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RDG
online Restitution Discussion Group Archives |
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Mark Armstrong-Cerfontaine
wrote:
(9) Therefore, to answer conclusively whether
section 339 IA 1986 applies, one must determine the extent to which the
money misappropriated by Cass was his money/property. I agree and I think this is, as they say around here,
the $64,000 question.
Eoin wrote
If Cass's trustee in bankruptcy does have
a successful claim against the Club under ss 339ff of the Insolvency
Act 1986 (or equivalent), would the Firm then be able to trace into
trustee's hands and make a proprietary claim against the insolvency?
As the computer in Hitchhiker's Guide to the Galaxy said
when asked the meaning of life, the universe and everything: Tricky. If
a debtor holds property in trust, and transfers it to a bona fide purchaser
for value without notice so the trust interest is lost, then even if the
trustee in bankruptcy gets it back as a preference, the trust beneficiary
has no priority claim to it, ie the trust is not revived: Re First Capital
Mortgage Loan Corporation, 917 F.2d 424 (10th Cir. 1990); cf Re Yagerphone
[1935] Ch 392.
If however we had decided that the property in Karpnale's
hands belonged all along to LG (ie they had some pre-existing interest
which was not lost on transfer to Karpnale), then any recovery of it by
the trustee would be unauthorized by the bankruptcy law and the trustee
would have to hand it (or its traceable proceeds) over just as much as
Karpnale would.
So we are back to the same mystery of what kind of interest
LG had in the money paid to Karpnale. <== Previous message Back to index Next message ==> |
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