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Trusts > Remedies > Flashcards

Remedies Flashcards

1
Q

Claim in rem

A

Property claim

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2
Q

Claim in personam

A

Personal claim

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3
Q

Proprietary claims if T has original property

A

Claim original property

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4
Q

Proprietary claim if T replaced asset with a new one

A

Clean substitution - claim replacement property
Or change or lien over it for value of loss
Can take property even if it has increased in value

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5
Q

Proprietary claim if T used Ts money and trust money to get a new asset

A

Mixed asset of Ts and trusts - claim proportionate interest or
Take charge or lien over mixed asset for amount of loss

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6
Q

Proprietary claim if T mixed trust money with Ts money and makes withdrawals

A

Can pick between rules to get best outcome
Re Hallet- T spends own money first
Roscoe- lowest intermediate balance. Not replacing funds
Re Oatway- B can chose either money or property. Has charge on mixed funds and any property purchased

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7
Q

Can Re Hallet and Re Oatway benefit from increase value of assets

A

Yes

Get appropriate percentage

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8
Q

Proprietary claim when money from 2 trusts in mixed and used to buy an asset

A

Bs share pari passu in mixed asset

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9
Q

Pari passu

A

Rateably in the same portion as their funds contributed to purchase price
Each B gets proportionate share whether asset has increased or decreased in value

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10
Q

Proprietary claim when T mixes money from several trusts and then makes withdrawals

A

Claytons case - first in, first out
Unless (according to Barlow) it is impossible to tel who was first, it would lead to injustice or would be contracts to intentions then depart from Claytons case. They would take rateable share in any remaining assets instead

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11
Q

Proprietary claim when T mixed money from several trusts with Ts money and then makes withdrawals

A

Re Hallet, Re Oatway, then Claytons case or Barlow

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12
Q

When can equitable tracing be used

A

Can be used by Bs and other principles of fiduciaries to recover property misapplied by fiduciaries

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13
Q

What is the time limit for a personal claim

A

6 years
Not running against fraudulent breaches
Running from breach, B turning 18, of remainder trust vesting

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14
Q

Time limit for proprietary claim

A

None

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15
Q

Can B bring a personal claim if T is insolvent

A

B is an unsecured creditor

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16
Q

Are Ts liable for breaches of their co-Ts

A

No

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17
Q

Which type of causation is needed for a personal claim against T

A

But for causation

Breach caused loss

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18
Q

Who does B claim against if more than one T breached trust

A

Ts are jointly and severally liable

Can claim for full amount against one or several

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19
Q

Can B claim interest in a personal claim

A

Yes amount of interest is up to the court

20
Q

If B dies 1 T for loss caused by all Ts can T claim a contribution from other Ts

A

Indemnity or claim under civil liability contributions act

21
Q

When can T get an indemnity from co-T

A

When co-T was fraudulent but other weren’t
Co T is professional with influence over others
Co T benefited from the breach
Co T is also a B who benefited from the breach

22
Q

Defences to a personal claim against T

A 
Exemption clause in trust doc
Consent of Bs
Court discretion to relieve T of liability 
Limitation period
Latches
23
Q

When do exemption clauses in trust doc relieve T of liability for breach

A

If breach is negligent or innocent but not if fraudulent breach
If professional T required exemption then must ensure S understood effect

24
Q

What if there is ambiguity in exemption clause

A

Interpret it against T

25
Q

What if one B consents to breach by T but other Bs don’t

A

Then only that B is barred from claiming against T

26
Q

When will the courts relieve T of liability for breach

A

When T acted honestly and reasonably and ought fairly to be excused

27
Q

When do latches prevent C from making a personal claim against T

A

When C knew of the breach, delayed in taking action and this delay detrimented T

28
Q

What is the max contribution the court can require a coT to make under civil liability contributions act

A

100%

Decide based on Ts blameworthiness

29
Q

elements of knowing receipt

A

receives property in breach of trust or fiduciary duty
received property for their own benefit
knows it is in breach whilst in posession
gave no consideration

30
Q

when does D need to have knowledge of breach to be liable for knowing receipt

A

while in possession of item
not liable if become aware after disposal
not liable until they become aware

31
Q

what type of knowledge is needed for liability in knowing receipt

A

first 3 types of baden knowledge

32
Q

what type of liability is knowing receipt

A

equitable personal liability

33
Q

what can B claim from a claim in knowing receipt

A

value of property plus interest from date of receipt

34
Q

elements of dishonest assistance

A

3rd party assists in breach of trust or breach of fiduciary duty and acted dishonestly when providing assistance

35
Q

does T have to be dishonest for dishonest assistance

A

no

36
Q

what is dishonesty re dishonest assistance

A

objective - would an honest person with same experience, intelligence and knowledge as D have acted different.

37
Q

can a third party be liable for dishonest assistance by providing passive support to T

A

no they must provide positive support

38
Q

does third party need to know they are assisting breach of trust or breach of fiduciary duty to be liable for dishonest assistance

A

no - just need to know they are assisting an illegal scheme. dont need to know what exactly.

39
Q

what can B claim in a dishonest assistance case

A

value of loss caused by assistance plus interest

40
Q

what type of claim is dishonest assistance

A

equitable personal liability

41
Q

what are the tracing rules for a bona fide purchaser for value without notice

A

you cannot trace here

42
Q

what are the tracing rules for a wrongful recipient (i.e dishonest assistance or knowing receipt)

A

the rules are the same as for a wrongdoing T
if they have original property can recover it
if clean substitution claim against new property
if mixed with own money to buy mixed asset claim proportionate share or lien for value
if mixed with own money then withdraw use Re Hallet, Roscoe and Oatway.

43
Q

what are the tracing rules for an innocent volunteer ( a third party who received trust property without realising but didn’t give consideration)

A

same tracing rules as when asserting interest against other innocent parties
if they still have property B can recover it
if clean substitution claim new property
if mixed it with own money to buy something claim proportionate share in new asset - NOT LIEN - EQUITABLE LIEN JUST FOR WRONGDOER RECIPET
if mix it with their money then make withdrawals use Claytons and Barlows DIFFERENT TO WRONGDOER WHICH USES HALLET, ROSCOE AND OATWAY
Re Diplock defence

44
Q

differences between wrongdoer receipt tracing rules and innocent volunteer tracing rules

A

no equitable lien for innocent volunteers. equitable lien is only for wrongdoers
if IV mixes it with their own money then makes withdrawals use claytons and barlows. if wrongdoer mixes it with their own money then makes withdrawals use hallets, oatway and roscoe.
re Diplock defence

45
Q

what is the re diplock defence

A

if innocent volunteer used money to improve building they already owned B cannot trace into improvements.
But B can trace into improvements and claim against third party’s land up to increase in value caused by improvements if third party is a wrongdoer.

46
Q

does re diplock apply to mixed funds/ mixed assets

A

no - B would claim interest proportionate to trusts contribution

Trusts (10 decks)

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