Sorry I know you're all fed up with me by now, but it'll all be over by tuesday and I can stop harassing you all!
I'm just a bit confused with tracing at the moment... I understand the actual tracing process so we've managed to trace Bob's cow to McDonald's Farm... How do we claim this? What are the remedies available?
I just need someone to explain in layman's terms what the hell happens now, my textbook and notes are near useless about this, except for the fact that they mention subrogation a couple of times (which I also don't understand)
Please please please help, I promise I'll rep you for it
You mean strangers to a trust (not trustee) got hold of trust property?
and subsequently there was change of form, windfall etc?
Remedies? iN GENERAL The person holding the "property" must give up the "gift" because you (the fiduciary), a thief is a fiduciary in tracing, cannot transfer or give away title you doesn't own but not always (here is where the argument is, and is where you need to know).
The good news is there are not too many scenarios, you need to go through them, and you are ready.
Essentially, you assert a property right. At the end of the tracing process you have identified a piece of property as belonging to you. You say to the judge "this is my property, please make the defendant give it back".
Subrogation is a bit different. The word "subrogation" just means you are making a claim as if you were somebody else. For the purposes of the litigation the court pretends that you are that person. For example, if you have a car accident your insurer would be "subrogated" to you. Under the terms of your insurance your insurer has the right to conduct claims as it sees fit, so it would be the insurer who decides whether to settle or fight the claim and the insurer could raise any defences or claims you could raise. It is relevant in equity because, if someone has used money which is tracable to John to pay off a charge/mortgage, we allow John to be "subrogated" to the mortgagee/chargee. We are basically pretending that John now has the charge/mortgage, he steps into the shoes of the lender.