Joseph Campbell, ‘Republic of Brazil v Durant and the Equities Justifying Tracing’

In Republic of Brazil v Durant the Privy Council held that bribes could be traced into bank accounts notwithstanding that the tracing involved a breach of the lowest intermediate balance rule, and backwards tracing. The reasons given by the Board for this conclusion are unsatisfactory. This area of the law is best understood not by seeking to decide whether a particular analysis is tracing, or is not tracing. ‘Tracing’ is a term whose meaning has changed over time, and is imprecise. Rather, it is more useful to understand the particular equities that can arise when trust property is misapplied, and when such an equity can give rise to a successful proprietary claim to an asset. There are several quite different equities, all of which can lead to a proprietary claim to an asset, some of which would readily be recognized as involving tracing, and concerning others of which there might be disagreement about whether tracing was involved. It is understanding the individual equities, not whether the label ‘tracing’ is applied, that is important.

Campbell, Joseph Charles, Republic of Brazil v Durant and the Equities Justifying Tracing (March 23, 2016). Australian Bar Review, 2016, forthcoming; Sydney Law School Research Paper No 16/23.

First posted 2016-04-09 12:12:50

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