Short Answer Questions
P2 - Equity's major contributions to the development of the law may be summarised in to the exclusive, concurrent and auxiliary jurisdictions.
P4 - The significance today of the equitable maxims is that they represent axioms that represent the policy behind a number of principles. They do not represent rigid principles of law.
P8- Lord Browne -Wilkinson in Westdeutsche case identified four core principles of trusts law. Section 1 of the Recognition of Trusts Act 1987 also lays down a number of characteristics of trusts.
P9 - Express trusts may be classified into private/public (charitable)trusts, fixed/ discretionary trusts.
P10- A resulting trust is created by the court as a default mechanism whenever the disposal of the equitable interest in property remains incomplete. The resulting trust may be automatic or presumed, see Megarry VC in Re Vandervell Trusts (No.2).
P10- The occasions when a constructive trust may be created have been deliberately left vague to identify when a fiduciary has abused his position. The occasions when this may take place are infinite.
P12- The reasons for creating express trusts are purely subjective and dependent on the motives of the settlors. Tax avoidance has always been, and continues to be, a prime motive for creating an express trust.
P17- The justification for the Re Rose principle is that it is an interim solution when the settlor has done everything required of him to transfer the legal title to property, but some outstanding event outside his control remains to be accomplished. In these circumstances the transfer will be effective in equity. Note the extension of this principle by the Court of Appeal decision in Pennington v Waine.
P 20- Re Rose may be reconciled with Re Fry on the ground that in the latter case the transferor had not done everything required of him to transfer the property before his death. He had not obtained Treasury approval which was mandatory in the circumstances.
P22- The expression 'disposition' within s53(1)(c) of the LPA 1925 was partly defined by Romer LJ in Timpson's Executors v Yerbury. This classification is a useful starting point to consider the definition.
P33- Judicial limitations to the broad expression 'disposition' were laid down in the Vandervell litigation, Re Paradise Motor Co, Re Danish Bacon Staff Pension Fund.
P42- Evidence of intention may be manifested by reference to all the circumstances of the case, including statements of the parties (both oral and written) and their conduct.
P52- Re London Wine may be reconciled with Hunter v Moss on the grounds that in the former case the court was dealing with goods as opposed to fungibles, the Sale of Goods Act 1979 was applicable to determine when property in the goods passes, if property in the goods did not pass under the Act it would have been inappropriate for the court to decide that on equitable principles the property had passed. In Re London Wine the trust was being used to improve the rights created in a commercial transaction, whereas in Hunter the question concerned certainty of subject matter in the context of trusts law. In Hunter, had the claim been defeated the wrongdoer would have been allowed to benefit from his breach.
P61- The Pagarani case may be reconciled with Milroy v Lord on the ground that the former involved a perfect trust with multiple trustees where one of the trustees has acquired the property subject to the trust. The principle here is that the office of the trustee is joint and several. Acquisition of the property by one trustee is equivalent to all of the trustees acquiring the property. Admittedly, the Pagarani case involved a bold construction of the facts to ascertain the intention of the settlor.
P62 - Re Ralli may be reconciled with Milroy v Lord on the ground that the settlor in Ralli had a dual intention namely, to transfer property to a third party trustee on trust and pending the transfer to hold the relevant property upon trust for the appropriate beneficiaries. Of course, such intention is required to be stated expressly. The court will not imply a self declaration of trust.
P64- (1) - Fletcher v Fletcher is consistent with Milroy v Lord on the ground that in the former case the court decided that the trust of a chose was perfect. The transfer of the chose in action was effective and this was subject to a valid declaration of trust. Alternatively, it could be argued that the settlor had done everything required of him during his lifetime to effect the transfer.
(2) - Wigram VC in Fletcher v Fletcher decided that the trust was created on the date of the execution of the deed. Alternatively, applying the Re Rose principle the trust would have been perfect on the death of the settlor.
(3) - Yes. The settlor was required to have sufficient funds when he executed the deed and to retain sufficient funds in his estate on death. The positive obligation to transfer the covenanted sum was imposed on the settlor's personal representatives after his death.
P66- Valuable consideration is common law consideration in money or money's worth and marriage consideration.
P75- The position of volunteers (third parties) under imperfect gifts has been improved to the extent that, in the context of the 1999 Act, they are given a cause of action to sue for damages. However, such volunteers are not entitled to equitable remedies.
P78- Testamentary dispositions within s 9 of the Wills Act 1837 remain the norm, but the rule in Strong v Bird completes an imperfect inter vivos gift if the donee is appointed an executor of the donor's will. The connection with the will concerns the appointment of the donee as executor. This has the effect of transferring the property to the donee, despite his acquisition in a fiduciary capacity.
P78- It could be argued that Re Ralli is an extension of the Strong v Bird principle on the ground that in the former case the recipient of property acquired the same as an executor/ trustee rather than as an executor/donee. The simple Strong v Bird rule involves perfecting imperfect gifts rather than imperfect gifts subject to a trust.
79- If the purpose of the Strong v Bird rule is to perfect an imperfect transfer then, in principle, there is no reason why the rule should not be extended to intestacies in favour of the next of kin, but see Walton J's judgment in Re Gonin.
P80- Testamentary dispositions are subject to the formal requirements laid down in s 9 of the Wills Act 1837 and take effect after the death of the testator and in accordance with the will. A DMC, on the other hand, is not a testamentary disposition, but involves an incomplete inter vivos transfer which is completed on death.
P84- Dominion in some choses in action is transferred by delivering the indicia of title to the donee during the lifetime of the donor.
P86- There is some controversy as to whether shares may constitute the subject matter of a DMC, see Staniland v Willott contrast Re Weston. The better view is the since the share certificates are not documents of title delivery of the same does not constitute a transfer of dominion. In a private company the execution of a share transfer followed by the delivery to the office of the company may amount to a perfect gift of the equitable interest as in Re Rose. In this event there is no need to adopt the DMC exception for the transfer of the equitable interest would have been accomplished.
P88- The test today to establish a proprietary estoppel claim is whether it would be unconscionable for the landowner to deny the claim of the claimant.
P90- The nature of the estate acquired by a successful claimant under the proprietary estoppel doctrine varies with the facts of each case and, in particular, the nature of the promise made, the expenditure incurred in reliance on the promise and the method of granting relief.
P93- An 'exhaustive' discretionary trust is one where the trustees are required to distribute the income from the trust as it arises but the trustees retain a discretion as to the mode of distribution. A 'non-exhaustive' discretionary trust is one where the trustees may accumulate the income from the trust and distribute the property that is subject to their discretion.
P95- There are a variety of reasons why a settlor may wish to create a discretionary trust. The primary reasons are flexibility as to the ultimate beneficiaries and the proportion of their interest. This may be due to tax avoidance or other motives.
P97- The duties imposed on donees of powers of appointment were stated by Megarry VC in Re Hay's ST.
P99- There are personal powers, fiduciary powers and fiduciary powers in the full sense.
P104- Powers of appointment do not impose a duty on the trustees to exercise their discretion unlike discretionary trusts.
P111- In McPhail v Doulton, Lord Wilberforce described 'administrative unworkability' as an extremely broad class of objects effectively defying any sensible exercise of the discretion by the trustees.
P121- There are five judicial approaches to the any given postulant test - see Sachs LJ(question of fact approach), Megaw LJ (substantial number of objects), Stamp LJ (strict approach) all in Re Baden(No2); Lord Denning's dictionary approach (ratio) and conditions precedent and subsequent approach (obiter) in Re Tuck. The latter was applied in Re Barlow.
P124- The objects under a power or trust, prior to the exercise of the discretion of the trustees, enjoy a spes or hope of acquiring an interest in the property.
P129- A 'determinable' interest is one which stipulates when an interest will be terminated, similar to a conditional interest. However the determinable interest automatically ceases when the relevant event occurs as distinct from a conditional interest, which requires positive steps to avoid.
P130- A protective trust under s 33 of the Trustee Act 1925 involves a determinable life interest in favour of a principal beneficiary coupled with a discretionary trust in favour of a specified group of objects, including the principal beneficiary, in the event of the termination of the lift interest.
P131- A broad formula that constitutes events that are capable of triggering a determinable event is stated in s 33 of the Trustee Act 1925. This has been interpreted by the courts on several occasions.
P135- The policy of enacting ss 339 - 342 and 423 - 425 of the Insolvency Act 1986 is designed to upset certain specified transactions in favour of the claimant.
P143- In EVTR, Dillon LJ decided that the status of the Quistclose trust imposes a constructive trust on the borrower of funds for a specific purpose complemented by a resulting trust in respect of funds not used for the stated purpose.
P146- There are several interpretations of a Quistclose trust - see Lord Wilberforce in Quistclose, Peter Gibson J in Carreras Rothmans, Dillon LJ in EVTR, Lord Millett in Twinsectra v Yardley
P155- Re Gillingham Bus Disaster Fund may be reconciled with Re West Sussex Constabulary Fund on the interpretation of the intention of the donors. This is a question of fact.
P160- An unincorporated association was defined in Conservative and Unionist Central Office v Burrell. Contractual principles are applied in determining ownership of the funds of the association. The resulting trust principles are inappropriate in this context.
P166- The role of the presumptions of resulting trusts and advancements is to identify in whom the equitable interest in property belongs in accordance with the implied intention of the transferor.
P176- The modern principle in this context was stated in Tinsley v Milligan and subsequent cases.
P177- Megarry VC's classification of resulting trusts in Re Vandervell's Trust (No 2) into presumed and automatic differs from Lord Browne-Wilkinson's classification in Westdeutsche on the ground that in the latter case the learned Law Lord omitted trusts created by the courts in order to fill gaps in ownership. Where there is a gap in ownership Lord Browne-Wilkinson declared that the fund will be held in favour of the Crown on a bona vacantia. In Westdeutsche the Law Lord decided that resulting trusts give effect to the common intention of the parties.
P178- There are a number of theories concerning the resulting trust. See Birks/Chambers analysis, Swadling's theory, Megarry VC in Re Vandervell Trusts (No 2), Lord Wilberforce in Quistclose, Peter Gibson J in Carreras Rothmans, Dillon LJ in Re EVTR, Lord Millett in Twinsectra v Yardley, Lord Browne-Wilkinson in Westdeutsche, Lord Millett in Air Jamaica v Charlton.
P184- It is doubtful whether remedial constructive trusts exist today despite the existence of isolated judicial statements to the contrary.
P185- It is important to distinguish the duty to account from the constructive trust because the former is a personal liability whereas the latter is an in rem liability. This distinction has ramifications with the tracing process, the passing of property and the limitation periods.
P194- Confidential information may be treated as trust property if the information had been obtained in breach of fiduciary duties and without the informed consent of the beneficiaries, see Boardman v Phipps
P208- Since the recipient of a bribe becomes a fiduciary the court declares that it would be unconscionable for the fiduciary to retain the benefit of the bribe in breach of his duties. Thus he is accountable for the bribe. But if he invests the bribe advantageously he ought to be accountable for the increased benefit as well. Equity regards as done that which ought to de done and the fiduciary holds the funds including any increases in value on constructive trust for the beneficiary. His insolvency ought not deprive the beneficiaries of their interest in the funds. Thus tracing will subsist in the hands of the beneficiaries who seek to recover or charge the funds in the hands of the fiduciary, see AG for Hong Kong v Reid, contrast Lister v Stubbs, see also Paragon Finance Co v Thakerar.
P209- In Halifax the court decided that the surplus funds were not held on resulting trust for the defrauded lender because the enrichment of the borrower was not at the expense of the lender. Thus the borrower was not a fiduciary for the lender in respect of the surplus funds. In AG for Hong Kong the defendant became a fiduciary for the claimant when he obtained a bribe.
P212- There are seven circumstances when a trustee may receive remuneration for his services as a trustee, see text.
P216- The 'fair dealing' rule (see Megarry VC in Tito v Waddell) concerns the trustee purchasing the beneficiary's interest. The 'self-dealing' rule involves the trustee purchasing the trust property. In the latter case he is both purchaser and vendor with an evident conflict of duty and interest.
P223- The boundaries of constructive trusts are deliberately left vague and forms a residual category of trust in order to prevent an abuse of power by fiduciaries. The possibilities of abuse of a fiduciary's position are endless.
Both constructive and resulting trusts are created by the courts to promote different purposes. The resulting trust is created in accordance with the implied intention of the transferor and in order to remedy defective drafting concerning gaps in ownership of property. The constructive trust is imposed to prevent the unjust enrichment of a fiduciary.
P230- The presumptions of resulting trusts and advancements are treated as obsolete in identifying ownership of family assets, see Pettitt v Pettitt and Gissing v Gissing.
P243- The 'settled principles of property law' laid down in Pettitt v Pettitt and Gissing v Gissing involve the application of the constructive and resulting trusts in the absence of evidence in writing as to the clear intentions of the parties. These principles apply to any relationship in which the parties have an interest in the property.
P246- The Rosset principles were intended to simplify and clarify the law regarding family assets by reference to two broad principles concerning constructive trusts.
P253- In the recent case, Stack v Dowden, the House of Lords appeared to clarify the type of trust that features in the context of ownership of family assets namely the constructive trust.
P260- Section 37 of the MPPA 1970 has improved the position of married couples and registered civil partners by clarifying the law concerning substantial improvements of real or personal property owned by one or both of the parties.
P261- The equitable ownership of funds in a joint account is dependent on the intentions of the parties and the surrounding circumstances. If a joint enterprise was intended then a joint tenancy of the funds arises. If the account was opened for the convenience of one party who has paid in and withdrawn funds in the account then a resulting trust for such party will arise.
P262- The valuation of family assets is conducted on the date of sale of the assets.
P265- The claimant with an interest in family assets may realise his share by an application to the court under s 14 of the Trusts of Land and Appointment of Trustees Act 1996.
P271- No. A stranger to a trust may only become a constructive trustee if he knowingly receives trust property. Merely interfering with the management of the trust may make him liable for breach of trust, unless he becomes a trustee de son tort. The other category of liability namely, dishonest assistance involves a personal liability.
P277- The rationale of liability laid down in the Belmont Finance case is based on a contest concerning ownership of the property between the beneficiary of a trust and the stranger. The stranger with knowledge cannot claim to be a bona fide transferee of the legal estate for value without notice and must concede the claim of the beneficiary. Knowledge here encompasses all types of knowledge, including constructive knowledge. In Re Montagu, Megarry J laid down a limited form of knowledge in order to base the liability of the stranger namely, subjective knowledge.
P281- The view laid down in Akindele and Royal Brunei v Tan is that the Baden Delvaux categories of knowledge serve no useful purpose in determining liability in knowing receipt cases.
P286- Accessory liability involves a personal liability to account without the defendant acquiring the property and thus does not involve the notion of the constructive trust .
P292- The two statements can be reconciled on the grounds that 'knowledge' on the part of the stranger has been abandoned in favour of dishonest assistance. In addition, whether the trustee procured a fraudulent design is not treated as a precursor to the liability of the stranger.
P297- Dishonesty is measured by an objective standard, see Royal Brunei Airlines v Tan and Barlow Clowes v Eurotrust, Abou-Ramah v Abacha.
P312- There are various theories for the creation of secret trusts see Lords Westbury and Hathersley views in McCormick v Grogan, Lord Sumner in Blackwell v Blackwell, Danckwerts J in Re Young, Lord Sterndale in Re Gardner (No 1), Brightman J in Ottoway v Norman, see also commentators Hodge's view and Matthews opinion.
P313- The effect of transferring property by will to a legatee without informing him of the terms of the trust makes the legatee the absolute owner of the property under the will and he may conscientiously take the property beneficially, see Wallgrave v Tebbs.
P321- The justification for refusing to admit post-will unattested communications to prove the terms of an intended half secret trust was stated in Blackwell v Blackwell. It involves an application of the Wills Act 1837 principles regarding testamentary transfers.
P322- The rules for the creation of fully secret trusts are not exactly the same for half secret trusts. These discrepancies are difficult to justify.
P327- Half secret trusts are treated as express trusts, see Re Baillie. The status of fully secret trusts has not been resolved by the courts. The prevailing view is that such trusts are constructive.
P329- The claimant beneficiary under the trust is required to prove the existence of a secret trust. In Re Snowden, Megarry VC declared that the standard of proof varies with the allegation or non-existence of fraud.
P330- Secret trusts, on principle, may only be created after the death of the testator. This view was controversially challenged in Re Gardner (No2).
P335- The trust derived from the mutual wills doctrine is constructive and is created on the death of the first person to die.
P337- The constructive trust is created on the death of the first person to die.
P338- The significance of the agreement is that it binds the survivor in equity to carry out to terms of the agreement and thus gives rise to the constructive trust. The scope and extent of the trust is determined by reference to the agreement.
P340- The general effect of attempting to create a private trust is that the intended trust will be void for lack of a beneficiary to enforce the trust, subject to exceptions.
P344- The rule against perpetuities is a common law principle as amended by the Perpetuities and Accumulations Act 1964. The rule prescribes the maximum period in which a future interest may vest in a beneficiary and the extent to which that interest may be inalienable.
P347- The Denley rule is a principle of construction as to the effect of a gift on trust. Prima facie the gift may appear to promote a private purpose and may be construed as being void, but, in substance, the gift may be treated as a trust for persons and, subject to the rule of certainty of objects and perpetuities such a trust may be valid.
P356- Gifts to unincorporated associations may be valid as gifts to individuals within the Re Recher principle or the Cocks v Manners rule or the Re Drummond rule. Note also the gift may be valid as a trust within the Denley principle, see also Re Lipinski.
P357- An unincorporated association was defined in Conservative and Unionist Central Office v Burrell.
P365- The test for certainty of charitable objects requires the objects to be exclusively charitable. Non-charitable purposes are required to be incidental to the main charitable purpose.
P367- The rule against remote vesting is applicable to charities but is subject to a concession.
P370- Charities enjoy privileges in respect of exemption from most taxes, a special test for certainty of objects, the rule against perpetuities and cy pres.
P371-Charitable institutions may take the form of incorporated organisations, trusts, corporations sole, and unincorporated associations.
P373- The effect of registering with the Charity Commission is laid down in s 4 of the Charities Act 1993. The institution will be conclusively presumed to be charitable.
P377-Before the Charities Act 2006 the court was able to maintain the law of charities with changes in society by interpreting the preamble to the 1601 Act very broadly and by drawing analogies with precedents. The 2006 Act gives the court a discretion in deciding whether a novel purpose is charitable.
P381- Re Koettgen may be treated as inconsistent with Oppenheim to the extent that in the former case a preference (not amounting to a trust) was expressed for a private group of beneficiaries. In reality was this a public trust?
P383- Gilmour v Coats could be reconciled with Neville Estates v Madden on the ground that in the former case the intended beneficiaries were secluded and were numerically negligible and thus did not satisfy the public benefit element.
P384- The 'public benefit' test is an integral part of charitable trusts and requires the purpose of the organisation to promote a charitable purpose. In addition the beneficiaries of the charity are required to form an appreciable section of society without a link in contract or in blood with the settlor.
P385- Trust for the relief of poverty are not exempt from the public benefit test. A different test of public benefit is applicable to such trusts. The issue involves the precision in which the beneficiaries are selected if connected with the settlor, see Re Scarisbrick.
P388- A private trust for the relief of poverty benefits a narrow group of individuals such as three poor relations, A, B and C of the settlor. Whereas, a public trust may benefit the poor relations of the settlor and it is irrelevant that they number three. The distinction lies in the precision in which the beneficiaries are identified.
P392- 'Poverty' in the law of charities means that the intended beneficiaries are in difficult financial circumstances and are unable to maintain a modest standard of living.
P394- Re Niyazi may be reconciled with Re Sanders on the ground that in the former case the reference to a 'working men's hostel' was consistent with the court's perception of poverty. Whereas the 'working class' in Re Sanders was altogether too vague to connote the notion of poverty.
P398- 'The advancement of education' was defined in Re Hopkin's and McGovern v AG and a variety of other cases. The courts then evaluate the usefulness of the subjects that comprise education to society.
P401- Re Caus is still good law to the extent that the upkeep of priests who play an integral part in the advancement of religion is a charitable purpose.
P416- Trust to provide recreational activities may be charitable if the object falls within the Recreational charities Act 1958 or the activities advance education.
P418- British registered charities may conduct activities overseas as incidental to the organisation's main charitable purposes.
P420- The expression, 'impossibility' has been interpreted liberally by the courts, see Re Lysaght, Re Dominion Students Hall. Occasions of impossibility are included in s 13 of the Charities Act 1993.
P427- Section 13 of the Charities Act 1993 is generally a consolidating Act that has amended the law in s 1 (e) (iii).
P430- A general charitable intention is required to be manifested if the charitable gift has not vested.
P436- The two classes of cases referred to in Re Wilson are cases where the gift in form appears to promote a particular charitable purpose but in substance a general charitable intention can be ascertained from the facts. The second class of cases are where both in form and substance the gift promotes a specific charitable purpose.
442- Re Finger could be reconciled with Re Spence on a question of construction the ground that in the former case although the charitable beneficiary ceased to exist on the date of vesting yet a general charitable intention could be ascertained because the Council had a co-ordinating function and the donor did not consider herself as having any relatives. Accordingly, on this issue Re Finger may be restricted to its facts.
P446- The policy behind s 14 of the Charities Act 1993 is to apply relevant property cy pres, despite a specific charitable intention, if the donors are unidentifiable or they have disclaimed their interests.
P447- The persons within s 33 of the Charities Act 1993 who have the capacity to bring claims are the charity, the charity trustees, a person interested in the charity or any two or more inhabitants in the case of a local charity.
P450- The occasions warranting the appointment of trustees are on the creation of a new trust and the continuance of an existing trust.
P453- The authority to appoint new trustees may be derived from the trust instrument, statute or the court.
P455- The occasions when replacement trustees may be appointed are stipulated in s 36(1) of the Trustee Act 1925. The authority to appoint additional trustees is laid down in s 36(6) of the Trustee Act 1925 and s 19 of TOLATA 1996. Beneficiaries who are of full age and capacity and absolutely entitled to the trust property may influence the appointment of trustees within s 19 of TOLATA 1996.
P457- The vesting of trust property in replacement or additional trustees may be achieved by transfer effective to vest the property in such trustees or by reference to s 40(1) and (2) of the Trustee Act 1925.
P458- When the court appoints a trustee it will take care to balance the interests of the settler, beneficiaries and the efficient administration of the trust.
P460- A trustee may retire by authority in the trust instrument, statutory provisions (see ss 36 and 39 of the Trustee Act 1925), the consent of all the beneficiaries provided that they are eligible to consent, the direction of the relevant beneficiaries under s 19 TOLATA 1996, or the court. The removal of a trustee may be achieved by power in the trust instrument, statutory provisions (see s 36 of the Trustee Act 1925 and ss 19-21 of TOLATA 1996) or by a court order.
472- The Trustee Act 2000 has adopted a flexible objective standard of care for duties imposed under Schedule 1 of the Act.
P473 - 'Sleeping trustees' are not recognised in equity. The liability of trustees for breach of trust is joint or several.
P484- Trustees are entitled to exclude or restrict their liability for breach of trust provided that the clause does not purport to exclude etc their minimum duties.
P488- The expression, 'trust documents' was defined in Re Londonderry Settlement.
P491- An implied duty to convert trust funds may exist under the rule in Howe v Lord Dartmouth.
P500- Income will be available to maintain an infant beneficiary in the circumstances enacted in s 175 of the Law of Property Act 1925 and s 31(3) of the Trustee Act 1925.
P503- Under s 31 of the Trustee Act 1925 when a beneficiary attains the age of majority the trustees are required to pay him the income, including accumulated income until he acquires, or fails to acquire, a vested interest.
P508- An advancement of capital to a beneficiary involves discharging a long term commitment on behalf of the beneficiary such as the purchase of a house or business.
P510- The trustees' power to sell property may be derived from the trust instrument, Howe v Lord Dartmouth or statute.
P516- Trustees are allowed to claim reimbursements for expenses properly incurred under s 31 of the Trustee Act 2000.
P520- The rule in Saunders v Vautier is to the effect that beneficiaries being of full age and sound mind and absolutely entitled to the trust property may terminate the trust.
P521- The inherent jurisdiction of the court to approve schemes that vary the terms of the administration of the trust is restricted to 'emergency' contingencies.
P528- The inherent jurisdiction of the court to approve 'compromise' arrangements is restricted to cases of genuine dispute concerning the rights of the beneficiaries to interests under the trust.
P531- By reference to the Variation of Trusts Act 1958 there is a distinction between 'variation' and 'resettlement'. A variation retains the fundamental purpose of the trust while adjusting an important aspect of the trust, whereas a rewriting destroys the foundation of the trust.
P537- The court may approve schemes varying beneficial interests under the VTA 1958 if the scheme is for the benefit of those declared in s 1(1)(a) - (c) under the Act.
P546- The overriding principle in measuring the damages payable by trustees for breach of trust is restitution to the trust estate for the beneficiaries have a right to have the trust duly administered in accordance with the law.
P554- Generally, simple interest is payable on monetary sums due from the defendant under s 35A of the Supreme Court Act 1981. Compound interest is payable in exceptional circumstances laid down in Sempra Metals.
P559- A trustee may claim a contribution in the circumstances enacted in s 2 of the Civil Liability Act 1978. An indemnity from his co-trustees may be claimed where that co-trustee fraudulently obtained a benefit from the trust, or in the circumstances laid down in Re Partington and Chillingworth v Chambers.
P571- The limitation periods for:
(a) a claim to damages for breach of trust is six years from the date of the breach, see s 21(3) of the Limitation Act 1980,
(b) a claim for an account is dependent on the underlying grievance giving rise to the duty to account, see s 23 of the Limitation Act 1980,
(c) a claim to trace funds in the hands of the trustees is not subject to a limitation period, see s 21(1) of the Limitation Act 1980.
P575- The equitable doctrine of laches will be available as a defence to the defendant following a substantial delay on the part of the claimant to institute the claim coupled with the inequitable consequences that may be suffered by the defendant if the claim were to succeed.
P577- The advantages of a proprietary claim over a personal claim are:
the solvency of the defendant is irrelevant,
the limitation period is not applicable to the claim,
the claimant may recover any increases in the value of the property,
interest accrues in favour of the claimant from the date of the breach.
P581- The major limitation to tracing at common law is that the relevant property is required to remain unmixed with other property.
P594- The 'lowest intermediate balance' in a bank account is the smallest balance the existed in the account throughout the history of the account.
P595- The rule in Clayton case is first in first out. Sums paid in to the account earlier are deemed to be withdrawn before other sums paid in.
P606- The scope of the defence of bona fide change of position is yet to be worked out on a case by case basis. It is not available to a wrongdoer or in respect of the discharge of an on going obligation.
P607- The fiduciary relationship in Chase Manhattan case was based on the receipt of the overpayment. This was reviewed in Westdeutsche case.
The limits of the right to trace in equity were laid down by Lord Greene MR in Re Diplock.
P618- Although the grant of an equitable remedy is discretionary on the part of the court there are a number of settled principles that are applied to determine whether the claimant will be entitled to the remedy.
P629- The court is generally reluctant to grant a mandatory interim injunction and may do so in exceptional circumstances. It is difficult to lay down any general principles but the court is required to consider all the circumstances of the case and in particular the strength of the applicant's case.
P643- 1. This is a difficult question to answer in note form there are a variety of circumstances to be considered by the courts. Guidelines were issued by the court in the Third Chandris case.
2. The principles when a worldwide freezing order may be granted were considered in Derby v Weldon and Dadourian International.
P647- The process for obtaining a search order was considered in Universal Thermosensors case.
P656- Again it is difficult to lay down the conditions in summary form for the grant of an order of specific performance. This is a question best considered by reference to the case, see Patel v Ali and Quadrant Visual cases.
P662- The defence of lack of 'mutuality' regarding the parties is considered at the time of the trial and not on the date of the agreement. Mutuality is a factor to be taken into consideration in exercising the jurisdiction of the court.
P667- A common mistake is a pre-requisite for the granting of an order for rectification, see Swainland Builders v Freehold Properties Ltd. However, the court may also grant the remedy based on a unilateral mistake on the part of one of the parties.
P677- In the seminal decisions of CIBC v Pitt, Barclays Bank v O'Brien and Royal Bank of Scotland v Etridge (N0 2) the House of Lords has clarified the circumstances when undue influence may be claimed as a vitiating factor in avoiding a contract.