Recent Applications of the Rule in Cherry v Boultbee (or Jeffs v Wood)
Australian Law Journal, 84 3: 191-198, 2010
9 Pages Posted: 4 Jun 2015
Date Written: 2010
The rule in Cherry v Boultbee (1839) 4 My & Cr 442 is a commonsense rule of fairness. If you wish to share in a fund, you must ﬁrst restore any beneﬁt you have had from it. The principle originated in proceedings to do with wills and estates but is equally applicable in a company law context when a claimant wishes to share in a dividend to be paid by an insolvent entity. Recent case law illustrates that although the rule is simple to state, its application in a particular corporate insolvency (particularly when overlaid by co-existing obligations of suretyship) may give rise to complex and difficult issues. This article examines the recent authority in the light of the classic decisions on the topic.
JEL Classification: k00
Suggested Citation: Suggested Citation