Equity And Trusts

Question 1

What 4 differences does Worthington identify between common law and equity

Answer 1

1) substantive difference ie equity looks at individual circumstances where as common law looks at facts
2) difference in remedial strategies ie common law = in rem and equity = in personam
3) difference in enforcement techniques
Equity = in contempt of court ie prison
Common law= damages can strip of assets to pay debts ect
4) difference in procedure - common law relied on writs etc
Equity relied on written statements etc

Question 2

Maitland said

Answer 2

Equity had come not to destroy the law but to fulfil it

Question 3

Worthington equity contributed to property law by

Answer 3

Allowing transfer of property rights that were not transferable under the common law thus creating new forms of property

Thinks trust is property holding device

Trust about property not obligations

Question 4

Roger cotterrel

Answer 4

Trusts reflect property power , tool for property power
Concept makes it possible for the law to accommodate and guarantee inequalities of property power whilst maintaining the ideology of equality

All have right to own things but some own more than others

Trust hides property power as disguises that trustees have power but it’s actually the beneficiaries according to coterrel

Question 5

The 3 different conceptions of the trust cotterrell identifies

Answer 5

1) property holding device
2) capital management
3) moralistic ur typical family trust

Question 6

Cotterrell thinks trust law should develop how?

Question 7

Trust obligations , fiduciary duties , trustee duty of care and skill

Question 8

Trustee act 2002 introduced what ?

Answer 8

General power of investment applying to all trust subject to express clause restricting or excluding but trustee must have regard to standard investment criteria

Trustee must obtain and consider proper advice before investing ie from someone believed to be qualified

General power of delegation
Eg asset management ie investment of assets or management of trust property
Trustee must keep these arrangements under review

Statutory duty of care = trustee must exercise such care and skill as is reasonable in the circumstances, having regard to actual skill, manifested skill and any reasonable expectation of professional skill if professional

Both statutory duty of care and common law prudent man investing on behalf of another duty of care can be excluded

Remuneration adaptions eg if remuneration clause present trust corporations and trustees now entitled to payment for services that could have been provided by lay trustee
Different to before as used to be interpreted narrowly ie could not charge for services that could have been provided by inferior

Question 9

Trustee act 2000 a transformation of trust law

Answer 9

• recognition of what was already happening in practice
• shift in default law - trust instrument now to limit powers and duties rather than extend them

Question 10

Fiduciary obligations corrects

Answer 10

Scope for abuse in someone else’s affairs
Fiduciaries personal gain with the possibility of the principals expense
Self interest

Question 11

Status based fiduciary relationships

Answer 11

Trustee - beneficiary
Director- company
Solicitor - client
Employer - employee
Agent- principal

Question 12

Can find fiduciary relationship on facts

Question 13

Fiduciary obligations not extended to doctor - patient in England , Australia

Answer 13

England- Doctor cannot abuse position to make profit
Australia - governed by negligence and contract - fiduciary obligations not needed

Question 14

Canada - power- dependency approach

Answer 14

Relationships in which a fiduciary obligation have been imposed seem to possess three characteristics

1) the fiduciary has scope for the exercise of some discretion or power
2) the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests
3) the beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion of power

Question 15

Central fiduciary obligations

Answer 15

Loyalty and good faith
No possible conflict of duty and interest
No secret profits

Question 16

Regal Hastings case

Answer 16

Essentially , even if profiteer honest , can still be expected to account for profits

Question 17

Power/discretion and undertaking in Australia and England

Answer 17

Critical feature of fiduciary relationships is that fiduciary undertakes or agrees to act on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that person in a legal or practical sense

Relationship between parties is therefore one which gives fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person

Question 18

Canada : conceptual differences between contract / tort and fiduciary obligations

Answer 18

In negligence and Contract , parties are taken to be independent and equal actors concerned with primarily self interest
Fiduciary = one party exercises power on behalf of another
Has trust not self interest at core

Question 19

Worthington ‘fiduciary fudge”

Answer 19

Fiduciary obligation should not be extended to doctor patient
No prospect of profits so no hook to bring in fiduciary obligations
Go to parliament if want to extend

Question 20

Remedies for breach of fiduciary duties

Answer 20

Personal = injunctions, equitable compensation , account for profits (disgorges fiduciaries profits and gives to principal )

Propitiatory= constructive trust (not discretionary , get through law)

Question 21

Account for profits

Answer 21

Treats fiduciary as if had obtained the profits for principal so strips profit and gives to principle

Not same as equitable compensation

Strict liability to account for all secret profits

Question 22

Falsifying the account

Answer 22

Loss from trust fund has to be put back

Question 23

Surcharge the account

Answer 23

Lack of care and skill leads to insufficient gain

Question 24

Importance of Constructive trust and it’s consequences

Answer 24

Ability to trace the proceeds of the trust eg if invested
Priority on insolvency unlike personal remedies

Consequences
May affect third party creditors as they may no longer have priority
May result in windfall for principal

Question 25

Lister v stubs 1890

Answer 25

Stubbs is agent of lister
Seller bribes Stubbs
Bribes invested in property ( breach of fiduciary obligation)
Held only personal remedy applies

Question 26

Attorney general for Hong Kong v Reid 1994

Answer 26

Reid (council) took bribes to obstruct prosecutions
Invested bribes in New Zealand land - significant increase in worth
Reid was fiduciary ; lister wrongly decided
Bribe immediately held on trust

Question 27

Sinclair investments case

Answer 27

Mr Cushnie Circulated money around companies to inflate share price … then sold company and bought 10 mill house

Sinclair investments having bought TPL claims against mr cushnie for breach of fiduciary obligations who was director want to get hands on proceeds of sale of house ahead of bank creditors

Held bound by lister ; proprietary interest based on property law ; purely breaching and making profit not enough for constructive trust

Question 28

FHR European adventures v mankarious

Answer 28

Selling hotel to fhr
Cedar ltd conducting sale - negotiates price of 211.5 mill for joint purchase of hotel by FHR and Cedar themselves
But brokerage agreement between cedar and vendors of hotel where by 10 mill fee to cedar upon sale
Failure to disclose 10 mill comics sik to
FHR and held they in agency relationship

Held notion that agent should not hold bribe on trust because he could not have acquired it on behalf of principle is somewhat inconsistent with the long standing decisions
Constructive trust found , Sinclair overruled

Question 29

Sinclair to FHR policy principle and authority reasons

Answer 29

Sinclair
Policy reasons- effects on other creditors too severe ; accounting for profits is enough of deterrent
Legal principle- no proprietary nexus involved

FHR
Policy - creditors would never have been entitled to the property anyway ; and affirms the need for deterrent

Legal principle - proprietary nexus wasn’t needed in other cases and yet shares and lease have been held on trust before

Question 30

What does Worthington say about FHR judgment

Answer 30

Would have been reassuring to have problem and resolution set out more robustly

Question 31

Whether proprietary remedies are appropriate

Answer 31

A proprietary nexus ? If this is not already the principals property on what basis is there a trust

Policy - deterring the unconscionable

Commercial certainty - does constructive trust adversely effect Interests of their party creditors

Windfall of principal

Question 32

If trustee transfers property to third party then third party still bound by beneficial interest unless

Answer 32

Innocent party who purchased property without notice of any other parties claim to the title of that property (bona fide purchaser)

Question 33

Foskett v mckeown 2000

Answer 33

Tracing exercise to locate assets which may be taken to represent asset belonging to beneficiary and to which they assert ownership

Question 34

Common law trace case
Estranger v hambrouck
Agip ltd v Jackson 1990

Answer 34

Can’t trace through a mixed fund
Can’t trace electronic transfers

Question 35

Equity allows tracing through mixed fund

Answer 35

Ie beneficiaries property and trustees property mixed
Can either have value of invested beneficiary property or proportion

Question 36

What if money mixed in active account : mixed with trustees money

Answer 36

Sinclair investments v versailles 2011
- once shown that money is held on trust the trustee bear burden of showing that money in that account is not that of beneficiaries

Question 37

Remedies against third parties ie trustee gives trust property to third party
Not available if bona fide purchaser without notice

Answer 37

Knowing receipt
1- disposal of assets in breach of trust or fiduciary duty
2- beneficial receipt by defendant
3- traceable as representing the assets of claimant
4- knowledge by defendant that assets are traceable to a breach of fiduciary duty

The baden knowledge scale
1- actual knowledge
2- wilfully shutting one’s eyes to the obvious
3- wilfully and recklessly failing to make such inquiries as an honest and reasonable person should have made
4- knowledge of circumstances that would indicate the facts to an honest and reasonable person
5- knowledge of circumstances that would put an honest and reasonable person on inquiry

Question 38

Akindele

Answer 38

All that is necessary is that the recipients state of knowledge should be such as to make it unconscionable for him to retain benefit of the receipt

Question 39

Accessory liability : dishonest assistance

Answer 39

Breach of trust or fiduciary duty
Assistance
Dishonesty - objective test