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Law Second Year > Property Law - Claiming > Flashcards

Property Law - Claiming Flashcards

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1
Q

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

A

Receipt of property, retention of property and not a BFP

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2
Q

When could a tracing claim still be made in dissipation?

A

If Jones v De Marchant applied

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3
Q

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

A

Knowing receipt

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4
Q

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

A

Specific/substitutive performance of T’ duty

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5
Q

What two duties are breached when trust property is misappropriated?

A

‘Stewardship’ duty and duty to act in B’s exclusive interests

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6
Q

What is a ‘stewardship’ duty?

A

T duty to act in an authorised way

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7
Q

Banton v CIBC Corp

A

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

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8
Q

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

A

Banton v CIBC Corp

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9
Q

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

A

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

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10
Q

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

A

S.19 and 20 TOLATA

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11
Q

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

A

Lord Millett in Libertarian Investments v Hall

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12
Q

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?

A

Both place 3rd as CT for B

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13
Q

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

A

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

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14
Q

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?

A

Knowledge of breach of trust whilst property is in his hands

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15
Q

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

A

KR and proprietary claim

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16
Q

Clark v Cutland

A

KR in ADDITION to tracing claim - not separate

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17
Q

KR in ADDITION to tracing claim - not separate

A

Clark v Cutland

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18
Q

Independent Trustee Services v GP Noble Trustees, per Lloyd LJ

A

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

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19
Q

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

A

Independent Trustee Services v GP Noble Trustees, per Lloyd LJ

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20
Q

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

A

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

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21
Q

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

A

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

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22
Q

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

A

Clean substitution

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23
Q

State Bank of India v Sood

A

3rd is usually protected by overreaching

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24
Q

3rd is usually protected by overreaching

A

State Bank of India v Sood

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25
Q

Wright v Morgan

A

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

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26
Q

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

A

Unanimous

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27
Q

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

A

If Bs are minors, they cannot be unanimous

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28
Q

Trustee Act 1925 s.57

A

Allows application to court to held authorise sale

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29
Q

S.19 TOLATA

A

Bs can replace T

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30
Q

Allows application to court to held authorise sale

A

Trustee Act 1925 s.57

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31
Q

Bs can replace T

A

S.19 TOLATA

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32
Q

Foskett v McKeown

A

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

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33
Q

What is equitable ownership?

A

Specific performance claim

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34
Q

What is an equitable lien?

A

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

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35
Q

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

A

Personal debt of T to B

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36
Q

What judge in what case restated Wright v Morgan?

A

Lord Millett in Foskett v McKeown

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37
Q

What is another word for Bs?

A

Cestuis que trustent

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38
Q

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

A

ONLY a lien

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39
Q

Why may a lien be potent?

A

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

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40
Q

Foskett v McKeown general

A

Insurance policy

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41
Q

Re Diplock general

A

Charity payments

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42
Q

Insurance policy

A

Foskett v McKeown

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43
Q

Charity payments

A

Re Diplock

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44
Q

Why does Re Ziplock not conflict with Foskett?

A

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

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45
Q

VC Scott in Foskett in CoA

A

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

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46
Q

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

A

Foskett v McKeown

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47
Q

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

A

B takes proportionate equitable ownership or lien

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48
Q

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

A

Tracing is evidentiary, not punitive

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49
Q

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

A

They were volunteers, and equity does not assist a volunteer

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50
Q

Paul Davies v Davies general

A

Entire property

51
Q

Paul Davies v Davies judgment

A

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

52
Q

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

A

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

53
Q

Entire property

A

Paul Davies v Davies

54
Q

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

A

Paul Davies v Davies

55
Q

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?

A

KR

56
Q

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?

A

Need to give it back

57
Q

Re Montagu’s Settlement

A

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

58
Q

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

A

Re Montagu’s Settlement

59
Q

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

A

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

60
Q

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

A

Pari passu

61
Q

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

A

B has priority

62
Q

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

A

Re Diplock

63
Q

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

A

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

64
Q

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

A

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

65
Q

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

A

Re Diplock and Foskett v McKeown

66
Q

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

A

Re Diplock

67
Q

Foskett v McKeown general

A

Insurance policy

68
Q

Foskett v McKeown on improvements to land

A

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

69
Q

Re Diplock general

A

Charity payments

70
Q

Re Diplock on traceable proceeds being improvements to land

A

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

71
Q

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

A

Foskett v McKeown

72
Q

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

A

Would have used their own money if they had known

73
Q

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

A

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

74
Q

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

A

Probably restricted to a lien if 3rd is innocent

75
Q

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

A

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

76
Q

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

A

Lord Millett extra-judicially

77
Q

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?

A

Would need to fall within backwards tracing claim or dissipation

78
Q

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

A

Subrogation

79
Q

What is subrogation?

A

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

80
Q

What is the lien in a subrogation remedt?

A

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

81
Q

What are the two requirements for subrogation?

A

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

82
Q

Banque Financiere de la Cite v Parc judgment

A

Metaphorical use of ‘revival’ and ‘transfer’ in subrogation

83
Q

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

A

Banque Financiere de la Cite v Parc, Lord Hoffmann

84
Q

Boscawen v Bajwa general

A

Funds to secure discharge, no registration

85
Q

Banque Financiere de la Cite v Parc general

A

Metaphorical

86
Q

Boscawen v Bajwa judgment

A

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

87
Q

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

A

Boscawen v Bajwa

88
Q

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

A

Original trust asset and traceable proceeds

89
Q

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

A

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

90
Q

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

A

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

91
Q

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

A

Proprietary right ‘subsists’ in traceable proceeds

92
Q

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

A

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

93
Q

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

A

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

94
Q

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

A

Abstractly, the interest is exactly the same

95
Q

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

A

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

96
Q

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

A

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

97
Q

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

A

Would only relate to original asset

98
Q

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

A

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

99
Q

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

A

Consent, profiting a wrongdoer and unjust enrichment

100
Q

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

A

T agreed to hold original trust assets AND traceable proceeds

101
Q

Where does the consent justification for traceable proceeds fail?

A

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

102
Q

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

A

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

103
Q

What is the profiting a wrongdoer justification analogous to?

A

Common law tort of conversion

104
Q

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

A

Claim against 3rd not based on UE

105
Q

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

A

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
Q

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?

A

H&M

107
Q

Birks on UE

A

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

108
Q

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

A

Birks

109
Q

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

A

Birks

110
Q

What are the three requirements for BFP?

A

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

111
Q

What scale of knowledge is applicable for BFP

A

Baden scale of knowledge

112
Q

What kind of knowledge if sufficient to remove BFP defence?

A

Any on Baden scale

113
Q

Midland Bank v Green on purchaser for value in BFP test

A

Usually no enquiry into adequacy of consideration

114
Q

Usually no enquiry into adequacy of consideration

A

Midland Bank v Green

115
Q

Banque Belge v Hambrouck general

A

Cohabitation with lover

116
Q

Cohabitation with lover

A

Banque Belge v Hambrouck

117
Q

Banque Belge v Hambrouck judgment

A

Cohabitation insufficient to be ‘value’ for BFP defence

118
Q

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

A

Mere factual exchange

119
Q

Independent Trustee Services v GP Nobles Trustees general

A

Divorce, consent order interrupted

120
Q

Divorce, consent order interrupted

A

Independent Trustee Services v GP Nobles Trustees

121
Q

Independent Trustee Services v GP Nobles Trustees judgment

A

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

122
Q

What case showed value for BFP can be retrospectively retracted?

A

Independent Trustee Services v GP Nobles Trustees

123
Q

Midland Bank v Green on notice

A

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

124
Q

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

A

Midland Bank v Green, per Lord Wilberforce

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