========================================================================= Date: Tue, 14 Oct 2008 12:43:19 +0100 Reply-To: "Mitchell, Charles" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Mitchell, Charles" MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable The CA's decision in Devenish has now been released. It features a lengthy= discussion by Arden LJ of the principles governing restitutionary damages = for torts, which she takes to be generally available unless they are preclu= ded by Halifax or Wass and provided that they comply with the restrictions = laid down for gain-based remedies for breach of contract in Blake. The fir= st of these provisos apparently means that the tort must be 'proprietary', = a conclusion that is out of line with case-law stretching back for many yea= rs that says e.g. that you can waive the tort of deceit. The second provis= o also seems unfortunate, since the restrictive approach in Blake was speci= fic to contract damages and extending the rules laid down there to all gain= -based remedies for wrongdoing seems (a) out of line with what Lord Nicholl= s actually said, and (b) undesirable in principle. Happy reading! http://= www.bailii.org/ew/cases/EWCA/Civ/2008/1086.html CM Professor Charles Mitchell School of Law King's College London Strand London WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 =3D=3D=3D=3D This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Thu, 23 Oct 2008 19:58:24 +0100 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Free acceptance MIME-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Hi all, The most recent of the "I'm a Mac"-"And I'm a PC" adverts for apple mac = is an entertaining example of a boundary dispute between contract and restituti= on, and of where free acceptance might be pleaded in the latter context, go t= o and click on 'Bake Sale'. Enjoy. Eoin. =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D = =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D = =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D Dr Eoin O'Dell main: +353-1-896 1125 Fellow & Senior Lecturer direct: +353-1-896 1178 Director of Research mobile: +353-87-2021120 School of Law main fax: +353-1-677 0449 Trinity College blog: http://www.cearta.ie Dublin 2 web: http://www.eoinodell.com Ireland odelle@tcd.ie \ eoin.odell@tcd.ie ------------------------------------------------------------------------ All opinions are personal: no legal responsibility is accepted for this email or attachments, which may be confidential or privileged or subject to a Freedom of Information request: if you have received this in error, let me know and delete it. Please think 'green' before printing. Thanks. =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D = =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D = =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D =3D=3D=3D=3D This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ========================================================================= Date: Fri, 31 Oct 2008 15:39:12 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: Priority of Quistclose Trust Comments: To: Jamie Glister In-Reply-To: MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="B_3308312355_822413" --B_3308312355_822413 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Many months later ... I suppose one way to look at it is in terms of whethe= r unreformed law can attach a special priority to purchase money security interests, via reasoning that is independent of basic, general priority rules (eg Goode, Commercial Law, 3 ed, 669-71). If it can, presumably that reasoning would attach the same type of priority to the lender=B9s interest under a Quistclose trust? Lionel On 20/07/08 18:24 PM, "Jamie Glister" wrote: > Dear all, > =20 > Some thoughts, although I fear they may lead back to the original questio= n! I > say similar things in my article in the 2004 CLJ, pp 632-655, at text to = notes > 68-73. > =20 > Assuming this hypothetical happened in a jurisdiction like England and Wa= les > (rather than one with a functional security interest regime), and assumin= g for > simplicity that the account has an initial zero balance, my first thought= s are > that the Quistclose interest would prevail because: > =20 > (i) the intended segregation of funds indicates that the recipient is not= to > enjoy full beneficial rights > (ii) so the property will be subject to a trust before it gets to the cha= rged > account > (iii) so the charge interest will lose because the Quistclose interest in= the > relevant property existed first . > =20 > But on thinking more about it I am not so sure. Segregation normally foc= uses > on what the borrower does or should do with the money, but obviously the > Quistclose trust can only exist when the money is segregated from the len= der=B9s > assets. If this is achieved by direct transfer to a borrower=B9s charged > account then the lender=B9s equitable interest in the money may not exist b= efore > the money is paid into the charged account: the two would appear to happ= en at > the same time. > =20 > The issue of whether Quistclose lender/beneficaries obtain or retain an > equitable interest might then be relevant. If the equitable interest is > retained then in our example no interest is ever available to the charge.= If > the interest is obtained then it is obtained from the borrower, which mea= ns > that the charge interest will have 'bitten' the property first. > =20 > On the one hand there is generally no retainable equitable interest in fu= ll > legal ownership =AD see Vandervell v IRC [1967] 2 AC 291 at 311 (Lord Upjoh= n), > Re Bond Worth [1980] 1 Ch 228 at 253 (Slade J), Westdeutsche [1996] AC 66= 9 at > 702 (Lord Browne-Wilkinson), RM Goode, Legal Problems of Credit and Secur= ity > (3rd ed 2003) p 21. > =20 > On the other hand Abbey National BS v Cann [1991] 1 AC 56 seems to sugges= t > that legal title alone can be transferred away, and it just seems odd to = me > that Quistclose trust property could ever be construed as being even for = an > instant fully owned by the borrower. Since Quistclose trusts commonly ar= ise > (or are found later to have arisen) in insolvency situations, there is at > least a risk that a declaration of trust over assets wholly-owned by the > borrowing company may be construed as a voidable preference (see note 15 = in > the article). > =20 > Best wishes, > =20 > Jamie > -- > Lecturer, Faculty of Law > The University of Sydney > +61 (0)2 9351 0277 >=20 >=20 > Date: Sat, 19 Jul 2008 23:46:37 +0000 > From: look-chan.ho@1webmail.net > Subject: [RDG] Priority of Quistclose Trust > To: ENRICHMENT@LISTS.MCGILL.CA >=20 > I would be grateful for any thoughts on the priority between a Quistclose > trust and a security interest where a bank account containing monies subj= ect > to a Quistclose trust is already subject to a security interest in favour= of > the account bank. Let's use Cooper v PRG Powerhouse [2008] EWHC 498 (Ch) = as a > hypothetical. There it was held that the account of PRG Powerhouse with > Barclays Bank contained monies subject to a Quistclose trust in favour of= the > claimant. If the account were already subject to an existing charge in fa= vour > of Barclays Bank, would the claimant's interest under the Quistclose trus= t > trump Barclays Bank's charge? >=20 > =20 >=20 > Kind regards >=20 > Look=20 > This message was delivered through the Restitution Discussion Group, an > international internet LISTSERV devoted to all aspects of the law of unju= st > enrichment. To subscribe, send "subscribe enrichment" in the body of a me= ssage > to . To unsubscribe, send "signoff enrichment" = to > the same address. To make a posting to all group members, send to > . The list is run by Lionel Smith of McGill > University, . >=20 >=20 > This message was delivered through the Restitution Discussion Group, an > international internet LISTSERV devoted to all aspects of the law of unju= st > enrichment. To subscribe, send "subscribe enrichment" in the body of a me= ssage > to . To unsubscribe, send "signoff enrichment" = to > the same address. To make a posting to all group members, send to > . The list is run by Lionel Smith of McGill > University, . >=20 >=20 =3D=3D=3D=3D This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . --B_3308312355_822413 Content-Type: text/html; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Re: [RDG] Priority of Quistclose Trust Dear all,
Some thoughts, although I fear they may lead back to the = original question!  <= FONT SIZE=3D"2">I say similar things in my articl= e in the 2004 CLJ, pp 632-655, at text to notes 68-73.
Assuming this hypothetical happened in a jurisdiction lik= e England and Wales (rather than one with a functional security interest reg= ime), and assuming for simplicity that the account has an initial zero balan= ce, my first thoughts are that the Quistclose interest would prevail because= :
(i) the intended segregation of funds indicates that the = recipient is not to enjoy full beneficial rights
(ii) so the property will be subject to a trust before it gets to the charg= ed account
(iii) so the charge interest will lose because the Quistclose interest in t= he relevant property existed first .
But on thinking more about it I am not so sure.  Segregation normally focuses on what the borrower does or sho= uld do with the money, but obviously the Quistclose trust can only exist whe= n the money is segregated from the lender’s assets.  If th= is is achieved by direct transfer to a borrower’s charged account then= the lender’s equitable interest in the money may not exist before the= money is paid into the charged account:  the two would appear to happe= n at the same time.
The issue of whether Quistclose lender/beneficaries obtai= n or retain an equitable interest might then be relevant.  If the equit= able interest is retained then in our example no in= terest is ever available to the charge.  If the interest is obtained= then it is obtained from the borrower, which means that the charge inte= rest will have 'bitten' the property first.
On the one hand there is generally no r= etainable equitable interest in full legal ownership – see Vanderve= ll v IRC [1967] 2 AC 291 at 311 (Lord Upjohn), Re Bond Worth [198= 0] 1 Ch 228 at 253 (Slade J), Westdeutsche [1996] AC 669 at 702 (Lord= Browne-Wilkinson), RM Goode, Legal Problems of Credit and Security (= 3rd ed 2003) p 21.
On the other hand Abbey National BS v Cann = [1991] 1 AC 56 seems to suggest that legal title alone can be tra= nsferred away, and it just seems odd to me that Quistclose trust property co= uld ever be construed as being even for an instant fully owned by the borrow= er.  Since Quistclose trusts commonly arise (or are found later to have= arisen) in insolvency situations, there is at least a risk that a declarati= on of trust over assets wholly-owned by the borrowing company may be constru= ed as a voidable preference (see note 15 in the article).
Best wishes,
Jamie
--
Lecturer, Faculty of Law
The University of Sydney
+61 (0)2 9351 0277

Date: Sat, 19 Jul 2008 23:46:37 +000= 0
From: look- chan.ho@1webmail.net
Subject: [RDG] Priority of Quistclose Trust
To: ENRICHMENT@LISTS.MCGILL.CA

I would be grateful for any thoughts on the priority between a Quistclose t= rust and a security interest where a bank account containing monies subject = to a Quistclose trust is already subject to a security interest in favour of= the account bank. Let's use Cooper v PRG Powerhouse [2008] EWHC 498 = (Ch) as a hypothetical. There it was held that the account of PRG Powerhouse= with Barclays Bank contained monies subject to a Quistclose trust in favour= of the claimant. If the account were already subject to an existing charge = in favour of Barclays Bank, would the claimant's interest under the Quistclo= se trust trump Barclays Bank's charge?

 

Kind regards

Look
This message was delivered through the Restitution Discussion Group, an int= ernational internet LISTSERV devoted to all aspects of the law of unjust enr= ichment. To subscribe, send "subscribe enrichment" in the body of = a message to <listserv@lists.mcgill.ca= >. To unsubscribe, send "signoff enrichment" to the same ad= dress. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by L= ionel Smith of McGill University, <lione= l.smith@mcgill.ca>.

This message was delivered through t= he Restitution Discussion Group, an international internet LISTSERV devoted = to all aspects of the law of unjust enrichment. To subscribe, send "sub= scribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "= signoff enrichment" to the same address. To make a posting to all group= members, send to <enrichment@lists.= mcgill.ca>. The list is run by Lionel Smith of McGill University, <= ;lionel.smith@mcgill.ca>.


=3D=3D=3D=3D

This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.

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