Things to remember

Question 1

Definition of SP

Answer 1

A court order compelling performance of positive contractual obligations
Damages must be inadequate

Question 2

SP cases for Breach of sale of goods

Answer 2

Cohen v Roche purchase chairs to sell in his shop, was’t SP as it was going to end up as money
Falcke v Grey -> Ming vases (Particular beauty
Behnke v Bede -> Particular value
Sky patroluem -> limited quanitity, Mundane property

Question 3

Definition of IMI

Answer 3

A court order requiring a D to undertake a course of action - intimately linked with Specific Performance

Question 4

Test for IMI

Answer 4

COurt order requiring the D to undertake a course of action
TEST: High degree of assurance at trial it will be rightly granted into a SP. Shepard V Sanham
Confirmed in Locobail v Agroexport, American Cyanide doesn’t apply

Question 5

SP Test for Breach of Services contract

Answer 5

Irreplaceable and Clearly defined (Verall v Great Yarmouth)
constant supervision (Coop v Argyl)
Must not be akin to slavery (Defrancesco v Barnum)
Defeated by poor performance (Giles v Morris) - Subjective service performance

Question 6

Definition of Search Order

Answer 6

Civil order A court order permitting a C and his representatives to enter the D’s property in order to search and Seize the property (Anton Pilar v Manufacturing)

Question 7

Search Order test Anton Pillar

Answer 7

1. An extremely strong Prima Facie case
2. Very serious potential or actual damage to the C
3. Possession of clear evidence and risk of evidential destruction (Lock v Beswick) There is a presumption of honesty -> you must demonstrate that they are dishonest

Question 8

IPI interim prohibitory injunction definition

Answer 8

A court order refraining someone from a court of actin

Question 9

IPI Test

Answer 9

American cyanide

1. Case must be sufficiently serious, must not be vexatious (Morning star v Express)
2. Balance of convenience: IPI Signed wrongly refused (damages sufficient for C, payable by D / IPI wrongly granted (opposite)
3. If balance doesn’t convenience either party status quo kept,

Question 10

freezing order definition

Answer 10

A court order prohibiting the D from removing assets from the jurisdiction

Question 11

Freezing order test

Answer 11

Derby v Wheeldon:

1. Good arguable case
2. Assets in jurisdiction
3. Real risk of Dissapation

Question 12

Account of profit definition

Answer 12

A court order requiring D to surrender illegtitimate profits

Question 13

Final remedy

Answer 13

Specific performance, Final injunction, Recission, Rectification, Account of profits

Question 14

INterim remedy

Answer 14

IMI, IPI, Search order, Freezing order

Question 15

Types of claims in tracing

Answer 15

Proprietary, personal and third party claims
Why choose proprietary:
1. Priority of getting property back over creditors
2. Claim in property thus, if property value rises so does your claim
3. limitation, personal claim only last 6 years where as proprietary claims no limiation

Question 16

Introductory points for tracing question

Answer 16

Common law tracing: C must have legal title and can not trace in mixed funds Agip v Jackson
Pre requisite for equitable: Re Diplock
fiduciary relationship, C must have equitable interest,

Question 17

Mixed with wrongdoer

Answer 17

presumption of honesty -> use T’s money first Re Hallett

Preserve the value of the trust fund-> trust money had been used to buy the shares initial transaction Re Oatway
Both were completely dissapated

Can not benefit from their wrong doing, thus B can cherry pick - Shalston v Russo

Question 18

Dishonest assistance

Answer 18

Test found in Ultraframe v Fielding:
Was the assistance by a third party other than the T
Casual link between the breach and 3rd party, Aid in the breach, preparation, concealing the breach
Must be dishonest:
Royal Brunei v Tan confirmed in Abourahman objective test:
Would an honest person with Bruno’s skills think of this as honest or dishonest

Question 19

Knowing reciept test

Answer 19

Found in El Ajou v DLH

1. Disposal of asset breach of fiducairy duty
2. must have reciept proof (Transactional test)
3. Knowledge of the breach: Baden skill was not properly followed. BCCI V Akindele -> Did c’s knowledge make it unconsciounable to retain the benefit of the reciept

Question 20

Tracing into goods

Answer 20

One can’t trace into equity’s darling: Bonafide purchaser of a good given valuable consideration without notice
Gifts aren’t seen as equity’s darling Re Diplock
Good transaction claim ring
Bad transaction claim a charge re Fosket v Mckewan

Question 21

Mixed with third party

Answer 21

Apply FIFO: Re Diplock if Current account

Savings accoung use Pari Pasu Re Diplock

Question 22

Paying of a mortgage

Answer 22

Subrogation (Bajwa) -> Debt is revived in favour of the Claimant.
Restriction: must be the exact same mortgage

Question 23

Re Diplock claim

Answer 23

Must try and sue the Trustee first
Claim for the sum only not any interst
Only against an innocent volunteer if a B under an estate
Only defense Change of position Lipkin

Question 24

Improve own asset

Answer 24

Value added Lien
Valu reduced dissapation
Re Diplock

Question 25

Lowest intermediate balance rule

Answer 25

Roscoe v Wilder

wrongdoer puts more money into the account money is not a repayment ie through a will.

Question 26

Intro for ST question

Answer 26

S9 Wills act valid will-> Will is a public document ST to keep it secret

Question 27

Elements needed for valid ST

Answer 27

ICAR: Intention, communication, Acceptance and Reliance

Kasperbauer v Griffith

Question 28

Intention

Answer 28

Knight v Knight
Three certanties (Intention, subject, object) sufficiently clear and precise, distinguish Margulies v Margulies (knows what he must do, knowing his wishes)

Question 29

Communication

Answer 29

When: FST - Before death HST - before execution Welgrave v Tebbs
Content: Existence, property and terms Re boyes
Method: Orally, written, sealed envelope (Re Keen) STrustee must understand what is written in the envelope

Communication: Take place to all trustee’s
Exception (re Stead) Before or at time of will’s execution and trustees are joint tenants. TIC only those who were communication will be bound -> outright gift otherwise

Question 30

Acceptance and reliance

Answer 30

Acceptance: Through words or silence (Re Moss)
Reliance: keeps the will unchanged, or creates the will Moss v Cooper

Question 31

Trustee disclaiming gift

Answer 31

Re Maddock -> Not constitution it will fail FST-> legal title not passed on Trustee’s death -> remains Settlors estate

Blackwell v Blackwell-> HST-> Equity will not allow a trust to fail for what of a trustee
Blackwell higher judgement

Question 32

Transfer of land

Answer 32

Must be evidenced as per 53 1 B, failure will make trusts unenforceble
Case law contradicts this:
Ottaway v Norman: Oral declaration enforceable FST
RE bailie: HST Oral unenforceable,
Kasperbauer: ST are constructive trust, to prevend fraud as per the fraud theory: thus 53 2 LPA will be used

Question 33

Fraud theory

Answer 33

Kasperbauer: Equitable maxim: Equity will not permit a statute to be used as an instruement of fraud: seen as constructive trust do not have to comply with 53 1 b
FST: Prevents taking property outright
HST: Using property in a way testator did not intend

Question 34

Dehors the will theory

Answer 34

Blackwell v Blackwell:
Secret trust arise outside and independently of the will and therefore inter-vivos despite being constituted by the will, since intervivos s9 wills act doesnt appy

Question 35

B predeceasing the testator

Answer 35

Usually cause the gift to collapse Re gardner
Generally, if the secret beneficiary dies before the testator, the gift will lapse. However, it was held in this case that the secret trust dehors the will and vests in secret beneficiary’s estate. HEAVILY criticised for making will irrevocable.

Question 36

Benificiary witnessing the will

Answer 36

Creation of a seperate intervivos trust and not under the will Re young