swarb.co.uk - law index
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Trusts - From: 1994 To: 1994
This page lists 12 cases, and was prepared on 02 April 2018.
Regina v Clowes (No 2); 1994 - [1994] 2 All ER 316
In re Dale dec'd [1994] Ch 31
1994
ChD
Morritt J
Trusts, Wills and Probate
The taking of a benefit on the strength of a binding engagement is enough to create a constructive trust. For this doctrine to apply there must be a contract at law. For the doctrine of mutual wills to apply it is not necessary that the second testator take a personal direct benefit under the other will.
1 Cites
1 Citers
Re Biddencare Ltd [1994] 2 BCLC 160
1994
ChD
Mary Arden QC
Trusts
The court set out the principles applicable on making a Beddoe application. The court should consider the strength of the case, the likely costs order in the eventual proceedings, and the justice of the application itself.
1 Cites
1 Citers
Abbey National plc v Moss and Others [1994] 1 FLR 307
1994
CA
Peter Gibson LJ, Hirst LJ
Land, Trusts
Mrs Moss inherited the former matrimonial home. Her daughter (L) suggested that she transfer it into their joint names to ease its transfer on her mother's death. It was agreed the house would never be sold during Mrs Moss's lifetime. L borrowed £30,000 using the house as security and forged her mother's signature on the charge. Mrs Moss did not know of the mortgage. They fell out and L left and ceased to make payments. The chargee sought to recover the arrears, possession of the property and also made an application for an order for sale under s. 30. The judge ordered sale. Held: (by Majority) The position created by the transfer into joint names subject to the agreement that the property was not to be sold in the mother's lifetime was that the trust for sale thereby created could not be implemented without the mother's consent. The assignee of a donee could not acquire a better right than the donee had, but took his interest subject to all the equities effecting the interest of the donee. In proceedings apart from s 30, the court would not allow the trustees for sale to ignore the requirement of consent, and although in proceedings under s. 30 the court had a wide discretion to override the refusal of trustees for sale to sell on the application of any person interested, the trust for sale would not be enforced so long as there was a collateral purpose still subsisting requiring the retention of the property. The judge had been wrong to hold that the collateral purpose of the agreement had come to an end by reason of the daughter losing her beneficial interest through the mortgage, and his an error of law required the Court of Appeal to exercise its discretion under s. 30 afresh. It did so and refused an order for sale. "Again apart from s. 30, I apprehend that an assignee of the donee would be held not to be in any better position than the donee to ignore the requirements of Mrs Moss's concern to a sale." Hirst LJ (dissenting) would have upheld the judge's decision only being unwilling to interfere with an exercise of a judge's discretion under s30. S30 gives the court a discretionary power to order sale, even where the respondent to an application's interest in the property ranks before that of the applicant. The house was registered land and Mrs Moss was in occupation and that therefore s. 70(1)(g) would have applied. Nevertheless neither counsel for Mrs Moss nor the judge nor any member of this court suggested that the building society's s. 30 application was defeated by the operation of that sub-section
Law of Property Act 1925 30 - Land Registration Act 1925 70(1)(g)
1 Citers
re Goldcorp Exchange Ltd [1994] 2 All ER 806
1994
Trusts
1 Citers
Hunter v Moss; CA 14-Jan-1994 - Gazette, 23 February 1994; Times, 14 January 1994
Hambro and Others v The Duke of Marlborough and Others Gazette, 22 June 1994; Independent, 15 April 1994; Times, 25 March 1994
25 Mar 1994
ChD
Trusts
A scheme to transfer benefits without consent of the beneficiary was approved. The court may vary trusts against the wishes of a beneficiary even of full age and capacity.
Settled Land Act 1925 64
McHardy and Sons (A Firm) v Warren and Another; CA 8-Apr-1994 - Times, 08 April 1994; [1994] 2 FLR 338
Bishopsgate Investment Management Ltd v Homan and Others Times, 14 July 1994
14 Jul 1994
ChD
Trusts, Equity
A tracing remedy is defeated when the account into which the money is paid is overdrawn.
1 Cites
1 Citers
Hodgkinson v Simms [1994] 3 SCR 377; 117 DLR (4th) 161; [1994] 9 WWR 609; 97 BCLR (2d) 1; 16 BLR (2d) 1; 171 NR 245; 22 CCLT (2d) 1; 49 BCAC 1; 57 CPR (3d) 1; 5 ETR (2d) 1; [1994] CarswellBC 438; AZ-94111096; JE 94-1560; [1994] SCJ No 84 (QL); [1994] ACS no 84; 50 ACWS (3d) 469; 80 WAC 1; 95 DTC 5135
30 Sep 1994
La Forest, L'Heureux-Dube, Sopinka, Gonthier, McLachlin, Iacobucci and Major JJ
Commonwealth, Contract, Damages, Trusts
Supreme Court of Canada - Fiduciary duty -- Non-disclosure -- Damages -- Financial adviser -- Client insisting that adviser not be involved in promoting -- Adviser not disclosing involvement in projects -- Client investing in projects suggested by adviser -- Ultimate decision as to whether or not to invest that of client -- Substantial losses incurred during period of economic downturn -- Whether or not fiduciary duty on part of adviser -- If so, calculation of damages.
Contracts -- Contract for independent services -- Breach by failure to disclose -- Calculation of damages.
La Forest J, giving the judgment of the majority, drew the distinction between fiduciary relationships and commercial interactions governed by the common law, the former being characterised by one party's duty to act in the other's best interests, and often by power on the one hand and dependency on the other, whereas the common law generally respected the pursuit of self-interest. The proper approach to damages for breach of a fiduciary duty was said to be restitutionary. On that basis, the majority of the court concluded that the claimant was entitled to be compensated for the loss sustained on investments which he had made on the advice of a fiduciary who had failed to disclose a conflict of interest, notwithstanding that the loss had resulted from an unforeseen general economic downturn.
1 Citers
[ Canlii ]
Alsop Wilkinson v Neary and Others Independent, 03 November 1994; Times, 04 November 1994; [1995] 1 All ER 431
4 Nov 1994
ChD
Lightman J
Trusts
The second defendant, a solicitor, had fraudulently taken money from trusts, and paid money into trusts for his own family. It was claimed that the payments were intended to defeat the recovery of the funds. The trustees sought protection on costs through a Beddoe application. Held: Trustees who sought directions from the court on whether to defend an action, should ask that question in separate proceedings begun for that purpose. By applying within the proceedings, they exposed the strengths and weaknesses of the trustees' case: "it would be quite inappropriate for all this to be revealed to the court which has to try the case or the other parties to the litigation." Nor did the application bring the necessary parties before the court. A trustee has a duty to remain neutral when the trust faces hostile litigation regarding the validity of trust itself.
Insolvency Act 1986 423
1 Cites
In Re Duxbury's Settlement Trusts; CA 21-Nov-1994 - Times, 19 December 1994; Gazette, 16 December 1994; Ind Summary, 06 February 1995; [1995] 1 WLR 425; [1994] EWCA Civ 21
