Property Law - Knowing Receipt and Dishonest Assistance Flashcards Preview

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Flashcards in Property Law - Knowing Receipt and Dishonest Assistance Deck (208):
1

What two cases suggest UE can run concurrently with KR claim?

Dubai Aluminium v Salaam; Re Esteem Settlement

2

Why would a UE claim be preferable for C if allowed concurrently with KR?

No need to prove fault

3

What case applied unconscionability and thus affirmed BCCI v Akindele?

Charter v City Index

4

Belmont Finance v Williams Furniture (No.2)

All on Baden scale counts, and dishonest not necessary

5

What are the two core duties of KR?

Core restorative duty immediately, or liable to account if dealt with property inconsistently

6

Farah v Say-Dee is from what jurisdiction and court?

High Court of Australia

7

In what case did Lord Hoffmann clarify Twinsectra?

Barlow Clowes v Eurotrust

8

What are the three types of constructive trustees?

Trustees de son tort, knowing recipients and dishonest assistants

9

What case stated D may have to account for both new property exchanged for misdirected property and any profits generated therefrom under KR

Grimaldi v Chalemeon Mining

10

Who explores the two remedial duties of KR?

Mitchell and Watterson

11

C had concurrent claims in UE and KR

Relfo Ltd v Varsani

12

Twinsectra v Yardley judgment

HoL, Lord Hutton accepted objective limb from Brunei but for subjective stated D needs to realise he is not acting as honest person

13

McCullough v Marsden general

Subrogation

14

What two cases suggested SC need to approve for UE to run concurrently with KR?

BCCI v Akindele; Farah v Say-Dee

15

Re Montagu's Settlement general

Duke of Manchester, life interest but T gave him all and sold

16

Dubai Aluminium v Salaam

UK suggested UE can run concurrently with KR in obiter

17

Grimaldi v Chalemeon Mining

D may have to account for both new property exchanged for misdirected property and any profits generated therefrom

18

Who found Barnes v Addy and Baden, Delvaux led to 'tortuous convulsions' for DA?

Lord Nicholls in Royal Brunei v Tan

19

Ultraframe v Fielding on mental element of DA

D needs to have known T was not 'entitled to do what he is doing' for mental element of DA

20

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?

Evans v European Bank Ltd

21

Novoship (UK) v Nikitin suggests what

Suggests DAs liability can sometimes be primary as well

22

No change of position defence if D still in possession of asset purchased by benefit, to the extent that she is enriched by possession

Lipkin Gorman v Karpnale

23

What are the last two stages of knowledge in Baden, Delvaux v Societe Generale known as?

Constructive knowledge

24

B only has to show assistance made breach easier for DA causation

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

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