectra?
A
Barlow Clowes v Eurotrust
8
Q
What are the three types of constructive trustees?
A
Trustees de son tort, knowing recipients and dishonest assistants
9
Q
What case stated D may have to account for both new property exchanged for misdirected property and any profits generated therefrom under KR
A
Grimaldi v Chalemeon Mining
10
Q
Who explores the two remedial duties of KR?
A
Mitchell and Watterson
11
Q
C had concurrent claims in UE and KR
A
Relfo Ltd v Varsani
12
Q
Twinsectra v Yardley judgment
A
HoL, Lord Hutton accepted objective limb from Brunei but for subjective stated D needs to realise he is not acting as honest person
13
Q
McCullough v Marsden general
A
Subrogation
14
Q
What two cases suggested SC need to approve for UE to run concurrently with KR?
A
BCCI v Akindele; Farah v Say-Dee
15
Q
Re Montagu’s Settlement general
A
Duke of Manchester, life interest but T gave him all and sold
16
Q
Dubai Aluminium v Salaam
A
UK suggested UE can run concurrently with KR in obiter
17
Q
Grimaldi v Chalemeon Mining
A
D may have to account for both new property exchanged for misdirected property and any profits generated therefrom
18
Q
Who found Barnes v Addy and Baden, Delvaux led to ‘tortuous convulsions’ for DA?
A
Lord Nicholls in Royal Brunei v Tan
19
Q
Ultraframe v Fielding on mental element of DA
A
D needs to have known T was not ‘entitled to do what he is doing’ for mental element of DA
20
Q
What case states that as long as D took reasonable steps to preserve property, but lost/stolen/damaged before returned, no restorative duty for KR?
A
Evans v European Bank Ltd
21
Q
Novoship (UK) v Nikitin suggests what
A
Suggests DAs liability can sometimes be primary as well
22
Q
No change of position defence if D still in possession of asset purchased by benefit, to the extent that she is enriched by possession
A
Lipkin Gorman v Karpnale
23
Q
What are the last two stages of knowledge in Baden, Delvaux v Societe Generale known as?
A
Constructive knowledge
24
Q
B only has to show assistance made breach easier for DA causation
A
Grupo Torras v Al-Sabah (No.5)
25
Niru Battery Manufacturing v Milestone Trading GENERAL
'Short of outright dishonesty', 'mere negligence'
26
What case showed KR is liable as if he were a real T?
Arthur v AG of the Turks and Caicos Islands
27
What case showed move to subjective test after Royal Brunei?
Twinsectra v Yardley
28
Barnes v Addy on state of mind of DA
Requires dishonesty
29
What kind of liability is under DA?
Fault-based liability
30
What case gives three things for KR liability?
El-Ajou v Dollar Land Holdings
31
Who finds the label 'constructive trustee' to be an empty relief formula?
Birks
32
Tuthill v Equine
If T has no duty to account to C for dealings, no liability can arise as about exceeding authority, not avoiding conflicts
33
Why did court not allow DA to be jointly liable for Ts profits in Ultraframe?
Would be punitive
34
What CT has two core duties - to restore immediately, or liable to account if property dealt with inconsistency and therefore cannot be restored?
KR
35
Property lost/stolen/damaged
Evans v European Bank Ltd
36
Catching money laundering activities by holding breach not fully implemented until funds hidden from B
Heinl v Jysk Bank
37
Name at least two cases on breach of fiduciary duty by T for KR test
Tuthill v Equine; Re Exchange Banking Xo; Bracken Partners v Gutteridge
38
What did the issues with Barnes and Baden lead to?
Objective test in Royal Brunei v Tan
39
What case stated dishonesty is not necessary for KR?
Belmont Finance v Williams Furniture (No.2)
40
Abou-Rahman v Abacha judgment
CoA applied objective test, playing along with Barlow Clowes
41
D's assistance can play what kind of role for DA?
Either subsidiary or primary part of breach
42
What was insufficient in BCCI v Akindele for knowledge?
High interest rate
43
When is there no difficulty in remedy of DA?
Substitutitive performance and reparation
44
What was the test set down in BCCI v Akindele?
Does D's knowledge make it unconscionable to retain the benefit
45
What case gives that if KR knows T will misapply property again if returned, no discharge of core restorative duty?
Blyth v Fladgate
46
What are the first three stages of knowledge in Baden, Delvaux v Societe Generale known as?
Actual knowledge
47
Relfo Ltd v Varsani general
Singapore bank money credit, debited from UK bank
48
How does the liability of KR differ from DA?
KR is liable IN HIS OWN RIGHT, as opposed to secondary liability for DA
49
What two academics argue UE MAY run concurrently with KR claim?
Birks and Lord Nicholls
50
What case shows that if T has no duty to account to C for dealings, no liability for KR can arise as about exceeding authority, not avoiding conflicts
Tuthill v Equine
51
Company directors owe duty to account to C for dealings under KR breach of fiduciary duty
Re Exchange Banking Co
52
What two tests did Lord Nicholls reject in Royal Brunei v Tan?
Criterion of knowledge and unconscionability
53
What case shows that liability for KR to account cannot be collapsed into law of wrongs/UE?
Green v Weatherill
54
Target Holdings v Redferns on remedy for KR
If liable for substitutive performance, clock does not stop - liable for value of property at judgment
55
BCCI v Akindele general
Nigerian, lends £10 million, £6.7 million profit
56
Why were DAs profits not liable to be accounted for in Novoship?
Not relevantly caused by wrongdoing - profit due to unexpected change in market
57
Why does causation in DA show break from usual philosophy of autonomy?
D can be liable for loss from primary wrong even without direct causal link
58
Ministry of Health v Simpson general
Strict liability of improperly distributed funds of deceased's estate
59
Name at least one case on change of position defence
Lipkin Gorman v Karpnale; Niru Battery Manufacturing v Milestone Trading
60
DA cannot claim honesty by sheltering behind disreputable transaction
Agip (Africa) v Jackson
61
What are the five stages of knowledge in Baden, Delvaux v Societe Generale?
Actual, Nelsonian, naughty, reasonable man would have known and reasonable man would have been put on inquiry
62
Evans v European Bank Ltd judgment
if property is lost/stolen/damaged through no fault of D before it can be returned, and took reasonable steps to preserve, duty is discharged
63
What does CT mean for dishonest assistants?
Treating D through legal fiction as though they were T, fixing with same liability as T and derivative
64
Duke of Manchester, life interest but T gave him all and sold
Re Montagu's Settlement
65
Strict liability of improperly distributed funds of deceased's estate
Ministry of Health v Simpson
66
Name the case suggesting DA can be principally liable for own profits
Novoship (UK) v Nikitin
67
Lipkin Gorman v Karpnale judgment
No change of position defence if D still in possession of asset purchased by benefit, to the extent that she is enriched by possession
68
What CT do courts treat through legal fiction as though they were T, fixing with same liability as T and derivative
DA
69
What type of liability is in DA?
Civil secondary liability
70
When is a B likely to claim for DA or KR?
T is bankrupt and proprietary tracing claim has failed bc no property left
71
What case shows Bs cannot seek proprietary remedy (as opposed to personal) against D to reconvey legal title if he no longer HAS legal title?
Ultraframe v Fielding
72
Nigerian, lends £10 million, £6.7 million profit
BCCI v Akindele
73
Royal Brunei v Tan general
Tickets for airline companies sold by agents, holding money in trust for company, personal account
74
H&M on Barnes and Baden, Delvaux v Societe Generale
Sorry state of cases - general consensus required dishonesty but no overruling of pre-Baden cases not requiring dishonesty
75
What case showed a move from Baden in DA?
Royal Brunei v Tan
76
Daughter father trust sister
Green v Weatherill
77
Charter v City Index
CoA applied unconscionability and affirmed BCCI v Akindele
78
What judge turned to unconscionability to test knowledge of 3rd of breach for KR and in what case?
Laws LJ in BCCI v Akindele
79
Lipkin Gorman v Karpnale general
Asset purchased and enrichment therefrom
80
Twinsectra v Yardley general
Loan solicitor, purchase, no charge over home
81
What case gave three things to incur KR liability?
El-Ajou v Dollar Land Holdings
82
Morlea Professional Services v Richard Walter judgment
Bs can disavow Ts actions to accept Ds giving of property in lieu of original property, meaning D remains liable
83
Barnes v Addy
Not liable if D received property ministerially
84
El-Ajou v Dollar Land Holdings general
Three things for KR
85
Name at least two cases showing DA is not liable for profits T makes?
Ultraframe; Michael Wilson v Nicholls; Grimaldi v Chameleon Mining
86
Re Montagu's Settlement judgment
Constructive knowledge from Baden is insufficient
87
What is the liability for KR to account made up of?
Restore property in specie, show disposal was authorised OR falsification and substitutive performance
88
Evans v European Bank Ltd general
Property lost/stolen/damaged
89
Who dissented in Twinsectra v Yardley, saying subjective test for metal element only appropriate in criminal?
Lord Millett
90
What did Royal Brunei v Tan say of Baden?
Over-theorised and too obscure to be used for DA
91
Spam competition email, Nigerin bank fraud, London bank manager
Abou-Rahman v Abacha
92
When does the core restorative duty of a KR not require them to restore misapplied property to Ts?
When there is a bare trust - only need to restore directly to Bs who are absolutely entitled
93
What kind of defence was not allowed in Royal Brunei?
Robin Hood defence
94
What two limbs were given in Royal Brunei for test of dishonest state of DAs mind?
(1) objective limb - acting as honest person, and (2) subjective limb - take into account Ds attributes (e.g. intelligence)
95
Change of position defence excludes those acting just 'short of outright dishonesty', but includes 'mere negligence'
Niru Battery Manufacturing v Milestone Trading
96
Name at least two cases on core restorative duty of KR
Evans v European Bank Ltd; Morlea Professional Services v Richard Walter; Blyth v Fladgate
97
Re Esteem Settlement
Royal Court of Jersey allow UE to run concurrently with KR
98
In what case did Peter Gibson J give five stages of knowledge for DA?
Baden, Delvaux v Societe Generale
99
What is the remedy for DA?
Reflect T liability OR primary liability to disgorge profits
100
BCCI v Akindele on UE
Nourse LJ - SC need to approve concurrent liability of UE and KR
101
What judge in BCCI v Akindele found Baden unhelpful?
Laws LJ
102
El-Ajou v Dollar Land Holdings judgment
Breach of fiduciary duty, legal title received by 3rd and knowledge by 3rd of breach
103
What are the four elements to a claim for DA?
Breach of fiduciary duty by T, assisted by D, who acts with a dishonest state of mind and with a causal link between assistance and B's loss
104
What kind of liability is under KR?
Fault-based liability?
105
Criterion Properties v Stratford UK judgment
Directors acting for improper purpose when causing A to transfer to B gives A personal claim against B under UE
106
Green v Weatherill judgment
Sister order to pay money without allegation of BoD as CT - shows duty cannot be collapsed into law of wrongs/UE
107
Bracken Partners v Gutteridge
KRs owe stewardship duty , so liability can arise for D receiving improper funds from a KR
108
Baden, Delvaux v Societe Generale general
Five stages of knowledge
109
Singapore bank money credit, debited from UK bank
Relfo Ltd v Varsani
110
BCCI v Akindele judgment
Laws LJ turns from Baden as unhelpful, finding 'conscience' in authorities - turns to unconscionability with test 'Does D's knowledge make it unconscionable to retain the benefit?'
111
Conaglen and Goymour
Nothing to stop B suing in KR if they so wish, unless property is registered and for valuable consideration under s.29 LRA 2002
112
What does CT mean for trustees de son sort?
Personally liable to account - remedy same as when T does not act in accordance with trust
113
Faraj v Say-Dee
UE does not run concurrently with KR
114
What are three ways to criticise the test in BCCI v Akindele?
Lacks clarity, unpredictable and unconscionability expressly rejected by Lord Nicholls in Royal Brunei
115
Morlea Professional Services v Richard Walter general
Sham loans company, in lieu of original property
116
Ultraframe v Fielding on profits remedy for DA
DA NOT jointly liable for Ts profits as would be punitive
117
Sham loans company, in lieu of original property
Morlea Professional Services v Richard Walter
118
Who explains Blyth v Fladgate as being about liability for KR discharged, but then liability for DA?
H&M
119
Relfo Ltd v Varsani judgment
To identify traceable substitute of property of D, C needs to satisfy tracing rules
120
What case showed that there is no knowing receipt of property if D did not receive it for her own benefit (e.g. received ministerially)?
Barnes v Addy
121
Green v Weatherill general
Daughter father trust sister
122
How do L&O commend BCCI v Akindele?
Courts do not have much trouble applying the test
123
What judge sat in both Barlow Clowes v Eurotrust and Twinsectra?
Lord Hoffmann
124
Ultraframe v Fielding causation
LJ Lewison saw cover-up as counting as assistance
125
Blyth v Fladgate
D knows T will misapply property again if returned - no discharge
126
What judge in Baden, Delvaux v Societe Generale gave five stages of knowledge?
Peter Gibson J
127
What judge in what case gave five stages of knowledge?
Baden, Delvaux v Societe Generale
128
What do H&M argue about concurrent liability of UE and KR?
Fault for compensatory liability (KR) shouldn't affect restitutionary liability under UE
129
Why did Lord Nicholls reject criterion of knowledge in Royal Brunei?
Tortuous convulsions and less meaningful
130
Name at least three cases on causation and DA
Grupo Torras v Al-Sabah (No.5); Casio Computer v Sayo; Ultraframe v Fielding; Heinl v Jysk Bank
131
Barlow Clowes v Eurotrust general
Ponzy scheme
132
Baden, Delvaux v Societe Generale judgment
Five stages of knowledge, for DA but applied to KR
133
What are trustees de son tort?
A person who deals with trust property AS THOUGH they were a T
134
What is the type of liability in UE?
Strict - no need for fault
135
When can KR remain liable when giving property in lieu of original property to discharge core restorative duty
If Bs disavow Ts actions to accept Ds giving of property in lieu of original property, meaning D remains liable
136
Relfo Ltd v Varsani on UE
C had concurrent claims in UE and KR
137
What judge in what case accepted objective limb from Brunei but altered subjective standard?
Lord Hutton in Twinsectra v Yardley
138
How do courts catch money laundering activities under causation of DA?
Hold breach not fully implemented until funds hidden from B
139
McCullough v Marsden used to show what
If B can get property rights against innocent 3rd through subrogation to remedy UE, they should have direct UE claim too
140
Who argues CT conveys distinct nature of liability for knowing recipients?
Mitchell and Watterson
141
In what jurisdiction is UE denied independent source of rights and obligations?
Australia - Farah v Say-Dee
142
What does the test from Twinsectra look like
Ghosh test from criminal
143
D needs to have known T was not 'entitled to do what he is doing' for mental element of DA
Ultraframe v Fielding
144
Who explains why a constructive trustee is not just an empty relief formula?
Mitchell and Watterson
145
To identify traceable substitute of property of D, C needs to satisfy tracing rules for legal title received by 3rd in KR
Relfo Ltd v Varsani
146
what defence was allowed in Twinsectra v Yadley?
Robin Hood defence
147
Grupo Torras v Al-Sabah (No.5)
B only has to show assistance made breach easier for DA causation
148
What court decided Royal Brunei v Tan?
Privy Council
149
What two Australian cases show DA is only severally liable for profits?
Michael Wilson v Nicholls; Grimaldi v Chameleon Mining
150
What case is used to show that if B can get property rights against innocent 3rd through subrogation to remedy UE, they should have direct UE claim too?
McCullough v Marsden
151
What was the issue with Barnes v Addy?
Unreserved judgment ignoring previous authority
152
What three elements are there to a UE claim?
D is enriched, at C's expense, unjustly
153
What case gave that if KR is liable for substitutive performance, clock does not stop - liable for value of property at judgment
Target Holdings v Redferns
154
What case confirmed Barlow Clowes v Eurotrust?
Abou-Rahman v Abacha
155
How do H&M explain Blyth v Fladgate?
About liability for KR being discharged, but then liability for DA
156
What is it argued MAY run concurrently with a KR claim?
UE
157
Under what kind of trust can a KR restore property directly to Bs who are absolutely entitled instead of Ts?
Bare trust
158
What system and case do H&M prefer for UE to run concurrently with KR, if ever applied in UK
Re Esteem Settlement
159
Royal Brunei v Tan judgment
Lord Nicholls said Barnes wrong - T need not be dishonesty, so dishonesty of 3rd sufficient, and honesty is OBJECTIVE based on circumstances
160
How do H&M explain Farah v Say-Dee?
UE is denied independent source of rights and obligations in Australia
161
What judge in El-Ajou v Dollar Land Holdings gave three things for KR liability?
Hoffmann LJ
162
What judge clarified Twinsectra in Barlow Clowes v Eurotrust?
Lord Hoffmann
163
Why do H&M consider it misleading to see DA as 'liable to account as CT'?
Used in knowing receipt context already and calls to mind constructive TRUST
164
What defence could D rely on if UE is allowed concurrently with KR?
Change of position defence, if in GOOD FAITH
165
Who argue fault for compensatory liability (KR) shouldn't affect restitutionary liability under UE?
H&M
166
In what case was the argument of Mitchell and Elliott endorsed that DA is secondarily liable AFTER t?
Ultraframe v Fielding
167
Subrogation
McCullough v Marsden
168
Niru Battery Manufacturing v Milestone Trading judgment
Change of position defence excludes those acting just 'short of outright dishonesty', but includes 'mere negligence'
169
Abou-Rahman v Abacha general
Spam competition email, Nigerian bank fraud, London bank manager
170
What does CT mean for knowing recipients?
Personally liable to account - remedy same as when T does not act in accordance with trust
171
Name at least three cases which are used to show there should be concurrent liability of KR and UE?
Ministry of Health v Simpson; Criterion Properties v Stratford UK; Relfo Ltd v Varsani; McCullough v Marsden
172
What judge in BCCI v Akindele stated that SC need approve concurrent liability of UE and KR?
Nourse LJ
173
D knows T will misapply property again if returned - no discharge
Blyth v Fladgate
174
Heinl v Jysk Bank
Catching money laundering activities by holding breach not fully implemented until funds hidden from B
175
Arthur v AG of the Turks and Caicos Islands
showed KR is liable as if he were a real T
176
Ministry of Health v Simpson judgment
strict liability applies to recipient of improperly distributed funds of deceased's estate, so why not trust assets?
177
Name at least three cases on knowledge by 3rd of breach giving liability for KR
Baden, Delvaux v Societe Generale; Re Montagu's Settlement; Belmont Finance v Williams Furniture (No.2); BCCI v Akindele; Charter v City Index
178
When do difficulties arise with remedy for DA?
Profits
179
What case shows KRs owe stewardship duty , so liability can arise for D receiving improper funds from a KR?
Bracken Partners v Gutteridge
180
Casio Computer v Sayo
If DA made no difference, not liable
181
Director improper purpose, personal claim
Criterion Properties v Stratford UK
182
What case stated that all knowledge on Baden scale is sufficient for KR?
Belmont Finance v Williams Furniture (No.2)
183
What case in UK suggested UE can run concurrently with KR in obiter?
Dubai Aluminium v Salaam
184
What is the distinct nature of liability for knowing recipients, highlighted by Mitchell and Watterson?
Distinctive equitable custodial duty very similar to T duty to account
185
Ultraframe v Fielding
Bs usually seek proprietary remedy for D to reconvey legal title if he still has it, but not possible if D doesn't
186
What case showed a move back to more objective test after Twinsectra?
Barlow Clowes v Eurotrust
187
what case showed courts ordering KR to pay money without allegation of BoD as CT
Green v Weatherill
188
Agip (Africa) v Jackson
D cannot claim honesty by sheltering behind disreputable transaction
189
What kind of state of mind of D in DA was required prior to Royal Brunei?
Dishonest (Barnes v Addy)
190
What does change of position defence require?
Extraordinary expenditure in reliance of receipt of benefit, on a 'but for' basis, and good faith
191
Criterion Properties v Stratford UK general
Director improper purpose, personal claim
192
3rd receiving legal title is not liable if received property ministerially
Barnes v Addy
193
What judge caw cover-up as counting as assistance and in what case?
Ultraframe v Fielding, LJ Lewison
194
What CTs do courts hold Personally liable to account - remedy same as when T does not act in accordance with trust?
KR and trustees de son sort
195
Who highlighted that there is nothing to stop B suing in KR if they so wish, unless property is registered and for valuable consideration under s.29 LRA 2002?
Conaglen and Goymour
196
In what two ways can D dishonestly assist?
Either in misapplication of property OR breach of duty
197
Novoship (UK) v Nikitin general
Charters to company, £150 million profit to company
198
Hoffmann LJ gave three things for KR liability in what case?
El-Ajou v Dollar Land Holdings
199
Pauline Ridge on DA remedies
Messy that DAs liability is sometimes primary and sometimes secondary
200
What would stop B from suing in KR?
property is registered and for valuable consideration under s.29 LRA 2002
201
If DA made no difference, not liable
Casio Computer v Sayo
202
Royal Court of Jersey allow UE to run concurrently with KR
Re Esteem Settlement
203
Name at least two cases on legal title received by 3rd for KR
Ultraframe v Fielding; Grimaldi v Chameleon Mining; Relfo Ltd v Varsani; Barnes v Addy
204
Tickets for airline companies sold by agents, holding money in trust for company, personal account
Royal Brunei v Tan
205
How can measure of liability for KR be very different to claim under UE/law of wrongs?
Clock stops for UE but not for KR
206
Barlow Clowes v Eurotrust judgment
Lord Hoffmann clarified Twinsectra test as being the same as Royal Brunei - not subjective but oBJECTIVE
207
Re Exchange Banking Co
Company directors owe duty to account to C for dealings
208
what three reasons are given in Green v Weatherill for why liability of KR to account cannot be collapsed into law of wrongs/UE?
Liability about RESTORATION, not RESTITUTION (like UE), D not entitled to claim contributory negligence and measure of liability may be very different
