Property Law - Following and Tracing Flashcards
Who noted Turner v Jacob is probably closer to what Oatway decided?
H&M
What did Conaglen say of backwards tracing?
It is a matter of legal policy on whether to allow backwards tracing
What case showed court recognising tracing is the court ‘making a policy judgment’ of whether one asset represents or is substituted for another?
Federal Republic of Brazil v Durant International
What is often unclear in cases of mixed substitution?
Evidence of where the money has gone or come from
What is the lowest intermediate balance rule?
If evidence clearly shows only £200 in the account could belong to B, this is all B can claim.
What does a claim depend on?
C’s right to the original asset
Relfo v Varsani general
Money laundering, one transaction
What case conflicts with Foskett on backwards tracing and how?
Re Tilley’s WT - intention not needed
What can a B do if there is a mixed substitution?
Trace into and claim proportion of traced asset, or lien to secure a personal claim against T
C is entitled ALMOST as of right to an interim freezing injunction to preverse claimed asset until trial outcome
UCB Home Loans v Grace
Relfo v Varsani required what for backwards tracing?
Prior arrangement that trust fund would be used to repay, and was so used
How did Lionel Smith view backwards tracing?
Should be allowed - look at what made release of debt caused by initial borrowing possible, such that if money is borrowed to buy a car, and X can only repay the debt through money from B, money from B explains X’s ownership
If T mixed his own money with trust money, who has priority?
B
What judge in what case called Clayton the exception, not the rule?
LJ Cooke in Russell-Cooke Trust v Prentis
Sinclair Investments v VTF
Once trust money falls into a ‘black hole’, such that it is impossible to trace due to complex transactions, T bears the burden of showing money is not part of the trust fund
What is following?
Identifying the same asset from hand-to-hand
UCB Home Loans v Grace
C is entitled ALMOST as of right to an interim freezing injunction to preverse claimed asset until trial outcome
Barlow Clowes v Vaughan general
Ponzy scheme
Why did Clayton not apply in Barlow Clowes v Vaughan?
Investor intention clearly to share in profits and losses
What did the Vice-Chancellor say in Foskett v McKeown in the CoA?
Important D made the first payment, giving his children a vested interest and meaning B could only claim for misappropriated funds
What did Conaglen highlight as a reason not to allow backwards tracing?
Unsecured creditors are already in a precarious position compared to the far better protected position of Bs
Turner v Jacob judgment
If there is money left, B must start from the money
If T gives money to a BFP, who has priority?
BFP - claim extinguished
LJ Woolf in Barlow Clowes on Clayton
Only use if it does ‘broad justice’