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RDG
online Restitution Discussion Group Archives |
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Eoin O'Dell wrote:
Yet, it seems to me that the ordering I have
adopted is the logical ordering, and this claim discloses the usual desperation
of the plaintiff whose primary action would fail seeking to find some
(any) other alternative remedy. I don't think there is any required order which must
be pursued in claiming traceable proceeds?
If we treat the relationship between the defendant
and the third party simply as that between customer and banker, when the
defendant customer lodged his assets with the third party banker, the
customer generates a debt in his favour (represented in a bank account),
and also pays for and receives banking services. On our facts, the defendant
has satisfied that antecedent debt by paying over the impugned payment.
Though in advance, that payment is still in exchange for the lodgement.
I agree with that entirely, but I think the relationship
between rogue and defendant was trustee-beneficiary, so:
In the alternative, if we use the language of
trust, and treat the relationship between the defendant and the third
party as that between beneficiary and trustee, when the defendant beneficiary
transferred his assets to the third party trustee, and thereafter instructs
the trustee to retransfer the trust assets to the beneficiary, a debt
arises at that stage by virtue of the instruction and the defendant satisfies
that debt by paying over the impugned payment. I'm not sure that's right. A debt only arises between
trustee and beneficiary if there has been a misappropriation of trust
property. If a beneficiary who has the right to call for the trust property
does so, and he gets it, I don't think there is ever a time when he is
an unsecured creditor. That is why I find this case difficult: defendant
was an unsecured creditor without knowing it.
By the way, if there has been a breach of trust and so
a debt arises, and this debt is paid with property belonging to another
trust, there is authority that bfp is available, which seems to make sense:
Taylor v. Blakelock (1886), 32 Ch. D. 560 (C.A.). What is different
about my case is the defendant's ignorance that he has become an unsecured
creditor.
Finally, I thought that there might be a third
possible identifiable end product: the chose in action which the third
party had against the defendant (if one arises) I don't think that is a traceable product of any of the
plaintiff's value. It was acquired in exchange for the defendant's own
value, deposited earlier.
Lionel <== Previous message Back to index Next message ==> |
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