#6817 - In Re Oatway - Restitution of Unjust Enrichment BCL

In Re Oatway

Facts

Oatway was co-trustee with Maxwell Skipper of the will of Charles Skipper, the father of the latter. In breach of trust 3000l. was advanced from the trust to Maxwell Skipper upon the security of a mortgage given by him to Oatway alone. Oatway, as mortgagee, and under a power of attorney from Maxwell Skipper, sold the mortgaged property, and as mortgagee received and gave a receipt for the 3000l. trust money, part of the proceeds of sale, which amounted to 7000l. The rest he received as agent of or on behalf of Maxwell Skipper, from whom he held a power of attorney. Oatway, instead of investing the 3000l. upon proper trust securities in the joint names of himself and Maxwell Skipper, the trustees, paid in the whole 7000l. on August 15, 1901, to his own banking account, which was then in credit to the amount of 77l. 13s. 4d. Between August 15 and 24 he paid in sums amounting to 30l. and drew out 510l., which he paid away to creditors or otherwise applied to his own purposes in such a manner as to be irrecoverable.

On August 24, out of the balance to the credit of the account, Oatway paid 2137l. 12s. 3d. for the purchase of certain shares in the Oceana Company, which remained in his name at the time of his decease, and have since been sold by arrangement. It is the proceeds of these shares which is now in question. The balance to the credit of the account after this payment, with some other sums paid in from time to time by Oatway, was subsequently exhausted by his drawings on his own account.

Holding

It is a principle settled as far back as the time of the Year Books that, whatever alteration of form any property may undergo, the true owner is entitled to seize it in its new shape if he can prove the identity of the original material: see Blackstone, vol. ii. p. 405, and Lupton v. White. 4 But this rule is carried no farther than necessity requires, and is applied only to cases where the compound is such as to render it impossible to apportion the respective shares of the parties.

Trust money may be followed into land or any other property in which it has been invested; and when a trustee has, in making any purchase or investment, applied trust money together with his own, the cestuis que trust are entitled to a charge on the property purchased for the amount of the trust money laid out in the purchase or investment.

Honest Withdrawal rule: If, then, the trustee pays in further sums, and from time to time draws out money by cheques, but leaves a balance to the credit of the account, it is settled that he is not entitled to have the rule in Clayton's Case applied so as to maintain that the sums which have been drawn out and paid away so as to be incapable of being recovered represented pro tanto the trust money, and that the balance remaining is not trust money, but represents only his own moneys paid into the account.

The case of investments: It is, in my opinion, equally clear that when any of the money drawn out has been invested, and the investment remains in the name or under the control of the trustee, the rest of the balance having been afterwards dissipated by him, he cannot maintain that the investment which remains represents his own money alone, and that what has been spent and can no longer be traced and recovered was the money belonging to the trust.

The order of priority in which the various withdrawals and investments may have been respectively made is wholly immaterial…. The only investment or property remaining which represents any part of the mixed moneys paid into the banking account is the Oceana shares purchased for 2137l. Upon these, therefore, the...