Introduction Tracing is about trying to establish property right in property regarding property that is either original property held

held on trust or a substitute for that property. E.g. property that has been brought as a result of sale for trust property There are three kinds of tracing: following. i.e. X takes my car, and due to the number plate, i can follow it and the court can declare that its mine, following is about recovery of the original property, as accepted in Foskett v McKewon. Second type is common law tracing: at CL , one is seeking to establish title to ones own property, or substitutes to our property:

Jones v Jones. Mrs Jones borrowed money from a partnership from which her husband was a partner, borrowing 11k, she invested into potato futures (stock market for potatoes) money was taken into a brand new account and not mixed with other money, was used, the profits held in the account separate from the other money would be deemed as clean. Husbands trustees tried to claim it back, the question was was the official receiver only entitled to recover a personal claim (i.e. the 11k) or can entitled to a tracing claim that would give C surplus CA: partnership was entitled to trace in common law into all of the profits, because they were the clean substitutes of the 11k. At common law, had she mixed the money, it would not have been possible to trace into the profits, and it could only be traced in equity. This decision is a little awkward since the judges decided it would be unconscionable to not allow the husband the money, unconscionability is beginning to sound equitable rather than common law.

Millet (non judicial capacity) - common law tracing should be gotten rid of since its so narrow, then a few years later he was one of the judges who expanded it enormously, why? because without the expansion, equitable tracing could not be established. Which would explain why he mentioned that there is no merit in having different rules in CL and Equity since he saw the equitable rules regarding tracing to be an expansion on the common law rules. Also note that in Foskett v McKewon he was highly critical of the distinction between tracing in equity and tracing at common law, but this was before the Jones v Jones ruling.

AGIP v Jackson

Millet J: common law is a personable claim; not proprietary, therefore there are no ways of making people liable: tracing at common law has nothing to do with impropriety.

Bank Terjarat A case where money is moved between bank accounts. Judge said banks are mistaken on fact upon receiving unclean money. Funds were moved electronically, the fraud derived from the electronic movement. So there was no source: nothing physical to follow: the common law will follow unmixed moneney but not electronically.