Possible ways to establish proprietary interests:
1)
Constructive trust: i) breach of F duty with unauthorized profit, ii)
misappropriation of trust fund iii) trusts arising from void/voidable contracts
iv) unconscionability arising from misappropriation of property
In order to claim the right in the property, must claim an equitable lien or CT after
the tracing process i.e.:
1)
Presence of a fiduciary relationship
2)
The property remains identifiable
3)
3
rd
party cannot invoke an defence
Nature of tracing
Boscawen v Bajwa
and
Foskett v McKeown
: Tracing is a process by which a P traces what
had happened to his property and identify properties which could be regarded as
representing his.
Existence of a fiduciary relationship
Re Diplock
but see
Foskett
, however,
Shalson
.
Property remains identifiable
Where trust property is money
and is mixed with the defaulting trustee’s
money in a
running bank account:
The presumptions on which they are founded also take account of the moral
blameworthiness of the parties whose funds have been mixed. If a mixed fund consists of
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- Fall '13
