Proprietary Remedies: Tracing Flashcards
what is a personal claim?
focuses on the actual trustee paying personally to the trust fund
what is a proprietary claim?
focuses on the recovery or identification of the trust property - or any substituted asset
case for tracing?
Jones v Jones; Mr Jones transferred money in cheques from his firm’s bank account to Mrs Jones. the firm became insolvent. Mrs Jones bought potato futures. the official receiver claimed that the money belonged to it, and Mrs Jones claimed it was hers. Held: Mr Jones had no title to the money paid out and therefore not pass title to Mrs Jones
Hallett’s presumption?
Ballet looked after bonds and he sold the bonds and paid the proceeds into his bank account which contained some of his own money. He then withdrew some money and used it for his own purposes. held: wrongdoer uses own money first
Re Oatway principle?
principal may ‘cherry-pick’ from the withdrawals and trace and follow into whichever she thinks is best
pari passu principle?
where the money becomes mixed and is presumed to belong on an equal basis
when does tracing fail?
dissipation of the assets (can’t identify an asset if its no longer there), where the balance of na account is reduced to less than the amount of the claimant’s money that has been deposited
