The Rule in Claytons Case

1. Introduction 2. Tracing [2.1] At Common Law [2.2] In Equity 3. Mixed Funds and the Rule in Claytons Case [3.1] How the Rule operates 4. When it doesn't operate: Exceptions [4.2] Rebutting the Presumption [4.3] Facts rendering FIFO unjust or inapplicable [4.4] Impossibility or impracticality 5. Other Jurisdictions: a Comparative Analysis [5.1] Canada [5.2] The US [5.3] Australia & New Zealand 6. Continued Development 7. Conclusion 8. Bibliography

1. Introduction
The rule in Clayton's Case has never been a rule without exception. 1It effectively applies a f irst in first out rationale in situations where the owners funds are commingled with others and rendered indistinguishable. As we shall see the courts of equity have been pragmatic in their approach to redistributing loss despite the lingering affliction of anachronistic precedent. This essay will offer a critique of the prevailing approaches in the common law world and venture some ideas as to where it might be headed.

2. Tracing
When the property of an individual is misappropriated the law may allow them to trace it into the hands of another. 2 This is an action in rem 3 rather than in personam; proprietary in nature rather than restitutional. 4 Tracing serves to complement a claim by revealing the route of the misappropriated property, thereby allowing for its value 5 to be identif ied in its original or converted form.6 It has the advantage of overcoming bankruptcy or limitation periods since it is an assertion of ownership, it awards interest from the date of acquisition by the defendant, and it is cognisant of any subsequent increase in value. 7 However the extent to which the deprived party may reach into the property of another heavily depends on the type of interest forming the subject of the trace. The Courts have traditionally distinguished between tracing in common law and in equity. 2.1 At Common Law The common law approach developed from traditional rules governing commerce and chattels.8 In this regard the doctrine has somewhat stagnated since the common law could only appreciate what might be called the physical identity of one thing with another. 9 It is thus limited to pursuing property once its identity is still discernible even if converted, 10 e.g.
1 Martin J, Tracing, fraud and ultra vires [1993] Conv 370 at 373 2 Delany H, Equity and the Law of Trusts in Ireland (5th Ed, Round Hall, 2011) p 809 3 Generating an interest or right in the specif ic property which is prima facie binding on the whole world 4 As shown in Foskett v McKeown [2001] 1 AC 102 HL at 110 where inter alia the respondents had cross appealed on the basis that the appellant beneficiaries had already availed of certain remedies. The HL unanimously rejected this on the basis that the claim to trace was proprietary and therefore they were two wholly unrelated remedies. 5 Value in this sense refers to the quantif iable value of the interest attached to the subject property. As Millet LJ stated in Foskett v McKeown [2001] AC 102 at 128 What he traces, therefore, is not the physical asset itself but the value inherent in it. 6 Evans S, Rethinking tracing and the law of restitution [1999] 115 LQR 469 at 470 7 Ramjohn M, Cases and Materials on Trusts (3rd Ed, Cavendish 2008) p 603-604 8 See the Common Law Procedure Act 1854, s.78, allowing recovery of specif ic chattels under detinue actions. The very nature of a pre modern monetary system relied on physical possession as shown in Core's Case (1537) 1 Dyer 20a, 22b 9 Re Diplock [1948] Ch 465. See also Goff LJ Lipkin Gorman (A Firm) v Karpnale Ltd [1991] 2 A.C. 548 in referring obiter that a chose in action in relation to a bank draft would be property traceable at common law at 573-574 10 Delany H n73 p 809, Hanbury & Martin J, Modern Equity (17th Ed Sweet & Maxwell 2005) p 684. This is aptly summarised by Lord Ellenborough C.J. in Taylor v. Plumer (1815) 105 E.R. 721 at 726 It makes no dif-

Tracing into unmixed bank accounts that are in credit.11 Where profits are derived from the property, the courts will also allow the legal owner to claim them. In FC Jones and Sons (Trustees) v Jones12 the legal owner was entitled to trace into property representing the original and the profit made by the defendant's use of it. 13 Recently there has been some judicial relaxation toward the strict common law approach to tracing.14 In Foskett v McKeown15 Millet LJ obiter criticised the dichotomy between legal and equitable tracing, observing that it is prone to capricious results in cases of mixed substitutions...16 where the crux of the action was simply whether a fiduciary relationship existed.17 2.2 In Equity The remedy of tracing is available in equity to the principle in a fiduciary relationship. 18 An owner of an equitable interest may pursue a proprietary remedy in the continued existence of the trust property in the hands of a defendant. 19 In contrast to common law tracing, the continued existence is applied in a practical and flexible manner and substitution is far easier in comparison.20 It is vital however that this continued beneficial interest is maintained in some converted form, otherwise if the fund, mixed or unmixed, is spent upon a dinner, equity could do nothing. 21 The most common situation where equitable tracing will arise is where trustees misuse trust property. E.g. In Re Halletts Estate22 a solicitor misappropriated client funds into his personal bank account and subsequently went bankrupt. The UK Court of appeal was emphatic that the mere mixing of funds was no bar to substitution under tracing. This is cruference in reason or law into what other form, different from the original, the change may have been made,... for the product of or substitute for the original thing still follows the nature of the thing itself, as long as it can be ascertained to be such, and the right only ceases when the means of ascertainment fail... See Smith L, Tracing in Taylor v Plumer: equity in the Court of Kings Bench [1995] LMCLQ 240. 11 Banque Belge pour lEtranger v Hambrouk [1921] 1 KB 321. Agip (Africa) v Jackson [1990] Ch. 265 at 285 12 [1997] Ch 159 13 ibid at 172 14 ibid Millet LJ at 169-270 tracing is neither a right nor a remedy but merely the process by which the plaintiff establishes what has happened to his property and makes good his claim... and in his view the present rule which precludes the invocation of the equitable tracing rules to support a common law claim... was unsatisfactory. 15 [2001] AC 102 16 ibid at 128. Steyn LJ at 113 makes critical remarks about the nature of tracing, such that it is in truth...a process of identifying assets: it belongs to the realm of evidence. It tells us nothing about legal or equitable rights to the assets traced. Similarly Millet LJ also remarks that there is nothing inherently legal or equitable about the tracing exercise at 170. See also Tang Hang Wu Foskett v McKeown Hard-Nosed Property Rights or Unjust Enrichment [2001] 25 1 MULR 295 regarding a unitary approach to tracing 17 See the Canadian case of B.M.P. Global Distribution Inc. V Bank of Nova Scotia [2009] SCC 15 where the court allowed tracing after property held in law. 18 Re Halletts Estate (1880) 13 Ch D 696 at 709 19 Agip (Africa) v Jackson [1990] Ch. 265 Millet J at 290 20 Stockwell N & Edwards R,Trusts and Equity (9th Ed, Pearsons 2009) p 448. This was first recognised in Pennell v Deffell (1853) 43 ER 551 which effectively restated the law regarding beneficiaries tracing into mixed funds. 21 Re Diplock [1948] Ch 465 at 521 Lord Greene MR 22 (1880) 13 Ch 696

cial in relation to tracing into mixed funds, as Atkin LJ in Banque Belge pour lEtranger v Hambrouk 23 proclaimed, But if in 1815 the common law halted outside the bankers' door, by 1879 equity had had the courage to lift the latch, walk in and examine the books. 24 Fiduciary relationships generally give rise to sufficient equitable interest to trace as witnessed in Sinclair v Brougham 25. This principle was confirmed in Re Diplock 26 where the UK CA held that, Equity may operate on the conscience not merely of those who acquire a legal title in breach of some trust, express or constructive, or of some other fiduciary obligation, but of volunteers provided that, as a result of what has gone before, some equitable proprietary interest has been created and attaches to the property in the hands of the volunteer.27 It follows then that once the fiduciary relationship is established with the principle, there is no need for such a relationship with subsequent recipients of the property. 28 However a fiduciary relationship alone may be insufficient. In Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd (In Administration) 29 the court held that a proprietary remedy would only be available if there was a proprietary connection between the property sought and the trustees.30 The courts have generally taken a flexible approach to establishing a fiduciary relationship between the owner and original recipient. In Chase Manhattan Bank v Israel-British Bank31 a duplicate lodgement was held to give rise to an equitable interest under a fiduciary relationship by the mere fact of mistake.32 This decision was endorsed in Ireland in Re Irish Shipping Ltd 33 on somewhat similar facts. However this requirement has come under scrutiny and both Chase34 and Sinclair v Brougham35 have been departed from by the court in Westdeutsche Landesbank v Islington London Borough Council 36.

23 [1921] 1 KB 321 24 ibid at 335. Interestingly the learned Judge also held the opinion that tracing should...now be available both for common law and equity proceedings. 25 [1914] AC 398 at 540 (overruled) The House of Lords held that a fiduciary relationship between depositors of a ultra vires banking scheme and the directors of the building society gave rise to a sufficient equitable interest due the legal impossibility of the intended purpose. 26 [1948] Ch 465 27 ibid at 530 28 Agip (Africa) v Jackson [1990] Ch 265 29 [2012] Ch. 453 30 ibid at 492 per Neuberger LJ MR that if a proprietary claim is to be made good by tracing, there must be a clear link between the claimant's funds and the asset or money into which he seeks to trace. This departs from the ruling by the privy council in Attorney General of Hong Kong v Reid [1994] 1 A.C. 324 31 [1979] Ch 105 32ibid at 119 33 [1986] ILRM 518 34 Chase Manhattan Bank v Israel-British Bank [1979] Ch 105 35 [1914] AC 398 36 [1996] A.C. 669 at 714

Curiously however, Browne-Wilkinson LJ37 maintained that the principles of Re Diplock 38 stand. The reasoning behind this appears to concern the inequity of denying trade creditors in competition39 upon winding up. This may suggest that the broad unconsionability approach40 is indirectly eroding the fiduciary requirement.41 Moreover it has been mentioned above that Millet LJ in Foskett v McKeown42 has criticised the rationale of the fiduciary requirement. Although it is still required, it appears that the conscience of the court would probably encourage a flexible approach to establishing the relationship. 43 Once the relationship exists, the right to trace can be applied to property which has subsequently come into the hands of an innocent volunteer. In Re Diplock 44 the Court held that once the voluntary acquisition is bona fide, the owner and volunteer will share pari passu.45 However the courts will not allow tracing into the hands of a bona fide purchaser for value without notice.46 Millet LJ in Foskett47 also reiterated the ratio of Diplock48 innocent volunteers or contributors to a mixed fund rank pari passu upon allocation.

3. Mixed Funds and the Rule in Claytons Case

The defining feature of equity is itss ability to trace into mixed funds and allow beneficiaries49 to recover the trust property. This is subject to the lowest intermediate balance rule demonstrated in James roscoe (Bolton) Ltd v Winder50. The effect of the rule is to prevent an proprietary interest extending to property acquired after the interest comes into being.51 This has been extended to exclude tracing backward through debts since the property id deemed to be dissipated/non-existent. 52

37 ibid 38 [1948] Ch 465 39 Westdeutsche [1996] A.C. 669 at 713 40 See dicta of Cooke P in Elders Pastoral Ltd v Bank of New Zealand [1989] 2 NZLR 180 41 It is interesting to note that Collins M, Tracing into vanishing Assets: high Expectations and Equitable Remedies [1994] 1 Comm LP 211 at 214 identif ies that Goulding J in Chase preferred the US Court of appeal decision in Re Berry 147 F208 (1906) which itself referred to the conscience of the court. 42 [2001] AC 102, see above and n16 and 17 43 Collins M, (1994) n41 44 [1948] Ch 465 45 ibid at 539 See also Foskett v McKeown [2001] 1 AC 102 at 132 where Millet LJ Comments on innocent contributors ranking equally. 46 Foskett [2001] 1 AC 102 at 127 A beneficiary of a trust is entitled to a continuing beneficial interest not merely in the trust property but in its traceable proceeds also, and his interest binds everyone who takes the property or its traceable proceeds except a bona fide purchaser for value without notice. 47 ibid at 132 48 [1948] Ch 465 at 539 49 Herein using beneficiary to refer also to principals in a fiduciary relationship 50 [1915] 1 Ch 62 51 See ODell E, The use and abuse of Clayton's case [2000] 22 DULJ 161 at p 172 52 Bishopgate Investment Management Ltd v Horman [1995] Ch 211 and Re Goldcorp Exchange [1995] 1 AC 74. See the criticisms of Breslin J, Tracing into an overdrawn bank account: when does money cease to exist? [1995] 16(10) Comp law 307 at p 310-313 in relation to the way the courts view an overdraft as a financial abyss. He persuasively argues that the banks position in providing the credit is not undermined by tracing into the fund.

The courts of equity employ a number of doctrines to determine how mixed funds are to be redistributed. These extend to situations where a) the trustee has mixed his own funds and the trust fund, b) the trustee has mixed the trust fund with other trust funds, and c) a third party has received the trust funds and mixed it with their own. In the first scenario equity will generally presume that the trustee was acting honestly to preserve the beneficiaries interest.53 Thus any withdrawal of the funds will be borne by the trustee first and the remainder will satisfy the beneficiaries interest54and similarly subsequent deposits to a depleted trust funds will be presumed to replenish the fund. 55 Finally, in the latter two scenarios above, the Rule in Claytons case becomes a factor. 3.1 How the Rule operates The rule in claytons case was set out in Devaynes v. Noble 56, and stipulates that any withdrawals(debits) from an account of mixed funds are construed as withdrawals of the earliest lodgements(credits): first in first out.57 The net effect is a chronological order offsetting lodgements and withdrawals.58 As Grant MR states, If appropriation be required, here is appropriation in the only way that the nature of the thing admits. Here are payments, so placed in opposition to debts, that, on the ordinary principles on which accounts are settled, this debt is extinguished. 59 It was originally recognised as standard feature of banking law practice, 60 and it applies only to current accounts.61 Its initial incarnation was derived from the very nature of the banker-customer relationship in a current account. 62 It has since extended into the ascertainment of interests under trust or fiduciary arrangements. 63 The application of the rule to competing beneficiaries was first recognised in Pennell v Deffell 64 and confirmed in Re

53 Re Halletts Estate (1880) 13 Ch 696 54 Note that this is partially overruled by Foskett v McKeown [2001] AC 102 where the trust funds are used in conjunction with personal funds to purchase an asset the beneficiary will only able to assert a proportional ownership. This appears to be congruent with the proprietary requirement/connection in Sinclair [2012] Ch. 453 55 Re Hughs [1970] IR 237 56 (1816) 1 Mer 572. The facts were that the plaintiff traced and sought to recover money from the estate of a deceased partner, but could only do so if the balance sought existed prior to his death. The plaintiff failed to recover since he was deemed to have withdrawn the funds under the first in first out rule. 57 Herein referred to as FIFO 58 FIFO was subsequently met with approval in the day by the court in Bodenham v Purchas (1818) 106 ER 281 at 284 59 ibid at 610 60 Deeley v Lloyds Bank [1912] AC 756 at 785 per Shaw LJ describing it as a rule universally known and accepted in the banking world... See also ANZ v Westpac (188) 164 CLR 662 at 676 the ordinary rule of appropriation... 61 In Re Diplock [1948] Ch 465 at 555 We see no justif ication for extending that rule beyond the case of a banking account. This affirms the earlier decision of The Mecca [1897] AC 286 at 290291 62 Re Ontario Securities Commission and Greymac Credit Corp (1985) 19 DLR (4th) 470 at 491 63 Ramjohn M n7 p626 64 (1853) 43 ER 551, relating to the mixing of trust and personal funds by a trustee. Also acknowledged in Hancock v Smith (1889) 41 Ch 456, this was referred to by Wolfe LJ in Barlow Clowes International Ltd v Vaughan [1992] 4 All ER 22

Halletts Estate65. This has subsequently been approved in both the UK, 66 Ireland,67 and elsewhere.68 In practise this rule has served to presume the intentions of the parties in the absence of evidence to the contrary.69 Subsequent decisions such as City Discount Co. v McLean70, Henniker v Wigg71, The Mecca72, and Smith v Betty73 have affirmed this flexible approach. In Re Halletts Estate74 the court indicated that the rule was a presumption rebuttable by an expressed intention to the contrary...75. This view of the rule was endorsed in Ireland in Re Chutes Estate76, and has since been successfully applied in and in Station Motors v AIB 77 in relation to subrogation for fraudulent preference. 78 The seminal case of Re Diplock 79 confirmed that the rule continues to operate as a convenience based on so-called presumed intention.80 Similarly the CA in Barlow Clowes International Ltd v Vaughan81 Wolfe LJ stated that [t]he rule need only be applied when it is convenient to do so and when its application can be said to do broad justice having regard to the nature of the competing claims.82

65 (1880) 13 Ch D 696 although it restated the rule regarding the mixing of trust and personal funds by a trustee, Baggally LJ at 738 recognised the application to competing beneficial interests. 66 Wood v Stenning [1895] 2 ch 433 at 436, Barlow Clowes International Ltd (in liq) v. Vaughan [1992] 4 All E.R. 22 67 Shanahans Stamp Auctions v Farrelly [1962] IR 386, 442, In re Hughes [1970] I.R. 237 at 242 68 Re Ararimu Holdings [1989] 3 NZLR 487 at 498 69 Deeley v Lloyds Bank [1912] AC 756 Per Atkin LJ at 771 It is no doubt quite true that the rule...is not a rule of law to be applied in every case, but rather a presumption of fact, and that this presumption may be rebutted in any case, by evidence going to shew [sic] that it was not the intention of the parties that it should be applied... 70 (1874) LR 9 CP 692 71 (1843) 4 Q. B. 792 72 [1897] AC 286 73 [1903] 2 K.B. 317 74 (1880) 13 Ch D 696 75 ibid at 738 per Baggally LJ and Jessel MR at 728 76 [1914] 1 IR 180 77 [1985] IR 756 at 765-766. See also In re Daniel Murphy [1964] IR 1 78 See s.280-285 of the Companies Acts 1963 79 [1948] Ch 465 80 ibid at 554. Notwithstanding this the courts have demonstrated reluctance to strictly apply the rule to the extent where it has been sidestepped. e.g. In Sinclair v Brougham [1914] AC 398 the court applied Hallets rule to an ostensibly claytons case. It has since been overruled in Westdeutsche Landesbank v Islington London Borough Council [1996] A.C. 669 81 [1992] 4 All ER 22, official transcript 82 ibid official transcript

4. When it doesn't Operate: Exception

The UK and Irish approach to FIFO is fairly described to be displaced by even a slight counter-weight.83 As Lindsay J in Russell-Cooke Trust Co v Prentis 84 stated, The modern approach in England has generally not been to challenge the binding nature of the rule but rather to permit it to be distinguished by the reference to the facts of the particular case...[so] it might be more accurate to refer to the exception that is, rather than the rule in, Clayton's case. 85 There are a number of factors which mitigate against the operation of the rule. 86 These are largely not mutually exclusive, and in the circumstances of the case may displace the presumption, cause it to be inequitable, or even render its application wholly impractical. 4.2 Rebutting the Presumption A corollary of a presumption is that it may be displaced. The most common example is where this occurs is where the creditor or debtor retains a right of appropriation. 87 This has occurred in a number of cases where the courts are satisfied that the beneficiary held a contrary intention.88 An example of this is demonstrated by In Re Sherry 89 where the creation of a separate account was sufficient rebuttal. 90 In Re Diplock 91 the presumption was rebutted were trust funds withdrawn were designated and placed into a separate account by the innocent volunteer.92 In Sheppard v Thompson93 the defendant received contributions on the express basis... 94 thereby rebutting the presumption. Increasingly the courts have taken to displacing the presumption upon investigation of what the intentions of the parties might actually be. 95 This can also be seen in the approach of Woolf LJ and Leggatt LJ in Barlow Clowes International Ltd v Vaughan 96 where the UK CA did not apply the FIFO rule in relation to the misapplication of investment
83 ibid at para 55 Lindsay J. referring to Dillon LJ in Barlow Clowes International Ltd v Vaughan [1992] 4 All ER 22 CA 84 [2003] 2 All ER 478 85 ibid at para 55 86 Notwithstanding the aforementioned rules surrounding the right to trace above. 87 Donnelly M, The Law of Credit and Security (Roundhall 2011) p 237 para 7.154. This is typically stated in loan agreements subject to the s.44 of the Consumer Credit Act 1994 88 An early example is Henniker v Wigg (1843) 4 QB 792 89 (1884) 25 Ch 692. For an Irish example see In re Danial Murphy [1964] IR 1 90 Unlikely that a continuing security such as a bond or guarantee would be stopped by another account. (source com law text book) 91 [1948] Ch 465 92 ibid at 467 93 unreported, HC, December 3, 2001 94 ibid Transcript 95 In Re Eastern Capital Futures Limited (1988) 5 BCLC 223 at 371 Morritt J was dissatisfied with applying the rule where it would be impossible to discover the presumed intentions of the parties. 96 Barlow Clowes International Ltd v Vaughan [1992] 4 All ER 22 CA

funds.97 The court held inter alia that due to the nature of a common investment fund there was a presumed intention that they individually maintained a proportionate equitable interest in the fund. The Law Lords chose to investigate the nature of the mixed fund and infer the intentions of the investors, thereby rebutting the presumption of the FIFO rule. 4.3 Facts rendering FIFO unjust or inapplicable: indirectly rebutting the presumption. The courts will generally refuse to allow parties whos conscience are bound to benefit from the FIFO rule. In Re Halletts Estate 98 ensures that trustees do not avail of the rule. Similarly the courts do not generally employ FIFO in cases concerning victims of large scale fraud.99The Courts have generally been reluctant to apply the legal fiction of FIFO where it is deemed to be unjust or inapplicable. 100 In Barlow 101 the Court recognised a long line of authority which dealt with the winding-up of a non-charitable benevolent fund where the courts have deemed the application of FIFO to be be unsuitable to such cases. In Re British Red Cross Balkan Fund 102 the surplus of a fund for the wounded of the Balkan war was redistributed rateably since the circumstances of the case did not afford ground for inferring that the transactions of the parties were not intended to come under the general rule.103 This rationale becomes more evident in light of the decision of the court in Re Hobourn Aero Components Limited's Distress Fund 104. Here the court declined to apply the rule since the beneficiaries were deemed to retain a proportionate interest in their contributions if they were not used for the intended purpose.105 The common theme106 recognised in Barlow107 was the single purpose of the mixed fund and its misuse. Having reviewed the case law the court was satisfied that in schemes where investors knowingly contributed to a mixed fund under an a common investment they at all times retained an equitable interest in the portion. On this basis the court held that the funds were to be redistributed pari passu rateable to their share. This approach was followed in Russell-Cooke Trust Co v Prentis 108 and evinces a more common sense
97 ibid The Funds were used to by gilts and a yacht 98 (1880) 13 Ch 696 99 El Ajou v Dollar Land Holdings (No 2) [1995] 2 All ER 213 at 222, Commerzbank Aktiengesellschaft v IMB Morgan plc [2004] EWHC 2771 (Ch), official transcript See also the recent Irish case Criminal Asset Bureau v Kelly (No.2) [2012] IEHC 595 discussed below. 100 See the seminal dictum of Hand J in Re Walter J. Schmidt & Co. ex parte Feuerbach (1923) 298F 314 at 316. Mentioned below n141-143 101 [1992] 4 All ER 22 CA 102 [1914] 2 Ch 419 103 ibid Astbury J at 421 104 [1946] Ch 86 at 97 105 ibid 106 Pawlowski M, The demise of the rule in Claytons case [2003] Conv 339 p 343 107 Barlow Clowes International Ltd v Vaughan [1992] 4 All ER 22 CA 108 [2003] 2 All ER 478

approach to displacing the rule where there are no facts grounding the FIFO presumption.109 In Ireland Laffoy J Re Money Market International Stockbrokers Ltd 110 refused to apply the rule111 where funds were temporarily held by an intermediary who subsequently went into liquidation. In her view the equity of the other creditors over the mixed fund was surpassed by that of the applicant due to the particular circumstance[s]... 112 and he should take free of any rateable distribution. Re W & R Murrogh 113 followed this decision and Barlow 114 , in so doing the court held that it would be inappropriate to apply FIFO. Murphy J held that the resulting injustice by favouring the latter creditors in a mixed pool should be avoided by a rateable distribution.115 4.4 Impossibility or impracticality Where commingled trust funds have undergone a number of conversions or mixtures the courts may be unable to disentangle the complex mass of transactions to determine the chronology of credits and/or debits. In Barlow116 the court felt that to apply the FIFO rule would result in considerable expense to the fund. They considered an alternative method of distribution known as a Rolling Charge 117. Due to the costs involved they elected to distribute pari passu rateable to contributions. Many commentators have pointed out that this may be the most common remedy due to the relative ease of calculation. 118 In Shanahans Stamp Auctions Ltd v Farrelly119 Budd J held that the company as a fiduciary had dissipated its own money from the mixed fund first, the syndicated investors had a proprietary claim to the allocated stamps and the unsyndicated investors had a charge over the proceeds of the unallocated stamps. 120 In terms of the distribution of the unallocated stamps bought from the mixed fund, Budd J held that while Claytons rule was applic-

109 In South Africa StandardBank of SA v Oneanate Investments (1998) (1) SA 811 (SCA) FIFO was held to be a presumption of fact which did not arise where the facts did not support it 110 [1999] IR 267 111 Or even the parri passu system 112 [1999] 4 IR 267 at 277 113 [2003] 5 JIC 0603 114 Barlow Clowes International Ltd v Vaughan [1992] 4 All ER 22 CA 115 [2003] 5 JIC 0603 at 20.3, 20.6. In the latter part of the judgement [2007] 4 IR 1 at 44 in relation to the Receiver in responding to submissions regarding special treatment under Re Money Market International Stockbrokers Ltd [1999] 4 IR 267 averred to several claimants who were more disadvantaged. While Murphy J held that the equities between the competing claimants to the account would seem to be equal at 20.7 116 ibid 117 Discussed below under Canada in relation to Re Ontario Securities Commission and Greymac Credit Corp (1986) 55 OR (2d) 673 118 ODell n51 p170, Holland J, Managing competing claims claims on frozen accounts [2005] 24 Int'l Fin. L. Rev. 15 at 16 119 [1962] IR 386. Cf from Re Registered Securities [1991] 1 NZLR 545 where the records were sufficient but applied via Rolling Charge 120 ibid a company held funds under an investment stamp scheme grouped investors into syndicates. These syndicates were allotted collectors stamps which were to be auctioned and the proceeds realized to the subscribers. It transpired that the scheme was bogus.

able, a pro rata basis was more suitable since the chronology of the purchase of the stamps was indeterminable.121 Similarly in Russell-Cooke Trust Co v Prentis 122 the absence of a strict temporal sequence...123 was fatal to the application of FIFO. In Commerzbank Aktiengesellschaft v IMB Morgan plc 124 the court considered the FIFO rule in dispensing the remaining mixed funds to the victims of fraud.125 Due to the nature of correspondent accounts determining the correct allocation of funds would be nearly impossible, thus to employ FIFO both impractical and unjust.126 The court held that the funds were distributable on a rateable basis to the proportionate contributions.

5. Other Jurisdictions: a Comparative Analysis

5.1 Canada In Canada Re Ontario Securities Commission and Greymac Credit Corp 127 has unequivocally eviscerated the application of FIFO to competing investors to a common fund. From first instance the court refused to apply FIFO outside of a banker-customer context. Furthermore it felt to subordinate one innocent beneficiaries interest to the other would result in injustice. Instead the court opted to impose the Rolling Charge 128 which calculates the loss of each investor proportionately to their interest prior to the withdrawal. 129 The CA approving, felt that the rule was based on erroneous precedent and highly arbitrary.130 Subsequent cases such as In PortAlice Specialty CelluloseInc. (Trustee of) v ConocoPhillips Co131 have ruled that the FIFO rule will no longer apply to contests between innocent claimants.132 Unfortunately their righteous zeal resulted in some cacollateral damage and the Canadian courts in Law Society of Upper Canada v Toronto-Dominion Bank 133 appear to have mistaken the law. In the aforementioned case the lowest intermediate balance 134 rule was seen as a veiled attempt to use FIFO, notwithstanding they are wholly unrelated
121 ibid at 442 Therefore they could not be offset against the record of lodgements. 122 [2003] 2 All ER 478 123 ibid para 56 124 [2004] EWHC 2771 (Ch), official transcript 125 This was in relation to the infamous advance fees fraud emanating from Nigeria. These are prohibited under s. 419 of the Nigerian Criminal Code 126 [2004] EWHC 2771 (Ch), official transcript para 49-50 127 (1985) 19 DLR (4th) 470 (1986) 30 DLR (4th) 1 (Ont CA) (1988) 52 DLR (4th) 767 (Sup Ct) 128 Lowrie S & Todd P, In defence of the North American Rolling Charge [1997] 12 Denning LJ 43 at 50 129 (1985) 19 DLR (4th) 470 at 497-498 per Parker ACJHC 130 (1986) 30 DLR (4th) 1 (Ont CA) at 14-15 Subsequently approved by the Supreme Court on appeal. 131 [2005] BCJ No 1205 (QL), 254 DLR (4th) 397 (CA) 132 ibid In this case in was the equitable interest vs the unsecured creditors. Duggan A, Tracing, Canadian style: Re Graphicshoppe and other recent cases [2006 ] 43 Can. Bus. L.J. 292 at 300 133 (1999) 169 DLR (4th) 353 134 Mentioned previously at heading 3

in substance.135 Moreover the court declined to employ the Rolling Charge, resulting in considerable criticism of the decision as it appeared to needlessly complicate matters and cause an unjust expropriation of the latter contributors property.136 BMP Global Distribution Inc v Bank of Nova Scotia 137 is a landmark decision from Canada in which the SC unanimously refused to bar a claim under common law tracing due to the mixing of funds.138 Remarkably the court endorsed the redistribution of money from the plaintiffs accounts which imposed a dissipated portion of funds onto the plaintiff since their personal credit was present before the cheque proceeds. This is ostensibly an unspoken common law tracing application of Claytons case139: FIFO.140 5.2 The US The dictum of Hand J in Re Walter J Schmidt & Co, ex p. Feuerbach141 has been cited in every major case concerning FIFO.142 When the law adopts a fiction, it is, or at least it should be, for some purpose of justice. To adopt it here is to apportion a common misfortune through a test which has no relation whatever to the justice of the case. Such a result, I submit with the utmost respect, can only come from a mechanical adherence to a rule which has no intelligible relation to the situation. 143 This was one of the primary driving influences behind the Provisions of the Restatement respecting tracing144 under the Restatement of the Law of Restitution (St. Paul: A.L.I.,

135 Smith L, Tracing in bank accounts: the lowest intermediate balance rule on trial [2000] 33 Can. Bus. L.J. 75 at p 82. At p 83 This decision has been impugned for confusing the result with the means. Good legal doctrine is not just about getting the right answer; it is about getting the right answer for the right reasons. Additionally he argues at p 84 that the court took into account the intermediate balances in not allocating funds pari passu ex post facto, which carries the superseding authority of the SC . See also ODell n51 p 174. 136 ODell n51 p 175 Since it ignores the practical realities and the ease at which the mixture of funds can be unmixed. Furthermore both ODell and Smith L [2000] n135 p 87 also criticise the relative simplicity of the task both practically and in terms of the professionals tasked to carry it out (Liquidators etc) 137 [2009] SCC 15 138 The Plaintiff had pursued the bank for damages after it reversed credit from a fraudulent check which the plaintiff had received innocently. Its action failed since the defendant bank had a contractual basis for reversing the payment. Although the plaintiff maintained the bank should bear the loss of the dissipated amount in the accounts. 139 Devaynes v. Noble (1816) 1 Mer 572 140 Fox D M, Follow the Money [2010] 69(1) CLJ 28 141 (1923) 298 F 314 142 See Re French Caledonia Travel Service Pty Ltd[2003] NSWSC 1008, (2003) 204 ALR 353, Re Registered Securities[1991] 1 NZLR 545, Re Ontario Securities Commission and Greymac Credit Corp 470 (1986) 30 DLR (4th) 1 (Ont CA) Barlow Clowes International Ltd v Vaughan [1992] 4 All ER 22, RussellCooke Trust Co v Prentis [2003] 2 All ER 478, Commerzbank Aktiengesellschaft v IMB Morgan Plc and Others [2005] 2 All ER (Comm) 564, Shanahans Stamp Auctions v Farrelly [1962] IR 386, 442, In re Hughes [1970] I.R. 237, Re Money Market International Stockbrokers Ltd [1999] 4 IR 267, Re W & R Murrogh [2003] 5 JIC 0603. Non exhaustive list* 143 ibid at at p 316 144 Finkelstein M & Robbins H, A probabilistic approach to tracing in the law of restitution [1983-1984] 24 Jurimetrics J 65 at p 71

1937), 213. The prevailing approach now appears to favour a proportionate proprietary distribution.145 5.3 Australia & New Zealand The Australian courts have been considerably adverse to the application of FIFO. In Hagan v. Waterhouse146 The HC plainly refused to apply the rule outside of banker-customer relationships147 and this was subsequently met with approval by the CA in Keefe v The Law Society148. In Re French Caledonia Travel Service Pty Ltd149 Campbell J having reviewed the case law of FIFO felt the common law precedent was lacking, and held that beneficial interest did not arise and that the contributors would take parri passu. In New Zealand Re Registered Securities 150 the CA approved the dicta of Hand J in Re Walter151. The Court rebuked FIFO as a fiction which must yield to the requirements of justice, the facts, and the intentions of the beneficiaries. 152

6. Continued Development
ODell points to the dicta of Brown-Wilkonson LJ regarding mixed funds when he states that it is established law that the mixed fund belongs proportionately to those whose moneys were mixed.153 Millet LJ went further to say that where the fund is defi cient, the beneficiary is not entitled to enforce a lien for his contributions; all must share rateably in the fund 154 to the extent that the primary rule in regard to a mixed fund, therefore, is that gains and losses are borne by the contributors rateably. 155 In light of the prevailing approach to tracing is submitted that the FIFO rule is quickly approaching retirement in favour of a more general and holistic approach to tracing in situations where there are innocent competing beneficiaries. 156 However it seems that the current preferred method of distribution, the pari passu system, is arguably unfair against the

145 LRC of British Columbia, Report on competing rights to mingled property: Tracing and the rule in Claytons case (LRC 66, 1983). See Finkelstein M & Robbins H n144 at p 71 146 (1994) 34 NSWLR 308 147 ibid at 358 Kearny J stated that the rule applied to the banker and customer, and has nothing to say as to the relationship of trustee and beneficiary. 148 (1998) 44 NSWLR 451 149 [2003] NSWSC 1008, (2003) 204 ALR 353 150 [1991] 1 NZLR 545, Re Securitibank [1978] 1 NZLR 97 at 174 151 (1923) 298 F 314 at 316 152 Re Registered Securities [1991] 1 NZLR 545 at 553 153 Foskett v McKeown [2001] 1 AC 102 HL at 109 154 ibid at 132 155 ibid 156 ODell n51 p 170

later contributors.157 It is suggested that the Rolling Charge would probably be the most commonly equitable method, even though it may never be the least costly.158 So far the Irish courts have refrained from completely ousting FIFO 159 and moreover there has been little impetus to deploy the Rolling Charge. 160 The decision in Re Money Market 161 has been seen as falling short of applying it, instead opting for an exceptional exemption.162 While this has been heralded as a positive step toward consistent fairness in multibeneficiary disputes 163, doubt has been cast over it by the decision in Headstart Global Funds Ltd v Citco Bank of NV and Ors164. Here Clarke J held that the presence of a clear nexus between a specif ic payment in and a specif ic payment out... 165 would attract FIFO.166 The recent decision of Criminal Asset Bureau v Kelly (No.2)167 has potentially opened the door to a more flexible version of parri passu instead of FIFO. The case concerned assets seized from a ponzy scheme and held under s.2 and 3 of the Proceeds of Crime Act 1996 as amended. Feeney J obiter168 stated that had the case been decided on equitable grounds he would have followed Laffoy J in Money Market 169 since the first investors had a greater equity.170He distinguishes the facts of the case from Murrogh171 on the basis that the pari passu application was applicable to mixed pool scenarios. Thus there appears to be some hope of judicial reform on the horizon.

157 Lowrie S & Todd P n128 [1997] at 45 referring to the judgement of DIllon LJ in Barlow Clowes International Ltd v Vaughan [1992] 4 All ER 22 CA at 32 158 Lowrie S & Todd P n128 [1997] at 53-54 since it requires the whole history. Although it is acknowledged that it may not be suitable in some circumstances, e.g. Common funds (Barlow) or fraud (El Ajou) 159 Re Money Market International Stockbrokers Ltd [1999] 4 IR 267, See ODell n51 p 195-200 160 Re W & R Murrogh [2003] 5 JIC 0603 161 Re Money Market International Stockbrokers Ltd [1999] 4 IR 267 162 See ODell n51 p 195-200 163 Delany n73 p 823 164 [2011] IEHC 5 165 ibid para 4.6. 166 ibid para 5-5.4 Notwithstanding this the court held that the recipient was a bona fide purchaser for value without notice so the property could not be claimed. 167 [2012] IEHC 595 168 ibid having determined the matter on the grounds that unmixed funds that were clearly identif iable could be easily traced at common law 169 ibid at para 21 I would have followed the reasoning of Laffoy J. in Money Markets and recognised the superior equitable claims of the Donegal investors. See Re Money Market International Stockbrokers Ltd [1999] 4 IR 267 at 277 170 ibid para 20 171 Re W & R Murrogh [2003] 5 JIC 0603

7. Conclusion
The rule exists as a rough and ready solution, the outcome to which depends on a matter of chance...172 As Pawalski puts it, priority in time, although once seen as a convenient basis for allocation of payments between competing contestants, is now viewed as anomalous and irrational.173Increasingly the rule has been displaced in favour of more modern approaches. In a preemptive capacity some UK statutes have avoided FIFO by providing for funds held in a fiduciary capacity to by earmarked or held separately. 174 In the UK and Ireland the present the common law position in relation to tracing is arguably untenable since in modern financial transactions money is mixed within the system. 175 If the prevailing UK jurisprudence continues its current trajectory 176 then Clayton's rule may apply to tracing at claims at common law.177 We submit that the FIFO rule is wholly unsuited to innocent competing contributors of beneficial interest.178 It is suggested that the FIFO rule has been over extended and ought to be retracted to the banker-customer context.179 FIFO strongly appears out of place in a trust relationships180 since the owner may elect from multiple courses of action in Rem under a charge.181 Moreover it is a legal fiction which operated well only in particular fact patterns:182 since money deposited with a bank is creates a debt, an account is merely a record of this. In situations outside of the banker-customer relationship the order of fictional withdrawals is irrelevant.183 Accordingly Millets LJ approach in to the nature of accounts as a uniform mixture of value...184 is far more preferable to the Clayton fiction.
172 M Ramjohn n7 p 626 173 Pawlowski M n106 p 345 174 14.1 of the Solicitors Regulation Authority Accounts Rules 2011 provides that client money must without delay be paid into a client account, except when the rules provide to the contrary. Rule 6.3.1(b) of the Law Society of Scotland Practice Rules 2011 contains a provision to the same effect. The Law Society of Scotland's guidance to rule 6.3.1(b) states that without delay normally means on the same day. See also s. 139 of the Financial Services and Markets Act 2000 (the 2000 Act) empowering the FSA to create CASS 7 175 See Breslin J n52 at 308 E.g Clearing houses and the very nature of the customer relationship to a bank: the bank holds all of the money in one pool for its own use. 176 See generally At Comon Law above 177 See Other Jurisdictions, Canada 178 ODell n51 p169 179 ibid see also Budd J in Shanahans Stamp Auctions Ltd v Farrelly [1962] IR 386 at 442 concern that the rule may not apply beyond the tracing in a bank account and the principle may have no application to property acquired by means of a mixed fund. See also LRC of British Columbia, Report on competing rights to mingled property: Tracing and the rule in Claytons case (LRC 66, 1983) p 31-32. For Canada see Re Ontario Securities Commission and Greymac Credit Corp (1985) 19 DLR (4th) 470 at 498, (1986) 30 DLR (4th) 1, at 13-15 and Smith L [2000 ] n135 p 78 . For Australia see Hagan v. Waterhouse(1994) 34 NSWLR 308 at 358 180 Conaglen M [2005] n58 p 47 181 Ibid a charge being notional they may have a right to elect at the time of trial whether to claim against the trust fund, or against assets purchased using money from the trust fund, or against assets transferred out of the fund in breach of trust. The Author refers to the persuasive dicta of Campbell J in Re French Caledonia Travel Service Pty Ltd, [2003] NSWSC 1008, (2003) 204 ALR 353 , 182 (LRC 66, 1983) p 31-32 183 Breslin J [1995] n52 p308 184 Society for Advanced Legal Studies, Forfeiture of terrorist property and tracing: sub-group 4: impact of the initiatives on other areas of the law [2003] 6(3) JMLC 261 p 266-267 referring to Foskett v McKeown [2001] 1 AC 102 at 127-128

Currently FIFO will apply where the equally innocent beneficiaries successfully trace into a current account, there is no evidence directly or indirectly rebutting the rule and there are clear accounts of debits against the credits. But if such a phenomenon were to ever occur outside of a banker-customer context, it is submitted in any event that it would be more appropriate to apply the Rolling Charge system.185 Even where traditionally the pari passu system might be more preferable, the advent of computers is likely to mitigate the cost of the Rolling Charge, thereby crowning it the conqueror of Claytons rule.186

185 Conaglen M, Contest between rival trust beneficiaries [2005] 64(1) CLJ 45 at p 64 186 Re Ontario Securities Commission and Greymac Credit Corp (1985) 19 D.L.R. (4th) 470, 496-498. Cf from the reasoning regarding cost of Dillon LJ in Barlow Clowes International Ltd v Vaughan [1992] 4 All ER 22 CA at 28. Contemporary computing hardware and software has since advanced in the last 20 years and the position is likely to change. See also Smith L [2000] n135 p 87 regarding the relative ease of data manipulation with a simple program. As he puts it at p 88 is it really a principle of private law that parties' rights may be forfeited to convenience?

8. Bibliography
Books Breslin J, Banking Law (2nd Ed, Round Hall, 2007) Delany H, Equity and the Law of Trusts in Ireland (5th Ed, Round Hall, 2011) Donnelly M, The Law of Credit and Security (Roundhall 2011) Burrows A, The Law of Restitution (3rd Ed, OUP, 2010) Hanbury & Martin J, Modern Equity (17th Ed Sweet & Maxwell 2005) Ramjohn M, Cases and Materials on Trusts (3rd Ed, Cavendish 2008) Stockwell N & Edwards R, Trusts and Equity (9th Ed, Pearsons 2009)

Articles Breslin J, Tracing into an overdrawn bank account: when does money cease to exist? [1995] 16(10) Comp law 307 Baughen S, Tracing a future for the Common Law: the action for money had and received after foskett v McKeown [2002] 31 Comm. L. World Rev. 165 Collins M, Tracing into vanishing Assets: high expectations and equitable remedies [1994] 1 Comm LP 211 Conaglen M, Equitable compensation for breach of fiduciary dealing rules [2003] 119 LQR 246. Conaglen M, Contest between rival trust beneficiaries [2005] 64(1) CLJ 45 Duggan A, Tracing, Canadian style: Re Graphicshoppe and other recent cases [2006 ] 43 Can. Bus. L.J. 292 Elliott S & Edelman J, Target holdings considered in Australia [2003] 119 LQR 545. Evans S, Rethinking tracing and the law of restitution [1999] 115 L.Q.R. 469 Finkelstein M & Robbins H, A probabilistic approach to tracing in the law of restitution [1983-1984] 24 Jurimetrics J 65 Fox (1998) Constructive notice and knowing receipt: an economic analysis [1998] 57 CLJ 391

Fox DM, Follow the Money [2010] 69(1) CLJ 28 Holland J, Managing competing claims claims on frozen accounts [2005] 24 Int'l Fin. L. Rev. 15 Lowrie S & Todd P, In defence of the North American Rolling Charge [1997] 12 Denning LJ 43 Martin J, Tracing, fraud and ultra vires [1993] Conv 370 Millett P, Restitution and constructive trusts [1998]114 LQR 399. Mitchell C, Tracing following and claiming the proceeds of stolen assets [2003] The Jersey Law Review, February ODell E, The use and abuse of Clayton's case [2000] 22 DULJ 161 Panesar S, Commercial fraud and unauthorised gains [2012] 23(8) ICCLR 259 Pawlowski M, The demise of the rule in Claytons case [2003] Conv 339 Schulze W G, The in duplum rule: a short list of some unresolved issues [2006] 18 S. Afr. Mercantile L.J. 486 Smith L, Tracing in Taylor v Plumer: equity in the Court of Kings Bench [1995] LMCLQ 240. Smith L, Tracing in bank accounts: the lowest intermediate balance rule on trial [2000 ] 33 Can. Bus. L.J. 75 Society for Advanced Legal Studies, Forfeiture of terrorist property and tracing: sub-group 4: impact of the initiatives on other areas of the law [2003] 6(3) JMLC 261 Tang Hang Wu Foskett v McKeown hard-nosed property rights or Unjust Enrichment [2001] 25 1 MULR 295 Reports LRC of British Columbia, Report on competing rights to mingled property: Tracing and the rule in Claytons case (LRC 66, 1983)

Cases
Ireland Criminal Asset Bureau v Kelly (No.2) [2012] IEHC 595 Headstart Global Funds Ltd v Citco Bank of NV and Ors[2011] IEHC 5 Money Market International Stockbrokers Ltd [1999] IR 267 Re Chutes Estate [1914] 1 IR 180 Re Daniel Murphy [1964] IR 1 Re Hughes [1970] I.R. 237 Re Irish Shipping Ltd [1986] ILRM 518

Shanahans Stamp Auctions Ltd v Farrelly [1962] IR 386 Station Motors v AIB [1985] IR 756 UK Agip (Africa) v Jackson [1990] Ch. 265 ANZ v Westpac (188) 164 CLR 662 Banque Belge pour lEtranger v Hambrouk [1921] 1 KB 321 Barlow Clowes International Ltd (in liq) v. Vaughan [1992] 4 All E.R. 22 Belge pour lEtranger v Hambrouk [1921] 1 KB 321 Bishopgate Investment Management Ltd v Horman [1995] Ch 211 Bodenham v Purchas (1818) 106 ER 281 Chase Manhattan Bank v Israel-British Bank [1979] Ch 105 City Discount Co. v McLean (1874) LR 9 CP 692 Commerzbank Aktiengesellschaft v IMB Morgan plc [2004] EWHC 2771 (Ch), Core's Case (1537) 1 Dyer 20a Deeley v Lloyds Bank [1912] AC 756 Devaynes v. Noble (1816) 1 Mer 572 El Ajou v Dollar Land Holdings (No 2) [1995] 2 All ER 213 FC Jones and Sons (Trustees) v Jones [1997] Ch 159 Foskett v McKeown [2001] 1 AC 102 HL Hancock v Smith (1889) 41 Ch 456 Henniker v Wigg(1843) 4 Q. B. 792 International Ltd v Vaughan [1992] 4 All ER 22 James roscoe (Bolton) Ltd v Winder [1915] 1 Ch 62 Lipkin Gorman (A Firm) v Karpnale Ltd [1991] 2 A.C. 548 Pennell v Deffell (1853) 43 ER 551 Re British Red Cross Balkan Fund [1914] 2 Ch 419 Re Diplock [1948] Ch 465 Re Eastern Capital Futures Limited (1988) 5 BCLC 223 Re Goldcorp Exchange [1995] 1 AC 74 Re Halletts Estate (1880) 13 Ch D 696 at 709 Re Hobourn Aero Components Limited's Distress Fund[1946] Ch 86 Re Sherry (1884) 25 Ch 692 Re W & R Murrogh [2003] 5 JIC 0603 Re Walter J. Schmidt & Co. ex parte Feuerbach (1923) 298F 314 Russell-Cooke Trust Co v Prentis [2003] 2 All ER 478 Sheppard v Thompson unreported, HC, December 3, 2001 Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2012] Ch. 453 Sinclair v Brougham [1914] AC 398 Smith v Betty [1897] AC 286 Taylor v. Plumer (1815) 105 E.R. 721 The Mecca [1897] AC 286 Westdeutsche Landesbank v Islington London Borough Council [1996] A.C. 669

Wood v Stenning [1895] 2 ch 433 Canada BMP Global Distribution Inc v Bank of Nova Scotia [2009] SCC 15 CelluloseInc. (Trustee of) v. ConocoPhillips Co [2005] BCJ No 1205 (QL), 254 DLR (4th) 397 (CA) Devaynes v. Noble (1816) 1 Mer 572 Law Society of Upper Canada v Toronto-Dominion Bank (1999) 169 DLR (4th) 353 Re Ontario Securities Commission and Greymac Credit Corp (1985) 19 DLR (4th) 470 (1986) 30 DLR (4th) 1 (Ont CA) (1988) 52 DLR (4th) 767 (Sup Ct New Zealand / Australia Hagan v. Waterhouse(1994) 34 NSWLR 308 Keefe v The Law Society (1998) 44 NSWLR 451 New Zealand Re Registered Securities[1991] 1 NZLR 545 Re Ararimu Holdings [1989] 3 NZLR 487 Re French Caledonia Travel Service Pty Ltd [2003] NSWSC 1008, (2003) 204 ALR 353 Re Registered Securities [1991] 1 NZLR 545 Re Securitibank [1978] 1 NZLR 97 Re French Caledonia Travel Service Pty Ltd[2003] NSWSC 1008, (2003) 204 ALR 353 American Re Berry 147 F208 (1906) Re Walter (1923) 298 F 314 South Africa StandardBank of SA v Oneanate Investments (1998 (1) SA 811 (SCA)