swarb.co.uk - law index
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Trusts - From: 2001 To: 2001
This page lists 29 cases, and was prepared on 02 April 2018.
Ashe v Mumford; CA 2001 - [2001] 33 HLR 67
Leeds and Holbeck Building Society v Arthur and Cole; ChD 2001 - [2001] Lloyd's Rep PN 649
Public Trustee v Cooper; 2001 - [2001] WTLR 901
MacDonald v Myerson and others [2001] EWCA Civ 66
26 Jan 2001
CA
Trusts
[ Bailii ]
Buhr v Barclays Bank plc Gazette, 09 August 2001; [2001] EWCA Civ 1223; [2002] 1 P & CR DG7; [2002] BPIR 25; [2001] 31 EGCS 103; [2001] NPC 124
26 Jan 2001
CA
Woolf LCJ, Tuckey, Arden LJJ
Land, Trusts, Insolvency
The bank took a second charge over property, but failed to get it registered. The chargors fell into debt and bankruptcy, and the property was sold. The proceeds were used to discharge the first charge, and then repay unsecured creditors. The bank claimed the money had been received on constructive trust. Held: The court confirmed that the failure to register the charge only voided it as against the purchaser. When the bank's security was destroyed, a security interest was created automatically in the asset which replaced it. The sale by the husband and wife was not authorised by the bank, and the judge had concluded correctly.
Arden LJ stated: "if . . the mortgagor makes a disposition of the mortgaged property in a manner which destroys the mortgagee(s estate in the mortgaged property, a security interest in the property which represents the mortgaged property automatically and as a matter of law comes into existence as from the moment that the mortgagor becomes entitled to their property."
Law of Property Act 1925 63
1 Cites
1 Citers
[ Bailii ]
Strickson v Boyd; CA 15-Mar-2001 - [2001] EWCA Civ 401
Dexter Ltd (In Administrative Receivership) v Harley; ChD 2-Apr-2001 - Times, 02 April 2001
Rodway v Landy Times, 18 April 2001; Gazette, 01 June 2001; [2001] EWCA Civ 471
4 Apr 2001
CA
Trusts, Land
Two doctors in partnership held and occupied premises under a trust of land. After the break up of the partnership and practice into two, they sought to decide what was to happen to the premises. Rules would prevent the sale of the property. The building leant itself to a division under which one party could practice from one part, and the other from the other. The judge ordered accordingly, with additional conditions. On appeal the court confirmed the order. The Act allowed the trustees to restrict occupation of some parts of the land subject to the trust, by one or more beneficiaries. The court could also order the beneficiaries to contribute to the costs of the adaptation.
Trusts of Land and Appointment of Trustees Act 1996 13(1) 14
[ Bailii ]
Parsons v McBain [2001] FCA 376; (2001) 109 FCR 120; 192 ALR 772
5 Apr 2001
Black CJ, Kiefel, Finkelstein JJ
Equity, Insolvency, Trusts
Federal Court of Australia - BANKRUPTCY - constructive trust - transfer of property to beneficiary - whether void as against trustee in bankruptcy
EQUITY - equity of exoneration - how defeated
TRUSTS - "common intention constructive trust" - whether trustee in bankruptcy takes subject to trust - time at which trust ari
A surety, or a person in the position of a surety, has a right of exoneration whereby he or she is entitled to be indemnified by the principal debtor against any liability incurred as a consequence of being called on to pay the debt, describing it as an incident of the relationship between surety and principal debtor.
"Where co-owners mortgage their property so that money can be borrowed for the benefit of one mortgagor, the other co-owner will be treated as if he or she was a surety and the equity of exoneration will also arise. In those circumstances that other has an interest in the property of the co-mortgagor whose property is to be regarded as primarily liable to pay the debt: Parsons at [21], Duncan, Fox and Co v North and South Wales Bank (1880) 6 App Cas 1 at 10.
However, the right to exoneration is lost where the surety receives a benefit from the loan or the funds raised in respect of which the charge has been given. "So, if the borrowed funds are applied to discharge the surety's debts, the surety could not claim exoneration, at least in respect of the benefit received."
Here, the giving of the [Brighton Westpac mortgage] might have created a relationship whereby Mr Mogilevsky would be treated as a surety and Mrs Mogilevsky would be treated as principal debtor if:
the mortgage was for the purpose of raising money to benefit the co-owner, in this case Mrs Mogilevsky;
the money borrowed was used for that purpose; and
Mr Mogilevsky derived no benefit from the money so raised."
1 Citers
[ Austlii ]
Notting Hill Housing Trust v Brackley and Another; CA 24-Apr-2001 - Times, 15 June 2001; Gazette, 14 June 2001; [2001] EWCA Civ 601; [2001] L & TR 34; (2001) 82 P & CR DG26; [2001] 35 EG 106; [2001] 18 EGCS 175; [2001] 3 EGLR 11; [2002] HLR 10; [2001] WTLR 1353
Brooks v Middleton [2001] EWCA Civ 899
1 May 2001
CA
Litigation Practice, Trusts
[ Bailii ]
Regina (On the Application of Lemon Land Ltd) v Hackney London Borough Council; Admn 11-May-2001 - Gazette, 24 May 2001; [2001] EWHC Admin 336
National Grid Co Plc v Mayes and Others; International Power Plc (Formerly National Power Plc) v Healy and Others; HL 7-Jun-2001 - Times, 10 April 2001; Gazette, 07 June 2001; [2001] UKHL 20; [2001] 2 All ER 417; [2001] 1 WLR 864
Hart v Maddison [2001] EWCA Civ 872
8 Jun 2001
CA
Trusts, Land
Trusts of Land and Appointment of Trustees Act 1996 15
[ Bailii ]
White v White; CA 21-Jun-2001 - [2001] EWCA Civ 955
Woodman v Tracey [2001] EWCA Civ 988
22 Jun 2001
CA
Trusts
1 Citers
[ Bailii ]
Clarke (Executor of the Will of Francis Bacon, Deceased) v Marlborough Fine Art (London) Ltd and Another Times, 05 July 2001
5 Jul 2001
ChD
Patten J
Agency, Trusts, Limitation
Francis Bacon sold his paintings through the defendant agents for many years. The original contractual arrangement grew into a fiduciary one. The claimants asserted that the defendants were in breach of that fiduciary duty, the defendants asserted that the relationship remained contractual, and that it was now time barred. Held: There may be a true constructive trust which would not be time barred, rather than a remedial constructive trust. The test was whether the trustee was a true trustee, whether of a constructive or an express trust. Nor was it clear that a court of equity would have time barred a claim in undue influence.
Limitation Act 1980 36(1)(f)
1 Citers
Burrell v Norris [2001] EWCA Civ 1180
10 Jul 2001
CA
Land, Trusts
[ Bailii ]
Abacus Trust Company (Isle of Man) Ltd and Another v National Society for the Prevention of Cruelty to Children Gazette, 13 September 2001; Times, 25 September 2001; [2001] EWHC B2 (Ch); [2001] STI 1225; [2001] STC 1344; [2001] WTLR 953; [2002] BTC 178; (2000-01) 3 ITELR 846
17 Jul 2001
ChD
Potter J
Trusts, Capital Gains Tax
The claimants were beneficiaries, trustee and protector of a trust fund. In order to mitigate Capital Gains Tax liability they sought advice, and, following that advice, entered into a deed of gift in favour of the respondent charity. The deed needed to be dated in the new tax year, but was dated for the previous year. They sought a declaration that the deed was void ab initio, the directors having failed to address a relevant consideration. Held: The declaration was granted. The matters which could, if present, be taken into account, can include factors which might vitiate the intended legal effect of the deed, including the fiscal effect. It was unrealistic to divorce the several steps from each other. Trustees must consider the fiscal consequences of their acts, and a failure to do so was capable of leading to the application of "the Rule in Hastings-Bass".
1 Cites
1 Citers
[ Bailii ]
Melville and others v Commissioners of Inland Revenue; CA 31-Jul-2001 - Gazette, 27 September 2001; Times, 09 October 2001; [2001] EWCA Civ 1247; (2001-02) 4 ITELR 231; [2001] STC 1271; [2001] NPC 132; 74 TC 372; [2001] STI 1106; [2001] WTLR 887; [2002] 1 WLR 407; [2001] BTC 8039
Ness Training Limited v Triage Central Ltd and c [2001] ScotCS 212; [2001] ScotHC 94
27 Aug 2001
ScHC
Lord Eassie
Scotland, Company, Administrative, Trusts
The complainant sought a contract to deliver services to the New Deal system in Scotland as part of a joint venture. They incorporated in England, but were then told they needed to be a Scottish company. A new company was established in Scotland, which continued the services. The other members of the venture later declined to account of a share of the receipts, and a claim was made for such a share. Held: A joint venture need not amount to a partnership in law. Were the business profits held subject to a trust? It was difficult to identify just what property might be subject to such a trust. In reality any duty extended to one to award a share in the company which was to be set up to run the venture. That was not what was claimed, and would fall short of what was claimed.
1 Cites
[ Bailii ] - [ Bailii ]
Hurst v Bennett and others [2001] 2 BCLC 290; [2001] EWCA Civ 1398
8 Oct 2001
CA
Arden LJ
Insolvency, Trusts
A statutory demand served on Mr Hurst in relation to an indemnity on partners to trustees of the lease would not be set aside because of Mr Hurst's claims against the partnership. It was because this claim was against the partners in their capacity as such, and their claim was advanced in their capacity as trustees. Mr Hurst owed money to four trustees who held a lease for themselves, Mr Hurst and fifteen other former partners. The trustees' statutory demand was not subject to Mr Hurst's cross-demand against his nineteen other former partners. The amount due to the four trustees was due to them personally whereas any amount due to Mr Hurst was due to him from all the other partners jointly. Where a debt constitutes a trust obligation there can be no set off against that amount for want of mutuality.
1 Citers
[ Bailii ]
JJ Harrison (Properties) Ltd v Harrison; CA 11-Oct-2001 - [2001] EWCA Civ 1467; [2002] 1 BCLC 162
Mullard v Sharma and Another [2001] EWCA Civ 1579
15 Oct 2001
CA
Land, trusts
[ Bailii ]
Wright v Johnson; CA 24-Oct-2001 - [2002] 2 P & CR 15; [2001] EWCA Civ 1667
Maunders v Evans [2001] EWCA Civ 1808
15 Nov 2001
CA
Chadwick LJ
Trusts, Land
Renewed application for permission to appeal against order under the 1996 Act.
Trusts of Land and Appointment of Trustees Act 1996 14(2)
[ Bailii ]
Lloyd and others v Dugdale and Another Gazette, 06 December 2001; [2001] EWCA Civ 1754; [2002] 2 P&CR 13; [2001] 48 EGCS 129; [2001] NPC 168; [2002] WTLR 863
21 Nov 2001
CA
Lord Justice Kennedy, Lord Justice Mummery, And, Sir Christopher Slade
Landlord and Tenant, Estoppel, Land, Contract, Trusts
The claimants asserted a right to possession of land, and the defendant resisted, claiming a proprietary estoppel. A predecessor had intended to grant a sub-lease to the defendant, who had arranged for his company JAD Ltd to execute major works on the strength of that promise. JAD was given permission to store items there, but JAD Ltd took up possession. The sub-lease was never signed. The head-lease was assigned to the claimants, subject to any rights of the defendants. Held: No notice was effective. Whatever estoppel arose, was in favour of JAD, not his company, and it was in possession, not him. The assignment defeated the claim of JAD Ltd by section 20. No constructive trust arose, because the claimant's conscience was not deemed to be affected.
The court set out the principles applying: "(1) Even in a case where, on a sale of land, the vendor has stipulated that the sale shall be subject to stated possible incumbrances or prior interests, there is no general rule that the court will impose a constructive trust on the purchaser to give effect to them.
(2) The court will not impose a constructive trust in such circumstances unless it is satisfied that the conscience of the estate owner is affected so that it would be inequitable to allow him to deny the claimant an interest in the property.
(3) In deciding whether or not the conscience of the new estate owner is affected in such circumstances, the crucially important question is whether he has undertaken a new obligation, not otherwise existing, to give effect to the relevant encumbrance or prior interest. If, but only if, he has undertaken such a new obligation will a constructive trust be imposed.
(4) Notwithstanding some previous authority suggesting the contrary, a contractual licence is not to be treated as creating a proprietary interest in land so as to bind third parties who acquire the land with notice of it, on this account alone: see Ashburn Anstalt v Arnold . .
(5) Proof that the purchase price by a transferee has been reduced upon the footing that he would give effect to the relevant encumbrance or prior interest may provide some indication that the transferee has undertaken a new obligation to give effect to it: see Ashburn Anstalt v Arnold . . However, since in matters relating to the title to land certainty is of prime importance, it is not desirable that constructive trusts of land should be imposed in reliance on inferences from "slender materials"."
Law of Property Act 1925 20(1) 70(1)(g)
1 Cites
1 Citers
[ Bailii ]
Nelson v Nelson and others [2001] EWCA Civ 1911
29 Nov 2001
CA
Aldous LJ
Land, Trusts
Application for leave to appeal.
[ Bailii ]
Harris v Harris [2001] EWCA Civ 1967
30 Nov 2001
CA
Trusts
Purchase of council house by brother and sister - whether intended as trust for both.
1 Cites
1 Citers
[ Bailii ]
