Category: Trusts

Re Dennis (A Bankrupt): CA 22 May 1995

A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; the trustee had no choice in the matter. ‘the debtor’s interest in the property was divested on the commission of the act of bankruptcy, in which event the joint tenancy was severed.’ ‘It was a peculiarity of the former law of bankruptcy that the effect of an act of bankruptcy on a joint tenancy depended on whether it was followed by adjudication or not. But it did not depend on whether it was the solvent or the insolvent joint tenant who died before adjudication.’

Citations:

Ind Summary 22-May-1995, [1995] 3 All ER 171, [1995] 3 WLR 367

Statutes:

Bankruptcy Act 1914 37

Jurisdiction:

England and Wales

Citing:

Cited – Cooper v Chitty 1756
An action of trover was brought by the assignees of the bankrupt against the Sheriffs of London who had taken and sold the bankrupt’s goods under a writ of fi. fa. The debtor committed an act of bankruptcy on 4th. December 1753. On the 5th. December . .
Appeal from – Re Dennis ChD 15-Jul-1992
Property was held in joint names. The husband failed to comply with a statutory demand, and so committed an act of bankruptcy. The wife later died, and the husband was then made bankrupt a month later.
Held: An act of bankruptcy did not . .
Cited – Fox v Hanbury 1776
One of two partners committed an act of bankruptcy. The solvent partner later disposed of partnership property to the defendant. A commission was afterwards issued against the bankrupt partner, and the plaintiffs as assignees under the commission . .
Cited – Fraser v Kershaw 1856
It was settled law that the bankruptcy of one of two partners puts an end at once to the partnership and that the one partner being bankrupt, his assignee, the trustee, became tenant in common with the other. . .
Disapproved – Ex parte Smith 1800
Two partners, Strickland and Richardson, held property as joint tenants at law. Richardson committed an act of bankruptcy by absenting himself, and a commission was issued against him. The commissioners then declared Richardson bankrupt and executed . .
Cited – Smith v Stokes 1801
After a bankruptcy goods belonging to his partnership were received by the defendant Stokes. The commission in bankruptcy then issued. His partner died and his will was proved by Stokes and another. The assignees under the commission then brought an . .
Cited – Doe d Lloyd v Powell 1826
A lessee executed a deed by which he conveyed all his real and personal property to trustees for the benefit of his creditors. This was an act of bankruptcy. A commission was issued against him and he was declared bankrupt. He then sought to forfeit . .
Cited – Morgan v Marquis 2-Nov-1853
The defendants had possession of some flour for sale under instructions from Perrin. The jury found that the sale was to be for the account of Perrin and one Shute and not Perrin alone, and that Perrin and Shute were joint tenants. Perrin committed . .
Cited – Re Bonham ex parte the Postmaster-General 1879
A bankrupt presented his own petition. It was contended that the relation back of the title of the assignees in bankruptcy to the anterior act of bankruptcy did not affect the rights of the Crown was altered by the 1869 Act
Held: The Act made . .
Cited – Titterton v Cooper CA 1882
The bankrupt was a lessee. His trustee did not disclaim the lease, and the question was whether he was personally liable for the rent which had fallen due between the date of his appointment and the date on which he elected not to disclaim.
Cited – Re Lewis ex parte Helder CA 26-Jul-1883
An agent, in obedience to a previous instruction of his principal, paid away money of the principal which was in his hands knowing, before he made the payment, that when completed it would constitute an act of bankruptcy on the part of his . .
Cited – Re Chapman ex parte Edwards CA 4-Aug-1884
The solicitor for the petitioning creditor was liable to account to the trustee for money which he had received from the debtor after he (necessarily) had notice of the act of bankruptcy on which the petition was founded and which he had paid to his . .
Cited – Re Badham ex parte Palmer 1893
The debtor made payments to creditors after the bankruptcy petition had been presented, and after the act of bankruptcy. After the debtor had been adjudicated bankrupt the trustee in bankruptcy sought to recover the payments as fraudulent . .
Cited – Re Pollitt CA 1893
The debtor had put his solicitor in funds to meet future costs. The solicitor then prepared a deed of assignment for the benefit of the creditors which the debtor executed. The debtor was afterwards adjudicated bankrupt, the act of bankruptcy being . .
Cited – Re Hirth CA 1899
The debtor, already in financial difficulties, transferred his business to a limited company which he had formed for the purpose. Within three months he committed an act of bankruptcy by failing to comply with a bankruptcy notice. He was adjudicated . .
Cited – Montefiore v Guedalla 1901
The bankrupt had a protected life interest in a trust fund under the will of his late father which was defeasible inter alia if he should do or omit to do or should suffer to be done any act whereby the income of the trust fund if payable to himself . .
Cited – Stein v Pope CA 1902
A lessee assigned the lease by an assignment which constituted an act of bankruptcy. He was subsequently adjudicated bankrupt and his trustee disclaimed the lease. During the interval between the assignment of the lease and the date of the . .
Cited – Re Gunsbourg CA 1920
The debtor transferred his assets to a company formed by him. He later committed an act of bankruptcy on which he was adjudicated bankrupt. The company had sold some of the assets to a bona fide purchaser without notice of the act of bankruptcy. The . .
Cited – Ponsford, Baker and Co v Union of London and Smith’s Bank CA 1906
Was a debtor who had committed an act of bankruptcy but who had not yet been adjudicated bankrupt free to require his secured creditor, who had notice of it, to hand over his securities on payment of the amount due thereon?
Held: He could not. . .
Cited – Re Gershon and Levy 1915
An order was made by consent in a partnership action to tax the costs of the parties and the receiver was ordered to pay the costs when taxed out to the solicitors for the parties out of the partnership assets. When the order was made all parties . .
Cited – Re Ashwell ex parte Salaman Chd 1912
After the presentation of a bankruptcy petition against him, the debtor obtained an adjournment of the petition by paying the petitioning creditors money which he falsely represented to be that of a third party. The debtor was afterwards adjudicated . .
Cited – In Re Palmer, Deceased (A Debtor) ChD 25-Mar-1994
The court considered the effect of the doctrine of relation back on a property of which the bankrupt was formerly a joint tenant where the bankrupt had died after the act of bankruptcy but before adjudication.
Held: A deceased’s share in . .

Cited by:

Appealed to – Re Dennis ChD 15-Jul-1992
Property was held in joint names. The husband failed to comply with a statutory demand, and so committed an act of bankruptcy. The wife later died, and the husband was then made bankrupt a month later.
Held: An act of bankruptcy did not . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Trusts

Updated: 21 January 2023; Ref: scu.85752

Hashem v Shayif and Others: CA 22 Jul 2009

Judges:

Thorpe LJ, Scott Baker LJ, Sullivan LJ

Citations:

[2009] EWCA Civ 984

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
See Also – Hashem v Shayif and Another FD 17-Apr-2009
. .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 20 December 2022; Ref: scu.375599

Ottaway v Norman: ChD 1971

Proof required for mutual wills claim

The testator devised his house to a Miss Hodges intending that she should dispose of the property in her will to specific individuals. He communicated his intention to her and she agreed to it. After the testator’s death, Miss Hodges changed her will in a way which did not reflect the intention. On her death, the plaintiffs sought a declaration that the property was held on trust for them.
Held: Considering secret trusts and the doctrine of mutual wills: ‘It will be convenient to call the person upon whom such a trust is imposed the ‘primary donee’ and the beneficiary under that trust the ‘secondary donee.’ The essential elements which must be proved to exist are: (i) the intention of the testator to subject the primary donee to an obligation in favour of the secondary donee; (ii) communication of that intention to the primary donee; and (iii) the acceptance of that obligation by the primary donee either expressly or by acquiescence.’
Brightman J interpreted Lord Westbury’s statement in McCormick as meaning that if a will contains a gift in absolute terms that ‘clear evidence is needed before the Court will assume that the testator did not mean what he said’ and the standard of proof ‘is analogous to that ‘which the court requires before it will rectify a written instrument, for there again a party is saying that neither meant what they have written’.

Judges:

Brightman J

Citations:

[1972] Ch 698, [1971] 3 All ER 1325

Jurisdiction:

England and Wales

Citing:

Cited – McCormick v Grogan HL 23-Apr-1869
C made a will leaving his property to G, and appointed him executor. When about to die C sent for G and in a private interview told him of the will, and G asked whether that was right. C said that he would not have it otherwise. C then told G where . .

Cited by:

Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – Healey v Brown ChD 25-Apr-2002
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: . .
Cited – Kasperbauer; Griffith v Griffith; Havens; Zorab and Griffith CA 21-Nov-1997
. .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 20 December 2022; Ref: scu.183794

Kasperbauer; Griffith v Griffith; Havens; Zorab and Griffith: CA 21 Nov 1997

Citations:

[1997] EWCA Civ 2785

Jurisdiction:

England and Wales

Citing:

Cited – Sekhon, etc v Regina CACD 16-Dec-2002
The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
Held: The courts must remember the importance of such procedures in the fight against crime, . .
Cited – Ottaway v Norman ChD 1971
Proof required for mutual wills claim
The testator devised his house to a Miss Hodges intending that she should dispose of the property in her will to specific individuals. He communicated his intention to her and she agreed to it. After the testator’s death, Miss Hodges changed her . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 09 December 2022; Ref: scu.143184

Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others: CA 10 Apr 1995

The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee whose loan is used to repay another charged debt is subrogated to that debt, and can rely on that charge. Millett LJ said: ‘If the plaintiff succeeds in tracing his property, whether in its original or in some changed form, into the hands of the defendant, and overcomes any defences which are put forward on the defendant’s behalf, he is entitled to a remedy. The remedy will be fashioned to the circumstances. The plaintiff will generally be entitled to a personal remedy; if he seeks a proprietary remedy he must usually prove that the property to which he lays claim is still in the ownership of the defendant. If he succeeds in doing this the court will treat the defendant as holding the property on a constructive trust for the plaintiff and will order the defendant to transfer it in specie to the plaintiff. But this is only one of the proprietary remedies which are available to a court of equity. If the plaintiff’s money has been applied by the defendant, for example, not in the acquisition of a landed property but in its improvement, then the court may treat the land as charged with the payment to the plaintiff of a sum representing the sum by which the value of the defendant’s land has been enhanced by the use of the plaintiff’s money. And if the plaintiff’s money has been used to discharge a mortgage on the defendant’s land, then the court may achieve a similar result by treating the land as subject to a charge by way of subrogation in favour of the plaintiff.’

Judges:

Millett LJ, Stuart-Smit LJ, Millet LJ

Citations:

Gazette 01-Jun-1995, Independent 23-May-1995, Times 25-Apr-1995, [1996] 1 WLR 328, [1995] 4 All ER 769, [1995] EWCA Civ 15

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Whitworth v Gaugain 1844
. .
Cited – Ghana Commercial Bank v Chandiram PC 1960
The bank made an advance to the owner of property in Accra which was used to pay off his indebtedness to Barclays (DC and O) Ltd, secured by an equitable mortgage. The owner executed a legal mortgage in favour of the Ghana Bank, but this was . .
Cited – Chung Khiaw Bank v United Overseas Bank PC 1970
(Singapore) A judgment creditor who obtains a charging order against his debtor’s property can take only such interest as the debtor has in the property. Charging orders take effect subject to prior mortgages, whether legal or equitable. . .
Cited – Orakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Cited – Ezekiel v Orakpo CA 1977
A lease had been forfeited for non payment of rent. The lessor then took proceedings for possession. The tenant claimed that the action was invalid because a receiving order had been made against him in the meantime.
Held: The Court rejected . .

Cited by:

Cited – Halifax Plc v Omar CA 20-Feb-2002
The respondent occupied a flat as a tenant. The landlord had acquired it by means of a fraud on the claimant lender. The lender had been given an equitable charge over the property, and now claimed possession as subrogated to the original fraudulent . .
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Cited – Cheltenham and Gloucester Plc v Appleyard and Another CA 15-Mar-2004
The owners had purchased their property with a loan from the BBBS. A charge was then given to BCCI, which charge said no further charge could be registered without BCCI ‘s consent. The C and G agreed to lend a sum to refinance the entire borrowings, . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Cited – Bankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
Cited – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Updated: 09 December 2022; Ref: scu.78495

Drake v Whipp: CA 30 Nov 1995

The parties, an unmarried cohabiting couple, disputed their respective shares in a property held in the man’s sole name. Both had made direct contributions both to the purchase of a barn and to its expensive conversion into a home. The plaintiff appealed against a finding that she had only a 14.9% interest on a resulting trust, in the house she and the defendant had occupied together. The property had been purchased for andpound;61,000 of which she had contributed andpound;24,000, with later additional contributions to conversion works. She complained that working on a resulting trust, the costs of acquisition were given undue emphasis.
Held: A beneficial interest in a family home could be presumed from the intention of the parties and their acting in detriment. There was a constructive trust. There was undisputed evidence that she was to have an interest in the property, and she had acted to further that intention and to her detriment. The appeal was allowed, and her interest set at one third. ‘it is not easy to reconcile every judicial utterance in this well-travelled area of the law. A potent source of confusion, to my mind, has been suggestions that it matters not whether the terminology used is that of the constructive trust, to which the intention, actual or imputed, of the parties is crucial, or that of the resulting trust which operates on a presumed intention of the contributing party in the absence of rebutting evidence of actual intention.’

Judges:

Peter Gibson LJ, Lord Justice Hirst and Mr Justice Forbes

Citations:

Times 19-Dec-1995, [1996] 2 FCR 296, [1995] EWCA Civ 25, (1996) 28 HLR 531, [1996] CLY 5780

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Dyer v Dyer 27-Nov-1988
Where property is purchased by one person in the name of another there is a presumption that a resulting trust is created: ‘The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold . .

Cited by:

Cited – Oxley v Hiscock CA 6-May-2004
The parties were not married, but had brought together their resources to purchase a home in the name of one of them. Nothing had been said about the respective shares on which the property was to be held.
Held: The shares were to be assessed . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Cited – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Lists of cited by and citing cases may be incomplete.

Trusts, Housing, Family

Updated: 09 December 2022; Ref: scu.80130

Attorney General for Hong Kong v Reid and Others: PC 24 Nov 1993

Principalhas proprietary interest in Trust assets

Bribes were taken by an employee, a crown prosecutor in Hong Kong, in a fraud on his employer. He then invested the proceeds in the purchase of property in New Zealand. The property had increased in value. The employer sought repayment of the bribes received from the properties purchased.
Held: The employer had a proprietary interest both in the bribe and in the asset substituted for it. Thus the property belonged in equity to the employer. The first stage in the analysis was the decision that the bribe itself was trust property. The second stage in the analysis was simply the application of the process of tracing the value of the bribe into the asset that had been substituted for it. A fiduciary office holder who accepted a bribe holds both the original sum, and any increase in its value, on a constructive trust for the person to whom he owed that fiduciary duty. Bribery is an evil practice which threatens the foundations of any civilised society. It corrupts not only the recipient but the giver of the bribe. ‘property acquired by a trustee innocently but in breach of trust and the property from time to time representing the same belong in equity to the cestui que trust and not to the trustee personally’:

Judges:

Lord Templeman Lrd Goff. Lord Lowry, Lord Lloyd, Sir Thomas Eichelbaum

Citations:

Gazette 26-Jan-1994, Independent 24-Nov-1993, Times 12-Nov-1993, [1994] 1 AC 324, [1993] UKPC 2, [1994] 1 All ER 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Wrongly decided – Lister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .

Cited by:

Cited – Tesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts, Commonwealth

Updated: 09 December 2022; Ref: scu.77944

in Re Wallace’s Settlements: ChD 1968

A judge considering an application to vary trusts should approach it with ‘a fair cautious and enquiring mind’.

Judges:

Megarry J

Citations:

[1968] 1 WLR 71

Jurisdiction:

England and Wales

Cited by:

Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 09 December 2022; Ref: scu.448125

In re T’s Settlement Trusts: ChD 1964

Wilberforce J was asked to approve a variation of a trust in favour of a child under the 1958 Act, to restrict her from getting her full entitlement on her attaining the age of 21 because she was said to be ‘alarmingly immature and irresponsible as regards money.’ She was within 18 days of attaining majority.
Held: The court deferred the vesting and imposed protective trusts in the interim. Wilberforce J said this of the word ‘benefit’: ”benefit’ is a word of wide meaning: it is not restricted to material benefit. On this basis I was urged to approve the arrangement.
This argument, based on the language of the Act, has much force . . There are obvious difficulties in attributing so wide a meaning to the Act of 1958. For example, is the court to consult the wished of the infant? That is, as has been found here, a matter of considerable difficulty, and where, as here, the infant is nearly 21, it would seem preferable, if her wishes can be taken into account, to leave the matter over until she can decide for herself. Or can the court impose a settlement against the infant’s wishes? To so this would involve going much further than the court goes under the Act of 1855, and places upon the court a heavy responsibility (which it does not have generally in variation of trusts applications) of considering and estimating the views of other persons (often including parents and medical and psychological experts) as to what is for the infant’s benefit.’

Judges:

Wilberforce J

Citations:

[1964] Ch 158

Statutes:

Variation of Trusts Act 1958 1

Jurisdiction:

England and Wales

Cited by:

Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 09 December 2022; Ref: scu.448126

Re Cohen’s Will Trusts: ChD 1959

An application was made for the variation of trust provisions on behalf of a child beneficiary.
Held: Where the outcome of the arrangement cannot be predicted with certainty then the Court should be prepared to take on behalf of a minor, a risk which an adult would be prepared to take

Citations:

[1959] 1 WLR 165

Jurisdiction:

England and Wales

Cited by:

Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 09 December 2022; Ref: scu.448127

In Re Bernstein: ChD 2008

The testator had left andpound;100,000 legacies to his grandchildren at 25. In order to achieve a tax saving. The court was asked to approve an arrangement under which the individual legacies were replaced by interest in a fund in which the widow had a short-term interest.
Held: There is jurisdiction under the 1958 Act to vary the trusts of an unadministered estate.
Blackburne J said: ‘One of the consequences of the arrangement is that the grandchildren take absolute interests on the termination of the widow’s income and interest, with the result that they will be able to call for payment of the capital of their respective shares as soon as they reach their majority as against the contingency of reaching 25 under clause 5 of the will prior to variation. This might not be considered necessarily for their benefit’

Judges:

Blackburne J

Citations:

Unreported 2008, [2008] EWHC 3454(?)

Statutes:

Variation of Trust Act 1958

Jurisdiction:

England and Wales

Cited by:

Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 09 December 2022; Ref: scu.448123

McGuane v Welch: CA 11 Jul 2008

Appeal from a decision applying the doctrines of proprietary estoppel and constructive trust to dealings between the parties about a long lease of residential property acquired by a council tenant in the exercise of his statutory right to buy.

Citations:

[2008] EWCA Civ 785

Links:

Bailii

Jurisdiction:

England and Wales

Estoppel, Trusts, Land

Updated: 09 December 2022; Ref: scu.270704

In re Mayo: ChD 1943

The court discussed the duty of trustees to sell in the absence of unanimity: ‘The trust for sale will prevail, unless all three trustees agree in exercising the power to postpone.’

Judges:

Simonds, J

Citations:

[1943] Ch 302

Statutes:

Law of Property Act 1925 30

Jurisdiction:

England and Wales

Cited by:

Cited – Jones v Challenger CA 1960
The test under the section was whether it was inequitable to make the order for sale where one of the joint beneficiaries, who in that case were ex-husband and wife, wished to realise their investment in the property.
Held: Referring to the . .
Cited – Wilkinson v Chief Adjudication Officer CA 24-Mar-2000
The claimant owned a half share in a property. It was said that this brought her disposable capital above the limit to make a claim. She had inherited it, but had transferred it to her brother in satisfaction of her mother’s wishes. . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 09 December 2022; Ref: scu.201637

Rowe v Prance: ChD 26 May 1999

A boat had been bought and held in one persons name, but on reassurance that it would be ‘ours.’ The share was substantial but unquantified, and so equality was assumed. An express trust of personalty need not be formal. Constructive trust rules were unhelpful.

Citations:

Gazette 26-May-1999

Jurisdiction:

England and Wales

Trusts

Updated: 09 December 2022; Ref: scu.88881

Purnell v Purnell: 1961

Cairns J considered a request for the variation of a post-nuptial trust and said: ‘Now it is well established by authority that the variation may be such as to confer a benefit on a stranger to the settlement provided it also confers a benefit on children interested in the settlement, and I think the authorities establish that it is sufficient if the variation contains some benefit to those children which can be regarded as being approximately equivalent to what is taken from them for the benefit of the stranger.
. . the court has jurisdiction to admit an adopted child to benefit under the settlement, provided that anything which the natural children of the marriage are called upon to give up is compensated for in some sufficient way. In considering this compensation the court cannot do any exact sum, because such intangible factors as the benefit of equality, or something approaching equality, within the family can be taken into account, though there must be some pecuniary benefit as well.’

Judges:

Cairns J

Citations:

[1961] P 141

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.652171

Whitton v Whitton: 1901

Sir Francis Jeune P said: ‘But one has in these cases to consider what is really for the benefit of the children, because I think the authorities shew that nothing must be done that on the whole would be for the disadvantage of the children. This does not so much turn on the words of the Act of Parliament, but generally on the principle that the children, being innocent parties, ought not to have their interests injuriously affected by the conduct of either of their parents.’
and: ‘It would be hard that a wife who is freed by the misconduct of her husband should not be able to appoint anything at all in favour of a second husband, or in favour of the children of a second marriage; and if, without substantial injury to the interests of the children of the first marriage, such an arrangement can be made, I think it is desirable and is in accordance with the spirit of the Act of Parliament.’

Judges:

Sir Francis Jeune P

Citations:

[1901] P 348

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.652170

Garforth-Bles v Garforth-Bles: 1951

Pearce J said: ‘It is, in my view, to the child’s interest in another respect to allow the husband to remove a part of his fund from the settlement. He brought into the settlement reversions that were substantially all that he possessed; he now has, apart from these funds, no expectations and very little property; if, as seems likely in view of his age, he remarries, he has extremely little to settle on any future wife or children. If I refuse his request and devote exclusively to this child all the money that came from him, allowing none of it to go to any future wife or child of his, it may quite reasonably give him a feeling of injustice and impair the satisfactory relationship between father and child, a relationship of whose existence his generous dealing with the question of her maintenance gives some indication. Moreover, in the eyes of fair-minded members of the family, or friends, and of the child herself when she grows up, such an order will probably seem unjust and an excessive preference of the child’s interests to those of her father. To produce this result would cause a loss to the child which the retention of the money would not compensate. To produce a happier result by the surrender of some part of the husband’s fund would, in my view, be a benefit to the child. There may be cases where financial stringency might compel one to disregard such a benefit, owing to the necessity of keeping every available penny for the child, but this is not such a case.’

Judges:

Pearce J

Citations:

[1951] P 218

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.652169

Colclough v Colclough and Fisher: 1933

Any variation of a post-nuptial settlement should be addressed so as to place the parties in the same position as if the marriage had not come to an end.

Judges:

Langton J

Citations:

[1933] P 143

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 07 December 2022; Ref: scu.652168

Egerton v Egerton: 1949

The court considered its power to vary a post-nuptial settlement. Barnard J said: ‘No one could quarrel with this statement as a guiding principle, but at the same time I think it would be wrong to interpret it as meaning that it is a principle which must be applied in every case, regardless of its facts. That would, in my opinion, be placing fetters on the discretion of the court which the legislature never intended.’

Judges:

Barnard J

Citations:

[1949] 1 All ER 670

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Cited – Smith v Smith CA 1970
The husband had deserted the wife and gone abroad to work; the sole asset was the matrimonial home which was in joint names, and which constituted a post-nuptial settlement. The wife applied for variation of the settlement, whereby, on obtaining the . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.652167

Dormer v Ward: CA 1901

One of the assets included in the marriage settlement was a jointure rent-charge charged on certain specified hereditaments. The CA considered whether what was brought into the settlement so as to be amenable to the court’s statutory jurisdiction was the rent-charge or the hereditaments on which it was charged.
Held: Vaughan Williams LJ (with whom the Lord Chancellor and the Master of the Rolls agreed) said that it was the rent-charge: ‘I agree with what I understand to be the opinion of Gorell Barnes J, that what has been brought into settlement, in this Settlement, so far as the charges are concerned, is not the property upon which the charges are made, but the charges themselves; but there is one argument which was brought before us by Mr Danckwerts, and was also urged by him before Gorell Barnes J, with which I have yet to deal. It is this – that the whole of the hereditaments and premises comprised in the schedules to the marriage settlement were property settled by that settlement, and that the Court could therefore under the terms of s 5, which gives the Court power to make orders with reference to the application of the whole or a portion of the property settled for the benefit of children or their respective parents, order that the whole or a portion of the hereditaments and premises be applied for the benefit of the petitioner. The learned judge answers this by saying, ‘It seems a very extraordinary proposition that, because a charge – it may be a very small one – is created on a large real estate by a marriage settlement, the whole estate can be dealt with by the Court under the powers created by the sections aforesaid.’ I agree with him as to this’.

Judges:

Lord Halsbury LC, Sir A L Smith MR and Vaughan Williams LJ

Citations:

[1901] P 20

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.652162

Prinsep v Prinsep: 1929

Hill J considered what is meant by a nuptial settlement: ‘Is it upon the husband in the character of husband or in the wife in the character of wife, or upon both in the character of husband and wife? If it is, it is a settlement on the parties within the meaning of the section. The particular form of it does not matter. It may be a settlement in the strictest sense of the term, it may be a covenant to pay by one spouse to the other, or by a third person to a spouse. What does matter is that it should provide for the financial benefit of one or other or both of the spouses as spouses and with reference to their married state.’
and: ‘But whether a settlement is within s. 192 does not depend on who is the settlor. In many ante-nuptial settlements, neither the husband nor the wife are themselves the settlors . . But whether a settlement is within s. 192 must depend on what it effects. If, in fact, it is a settlement on either husband or wife, or both in the character of husband or wife, it is wholly immaterial that it is prompted and stated to be prompted by affection only for one of them.
On the question whether a settlement is a settlement within s. 192, the motive of the settlor seems to me immaterial, except so far as it is given effect to by the terms of the deed.’
‘The main object of variation is to make proper provision for the injured spouse and the children of the marriage. And prima facie, settlements ought not to be interfered with further than is necessary for that purpose. But the Court which has annulled the marriage must not only protect the injured party, but also be fair to the wrongdoing party.’

Judges:

Hill J

Citations:

[1929] P 225

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 07 December 2022; Ref: scu.652161

Blood v Blood: 1902

Gorell Barnes J, considered the ambit of section 5 of the 1859 Act, and said: ‘Those words are extremely wide, and I am anxious that they should not, by any construction the Court may put upon them, be narrowed in any way. To narrow them would be undesirable for this reason: the various circumstances which come before the Court, and for which this section is brought into operation, are so diverse that it is to my mind extremely important that, so far as possible, the Court should have power to deal with all the cases that come before it, and, in dealing with them, to meet the justice of the case. I, therefore, do not desire to see any narrow interpretation placed upon the words of the section.’

Judges:

Gorell Barnes J

Citations:

[1902] P 78

Statutes:

Matrimonial Causes Act 1859 5

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 07 December 2022; Ref: scu.652160

Hargreaves v Hargreaves: 1926

The marriage settlement included an annual sum of pounds 500 appointed by the settler. The question was whether there was any property settled other than the pounds 500.
Held: There was not: ‘to my mind, the property settled is not the whole fund out of which the 500l. was carved, but it is the 500l. and nothing else.’

Judges:

Hill J

Citations:

[1926] P 42

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.652163

In Re Hunter and Hewlett’s Contract: 1907

A moiety of a freehold was settled during the life of the trustees and the survivor of them for the benefit of the two daughters of the settlor, their husbands and issue. The reversion in fee expectant remained with the settlor. It was common ground that no greater estate than an estate pur autre vie in one moiety passed by the settlement. The question was whether the daughters could sell and convey the fee simple in one moiety or only a moiety in the estate pur autre vie. The reversion was separated from the estate. Could the daughters make a good title as tenants for life under the Settled Land Act 1882 to the moiety comprised in the settlement.
Held: They could.
Swinfen Eady J said: ‘Although the reversion is separated off from the particular estate by the settlement itself and remains vested in the grantor, and is not in fact comprised in the settlement, the effect of the Act is to treat it for the purposes of the Act as if it were comprised in the subject of the settlement. Therefore the settlement is for the purposes of the Settled Land Act a settlement of the moiety of the fee, that moiety is settled land for the purposes of the Act; and each daughter, having the powers of a tenant for life, can sell and convey a half part of the moiety, the purchase-money being paid to the trustees of the settlement.’

Judges:

Swinfen Eady J

Citations:

[1907] 1 Ch 46

Statutes:

Settled Land Act 1882

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family

Updated: 07 December 2022; Ref: scu.652164

Pitt and Another v Holt and Another: ChD 18 Jan 2010

The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow the rule in Hastings-Bass to apply allowing the variation.
Held: For the rule to apply, there is no need to identify a breach of duty by trustees or their advisers, and in this case there was no feature which would militate against avoiding the Settlement if it were voidable rather than void. The court had be satisfied that she would not have entered into the Settlement if she had appreciated the inheritance tax consequences rather than merely that she might not have done so.
The claimant’s action had been as receiver, exercising a discretion under the 1983 Act, though she was acting in a fiduciary capacity, and the rule in Hastings-Bass was capable of applying.
It was wrong to reduce the test for Hastings-Bass availability to whether an error in law occurred. The incidence of Inheritance Tax was a matter which should have been considered, and the advisers had taken account of other taxes, and a compliance with section 89 of the 1984 Act would have mitigated the tax as was intended by the section. The settlement could accordingly be set aside under Hastings-Bass, though not under the law of mistake.

Judges:

Robert Englehart QC J

Citations:

[2010] EWHC 45 (Ch), [2010] STC 901, [2010] STI 1443, [2010] WTLR 269, [2010] BTC 235, (2010) 12 ITELR 807, [2010] 1 WLR 1199, [2010] 2 All ER 774

Links:

Bailii, Times

Statutes:

Inheritance Tax Act 1984 89, Mental Health Act 1983 94 99(2)

Jurisdiction:

England and Wales

Citing:

Cited – Re Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .
Cited – Byng v London Life Association CA 1990
The venue selected for a meeting of the members of a company was too small to accommodate all the members who attended, and so the chairman adjourned the meeting to an alternative venue.
Held: The decision by the chairman was set aside on the . .
Cited – Mettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
Cited – Ogden and Another v Trustees of the RHS Griffiths 2003 Settlement and others; In Re Griffiths deceased ChD 25-Jan-2008
A life-time transfer which had been made under a mistake as to the donor’s chances of surviving long enough for the transfer to be exempt from Inheritance Tax was set aside. Unbeknown to the donor, he had lung cancer at the time.
Held: Lewison . .
Cited – Sieff v Fox ChD 23-Jun-2005
The advisers to trustees wrongly advised the trustees about the tax consequences of exercising a power of appointment in a certain way. As a result a large unforeseen Capital Gains Tax liability arose. The trustees sought to set aside the . .
Cited – Wolff v Wolff ChD 6-Sep-2004
The court considered its ability to redraw a document where its legal effect was misunderstood. . .
Cited – Edge and others v Pensions Ombudsman and Another CA 29-Jul-1999
The Pensions Ombudsman was wrong to set aside the decision of pensions trustees where that decision was properly made within the scope of a discretion given to the Trustees. He should not carry out an investigation where no particular benefit could . .
Cited – Hunter v Senate Support Services Ltd and others ChD 2005
The court set aside a forfeiture of shares for non-payment of a call. The decisions of the directors to forfeit the shares and to transfer the forfeited shares to the group holding company were flawed, though not improperly motivated, because the . .
Cited – Abacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
Cited – Equitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
Cited – Gibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
Cited – Anker-Petersen v Christensen ChD 2002
Where a mistake is made as to the effect of an appointment under a trust it may be possible to invoke the court’s jurisdiction to rescind the appointment. Davis J considered Millett J’s distinction between ‘effect’ and ‘consequences’: ‘An example in . .
Cited – Stannard v Fisons Ltd; Stannard v Fisons Pensions Trust CA 2-Jan-1990
The purchaser of a business said that the company had made insufficient contributions to its pensions fund before the transfer, and sought payment of the sums underpaid. The defendants argued that, applying Hastings-Bass, unless that principle were . .
Cited – Burrell and Sharman v Burrell, Shore, Tyrrell, etc ChD 23-Feb-2005
Shares were appointed by trustees in the mistaken belief that they attracted business property relief from Inheritance tax. They sought to set aside the appointment.
Held: Mann J applied the rule in Stannard v Fisons Pensions Trust and . .
Cited – Ogilvie v Littleboy CA 1897
Lindley LJ discussed the variation of a gift for mistake: ‘Gifts cannot be revoked, nor can deeds be set aside, simply because the donors wish they had not made them and would like to have back the property given. Where there is no fraud, no undue . .
Cited – Lady Hood of Avalon v Mackinnon 1909
Lady Hood made an appointment in favour of her elder daughter, in order to place her in the same position as her younger daughter to whom she had already made large appointments. But in doing so she (and her solicitor) had forgotten that she had, . .

Cited by:

Cited – Futter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .
Appeal From – Pitt and Another v Holt and Another CA 9-Mar-2011
. .
At First Instance – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Lists of cited by and citing cases may be incomplete.

Trusts, Inheritance Tax

Updated: 07 December 2022; Ref: scu.401868

Hussey v Palmer: CA 22 Jun 1972

A mother had provided a sum to her daughter and son in aw when she moved in with them. The money was used to build an extension. She now appealed against a finding that she did not have an equitable interest in the house.
Held: lord Denning MR adopted a free-ranging remedial basis for constructive trusts and came to the view that: ‘The two [resulting trust and constructive trust] runs together. By whatever name it is described, it is trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded upon large principles of equity, to be applied in cases where the defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or a share in it.’

Judges:

Lord Denning MR, Phillimore, Cairns LJJ

Citations:

[1972] 1 WLR 1286, [1972] 3 All ER 744, [1972] EWCA Civ 1

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Updated: 07 December 2022; Ref: scu.262751

Alliance and Leicester Building Society v Edgestop: 18 Jan 1991

The plaintiff building society had paid moneys to solicitors and the solicitors had wrongly paid them away in breach of their instructions.
Held: The building society obtained orders for interim payment against the solicitors on the grounds that they were liable for breach of trust. If the building society had known the true facts it would not have made the advance. At the date of judgment a certain loss had been demonstrated in that the breach of trust had caused the building society to enter into a transaction in which they would not have participated had there been no breach of trust.

Judges:

Hoffmann J

Citations:

Unreported, 18 January 1991

Jurisdiction:

England and Wales

Trusts, Legal Professions

Updated: 07 December 2022; Ref: scu.251378

Re Shephard, Shephard v Cartwright: HL 1 Dec 1954

The House considered the equitable doctrine of advancement, and the admission of evidence which might go to rebut it.
Held: The presumption is one which ‘should not . . give way to slight circumstances’.
Viscunt Simonds approved, from Snell’s Principles: ‘The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration . . But subsequent declarations are admissible as evidence only against the party who made them, and not in his favour.’

Judges:

Viscount Simonds, Lord Morion of Henryton, Lord Reid, Lord Tucker, Lord Somervell of Harrow

Citations:

[1954] UKHL 2, [1955] AC 431, [1954] 3 All ER 494

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 07 December 2022; Ref: scu.248521

Clavering v Ellison: 1859

Any provision determining or divesting an estate held on trust ‘must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine’

Judges:

Lord Cranworth

Citations:

(1859) 7 HLC 707

Jurisdiction:

England and Wales

Cited by:

Cited – Sifton v Sifton PC 1938
(Canada) The court considered the validity of a gift in a will challenged for uncertainty, in this case a condition as to residency within a country.
Held: Lord Romer said that the meaning of such words as reside or residence, ‘obviously . .
Cited – Clayton v Ramsden HL 1943
A condition in the will was that the legatee, his daughter, should not marry a person ‘not of Jewish parentage and of the Jewish faith.’
Held: The condition was void for uncertainty. Lord Russell of Killowen said: ‘The courts have always . .
Cited – Fraser and Another v Canterbury Diocesan Board of Finance and others HL 27-Oct-2005
Land had been acquired by a deed under the 1841 Act, but had in 1995 ceased to be used as a school ‘for the education of children and adults of the labouring manufacturing and other poorer classes . . And for no other purpose ‘. Under the Act, the . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 07 December 2022; Ref: scu.231640

Prescott v Fellowes: CA 1958

The court considered whether a deed of trust created a post nuptial settlement within the 1950 Act: ‘Inasmuch as the deed vested no property in trustees and created no successive legal or beneficial interests it had none of the attributes of a settlement which are familiar to conveyancing practitioners. It has, however, long since been established by decisions which are binding on this court that a disposition of property may a ‘settlement’ for the purposes of section 25 of the Matrimonial Causes Act 1950, notwithstanding that it would not be regarded as a settlement of property for any other purpose. The liberality with which this legislation has been construed is sufficiently exemplified by Bosworthick v. Bosworthick. In that case a wife executed, a few years after her marriage, a bond which secured to her husband an annuity for his life. The marriage was dissolved in 1925 and the wife applied to the court for an order extinguishing her liability under the bond. This court, affirming the decision of Lord Merrivale P., held that the bond was a post-nuptial settlement for the purposes of section 5 of the Matrimonial Causes Act, 1859, and section 192 of the Supreme Court of Judicature (Consolidation) Act, 1925; and the wife’s application succeeded. In the course of his judgment Romer J., who was sitting as a member of this court, said that the authorities established ‘that where a ‘husband has made a provision for his wife, or a wife for her husband, in the nature of periodical payments, that amounts to a settlement within the meaning of the sections. That may appear to be a very liberal construction of the sections, but I think that it is no more liberal a construction than should be given to them having regard to the obvious purposes for which they were enacted by the legislature.’

Judges:

Romer LJ

Citations:

[1958] P 260

Statutes:

Matriimonial Cause Act 1950

Jurisdiction:

England and Wales

Cited by:

Cited – Charalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement) CA 30-Jul-2004
The parties had been wealthy. Whilst still married, substantial sums had been placed in a trust. Their business interests had crashed and both faced personal bankruptcy. The husband appealed an order setting aside the trust.
Held: A clause in . .
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.199724

Charalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement): CA 30 Jul 2004

The parties had been wealthy. Whilst still married, substantial sums had been placed in a trust. Their business interests had crashed and both faced personal bankruptcy. The husband appealed an order setting aside the trust.
Held: A clause in the trust deed could not prevent application of the Act. The judge had been correct to hold that it remained a post-nuptial settlement despite the removal of either party as beneficiary. The courts of Jersey were prepared to heed such orders. The appeal was refused.

Judges:

Lord Justice Thorpe Lord Justice May Lady Justice Arden

Citations:

[2004] EWCA Civ 1030, Times 07-Sep-2004, [2005] Fam 250

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 24, Recognition of Trusts Act 1987

Jurisdiction:

England and Wales

Citing:

Appeal from – Charalambous v Charalambous FD 5-Mar-2004
The family had been wealthy. Assets were placed into a trust. The businesses fell into difficulty, and the parties divorced. The wife requested the court to set aside the trust.
Held: The trust was to be varied as a post-nuptial settlement. . .
Cited – Nunneley v Nunneley 1890
The court considerd the power to vary a trust: ‘The language of the Act is exceedingly wide. I am clearly of opinion that the power thereby conferred extends to a settlement though made in another country and according to the law of that country.’ . .
Cited – Jacques de Cavel v Louise de Cavel ECJ 27-Mar-1979
The term ‘rights in property arising out of a matrimonial relationship’ within the meaning of the second paragraph of article 1 of the Convention, includes not only property arrangements specifically and exclusively envisaged by certain national . .
Cited – Brooks v Brooks HL 29-Jun-1995
A director’s pension scheme could be treated as a post-nuptial marriage settlement where the director was the only scheme member. It was thus a matrimonial asset capable of variation by a court in ancillary relief proceedings in a divorce. The court . .
Cited – Compton v Compton FD 1960
The court considered whether trusts were to be deemed to be post nuptial settlements.
Marshall J said: ‘The first point taken by Mr. Beyfus on the wife’s behalf is fundamental. He has submitted that the four settlements in question are not . .
Cited – Forsyth v Forsyth 1891
Jeune J said: ‘Nunneley v. Nunneley seems to me to go the whole length of deciding that whatever be the law applicable to the settlements the effect of S.5 of the 22 and 23 Vict. c. 61, is to give this court power to vary the settlements in its . .
Cited – Prescott v Fellowes CA 1958
The court considered whether a deed of trust created a post nuptial settlement within the 1950 Act: ‘Inasmuch as the deed vested no property in trustees and created no successive legal or beneficial interests it had none of the attributes of a . .
Leave – C v C (Ancillary Relief: Nuptial Settlement) FD 2-Apr-2004
Application for ancillary relief to vary post-nuptial settlement. . .

Cited by:

Cited – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 07 December 2022; Ref: scu.199801

Ferguson v Paterson and Others: HL 13 Mar 1900

The custody of trust funds is not property entrusted to the law-agent of the trust, and the immunity conferred upon trustees by a clause of indemnity against loss by the intromissions of their factors or agents does not extend to such a case, the clause only covering acts of factors or agents properly appointed and acting within the legitimate scope of their agency.
In July 1887, on a change of investment, certain trust funds were received by the law-agent and factor of the trust, and remained in his hands pending investment till the following December. On 21st December the trustees became aware that those funds had been placed in bank on deposit-receipt in the agent’s name, and they then instructed the agent to re-deposit it in their name as trustees. Between the 21st December and the 18th June following one of the trustees called repeatedly upon the agent to see that the transfer had been made, but was on each occasion met by the excuse that the agent had sustained an accident and was too ill to attend to business. No communication was made by the trustees to the bank, and on 18th January the agent cashed the receipt and misappropriated the proceeds, Prior to this the trustees had no reason to suspect their agent’s solvency or integrity. They were protected by an indemnity clause in their trust-deed declaring that they were not to be liable for the intromissions of any agent who, in transacting the business of the trust, should receive any part of the trust estate into his hands.
In an action brought by a beneficiary, held ( rev. the judgment of the First Division, diss. Lord Morris) that the trustees were liable for the loss sustained through the agent’s defalcation.

Judges:

Lord Chancellor (Halsbury), Lords Macnaghten, Morris, Shand, Davey, and Lord James of Hereford

Citations:

[1900] UKHL 635, 37 SLR 635

Links:

Bailii

Jurisdiction:

England and Wales

Trusts

Updated: 06 December 2022; Ref: scu.631498

Chopra v Bindra: CA 19 Mar 2009

The parties sought to have declared the effect of a deed of trust under which the on the death of either co-owner, the survivor became entitled to the entirety of the proceeds of sale absolutely. The gift was defective as self defeating. The judge had sought to interpret the deed so as to give the provision effect by restricting the gifts during the joint lives to life interests.
Held: The appeal failed. The judge had correctly interpreted the deed: ‘in interpreting the deed the court can have regard to the fact that it is unlikely that the parties intended clause 4 to be ineffective; on the contrary, they plainly intended it to be effective. If the house was not sold during their joint lives, they intended that it should belong to both during their joint lives and to the survivor absolutely upon the death of the first to die.’

Judges:

Rimer LJ

Citations:

[2009] EWCA Civ 203, [2009] Fam Law 581, [2009] NPC 48, [2009] WTLR 781, [2009] 2 FLR 786, (2008-09) 11 ITELR 975

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Langston v Langston 1834
. .
Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Cited – In re Dugdale, Dugdale v Dugdale 1888
Kay J considered whether a condition in a trust was repugnant: ‘I apprehend that this is the test. An incident of the estate given which cannot be directly taken away or prevented by the donor cannot be taken away indirectly by a condition which . .
Cited – In re Richerson, Scales v Heyhoe 1892
The court considered the doctrine of conversion. . .
Cited – Re Pfrimmer 1936
(Manitoba Court of Appeal) Mr Pfrimmer in his will in 1930, disposed of a house on various trusts. On his death, the question arose as to whether the carrying into effect of the testamentary trusts was prevented by two documents (one called a . .
Lists of cited by and citing cases may be incomplete.

Trusts, Land

Updated: 06 December 2022; Ref: scu.323703

Morgan v Marquis: 2 Nov 1853

The defendants had possession of some flour for sale under instructions from Perrin. The jury found that the sale was to be for the account of Perrin and one Shute and not Perrin alone, and that Perrin and Shute were joint tenants. Perrin committed an act of bankruptcy. The defendants afterwards sold the flour. Perrin was petitioned in and adjudicated bankrupt. The assignees in bankruptcy brought an action to recover the proceeds of the sale.
Held: The action could not succeed: ‘The defendants sold the goods in question after the bankruptcy by the direction of Shute; and I am of opinion that they were justified in so doing, since they had the authority of the solvent partner, who had a right to deal with the property as his own.’ (Parke) ‘Shute, the solvent partner, directed the defendants to sell the flour. Now it is clear that one tenant in common may dispose of the common property; and therefore, when the flour was sold by the defendants, it was properly sold so far as Shute was concerned. Then the effect of the bankruptcy was to render the assignees tenants in common of the goods with Shute. But it is well established that one tenant in common cannot maintain an action against his companion, unless there has been a destruction of the particular chattel or something equivalent to it. That being so, the defendants are not wrong doers, for they have acted under lawful authority. The case of Fox v. Hanbury (Cowp. 445), which was followed by Smith v Stokes (1 East, 363), Smith v. Oriell (1 East. 368), Harvey v. Crickett (5 M. and Selw. 336), and Woodbridge v. Swann (4 B. and Ad. 633) decided that, after an act of bankruptcy committed by one of two partners, the solvent partner is capable of disposing of the partnership property.’
Baron Parke dealt with the capacity of one tenant in common to maintain an action in conversion against his companions, and said that such an action was not maintainable unless there has been destruction of the particular chattel or something equivalent to its destruction.

Judges:

Pollock CB, Parke B

Citations:

(1853) 9 Exch 144, [1853] EngR 887, (1853) 9 Exch 145, (1853) 156 ER 62, (1853) 9 Exchequer 145

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Cited – Fox v Hanbury 1776
One of two partners committed an act of bankruptcy. The solvent partner later disposed of partnership property to the defendant. A commission was afterwards issued against the bankrupt partner, and the plaintiffs as assignees under the commission . .
Cited – Smith v Stokes 1801
After a bankruptcy goods belonging to his partnership were received by the defendant Stokes. The commission in bankruptcy then issued. His partner died and his will was proved by Stokes and another. The assignees under the commission then brought an . .
Mentioned – Smith v Oriell 1801
. .

Cited by:

Cited – Re Dennis (A Bankrupt) CA 22-May-1995
A joint tenancy was severed (under the former law) on the event of an act of bankruptcy, and not only by the later actual adjudication of bankruptcy. The vesting of the debtor’s property in the trustee which occurred on adjudication was automatic; . .
Cited – Regina v Bonner and Others CACD 24-Feb-1970
The appellants challenged their convictions for theft, saying that as partners in a firm they could not be convicted of theft of partnership property.
Held: The appeals were allowed for the unsatisfactory and unsafe nature of the convictions . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Trusts

Updated: 05 December 2022; Ref: scu.566422

Dyer v Dyer: 27 Nov 1988

Where property is purchased by one person in the name of another there is a presumption that a resulting trust is created: ‘The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold or leasehold; whether taken in the name of the purchasers and others jointly, or in the name of others without that of the purchaser, whether in one name or several; whether jointly or successive – results to the man who advances the purchase money. It is the established doctrine of a court of equity that this resulting trust may be rebutted by circumstances in evidence.’

Judges:

Eyre CJ

Citations:

(1788) 2 Cox 92, [1788] EWHC Exch J8, [1788] EWHC Exch J8, [1775-1802] All ER Rep 205, (1788) 2 RR 14, 30 ER 42

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Re a Policy No 6402 of the Scottish Equitable Life Assurance Society 1902
Mr Sanderson effected insurance on his own life ‘for the behoof’ of his sister-in-law, Miss Stiles. The policy moneys were payable to Miss Stiles or her personal representatives but the premiums were paid throughout by Mr Sanderson. The personal . .
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Cited – Drake v Whipp CA 30-Nov-1995
The parties, an unmarried cohabiting couple, disputed their respective shares in a property held in the man’s sole name. Both had made direct contributions both to the purchase of a barn and to its expensive conversion into a home. The plaintiff . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity, Land

Updated: 05 December 2022; Ref: scu.187423

Tee v Tee, John Arthur Hillman Co: CA 22 Mar 1999

The wife and her second husband occupied a property in the joint names of herself and of her first husband, who, following their divorce, had applied under the Act of 1973 for a lump sum order reflective of his equal beneficial interest in it to be made against her. Following her remarriage the wife countered with an application under TOLATA for the interest of her first husband in the property to be transferred to herself against a small payment to be made by her to him reflective of the value of what she contended to be only his minor beneficial interest in it. Following a direction that her application under TOLATA be considered at a preliminary stage, a district judge devoted eight days to the enquiry under TOLATA and A further day with the husband’s application under the Act of 1973, concluding that andpound;230,000 should be paid to the first husband in respect of his interest in the property, whether by the wife or, in default, out of the proceeds of its sale.
Held: Parties to a marriage seeking a sale of jointly owned property should proceed under family law not the general civil powers. Where the parties had divorced, and one party had remarried, the procedure remained the same, particularly when, as in this case, the other party had already made and application under the Matrimonial Causes Act. The court took the opportunity to deplore the expensive protracted and bitter nature of the proceedings.

Judges:

The Vice-Chancellor Lord Justice Thorpe Lord Justice Judge

Citations:

Gazette 27-Oct-1999, [1999] EWCA Civ 1056, [1999] 2 FLR 61

Statutes:

Matrimonial Causes Act 1973 24 24A, Trusts of Land and Appointment of Trustees Act 1996 14, Married Women’s Property Act 1882 18

Jurisdiction:

England and Wales

Citing:

See Also – Tee v Tee CA 1974
. .

Cited by:

See Also – Tee-Hillman v Tee and others CA 24-Sep-2002
. .
Cited – Miller Smith v Miller Smith CA 2-Dec-2009
The married couple owned a property as tenants in common. The husband had moved out and, anticipating divorce proceedings, sought an order for the sale of the house citing his inability to sustain the very considerable mortgage payments. The wife . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 05 December 2022; Ref: scu.145971

James v Williams: CA 8 Mar 1999

A beneficiary under an intestacy, who tried to position himself as owner of assets in the estate, became a constructive trustee of those assets, with or without letters of administration, and accordingly the claim for the return of the land was not time-barred. ‘Parliament, wittingly or unwittingly has drawn a distinction between personal representatives and executors on the one hand who are trustees and Executors de ses torts who are not.’ ‘a constructive trust attaches by law to property which is held by a person in circumstances where it would be inequitable to allow him to assert full beneficial ownership of the property.’

Judges:

The President Sir Stephen Brown Lord Justice Swinton Thomas Lord Justice Aldous

Citations:

Times 13-Apr-1999, Gazette 14-Apr-1999, Gazette 28-Apr-1999, [1999] EWCA Civ 921

Statutes:

Limitation Act 1980 15(1)

Jurisdiction:

England and Wales

Wills and Probate, Limitation, Trusts

Updated: 05 December 2022; Ref: scu.145836

Bonham and Another v Fishwick and Another: CA 16 Apr 2008

Whether the respondent trustees would be entitled to rely in their defences on the clause in the trust deed exempting them from liability for breach of trust, except in the case of ‘wilful and individual fraud or wrongdoing’ on the part of the trustee who is sought to be made liable. Fraud is not alleged. Wilful individual wrongdoing is alleged.

Citations:

[2008] EWCA Civ 373

Links:

Bailii

Jurisdiction:

England and Wales

Trusts

Updated: 04 December 2022; Ref: scu.266872

Newgrosh v Newgrosh: 28 Jun 1950

Citations:

Unreported, June 28, 1950

Jurisdiction:

England and Wales

Cited by:

Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 01 December 2022; Ref: scu.251496

Mogridge v Clapp: 1892

The Court considered a provision of the 1882 Act which required a dealing with a tenant for life to be one in good faith said that good faith. Kekewich J said that the words ‘good faith’ were to be equated with the words ‘bona fides’, and: ‘I think that the best way of defining the expression (good faith) so far as it is necessary or safe to define it, is by saying that it is the absence of bad faith – of mala fides’.
Kay LJ said that good faith ‘must mean or involve a belief that all is being regularly and properly done’

Judges:

Kekewich J, Kay LJ

Citations:

[1892] 3 Ch 382

Statutes:

Settled Land Act 1882

Jurisdiction:

England and Wales

Cited by:

Cited – St Mary and St Michael Parish Advisory Company Ltd v The Westminster Roman Catholic Diocese Trustee, Her Majesty’s Attorney Genera and others ChD 6-Apr-2006
Parish members objected to the building within the church grounds of an education centre. They said that the land was to be used for the purposes of the members of the parish only under a trust deed of 1851.
Held: The deed had to be construed . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 01 December 2022; Ref: scu.242385

Erskine v Wright: 1846

The provisions of the Act would be capable of being defeated if it had remained possible to tie up lands in perpetuity by the creation of a series of liferents. This would soon supersede all other methods of doing so if it were competent.

Judges:

Lord Mackenzie

Citations:

(1846) 8 D 863

Statutes:

Entail Amendment (Scotland) Act 1848

Jurisdiction:

Scotland

Cited by:

Cited – Earl of Balfour v Keeper of the Registers of Scotland and Others HL 6-Nov-2002
The applicant sought a declaration that he was the owner of land by virtue of the 1848 Act, claiming that a series of grants of liferent were ineffective to restrict the title transferred.
Held: Miller’s Trustees was to be applied in to the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Trusts

Updated: 01 December 2022; Ref: scu.186364

Novoship (UK) Ltd and Others v Nikitin and Others: CA 4 Jul 2014

The grant of the remedy of an account of profits is available also against someone who has acted dishonestly to assist a trustee to breach his fiduciary obligations, even where the breach did not itself involve a misapplication of trust property.

Judges:

Longmore, Moore-Bick, Lewison LJJ

Citations:

[2014] EWCA Civ 908, [2014] WTLR 1521, [2015] 2 WLR 526, [2014] WLR(D) 297, [2015] 1 QB 499

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Trusts

Updated: 30 November 2022; Ref: scu.533789

In re Rogers’ Question: CA 1948

Where a wife contributes directly or indirectly, in money or money’s worth, to the initial deposit or to the mortgage instalments, she gets an interest proportionate to her contribution.
Evershed LJ pointed out that the task of a judge after seeing and hearing the witnesses was ‘to try to elude what at the time was in the parties’ minds and then to make an order which, in the changed conditions, now fairly gives effect in law to what the parties, in the judge’s finding, must be taken to have intended at the time of the transaction itself ‘.

Judges:

Evershed LJ

Citations:

[1948] 1 All ER 328

Jurisdiction:

England and Wales

Cited by:

Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 30 November 2022; Ref: scu.251495

Wissenbruch v Wissenbruch: 1961

Citations:

1961 SC 340

Jurisdiction:

Scotland

Cited by:

Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 30 November 2022; Ref: scu.251489

Collier v Tugwell: CA 22 Jan 1999

The parties were joint owners as tenants in common in equity of land. Each appealed orders with regard to its sale, and the division of the proceeds. The parties had bought the property intending to cohabit. They had contributed unevenly, and the claimant had subsequently contributed to repay part of the capital of the mortgage. The parties had in effect agreed that the claimant would buy the respondent’s interest.
Held: The maths were relatively simple. The judge had kept a close but not unfair control over mutual cross examination by two litigants in person. The property had been valued at less than the purchase price. It was wrong to allow the defendant to avoid the risk of his investment. Any error in valuation was balanced by the judges failure to require to be taken into account the costs of a sale. Appeal dismissed.

Judges:

Lord Justice Simon Brown, Mr Justice Wilson

Citations:

[1999] EWCA Civ 645

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 14

Jurisdiction:

England and Wales

Land, Trusts

Updated: 30 November 2022; Ref: scu.145560

Saeed and Another v Ibrahim and Others: ChD 9 Jan 2018

The court considered the overlap between CPR 3.4(2)(a) and CPR 24.2

Judges:

Marsh CM

Citations:

[2018] EWHC 3 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Saeed and Another v Ibrahim and Others ChD 3-Aug-2018
. .
Cited – Boyse (International) Ltd v Natwest Markets Plc and Another ChD 27-May-2020
Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on . .
Lists of cited by and citing cases may be incomplete.

Trusts, Family, Litigation Practice

Updated: 27 November 2022; Ref: scu.602625

CIBC Mellon Trust Company and Others v Stolzenberg and Others: ChD 3 Feb 2003

Application to set aside judgments entered on failure to comply with ‘unless’ orders.
Held: Etherton J said: ‘The Court of Appeal has laid down guidance as to the approach of the Court when considering an application for relief from sanctions within CPR r.3.9. The Court, in such a case, must consider each of the nine items listed in r.3.9(1) which are relevant to the case, carrying out the necessary balancing exercise methodically, and explaining how the ultimate decision has been reached: Woodhouse v Consignia [2002] EWCA Civ 275, [2002] 1 WLR 2558. The Court must bear in mind that, where the effect of the sanction is to preclude a trial on the merits, the effect is to deprive the applicant of access to the Court, a concept which now has a particular resonance under article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998 (‘Article 6′): ibid at para. [42]. The Court, in carrying out the balancing exercise, is not, however, limited to the nine items specified in r.3.9. That rule expressly requires the Court to consider all the circumstances. In an appropriate case, for example, the Court can and should consider the merits, as part of the circumstances: Chapple v Emmett (unreptd) (CA) 8th December 1999. The exercise of the discretion of the Court under CPR r.3.9 must be carried out against the background, and in the light of, the overriding objective to deal with cases justly, as set out in CPR r.1.1: ibid.; Arrow Nominees Inc. v Blackledge [2002] 2 BCLC 167, esp. at paras.54-55 (Chadwick LJ) and 70 and 72 (Ward LJ).’

Judges:

Etherton J

Citations:

[2003] EWHC 13 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – CIBC Mellon Trust Company and others v Stolzenberg CA 15-Jun-2001
Application for leave to appeal, for an extension of time to appeal, and for a stay of execution pending the hearing of the appeal. . .

Cited by:

See Also – CIBC Mellon Trust Company and others v Stolzenberg and others CA 13-Feb-2004
. .
Appeal from – Stolzenberg and others v CIBC Mellon Trust Co Ltd and others CA 30-Jun-2004
The court considered the issue of the use of a strike out as a sanction for non-compliance with a court order.
Held: The approach of the court in a case considering relief for sanctions – exemplified by RC Residuals v Linton Fuel was bound to . .
Cited – Venulum Property Investments Ltd v Space Architecture Ltd and Others TCC 22-May-2013
The claimant sought an extension of time to serve the Particulars of Claim. The solicitors said that they had misread the relevant Rules.
Held: The solicitors had acted on the basis of the former practice, but the rules had been substantially . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 27 November 2022; Ref: scu.431758

Jiggens and Another v Low and Another: ChD 29 Jun 2010

Application for a declaration that the deed of appointment made by the trustees of a settlement is void pursuant to the so-called Hastings-Bass principle, or alternatively for rectification of the deed.

Judges:

Roth J

Citations:

[2010] EWHC 1566 (Ch), [2010] STI 2122, [2010] BTC 631, [2010] STC 1899, 13 ITELR 169

Links:

Bailii

Jurisdiction:

England and Wales

Trusts

Updated: 27 November 2022; Ref: scu.418452

Bedson v Bedson: CA 1965

The parties, a married couple disputed the shares in which the matrimonial home, formerly held by them as joint tenants would be held after severance o that joint tenancy.
Held: The wife was entitled to a half share in the property.
Russell LJ considered that the court had no jurisdiction under section 17 of the 1882 Act to find that the wife had any beneficial interest other than one equal to that of the husband. He said: ”If a freehold is conveyed to A and B on trust for themselves as joint tenants, each has the same beneficial interest in that property as the other. That is inherent in the nature of the beneficial interest created, as is the right to the whole on survivorship before severance. It is also inherent in the nature of the beneficial interest created that either may sever at any time inter vivos-, and on severance the beneficial joint tenancy becomes a beneficial tenancy in common in undivided shares and right by survivorship no longer obtains. If there be two beneficial joint tenants, severance produces a beneficial joint tenancy in common in two equal shares . . by declaration of the beneficial joint tenancy between A and B, their respective rights and titles are no less clearly laid down and established than if there had been a declaration of a beneficial tenancy in common in equal undivided shares.’
Lord Denning MR, delivering the leading judgment took a strong line of his own, saying: ‘Although the court refused a sale, we are asked to determine what is the wife’s share in the property. I do not think that the fact that they were joint tenants means that, on a sale, she necessarily takes a half share. That is decisively shown by the decision of this court in Hine v. Hine. I would refer particularly to the wise observations of Pearson LJ. That decision was distinguished by Russell, LJ, in Wilson v Wilson, on the ground that the conveyance in Hine v. Hine did not contain an express declaration of trust for the two jointly: but I for myself assumed that it did, because a declaration of trust is common form: see Smith v. Smith and Brown v. Brown and s.36(1) of the Law of Property Act 1925. The mere insertion of a declaration of trust (which would be imported anyway) cannot make any difference. Notwithstanding the criticisms that have been made of Hine v. Hine, it is, I think, still good law. In that very case, Pearson, LJ, pointed out that a half-and-half division would not have produced a fair and just result, whereas decisions of this court did achieve a reasonable result. I would, myself, hesitate long before I overthrew a case which did’ justice: but suffice it to say that it is binding on this court and none of us can overthrow it. In this situation, I have had great doubt whether we should interfere with the decision of the judge who relied on Hine v. Hine, but my brethren think that we should, and I concur on the ground that there is solid ground for believing that the parties did intend that, come what may, the proceeds of the sale of the property (when it should happen) should be shared equally. I say this because of the form of the latest accounts which were agreed by the husband with the accountants after the disputes had arisen. They showed the property as belonging half-and-half to each.’
Lord Justice Davies, said that he could see no distinction in principle between a declaration of trust of the nature under discussion and a mere conveyance into joint names, and: ‘From the many and sometimes conflicting authorities the principle, in my judgment, emerges that, in proceedings under s.17 of the Act of 1882 between husband and wife, the form of a transaction is not conclusive. In enquiring into the title to property, the court must investigate the reality of the situation and, having done so and having ascertained the facts, must make such order as it thinks fit. So that, whatever the documents may appear to say on their face, the court may reach the conclusion that, in reality, by express or implied agreement the true position was something different from that appearing on the face of the documents. Unless, however, the court is satisfied on evidence that the parties expressly or by conduct did agree to a state of affairs other than that indicated by the documents, then the documents must prevail. It may be that it is more difficult to go behind a declaration of trust than a conveyance. It may be that practical difficulties may arise in any given case; but I do not think that there is any authority for the proposition that, in no circumstances as between husband and wife where no third party interest is concerned, can the court look behind the form of the documents.’
Nevertheless, he concluded that since there was no evidence of any agreement between the parties that the property should be owned otherwise than in equal shares, the wife was entitled to a half- interest in the property.

Judges:

Lord Denning MR, Russell LJ, Davies LJ

Citations:

[1965] 2 QB 666, [1965] 3 All ER 307

Statutes:

Married Women’s Property Act 1882 17

Jurisdiction:

England and Wales

Cited by:

Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
rejected – Goodman v Gallant CA 30-Oct-1985
The court reviewed the conflicting authorities with regard to the creation of trusts and held that the overwhelming preponderance of authority was that, in the absence of any claim for rectification or rescission, provisions in a conveyance . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 27 November 2022; Ref: scu.251493

Royal Borough of Kingston Upon Thames v Prince and Another: CA 2 Dec 1998

The Borough’s tenant had died. His wife and daughter had lived with him, but the mother not for long enough to succeed to his tenancy. The daughter (aged thirteen) claimed to have done so having lived with him for three years.
Held: The 1985 Act did not limit its effects to adults. A minor may not have capacity to own a legal estate, but may have an equitable tenancy. The Settled Land Act operated to create a trust and a settlement for the interest to be held for a child. Minors are capable of being persons in housing law. A minor can hold an equitable tenancy of any property, including a council house.

Judges:

Roch LJ, Hale DBE J

Citations:

[1998] EWCA Civ 1891, (1999) 31 HLR 794

Statutes:

Housing Act 1985 79 87 113(1), Law of Property Act 1925 1(1), Settled Land Act 1925 27(1)

Jurisdiction:

England and Wales

Citing:

Cited – Portman Registrars v Mohammed Latif 1987
A minor can succeed to a statutory tenancy under the Rent Acts. A statutory tenancy is not an interest in land and a minor does have the capacity to contract for necessaries such as lodging. . .
Cited – Regina v London Borough of Tower Hamlets ex parte Von Goetz CA 8-Oct-1998
A ten year shorthold tenancy agreement which was not executed under deed constituted an equitable interest, and since more than five years remained, the tenant had sufficient interest to found a claim for a council grant for renovation and repairs. . .
Cited – Kelly v Monklands District Council 1986
A local authority’s housing duties may be owed to a child if that child is living independently of its parents. . .
Cited – Hypo-Mortgage Services Limited v Robinson and Another CA 17-Nov-1996
The court refused parents leave to appeal against a mortgage possession order, rejecting their argument that children living with them had a beneficial interest in the mortgaged premises and were thus ‘in actual occupation’ so as to have overriding . .
Cited – Regina v Oldham Metropolitan Borough Council ex parte Garlick and similar HL 19-Mar-1993
No homelessness priority could be established by means of having a child applying for housing, rather than his or her parent. An application by a person suffering mental disability who would also be dependent upon others was also rejected. In each . .
Lists of cited by and citing cases may be incomplete.

Housing, Children, Trusts

Updated: 27 November 2022; Ref: scu.145370

Royal Brunei Airlines SDN BHD v Tan: PC 24 May 1995

(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective one: ”knowingly’ was better avoided as a defining ingredient of the liability, and that in that context the Baden categorisation was best forgotten. Although my own view is that the categorisation is often helpful in identifying different states of knowledge which may or may not result in a finding of dishonesty for the purposes of knowing assistance, I have grave doubts about its utility in cases of knowing receipt.’ and ‘Recipient liability is restitution-based; accessory liability is not’.
Lord Nicholls summarised the ingredients of liability for dishonest assistance: ‘Drawing the threads together, their Lordships’ overall conclusion is that dishonesty is a necessary ingredient of accessory liability. It is also a sufficient ingredient. A liability in equity to make good resulting loss attaches to a person who dishonestly procures or assists in a breach of trust or fiduciary obligation. It is not necessary that, in addition, the trustee or fiduciary was acting dishonestly, although this will usually be so where the third party who is assisting him is acting dishonestly. ‘Knowingly’ is better avoided as a defining ingredient of the principle, and in the context of this principle the Baden scale of knowledge is best forgotten.’

Judges:

Lord Nicholls of Birkenhead, Lord Nicholls

Citations:

Independent 22-Jun-1995, [1995] 2 AC 378, [1995] UKPC 4, [1995] 3 All ER 97, [1995] UKPC 22

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
Cited – In re Montagu’s Settlement Trusts 1987
In the context of knowing receipt, a categorisation of knowledge is used to determine whether a person is bound by notice.
Sir Robert Megarry V-C said: ‘The cold calculus of constructive and imputed notice does not seem to me to be an . .
Cited – Barnes v Addy 12-Feb-1874
A stranger to a trust can be liable in equity for assisting in a breach of trust, even though he received no trust property.
Lord Selborne said: ‘Now in this case we have to deal with certain persons who are trustees, and with certain other . .

Cited by:

Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Applied – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele ChD 1999
Chief Akindele agreed in 1985 with ICIC Overseas to invest US$10m in the purchase of 250,000 shares of BCCI Holdings, and to hold the shares for two years. If he wanted to sell the shares after the expiry of two years and up to five years from the . .
Disapproved in part – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
Cited – Harrison v Teton Valley Trading Co; Harrison’s Trade Mark Application (CHINAWHITE) CA 27-Jul-2004
The applicant had been an employee of the objector at their nightclub ‘Chinawhite’ and whose principal attraction was a cocktail of the same name. Employees signed a confidentiality agreement as to the recipe. Having left the employment, the . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Barlow Clowes International Ltd and Another v Eurotrust International Ltd and others PC 10-Oct-2005
(Court of Appeal of the Isle of Man) Defendants appealed a finding of dishonest assistance in the activities of Barlow Clowes.
Held: The judge had been able to reach the conclusions on the basis of the evidence. The appeal of the deemster . .
Cited – AbouRahmah and Another v Abacha and others QBD 28-Nov-2005
Claims were made as to an alleged fraud by some of the respondents. . .
Cited – British Telecommunications Plc; Virgin Enterprises Ltd; J Sainsbury Plc; Marks and Spencer Plc and Ladbroke Group Plc v One In a Million Ltd and others CA 23-Jul-1998
Registration of a distinctive Internet domain name using registered trade marks and company names could be an infringement of a registered Trade Mark, and also passing off. It was proper to grant quia timet injunctions where necessary to stop . .
Cited – Charter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
Cited – Criterion Properties plc v Stratford UK Properties LLC and others HL 17-Jun-2004
The parties presented their claim before the House, but the House found that it was to be argued differently. The new arguments had not been pursued or prepared before the case came to the House, and it was remitted to the lower courts for the issue . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Cited – Law Society of England and Wales v Isaac and Isaac International Holdings Ltd and Others ChD 7-Jul-2010
. .
Cited – Vestergaard Frandsen A/S and Others v Bestnet Europe Ltd and Others SC 22-May-2013
The claimant companies appealed against a reversal of their judgment against a former employee that she had misused their confidential trade secrets after leaving their employment. The companies manufactured and supplied bednets designed to prevent . .
Cited – Williams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
Cited – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Approved – Ivey v Genting Casinos (UK) Ltd (T/A Crockfords) SC 25-Oct-2017
The claimant gambler sought payment of his winnings. The casino said that he had operated a system called edge-sorting to achieve the winnings, and that this was a form of cheating so as to excuse their payment. The system exploited tiny variances . .
Lists of cited by and citing cases may be incomplete.

Trusts, Commonwealth

Updated: 27 November 2022; Ref: scu.88893

Nelson v Greening and Sykes (Builders) Ltd: CA 18 Dec 2007

The builders had obtained a charging order for the costs awarded to them in extensive litigation, and a third party costs order but without the third party having opportunity to test the bill delivered. They had agreed to sell land to the defendant, but he had required the transfer to be in a different form and in favour of the third party who had provided the funds. Eventually the transfer had been signed by the court and registered, but subject to the charging order.
Held: The appeals failed. The defendant had conducted the litigation on behalf of the third party as her trustee. After contract, and until completion, the vendor becomes in equity a trustee for the purchaser. The defendant was still such a tristee, and ‘the authorities have no application to a case where the trust property is the purchaser’s interest in land created by the existence of an executory contract for sale and purchase.’ The other party had made clear her own involvement in the matter, writing: ‘the matter between your client and me will become a long-running saga along a costly course from Dewsbury to Strasbourg.’
This is as far removed from the normal case of a trustee consulting a beneficiary as it is possible to be. This was obsessive and pointless litigation conducted by Mr Nelson with the active encouragement and support of Ms Hanley.

Citations:

[2007] EWCA Civ 1358, Times 22-Jan-2008

Links:

Bailii

Statutes:

Charging Orders Act 1979 2(1)(b)(I), Supreme Court Act 1981 51(3)

Jurisdiction:

England and Wales

Citing:

Cited – Saunders v Vautier 7-May-1841
A direction in a will stated that the income from certain shares was to be accumulated and invested until the beneficiary attained the age of 25. On attaining his majority at 21 years, the beneficiary sought termination of the trust, and transfer of . .
Cited – Grey and Another (Hunter’s Nominees) v Inland Revenue Commissioners CA 1958
Where a person who is the owner beneficially of property (and the legal estate is vested in another as trustee for him) makes a declaration of trust the practical effect amounts to the ‘getting rid of’ a trust or equitable interest then subsisting. . .
Cited – Egmont v Smith CA 1877
The court discussed the position of a vendor of land between exchange and completion: ‘He is certainly a trustee for the purchaser, a trustee, no doubt, with peculiar duties and liabilities, for it is a fallacy to suppose that every trustee has the . .
Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Cited – Rayner v Preston CA 8-Apr-1881
The vendors agreed to sell a house which they had insured against fire risk. The house was damaged by fire after contract but before completion, and the issue was whether the purchaser was entitled to the benefit of the insurance.
Held: . .
Cited – Hamilton v Al Fayed and Others (No 2) CA 17-May-2002
The claimant had lost a libel action and been bankrupted. The defendant sought to recover his costs from those who had financially supported the claimant. He now appealed a dismissal of his request for contributions.
Held: An order for the . .
Cited – Dymocks Franchise Systems (NSW) Pty Limited v Todd and Todd, Bilgola Enterprises Ltd and Lambton Quay Books Ltd PC 7-Oct-2002
PC (New Zealand) The claimants asserted that the respondents had wrongly terminated their franchise licence. The agreement was subject to the New South Wales law requiring good faith, but the court had not had . .
Cited – Goodwood Recoveries Ltd v Breen CA 19-Apr-2005
A claim against the defendant for money owed to someone else had been bought by the claimant of which Slater, a solicitor, was a director and shareholder. The claim was pursued in the name of the claimant by Slater as its solicitor and principal . .
Cited – Globe Equities Ltd v Globe Legal Services Ltd and others and Other Actions CA 5-Mar-1999
A court which was considering ordering a third party, who was not party to the action, to pay costs in an action, should first be satisfied that it is just to do so in all the circumstances. There is no need to establish any exceptional . .
Cited – Gleeson v J Wippell and Co Ltd ChD 1977
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Costs, Litigation Practice, Trusts

Updated: 26 November 2022; Ref: scu.262880

Bradley v Powell: 1736

Creditors of a beneficiary were unable to make a claim on trust property where the interest was dependent upon a contingency which had not occurred.

Citations:

(1736) Cas temp Talb 193, [1736] ER 733

Jurisdiction:

England and Wales

Trusts

Updated: 26 November 2022; Ref: scu.223569

Mackay and others v Macleod and others: 10 Jan 1952

The court had to determine the nature and constitution of the Free Presbyterian Church of Scotland from the provisions of a Deed of Separation, together with certain documents specified in that deed.
Held: The court was constrained to that document for its interpretation. ‘Seceders secede at their peril’. Lord President Cooper: ‘The pleadings and the arguments of counsel in this case have ranged over a very wide and highly contentious field, and it was represented to us, at least from one side of the Bar, that the purpose of this litigation was to secure a decision on a matter of principle of grave concern to the Free Presbyterian Church of Scotland. In these circumstances, I deem it necessary to re-affirm at the outset the limited jurisdiction which alone a civil court can be required to exercise in a case of this kind. . . . In form and in substance the single controversy which we are invited to resolve relates to a matter of patrimonial right. It arises in a competition between two parties, each claiming to be the beneficiaries entitled to certain trust property. The trust is so expressed as to make the beneficial right dependent upon adherence by the beneficiary to the constitution and whole standards of the Free Presbyterian Church of Scotland as set forth in specified documents. In such a case it is the duty of the court to take cognisance of relevant matters of belief, doctrine and church government for the purpose, but only for the purpose, of informing themselves as to the essential and distinguishing tenets of the church in question, and of discovering the differences, if any, which can be detected in the principles to which the competing claimants respectively profess adherence. For us all such matters are matters of pure fact, which we investigate with the limited object of enabling us to apply the provisions of the trust; and it is not our province to form, still less to express, any view of our own upon the truth, reasonableness, propriety or relative importance of the various doctrines, standards, or matters of ecclesiastical polity to which our attention may be directed, nor to decide any question of ecclesiastical principle which is not inseparable from the question of patrimonial right. I refer to the series of authoritative decisions beginning with Craigdallie 1 Dow 1 and ending with The Free Church case 7 F. (H.L.) 1, in all of which the courts have stressed their reluctance to embark upon an investigation of this kind except to that limited extent and with that limited purpose …’

Judges:

Lord Guthrie, Lord President Cooper

Citations:

Unreported, 10 January 1952

Jurisdiction:

Scotland

Cited by:

Cited – The Free Church of Scotland v The General Assembly of the Free Church of Scotland SCS 24-Mar-2005
Each group claimed to by the true Free Church of Scotland. The dispute had a very long history. One claimed that the other had abandoned a fundamental principle of the faith, the right of ‘continued protest’.
Held: It was necessary to examine . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 26 November 2022; Ref: scu.223942

Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited: CA 21 Jul 1998

Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. Sections 23 and 36 and the absence of express statutory mention in the 1980 Act of actions for breach of fiduciary duty do not mean that a claim for an account of profits in respect of a breach of fiduciary duty is outside the scope of the Act altogether and is free of any period of limitation. Unless the account sought is of property subject to a trust, a claim for an account in equity will be based on legal rights. In the case of an action for an account by a principal against an agent, where the claim is based on a contractual relationship. Even if the relationship is not contractual, but is exclusively equitable, a limitation period may be applied by the court under s 36 by analogy in the light of the position before 1 July 1940. There were two different types of constructive trust in respect of which an account can be claimed in equity and to which different considerations apply on questions of limitation: ‘The first covers those cases already mentioned, where the defendant, though not expressly appointed as trustee, has assumed the duties of a trustee by a lawful transaction which was independent of and preceded the breach of trust and is not impeached by the plaintiff. The second covers those cases where the trust obligation arises as a direct consequence of the unlawful transaction which is impeached by the plaintiff.’
The court considered the nature of a constructive trust. Millett LJ said: ‘A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the Property and deny the beneficial interest of another.’ There are two kinds of constructive trust: ‘A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another. In the first class of case . . the constructive trustee really is a trustee. He does not receive the trust property in his own right but by a transaction by which both parties intend to create a trust from the outset and which is not impugned by the plaintiff. His possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust. Well-known examples of such a constructive trust are McCormick v Grogan (1869) LR 4 HL (a case of a secret trust) and Rochefoucald v Boustead[1897] 1 Ch 196 (where the defendant agreed to buy property for the plaintiff but the trust was imperfectly recorded). Pallant v Morgan [1952] 2 All ER 951, [1953] Ch 43 (where the defendant sought to keep for himself property which the plaintiff trusted him to buy for both parties) is another. In these cases the plaintiff does not impugn the transaction by which the defendant obtained control of the property. He alleges that the circumstances in which the defendant obtained control make it unconscionable for him thereafter to assert a beneficial interest in the Property.
The second class of case is different. It arises when the defendant is implicated in a fraud. Equity has always given relief against fraud by making any person sufficiently implicated in the fraud accountable in equity. In such a case he is traditionally though I think unfortunately described as a constructive trustee and said to be ‘liable to account as constructive trustee’. Such a person is not in fact a trustee at all, even though he may be liable to account as if he were. He never assumes the position of a trustee, and if he receives the trust property at all it is adversely to the plaintiff by an unlawful transaction which is impugned by the plaintiff. In such a case the expressions ‘constructive trust’ and ‘constructive trustee’ are misleading, for there is no trust and usually no possibility of a proprietary remedy; they are ‘nothing more than a formula for equitable relief’: Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 2 All ER 1073 at 1097, [1968] 1 WLR 1555 at 1582 per Ungoed-Thomas J. ‘
Millett LJ considered what was due diligence when looking at the discovery of a fraud for limitation: ‘The question is not whether the claimants should have discovered the fraud sooner; but whether they could with reasonable diligence have done so. The burden of proof is on them. They must establish that they could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take . . In the course of argument May LJ observed that reasonable diligence must be measured against some standard, but that the six-year limitation period did not provide the relevant standard. He suggested that the test was how a person carrying on a business of the relevant kind would act if he had adequate but not unlimited staff and resources and was motivated by a reasonable but not excessive sense of urgency. I respectfully agree.’

Judges:

Millett LJ, Pill LJ, May LJ

Citations:

Times 07-Aug-1998, Gazette 29-Jul-1998, Gazette 16-Sep-1998, [1998] EWCA Civ 1187, [1999] 1 All ER 400, [1998] EWCA Civ 1249

Links:

Bailii, Bailii

Statutes:

Limitation Act 1980 20 35(3) 35(4) 35(5)

Jurisdiction:

England and Wales

Citing:

Cited – Mara v Browne CA 17-Dec-1895
In a marriage settlement, the first defendant, a solicitor, advised the persons who were acting as trustees, though not yet formally appointed as such. He suggested a series improper of investments for the trust funds. The money was to be lent on . .
Cited – Selangor United Rubber Estates Ltd v Cradock (No 3) ChD 1968
The expressions ‘constructive trust’ and ‘constructive trustee’ are ‘nothing more than a formula for equitable relief. It is the actual control of assets belonging beneficially to a company which causes the law to treat directors as analogous to . .
Cited – McCormick v Grogan HL 23-Apr-1869
C made a will leaving his property to G, and appointed him executor. When about to die C sent for G and in a private interview told him of the will, and G asked whether that was right. C said that he would not have it otherwise. C then told G where . .
Cited – Rochefoucald v Boustead CA 12-Dec-1896
A property was purchased by the defendant which the court found to have been on the basis as trustee for the plaintiff. The defendant resisted the plaintiff’s claim on the ground of, inter alia, absence of writing.
Held: This defence was . .
Cited – Pallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .

Cited by:

Questioned – Birmingham Midshires Building Society v Infields (A Firm) TCC 20-May-1999
The defendant solicitors had acted for the lenders and borrower in a mortgage transaction. The claimant sought repayment of the entire loan, alleging breach of fiduciary duty, in having preferred the interests of one client over those of another. . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – Banner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Cited – Taylor Aston Ltd v AON Ltd ComC 26-Jul-2005
The parties entered into a contract to support attempts to provide insurance in Khazakstan. The defendants argued limitation, the claimants argued for concealment.
Held: Deliberate concealment for limitation purposes meant just that. That had . .
Cited – Taylor Aston Ltd v AON Ltd ComC 26-Jul-2005
The parties entered into a contract to support attempts to provide insurance in Khazakstan. The defendants argued limitation, the claimants argued for concealment.
Held: Deliberate concealment for limitation purposes meant just that. That had . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Cited – Dowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .
Cited – National Trust for Places of Historic Interest v Birden ChD 31-Jul-2009
The parties had entered into an old-form share farm agreement in 1994. The tenant later became a farm business tenant on other land. The claimant sought a share of the Single Payment Scheme calculated with reference to the period in which the . .
Cited – Williams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
Cited – Williams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
Cited – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Cited – Stocker v Stocker QBD 10-Jun-2015
The claimant alleged defamation by his former wife in a post on facebook. The posting and associatedeEmails were said falsely to have accused him of serious abuse, and that the accusations had undermined his relationship with his new partner.
Cited – Halton International Inc Another v Guernroy Ltd CA 27-Jun-2006
The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that . .
Cited – Boyse (International) Ltd v Natwest Markets Plc and Another ChD 27-May-2020
Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence, Trusts

Leading Case

Updated: 25 November 2022; Ref: scu.144666

In re Cross: 1882

The court applied the doctrine of laches and delay to a claim against a trustee, not for the recovery of trust property, but for breach of trust.

Citations:

(1882) 20 Ch D 109

Jurisdiction:

England and Wales

Cited by:

Cited – Patel and others v Shah and others CA 15-Feb-2005
The parties entered into a commercial agreement for the sale and purchase of properties.
Held: The claimants had failed to meet their part of the bargain, and had failed to make mortgage payments, leaving the defendants to do so. The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 24 November 2022; Ref: scu.223438

Ingle v Richards (No 1): 1860

Citations:

(1860) 28 Beav 281

Jurisdiction:

England and Wales

Cited by:

Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 24 November 2022; Ref: scu.223773

Evans v London Co-operative Society Ltd: 6 Jul 1976

Rule 7 of the trust instrument of a pension fund provided for the pensions committee to make loans on certain terms to the Co-operative Society in question, and the pension fund had been receiving from the society less than the market rate of interest on such loans.
Held: The terms of rule 7 permitted not only the self-investment of the pension funds but also the payment of less than the market rate of interest on such loans, even though the society was the trustee of the fund and so was profiting from its trust.

Judges:

Brightman J

Citations:

Times 06-Jul-1976

Jurisdiction:

England and Wales

Cited by:

Cited – Cowan v Scargill and Others ChD 13-Apr-1984
Trustee’s duties in relation to investments
Within the National Coal Board Pension scheme, the trustees appointed by the NCB were concerned at the activities of the trustees of the miners, and sought directions from the court. The defendants refused to allow any funds to be invested abroad. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 24 November 2022; Ref: scu.222828

Balls v Strutt: 1841

‘It is a principle in this court, that a trustee shall not be permitted to use the powers which the trust may confer upon him at law, except for the legitimate purposes of his trust;…’

Judges:

Sir James Wigram VC

Citations:

(1841) 1 Hare 146

Jurisdiction:

England and Wales

Cited by:

Cited – Cowan v Scargill and Others ChD 13-Apr-1984
Trustee’s duties in relation to investments
Within the National Coal Board Pension scheme, the trustees appointed by the NCB were concerned at the activities of the trustees of the miners, and sought directions from the court. The defendants refused to allow any funds to be invested abroad. . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 24 November 2022; Ref: scu.222825

Andrews v Partington: 1791

Unless the contrary intention is expressed, where at the time of the trust, the class of beneficiaries is not identified, it will close as soon as the first member becomes entitled to take his share.

Citations:

(1791) 3 Bro CC 401

Jurisdiction:

England and Wales

Trusts, Wills and Probate

Updated: 24 November 2022; Ref: scu.222681

National Anti-Vivisection Society Ltd v Duddington: 23 Nov 1998

The trustee of the Society had actively defended a trust action but failed. He sought an indemnity for his costs.
Held: He was not entitled to an indemnity for costs out of the trust assets. His acts had preferred one group of beneficiaries over another. A trustee’s neutrality in a trust dispute was sacrosanct.

Citations:

Times 23-Nov-1985

Jurisdiction:

England and Wales

Cited by:

Cited – Alsop Wilkinson v Neary and Others ChD 4-Nov-1994
The second defendant, a solicitor, had fraudulently taken money from trusts, and paid money into trusts for his own family. It was claimed that the payments were intended to defeat the recovery of the funds. The trustees sought protection on costs . .
Lists of cited by and citing cases may be incomplete.

Trusts, Costs

Updated: 24 November 2022; Ref: scu.198268