Proprietary Claims in Equity: Prerequisites and other Requirements
AbstractIn order to maintain an equitable proprietary claim, the claimant must firstly be asserting recovery of property based on an equitable proprietary interest. The second and more debatable prerequisite is that there must be in existence a fiduciary duty, in which the breach of resulted in property being misapplied. As for common law, it did not require the existence of fiduciary relationship as the tracing claim is based on the owner's legal title. The equitable requirement stemmed from passages in Re Diplock and had been doubted to have even been a requirement or that it need not be established before the "transaction" occurred but that it may arise as a result of the transaction - a quasi fiduciary duty. This would seem to relate to the fact that equity binds the conscience of the recipient and acts on unconscionability.
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