9. Ultimately, the Supreme Court concluded that the transfer by Mr Al-Sanea of the Shares to Samba was not a disposition of SICL’s interest in the Shares for the purposes of s.127. There were a number of reasons for that conclusion. Firstly, and on a narrow reading of the word disposition, there was no disposition of SICL’s interest:
'… Where an asset is held on trust, the legal title remains capable of transfer to a third party, although this undoubted disposition may be in breach of trust. But the trust rights, including the right to have the legal title held and applied in accordance with the terms of the trust, remain. They are not disposed of….' (para. 51, per Lord Mance)
'… on the basis of the meaning which it naturally conveys, s 127 simply does not apply: a “disposition” normally involves a disponor and a disponee, and so there has simply been no disposition. Indeed, in an Australian first instance decision, In re Mal Bower's Macquarie Electrical Centre Pty Ltd (in liquidation)  1 NSWLR 254, 258, Street CJ in Eq expressly so stated, albeit in a very different context from the present.' (para. 65, per Lord Neuberger)
10. Secondly, and perhaps more controversially, the fact that SICL’s interest in the shares was extinguished (which in real terms means a loss to SICL’s unsecured creditors) is not a situation which calls for the protection of s.127. That is because:
' The holder of interests such as SICL's does not need protection on the lines of s 127, in order to protect its property or to protect or enforce its interests. Mr Al-Sanea disposed of his legal interest in the shares. That involved him in a breach of trust. … If the disposal overrode SICL's interest as regards a third party transferee of the legal title such as Samba, that was not because of any disposal of interest. It was because SICL's interest was always limited in this respect.' (per Lord Mance)
' I do not, in these circumstances, see any basis for extending, or any need to extend, s 127 to cover three-party situations where legal title is held and disposed of to a third party by a trustee, and the beneficiary's beneficial interest either survives or is overridden by virtue of the disposition of the legal title to the third party. The law regulates, protects and circumscribes beneficial interests under a trust in a manner which is separate from and outside the scope of s 127.' (again, per Lord Mance)
11. Viewed in that way, the outcome of Samba is logical and in some respects defensible. It does however leave this tension: in Samba, the factual situation appears to have been that Mr Al-Sanea was “closely involved” with SICL. His act of transferring the legal title to the Shares to Samba effectively destroyed SICL’s interest in the shares, to the detriment of the unsecured creditors. That act could have been performed by Mr Al-Sanea knowingly and with the deliberate intention of destroying SICL’s interest. There is no doubt that SICL retained a personal claim against Mr Al-Sanea for breach of trust, but that may not be as valuable as a proprietary claim to the shares. The decision leaves open the door for a person in Mr Al-Sanea’s position to deliberately extinguish a company’s interest in an asset to the detriment of the company’s unsecured creditors.
12. That is the position looking at the transaction from the SICL / Mr Al-Sanea perspective. Of course, as the Supreme Court made clear, and looking at the transaction from Samba’s perspective, Samba only escapes a claim against it by SICL if Samba can establish that it was a bona fide purchaser of the shares for value and without notice of SICL’s rights. That appears to have been the factual position in Samba. If Samba had known of SICL’s beneficial interest, and therefore Samba was not equity’s darling, the outcome of the case may have been different, in that SICL might have retained a proprietary claim against Samba (although there still wouldn’t have been a s.127 disposition).