Re Harvard Securities Ltd

The liquidator was at liberty to sell the shares and account to the former clients out of the net proceeds of sale, pro rata, to their respective interests.

While I am not particularly convinced by the distinction, it appears to me that a more satisfactory way of distinguishing Hunter from the other cases is that it was concerned with shares, and not with chattels.’ This is consistent with Re Rose, the basis identified (and said) unsatisfactory by Underhill and Hayton, and Atkin LJ said the words, 630, ‘ordinary operations of buying and selling goods’.

Fourthly, as the editors of Meagher Gummow & Lehane on Equity Doctrines & Remedies (Third Edition) point out, the need for appropriation before any equitable interest can exist in relation to chattels can be contrasted with the absence of any such need before there can be an effective equitable assignment of an unascertained part of a whole debt or fund (see at paragraphs 679 to 682).

This distinction is described by the editors as "very difficult to see"; nonetheless, they accept that, despite the criticism to which cases such as Wait have been subjected, it is unlikely that they will be overruled.

The editors conclude: "What must be appreciated, despite what has sometimes been said in reliance on the judgment of Atkin LJ..., is the narrow scope of the principle for which those cases stand: it applies only to contracts for the sale of an unascertained part of a mass of goods.

There is obvious force in that point, but, in the end, it seems to me that, given that the distinction exists between an assignment of part of a holding of chattels and an assignment of part of a debt or fund, the effect of the decision in Hunter is that, in this context, shares fall to be treated in this context in the same way as a debt or fund rather than chattels.

In light of the decision and reasoning in Hunter, and the above discussion, I do not consider that it is open to me to hold that that aspect prevents Harvard’s former clients having a beneficial interest in the shares, so far as English law is concerned.