Chapter 20 Self-Test Questions

'The Baden classification of fault is highly regarded and widely esteemed as the most suitable classification of degrees of fault.'

True.

False.

'The Baden classifications of fault refer only to knowledge as it is the only possible criterion of fault.'

True.

False.

'Where a third party is held personally liable in Equity for receiving property transferred in breach of trust or fiduciary duty, or as an accessory to such a breach, it is appropriate that they hold the property on constructive trust.'

True.

False.

Which of the following must be established for the action for money had and received?

The defendant receives property in which the claimant has a legal proprietary interest.

The defendant has retained the property.

The defendant has retained something representing the property.

The defendant was at fault in receiving the property.

What is the difference between the Common Law claim for money had and received, and the equitable claim for unconscionable receipt?

Difference in proof that the defendant received property in which the claimant had a proprietary interest.

Difference as to receiving property and retaining it.

Difference as to fault.

There is no difference.

What requirements must be met for a claim for unconscionable receipt?

The defendant must receive property in which the claimant has an equitable proprietary interest.

The transfer of property to the defendant must have arisen from a breach of trust or fiduciary duty.

The defendant must have procured or encouraged the breach of trust or fiduciary duty.

The defendant must have actual knowledge that they have received property in breach of trust or fiduciary duty.

Where a defendant is held liable in unconscionable receipt, what is the nature of the remedy?

The remedy is personal.

The remedy is proprietary.

The claimant can elect between a personal or a proprietary remedy.

The defendant must return the actual property received.

'Equity has a strict liability personal claim for the receipt of property and this is easily justified on policy grounds.'

True.

False.

What is the nature of liability for dishonest assistance?

The liability is categorized as primary.

The liability is categorized as secondary.

The liability is a mix between primary and secondary.

The liability cannot be considered either primary or secondary.

What are the requirements for a claim of dishonest assistance?

A fraudulent breach of trust or fiduciary duty.

The defendant induced, encouraged, or assisted the breach.

The defendant induced, encouraged, or assisted the trustee or fiduciary, but the assistance need not be linked to the breach.

The defendant was dishonest.

What is the test of dishonesty identified in Royal Brunei Airlines v Tan?

Subjective dishonesty—did the assistant believe they were being dishonest?

Objective dishonesty—would a reasonable person consider the assistant's behaviour to be dishonest?

Primarily objective—would a reasonable person consider the assistant's behaviour to be dishonest in the light of what the assistant knew at the time?

Primarily subjective—did the assistant believe that other people would consider them to be dishonest?

'In Barlow Clowes v Eurotrust International, the Privy Council stated that the test of dishonesty was that as formulated in Twinsectra and rejected the test in Tan.'

True.

False.

Which of the following statements are true?

Liability for dishonest assistance is generally compensatory.

Liability for dishonest assistance is generally restitutionary.

Liability for dishonest assistance relates entirely to disgorgement of profit.

Liability for dishonest assistance may relate to disgorgement.

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