Where a trustee has resolved to distribute trust income to a beneficiary and the distributed amount is held upon trust for the beneficiary absolutely, with nothing remaining for the trustee to execute except payment over, the beneficiary may recover by an action for money had and received — a common law personal action — rather than being confined to equitable remedies. Trust financial statements recording distributed amounts as current liabilities can constitute admissions of debt by the trustee. The existence of a reasonably arguable counterclaim does not preclude summary judgment on the plaintiff's claim where the counterclaim does not give rise to a defence or set-off.
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