Lloyd's Maritime and Commercial Law Quarterly

Professor Francis D Rose

Document

JOINDER OF EQUITABLE ASSIGNORS OF EQUITABLE AND LEGAL CHOSES IN ACTION

CH Tham *

It is commonly accepted that equitable assignees of equitable choses in action may sue obligors of such choses without joining the assignors, and that joinder of equitable assignors of legal choses arising from contract may also be dispensed with, given William Brandt’s Sons & Co v Dunlop Rubber Co. This article suggests that the former results from the application of res judicata principles by a court acting within its equitable jurisdiction, and that Brandt’s is better understood as having been decided within the court’s equitable jurisdiction. Consequently, this paper shows that the law on joinder of equitable assignors is consistent with a non-transfer conception of equitable assignments predicated on a continuing trustee-beneficiary relation between assignor and assignee, albeit one that is augmented by an unusual principal-agent relationship between the assignor and assignee.

I. The conundrum of Brandt’s

Where A expressly constitutes herself trustee of the benefit of a legal chose in action such as a debt arising from a contract between herself and B for the benefit of C, C may not bring proceedings against B to obtain a common law remedy without joining A.1 Hence:2

* Associate Professor, School of Law, Singapore Management University.

The following abbreviations are used:

Ashburner (1933): D Browne (ed.), Ashburner’s Principles of Equity, 2nd edn (Butterworth & Co, London, 1933;

Blackstone (1765): W Blackstone, Commentaries on the Laws of England (Clarendon Press, Oxford, 1765) Book 2;

Coke (1788): Coke on Littleton, 13th edn (T Wright, London, 1788);

Edelman & Elliott (2015): J Edelman and S Elliott, “Two conceptions of equitable assignment” (2015) 131 LQR 228;

Guest (2015): AG Guest and YK Liew, Guest on the law of assignment, 2nd edn (Sweet & Maxwell, London, 2015;

Handley (2009): KR Handley, Spencer Bower and Handley: Res Judicata, 4th edn (LexisNexis, London, 2009;

Judicature Act 1873, or Judicature Act: Supreme Court of Judicature Act 1873;

LPA 1925: Law of Property Act 1925;

Meagher, Gummow & Lehane (2015): JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 5th edn (LexisNexis Butterworths, New South Wales, 2015);

Smith & Leslie (2013): M Smith and N Leslie, The Law of Assignment, 2nd edn (OUP, Oxford, 2013);