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E&T (Limitations (Circumventing the Beneficiary Principle (Other…

- - - - Unincorporated Associations
        
        Contract-holding theory
      - Political parties
    - - Charitable Trusts: Pemsel's Four Heads of Charity
        
        relief of poverty
        
        advancement of religion
        
        advancement of education
        
        other purposes beneficial to the community
      - Anomalous Trusts
- - - - Knowing Receipt
        
        (1) asset held under a trust (express, resulting or constructive) or subject to a fiduciary duties; (2) disposal of asset in breach of trust or fiduciary duty; (3) beneficial receipt by recipient; (4) the recipient having such knowledge of the nature of the asset or the disposal of it or the existence of the trust as to make it unconscionable for him to retain the value of his receipt.
      - Dishonest Assistance
        
        (1) a trust or fiduciary duty (2) breach of trust or fiduciary duty; (2) procurement or inducement or assistance; (4) which is dishonest.
  - - - Equity
        
        Tracing in equity
        
        Fiduciary relationship/prior equitable interest
        
        Clean substitutions
        
        Mixed fund
        
        Mixed with trustee's own property
        
        Mixed with innocent volunteer's property
        
        Bank accounts
        
        Swollen assets theory
      - Common law
        
        Clean substitutions
        
        Mixed fund
        
        cannot trace "through"
        
        can trace "into" and "to"
        
        Criticisms & reform
      - Limits
        
        Inequitable to trace
        
        Bona fide purchaser of legal interest for value without notice
        
        Property used to improve land
        
        Pre-acquired property
        
        Property ceases to exist
    - - Overreaching
        
        incident of powers of disposition
      - Trust property
      - Traceable proceeds
        
        Property
        
        Unjust enrichment
      - Defences
        
        Bona fide purchaser of legal interest for value without notice
        
        Change of position (unjust enrichment only; not proprietary claim)
- - - - Chambers' "absence of intention" thesis
        
        Unjust enrichment (rejected)
      - Rebutting presumption: intention to benefit/gift
      - Purchase money RT
      - Direct evidence
      - Presumption
      - How is the property held?
    - - Initial failure
      - Subsequent failure
      - Dissolution of pension funds/UAs
    - - Express or resulting?
  - - - Liability to account as a constructive trustee (Class 2):
        
        exposure to equitable remedies due to participation in unlawful misapplication of trust assets
      - "Real" contructive trustees (Class 1):
        
        lawful assumption of fiduciary duties without formal appointment
      - Conscience affected
- - - - Duty of the trustee to keep accounts of the trust and to allow the beneficiaries to inspect them as requested. This accounting procedure serves two primary purposes: (a) “the informative purpose of allowing the beneficiaries to know the status of the fund and what transformations it has undergone”, and (b) a “substantive purpose… [to ensure] that any personal liability a custodial fiduciary may have arising out of maladministration is ascertained and determined” ... More will also likely be required of a professional trustee, as compared to a non-professional trustee who may be granted “fair and reasonable allowances” (Snell's Equity cited in Lalwani SGHC)
      - Statutory duties: Trustees Act
        
        Duty of prudence
        
        Portfolio theory
        
        Duty to invest
      - Duty to avoid indeliberate decision-making
      - Duty of even-handedness/impartiality
        
        rules of apportionment/allocation of expense rules
      - Duty of honesty and loyalty
        
        above personal interest
        
        no personal gain/self-dealing
        
        objective/disinterested
- - - - Certainty as to identity
      - Certainty as to extent of beneficial interest
      - Curing uncertainty:
        
        arbiter
      - Conceptual & evidential certainty