Intention, Fairness and the Presumption of Resulting Trust after Stack v Dowden

Date01 January 2008
Publication Date01 January 2008
AuthorNick Piska
DOIhttp://doi.org/10.1111/j.1468-2230.2008.00684.x
explicit suggests that Parliament considered it necessary to protect such property
interests through the criminal law. This makes the majority’s arbitrary restriction
of the civil law’s protections even more anomalous.
The ¢nal reason a general immunity to conversion liability in relation to
choses in action would be arbitrary in its e¡ects is provided by the behaviour of
the defendants in OBG.Whilst it is true that the receivers acted in good faith in
their dealings with the claimants’tangible and intangible assets, this is no less true
of their dealings with the claimants’ tangible assets. If people are to deal with tan-
gibles at their peril, then it is reasonable to question why they should be able to
deal with intangibles withgreater protection or, as in this case, withimpunity.As
BaronessHale makes clear,the instances in which someone mightmisappropriate
intangibles wil l no doubt be far less numerous than those cas es which concern
tangibles. This means, however, that a recognition of the former as proper
instances of conversion would simply be ‘a modest but principled extension of
the scope of the tort of conversion
25
‘modest’ because, in practical terms, such a
conversion is likelyto occur infrequently, and‘principled’because it would¢nally
dispense with an arbitrary distinction which has hindered the evolution of an
important tort.
Intention, Fairness and the Presumption of ResultingTrust
after Stack vDowden
Nick Piska
n
The correct approach to quanti¢cation of b ene¢cial i nterests in the family home
has been unclear since Pettitt vPe ttitt
1
and Gissing vGissing
2
over 35 years ago.
Where parties hold as bene¢cial joint tenants it is well established that, upon
severance, they will hold in equal shares.
3
Where parties hold under an express
bene¢cial joint tenancy this will be conclusive, but many conveyances do not
contain an express declaration of trust
4
and, consequently, the bene¢cial interests
25 Lord Nicholls in OBG at [233].
n
Law Department,Lo ndon Schoolof Economics and Political Science. I wouldl ike tothan k Lizzie
Cooke and Jo Miles for their helpful comments on earlier drafts of this paper.
1 [1970] AC777.
2 [1971]AC 886.
3Goodman vGallant[1986]Fam 106.
4 This problem may dimini sh as an expressdeclaration of trust is now required where a legal joint
tenancy is created over registeredland (Land Registration Act 2002, s 44(1) and Land Registration
Rules 2003, r 95(2)(a)). But see Stack vDowden[2007] UKHL 17, [2007] 2 WLR 831at [52] for the
suggestion thatthis is not mandatory. Cf LawCommission Report No 307,Cohabitation: the Finan-
cial Consequencesof RelationshipBreakdown (2007) paras 2.17^2.25.
Trusts after Stack vDowden
120 r2008 The Author. Journal Compilation r2008 The Modern Law ReviewLimited.
(2008) 71(1) 114^131

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