Tracing, following and remedies against third parties

following

following a piece of property to get that property back

Tracing

following a peice of property as it is converted into diffrent pieces of property

intrests under tracing

• Interest flows from original money

• Percentage interest of trust money → does not have to equal the amount that was taken (Fosket v McKeown)

• Courts don't have discretion to what this interest is (Fosket v McKeown)

Are the intrests enforceable under tracing

not against a bona fida purchaser or a volunteer of the trust ( Foskett v McKeown)

unmixed claim (tracing)

where the trust money has not bee mixed with personal money thus only able to regain the trust money ( Re Hallets estate)

Simple mixed tracing claim

where trust money has been mixed with personal bank account money

• entitled to the missing trust money out of their bank account ( Re Hallet)

• Beneficaries can cherry pick the best outcome for them Re Oatway

• Have to prove its orginally trust money to trace Re Oatway

• hallets rule —> presumption that they used there own money first before dipping into the trust money that cannot be replaced or recovered once used Roscoe v Windsor

• must be able to define the figure that remains in orginal state or found in another shape

• no remedies against a bona fida purchaser as they are equites darling

dishonest knowing assitance

where the third party never had possession of the trust property but aided in the breach in some way Barnes v Addy

1. Is there a fiducary duty

2. Is there a breach of this duty

• doesnt need to be a dishonest breach Royal Brunei Airlines v Tan

3. Assitance by the stranger in breach of the duty

4. dishonesty by the stranger to breach that duty

• objetive standard ( reasonable person) Royal brunei Airlines v Tan

• Subjective element —> trustee knows what they are doing is a breach of the trust Royal Brunei Airlines v Tan

• Suspicion/wilful blindness is sufficent Westpac v Map and Associates

Knowing recipet

where the third party had the property (thus liable to a tracing claim) but no longer has the property Barnes v Addy

1. is there an f duty

2. is there a breach of the f duty

• doesnt need to be a dishonest breach Royal brunei v tan

3. third party has recived the relevant property

4. knowledge of the fact a breach was being committed