The rules of a pension scheme set up by a railway company provided for members’ contributions to be deducted from their salary, but in practice the deductions made had been less than they should have been.
Held: The rule in Cherry v Boultbee applied and the members were not entitled to receive their full pension without the under-contribution being first made good, even if by deduction.
Lord Greene MR said: ‘Whether that be so or not, it seems to me that, even if the only method of contribution provided for by the rule is that of deduction, that would not prevent the equitable principle from applying. When that principle is applied the recipient is deemed to have in his hands the money that he is claiming up to the amount of the deficiency in his own payments. Precisely the same thing must apply to the present case even if the only thing that the member contracted to do was to pay by way of deduction. Look at it how you will, this member has not contributed enough. In so far as his contributions are defective in amount, he has under-paid, under-contributed, and it would be, it seems to me, grossly inequitable that a man in that position could be heard to say: ‘Although I have not made the contributions by way of deduction which I ought to have made, I am now going to say that the application of the equitable rule is not permissible because that would involve making me contribute otherwise than by deduction, which is a thing I never contracted to do.’ That seems to me to be quite a wrong view of the way in which the equitable principle works. My decision does not result in forcing the plaintiffs to make an actual contribution otherwise than by way of deduction. If they come to make a claim then they have to do what is right and bring the fund up to its right level before they can claim to participate in it.’
Judges:
Lord Greene MR
Citations:
[1945] Ch 90
Citing:
Applied – Cherry v Boultbee HL 22-Nov-1839
B died having made a will leaving a fund to pay income to A who owed her money but had been made bankrupt before the death. The debt to B remained unpaid.
Held: The liability to pay the debt and the right to receive the legacy had never tested . .
Cited by:
Cited – Brazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
Lists of cited by and citing cases may be incomplete.
Trusts
Updated: 02 May 2022; Ref: scu.416574
