Matchmove Ltd v Dowding and Another: CA 7 Dec 2016

Appeal against a finding that an oral agreement for the purchase of land was effective through a proprietary estopple and a constructive trust.

Sir Terence Etherton MR, Lloyd Jones LJ and Arnold J
[2016] EWCA Civ 1233
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 2(5)
England and Wales

Land, Contract, Equity, Estoppel

Updated: 26 January 2022; Ref: scu.572005

Creggy v Barnett and Another: CA 11 Oct 2016

Appeal by the defendant, against an order requiring Mr Creggy to pay to the claimants the sum of US$2,305,795.68 including interest as equitable compensation for his breach of fiduciary duty in transferring in 1998 approximately US$1.2m to a Maltese lawyer. The monies came from the Swiss bank accounts of two Liberian companies, Pound Investments Inc and Glacier Investments Inc which, together with other offshore structures, were established by Mr Creggy for the purpose, as the judge found, of tax avoidance.

Sir Terence Etherton MR, Patten, Sales LJJ
[2016] EWCA Civ 1004
Bailii
England and Wales

Equity, Torts – Other

Updated: 24 January 2022; Ref: scu.570109

Seager v Copydex Ltd: CA 1967

Mr Seager had invented a patented carpet grip which he manufactured and marketed under the trade mark Klent. There were protracted negotiations between Mr Seager and Copydex over a proposal for Copydex to market the Klent. One of the issues in the negotiations was the price at which Mr Seager was to supply the product. During a meeting with two representatives of Copydex Mr Seager disclosed to them an alternative design of grip which could be produced more cheaply. Although there was a dispute as to precisely what had been disclosed at the meeting, there was no dispute that the disclosure was in confidence The defendants had manufactured a carpet grip, honestly and unconsciously making use of that confidential information. The alternative design was not covered by Mr Seager’s patent.
Held: The court upheld Mr Seager’s claim for breach of an equitable obligation of confidence, holding that Copydex must have unconsciously made use of the information which Mr Seager gave them The court ordered damages to be assessed on a restitutionary basis.
Lord Denning MR said: ‘The law on this subject does not depend on any implied contract. It depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it. He must not make use of it to the prejudice of him who gave it without obtaining his consent. The principle is clear enough when the whole of the information is private. The difficulty arises when the information is in part public and in part private. As, for instance, in this case. A good deal of the information which Mr Seager gave to Copydex Ltd. was available to the public, such as the patent specification in the Patent Office, or the KLENT grip, which he sold to anyone who asked. If that was the only information he gave them, he could not complain. It was public knowledge. But there was a good deal of other information he gave them which was private, such as the difficulties which had to be overcome in making a satisfactory grip; the necessity for a strong, sharp, tooth; the alternative forms of tooth; and the like. When the information is mixed, being partly public and partly private, then the recipient must take special care to use only the material which is in the public domain. He should go to the public source and get it; or, at any rate, not be in a better position than if he had gone to the public source. He should not get a start over others by using the information which he received in confidence. At any rate, he should not get a start without paying for it. It may not be a case for injunction or even for an account, but only for damages, depending on the worth of the confidential information to him in saving him time and trouble.’ The court confirmed the equitable remedy for breach of confidence: ‘The law on this subject does not depend on any implied contract. It depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it. He must not make use of it to the prejudice of him who gave it without obtaining his consent. The principle is clear enough when the whole of the information is private. The difficulty arises when the information is in part public and in part private. As, for instance, in this case. A good deal of the information which Mr Seager gave to Copydex Ltd. was available to the public, such as the patent specification in the Patent Office, or the KLENT grip, which he sold to anyone who asked. If that was the only information he gave them, he could not complain. It was public knowledge. But there was a good deal of other information he gave them which was private, such as the difficulties which had to be overcome in making a satisfactory grip; the necessity for a strong, sharp, tooth; the alternative forms of tooth; and the like. When the information is mixed, being partly public and partly private, then the recipient must take special care to use only the material which is in the public domain. He should go to the public source and get it; or, at any rate, not be in a better position than if he had gone to the public source. He should not get a start over others by using the information which he received in confidence. At any rate, he should not get a start without paying for it. It may not be a case for injunction or even for an account, but only for damages, depending on the worth of the confidential information to him in saving him time and trouble’. Where information is mixed partly public and private, then the recipient must take special care to use only the material, which is in the public domain: ‘He should go to the public source and get it; or, at any rate, not be in a better position than if he had gone to the public source.’

Lord Denning MR, Salmon LJ, Winn LJ
[1967] 1 WLR 923, [1967] RPC 349
England and Wales
Cited by:
CitedRegina v Department of Health, Ex Parte Source Informatics Ltd CA 21-Dec-1999
Where information was given by a patient to the pharmacist, and he took the data, stripping out any possibility of the individual being identified, the duty of confidence which attached to the prescription was not breached by the passing on of the . .
CitedEPI Environmental Technologies Inc and Another v Symphony Plastic Technologies Plc and Another ChD 21-Dec-2004
The claimant had developed an additive which would assist in making plastic bags bio-degradable. They alleged that, in breach of confidentiality agreements, the defendants had copied the product. The defendants said the confidentiality agreement was . .
CitedRatiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
CitedB and B v A County Council CA 21-Nov-2006
The claimants sought damages from the defendant local authority after their identities had been wrongfully revealed to the natural parents of the adoptees leading to a claimed campaign of harassment. The adopters has specifically requested that . .
See AlsoSeager v Copydex (No. 2) CA 1969
. .
CitedVestergaard 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 . .
CitedAttorney General v Guardian Newspapers Ltd (No.1) HL 13-Aug-1987
A retired secret service officer intended to publish his memoirs through the defendant. The house heard an appeal against a temporary injunction restraining publication.
Held: Lord Bridge delivered his dissenting speech in the case of . .
CitedVestergaard Frandsen Sa ( Mvf3 Aps) and Others v Bestnet Europe Ltd and Others CA 20-Apr-2011
The claimants manufactured insecticidal fabrics. They claimed that the defendants had produced their own product using confidential information obtained from their former employees now working for the defendant. The courts had granted injunctions . .
CitedPaymaster (Jamaica) Ltd and Another v Grace Kennedy Remittance Services Ltd PC 11-Dec-2017
(Court of Appeal of Jamaica) The parties disputed the ownership of copyight in certain computer software, and also an allegation of the misuse of confidential information. . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Equity

Updated: 22 January 2022; Ref: scu.182798

Whiteley v Delaney: HL 9 Dec 1913

A. mortgaged property in Yorkshire to B. in order to secure a loan of pounds 300. He subsequently granted a second mortgage to the respondent C, and both mortgages were recorded under the Yorkshire Registries Acts. In order to provide the money to pay off C, A’s daughter D undertook to buy the property if she could find someone to advance pounds 300 to pay off B, and she instructed E, a solicitor, to this effect. E, ignorant of the existence of C’s mortgage, arranged for F lending the pounds 300 on mortgage, paid off B, and obtained from him the title-deeds, and prepared three dispositions of the property-( a) B to A, (b) A to D, (c) D to F-in security. C sued F, D, and A to have it declared that in virtue of deed (a) his mortgage had priority over F’s.
Held that F was equitable transferee of B’s first mortgage, and entitled to priority over C.

Lord Chancellor (Viscount Haldane), Lords Kinnear, Dunedin, and Atkinson
[1913] UKHL 855, 51 SLR 855
Bailii
England and Wales

Land, Equity

Updated: 22 January 2022; Ref: scu.632763

Re Monroe Schneider Associates (Inc) and Barry Lee Schneider v: 31 Jul 1992

Federal Court of Australia – prior to 1875 the Chancery Court had to be somewhat circumspect when asked to rescind a judgment given in a common law court:

[1992] FCA 367, (1992) 109 ALR 137, (1992) 37 FCR 234
Austlii
Australia
Cited by:
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Equity, Litigation Practice

Updated: 21 January 2022; Ref: scu.671565

Patel v Mirza: SC 20 Jul 2016

The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums advanced, saying he need not return it because the contract was for an illegal purpose. The defendant now appealed against a decision that he must return it.
Held: His appeal failed. A claimant, such as Mr Patel, who satisfies the ordinary requirements of a claim for unjust enrichment, should not be debarred from enforcing his claim by reason only of the fact that the money which he seeks to recover was paid for an unlawful purpose. There may be rare cases where for some particular reason the enforcement of such a claim might be regarded as undermining the integrity of the justice system, but there were no such circumstances in this case.

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Toulson, Lord Hodge
[2016] UKSC 42, [2016] 3 WLR 399, [2016] 2 Lloyd’s Rep 300, [2016] WLR(D) 417, [2016] Lloyd’s Rep FC 435, UKSC 2014/0218
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video Summary
England and Wales
Citing:
CitedPearce v Brooks 1866
The contract was one for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract . .

Cited by:
CitedHenderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .

Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 20 January 2022; Ref: scu.567275

In re Leslie; Leslie v French: ChD 1883

The court gave guidance as to the circumstances in which an individual who had paid a premium on a policy belonging to someone else could claim an interest in the policy: ‘In my opinion a lien may be created upon the moneys secured by a policy by payment of premiums in the following cases: First. By contract with the beneficial owner of the policy. Secondly. By reasons of the right of trustees to an indemnity out of their trust property for money expended by them in its preservation. Thirdly. By subrogation to this right of trustees of some person who may at their request have advanced money for the preservation of the property. Fourthly. By reason of the right vested in mortgagees, or other persons having a charge upon the policy, to add to their charge any moneys which have been paid by them to preserve the property . .’ And ‘except under the circumstances to which I have referred, no lien is created by the payment of the premiums by a mere stranger or by a part owner’.

Justice Fry
(1883) 23 ChD 552
England and Wales
Cited by:
CitedFoskett 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 . .
CitedStrutt v Tippett CA 1890
The list set out in re Leslie for the ways in which one person might claim an interest in an insurance policy in another’s name, was not exhaustive. . .
CitedFoskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .

Lists of cited by and citing cases may be incomplete.

Insurance, Equity

Updated: 20 January 2022; Ref: scu.187411

In Re Oatway; Hertslet v Oatway: ChD 1903

A trustee put trust money into his bank account and then used some of the funds from that bank account to buy shares. The rest of the money in the account was dissipated, and the shares were worth less than the trust money which had been misappropriated.
Held: The trustee was not entitled to claim that it was the trust money which had dissipated and that the investment was made from the trustee’s own money. The investment was presumed to have been made with the trust’s money, meaning the trust could claim a proprietary interest in the shares irrespective of the order of withdrawals. For the purposes of the equitable remedy of tracing, if A is able to trace his property into the hands of B then he is entitled to its return.

Joyce J
[1903] 2 Ch 356
England and Wales
Cited by:
CitedAllen and Another v Rochdale Borough Council CA 23-Mar-1999
Land was sold. It had been used as playing fields. The freehold and leasehold interests in the land were held by the respondent, and the claimants asserted it was held as bare trustees for them as charitable trustees for the school foundation. The . .

Lists of cited by and citing cases may be incomplete.

Equity

Updated: 20 January 2022; Ref: scu.187407

Lansing Linder Ltd v Alber: ChD 2000

Pension scheme rules were amended varying the ages etc for retirement. The rules gave the company power to amend the rules with the consent of the Trustees. The original rules permitted early retirement on an immediate, but actuarially reduced, pension. Under the original rules, members of the scheme in service (actives) required the consent of the trustees and the company to take early retirement; those who had left service (deferreds) required the trustees’ consent. The company claimed that the omission of the requirement for consent in the new rules was in error and that it was always intended that the right should be subject to consent of the company and trustees. The cost to the company of there being no requirement of consent was considerable, particularly with regard to the valuation of the benefits of deferreds. The memoranda and minutes of the trustees’ meetings made no reference to consent being required for early retirement.
Held: In relation to the actives, there was insufficient evidence that the absence in the new rules of the need for consent for early retirement between 60 and 65 on an unreduced pension failed to give effect to the intentions of the company and the trustees. But with regard to the deferreds, there was no positive intention to change their position. Rectification was refused, even as regards the deferreds, because ‘The evidence shows that, when they executed the deed, they had no clear common understanding of what it provided, and no clear common intention as to what it should provide. The only common thread of intention which appears to link the signatories was an intention to sign, wholly blindly, the document which was put before them on the basis that, as it was prepared by [the scheme administrators and scheme solicitors], it must be one they could safely sign. In short, their intention was no more complicated than to sign a deed in the form produced to them, whatever it in fact provided, and knowing that in material respects it had gone beyond the limits of what had been resolved …’ In any event there was no outward expression of accord. Responding to the argument that, since this was not a contract case, the applicable principles were those in Re Butlin’s Settlement, and there was no need for outward expression of accord, ‘I agree… that the present claim is not one to rectify a contract, since no authority has been cited to me which expressly identifies the rectification requirements in a claim such as the present. I agree also that it may be said that to apply the Rose v Pim requirement of an outward expression of accord to the present case does involve a development of the principles. If so, however, I take the view that such a development requires only the smallest of steps.’

Rimer J
[2000] Pensions LR 15
England and Wales
Citing:
CitedRe Butlin’s Settlement Trusts 1976
Sir Billy Butlin had executed a voluntary settlement to allow a majority of trustees to exercise a power under the settlement. By a drafting error the settlement did not give effect to this intention.
Held: The court could rectify the . .
CitedFrederick E Rose (London) Limited v William H Pim Junior and Co Limited 1953
The plaintiffs, who were London merchants, had been asked by Egyptian buyers to supply ‘feveroles’. Not knowing what this term meant, they asked the defendants’ representative, who responded that ‘feveroles’ meant horsebeans. Relying on this . .

Cited by:
CitedAMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
CitedTrustee Solutions Ltd and others v Dubery and Another ChD 21-Jun-2006
The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and . .

Lists of cited by and citing cases may be incomplete.

Equity, Financial Services

Updated: 20 January 2022; Ref: scu.184574

Lyell v Kennedy: HL 1 Aug 1889

The true owner may recover money which was rightfully his from a person to whom the money in question had been wrongly paid by the collector of the money. A fiduciary is one who has undertaken, whether on request or without request, of his own motion to act on behalf of another in circumstances in which equity will not allow him ‘to enter into engagements in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect’.

(1889) 14 App Cas 437, [1889] UKLawRpAC 36
Commonlii
England and Wales
Citing:
See AlsoLyell v Kennedy (No 3) CA 8-Apr-1884
The plaintiff claimed to be entitled to land as purchaser from the heir-at-law of an intestate, who had died many years earlier. The land was in the possession of the defendant, and the central issue in the action was whether the defendant’s . .

Cited by:
CitedFisher v Brooker and Another ChD 20-Dec-2006
The claimant said that he had contributed to the copyright in the song ‘A Whiter Shade of Pale’ but had been denied royalties. He had played the organ and particularly the organ solo which had contrbuted significantly to the fame of the record.
CitedClarence House Ltd v National Westminster Bank Plc CA 8-Dec-2009
The defendant tenants, anticipating that the landlord might delay or refuse consent to a subletting entered into a ‘virtual assignment’ of the lease, an assignment in everything but the deed and with no registration. The lease contained a standard . .

Lists of cited by and citing cases may be incomplete.

Equity, Agency

Updated: 20 January 2022; Ref: scu.247517

Haywood v The Brunswick Permanent Benefit Building Society: CA 3 Dec 1881

The land had been conveyed in consideration of a rent charge and a covenant to build and repair buildings.
Held: A mortgagee of the land was not liable on the covenant either at law or in equity even though he had notice of it.
Brett LJ said that Tulk -v- Moxhay: ‘decided that an assignee taking land subject to a certain class of covenants is bound by such covenants if he has notice of them, and that the class of covenants comprehended within the rule is that covenants restricting the mode of using the land only will be enforced. It may be also, but it is not necessary to decide here, that all covenants also which impose such a burden on the land as can be enforced against the land would be enforced … It is said that if we decide for the defendants we shall have to overrule Cooke v. Chilcott, 3 Ch. D. 694. If that case was decided on the equitable doctrine of notice, I think we ought to overrule it.’
Cotton LJ said: ‘Let us consider the examples in which a court of equity has enforced covenants affecting land. We find that they have been invariably enforced if they have been restrictive, and that with the exception of the covenants in Cooke v. Chilcott 3 Ch. D. 694, only restrictive covenants have been enforced.’ and that Tulk v. Moxhay: ‘lays down the real principle that an equity attaches to the owner of the land
The covenant to repair can only be enforced by making the owner put his hand into his pocket, and there is nothing which would justify us in going that length.’

Cotton LJ, Brett LJ
(1881) 8 QBD 403, (1881-1882) 8 QBD 403, [1881] UKLawRpKQB 160
Commonlii
England and Wales
Cited by:
CitedLondon and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
CitedRhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 19 January 2022; Ref: scu.260255

Whaley Bridge Calico Printing Co v Green: QBD 12 Jan 1879

A director of a company who negotiated a purchase by the company for pounds 20,000 of a property was promised but did not receive pounds 3,000 out of the pounds 20,000 from the vendor.
Held: The contract was to be treated as having been entered into for the benefit of the purchaser without proof of fraud. The vendor was liable to the company for the pounds 3,000, because the company was entitled to treat the contract between the vendor and the director as made by the director on behalf of the company. Bowen J held that it ‘could not be successfully denied’ that if the pounds 3,000 had been paid to the director he would have held it on trust for the company.

Bowen J
(1879) 5 QBD 109, [1879] UKLawRpKQB 4
Commonlii
England and Wales

Equity, Contract

Updated: 18 January 2022; Ref: scu.551510

Ramsden v Dyson: HL 11 May 1866

The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their own money in building on the strength of assurances, said to have been given to them by the landowner’s agent, that they would never be disturbed.
Held: The decision was overturned. The difference of opinion was over an issue of fact, that is the substance of what was said on the occasion when some tenants agreed to be tenants at lower rents than were being paid by other tenants of Sir John Ramsden.
Lord Kingsdown, dissenting on the facts, said: ‘The rule of law applicable to the case appears to me to be this; if a man, under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation. This was the principle of the decision in Gregory v. Mighell 18 Ves. 328, and, as I conceive, is open to no doubt.’ Even if there were uncertainty as to the terms of the contract, a court of equity could nevertheless interfere in order to prevent fraud but that it was unclear what, in that case, the remedy should be. The choices were between the grant of a specific interest in the land and the grant of a restitutionary remedy such as monetary compensation.
Lord Cranworth LC said: ‘If any one makes an assurance to another, with or without consideration, that he will do or will abstain from doing a particular act, but he refuses to bind himself, and says that for the performance of what he has promised the person to whom the promise has been made must rely on the honour of the person who has made it, this excludes the jurisdiction of Courts of equity no less than of Courts of law.’

Lord Cranworth LC, Lord Wensleydale and Lord Westbury, Lord Kingsdown dissenting
[1866] LR 1 HL 129, [1866] 12 Jur NS 506, [1866] UKLawRpHL 7
Commonlii
England and Wales
Cited by:
CitedTaylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .
CitedGonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
CitedHoliday Inns Inc v Broadhead 1974
The parties negotiated for a lease, but never signed a contract. The plaintiff expended considerable sums to try to get planning, and once acquired it sought to buy the land, and claimed that Mr Broadhead had taken an unconscionable advantage, . .
CitedCobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
CriticisedCrabb v Arun District Council CA 23-Jul-1975
The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff . .
FollowedInwards v Baker CA 13-Jan-1965
An indulgent father had encouraged his son to build a bungalow on his, the father’s, land. The son had done so in the expectation, encouraged by the father, that he would be permitted to remain in occupation.
Held: The court formulated the . .
CitedWillmott v Barber ChD 19-Jun-1880
In 1869 Barber granted a 99-year lease of three acres of land in east London, subject to a covenant against assignment or sub-letting without consent. In 1874, in breach of covenant, he sub-let one acre on an annual tenancy to Willmott (who owned a . .
CitedStrover and Another v Strover and Another ChD 10-May-2005
Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership . .
CitedVehicles and Supplies Ltd and others v Financial Institutions Services Ltd PC 28-Jun-2005
(Jamaica) Parties had entered into a joint venture, before one fell into severe financial difficulties. A scheme of arrangement was proposed in which plots which were part of the development would be apportioned, but steps were not taken to complete . .
CitedUglow v Uglow and others CA 27-Jul-2004
The deceased had in 1976 made a promise to the claimant. The promise was not honoured in the will, and the claimant asserted a proprietary estoppel.
Held: The judge was right to have found that the promise was bound up with the claimant being . .
CitedThorner v Curtis and others ChD 26-Oct-2007
The claimant said that the deceased, his father and a farmer, had made representations to him over many years that if the claimant continued to work on the farm, he would leave the farm to him in his will. He died intestate. He claimed a proprietary . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
CitedThorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
CitedThorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
CitedWestern Fish Products Ltd v Penwith District Council and Another CA 22-May-1978
Estoppel Cannot Oust Statutory Discretion
The plaintiff had been refused planning permission for a factory. The refusals were followed by the issue of Enforcement Notices and Stop Notices. The plaintiff said that they had been given re-assurances upon which they had relied.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Estoppel, Landlord and Tenant, Equity

Leading Case

Updated: 18 January 2022; Ref: scu.188171

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 worthless, and that therefore no consideration had been given.
Held: The casino’s defence succeeded. The defence against a restitutionary claim that the defendant had altered his position was available to a person who had changed his position actin in good faith so that it would be inequitable to require him to make restitution.
Lord Goff said: ‘where an innocent defendant’s position is so changed that he will suffer injustice if called upon to repay or to repay in full, the injustice of requiring him so to repay outweighs the injustice of denying the plaintiff restitution. If the plaintiff pays money to the defendant under a mistake of fact, and the defendant then, acting in good faith, pays the money or part of it to charity, it is unjust to require the defendant to make restitution to the extent that he has so changed his position. Likewise, on facts such as those in the present case, if a thief steals my money and pays it to a third party who gives it away to charity, that third party should have a good defence to an action for money had and received. In other words, bona fide change of position should of itself be a good defence in such cases as these. The principle is widely recognised throughout the common law world.’ and
‘It is well established that a legal owner is entitled to trace his property into its product, provided that the latter is indeed identifiable as the product of his property . . Of course, ‘tracing’ or ‘following’ property into its product involves a decision by the owner of the original property to assert his title to the product in place of his original property.’
Lord Templeman discussed the value of chips issued by a casino to a gambler: ‘Thus within the club chips were treated as currency and on leaving the club Cass could exchange chips for money whenever he chose to do so. The chips themselves were worthless and at all times remained the property of the club but the club would redeem them for cash.’
Lord Bridge of Harwich said: ‘I agree with my noble and learned friend, Lord Goff of Chieveley, that it is right for English law to recognise that a claim to restitution, based on the unjust enrichment of the defendant, may be met by the defence that the defendant has changed his position in good faith. I equally agree that in expressly acknowledging the availability of the defence for the first time it would be unwise to attempt to define its scope in abstract terms, but better to allow the law on the subject to develop on a case by case basis.’

Lord Templeman, Lord Bridge, Lord Ackner and Lord Griffiths, Lord Goff
[1991] 2 AC 548, [1988] UKHL 12, [1991] 3 WLR 10
Bailii
Gaming Act 1845 18
England and Wales
Citing:
At CALipkin Gorman v Karpnale Ltd CA 1989
A partner in a firm of solicitors stole money from them, and spent it gambling with the defendants. The firm sued also their banker, who had been held to be aware of the defaulting partner’s weaknesses and activities.
Held: The solicitors . .
CitedMiller v Race 1758
A bank note made out to bearer and payable on demand was to be treated as currency. Conversion did not lie because there is no property in currency. Lord Mansfield said: ‘So, in the case of money stolen, the true owner cannot recover it, after it . .
CitedClarke v Shee and Johnson 1774
A servant diverted money from customers of his employer and bought lottery tickets. Lotteries were illegal and void under the Lottery Act 1772. The master recovered from the defendants who were the holders of the lottery and had innocently received . .
CitedAubert v Walsh 1810
The parties had wagered on 15 September 1808 that the war with France would end before 1 July 1810. One party to the wager withdrew in October 1808, and sought recovery of his stake.
Held: He was entitled to its return. Lord Mansfield said: . .
CitedHudson v Robinson 1816
A partner in a firm fraudulently contracted in the names of the partnership to sell goods to the plaintiff. He received the purchase price from the plaintiff and then did not delivery the goods.
Held: The plaintiff buyer could recover the . .
CitedOrton v Butler 3-May-1822
A count stating that defendant had and received to the use of the plaintiff a certain sum of money, to be paid by the defendant to the plaintiff upon request ; and the non-payment upon request, and that the defendant converted and disposed thereof . .
CitedFoster v Green 1862
Cash may not be subject to a claim for conversion. . .
CitedBainbrigge v Browne ChD 19-May-1881
An impoverished father had prevailed upon his inexperienced children to charge their reversionary interests under their parents’ marriage settlement to pay his mortgage debts. Undue influence was claimed.
Held: The defendants who were not . .
CitedShoolbred v Roberts 1899
A bankrupt won andpound;100 in a billiards game. The stake was given to stakeholders.
Held: The bankrupt’s trustee could recover the bankrupt’s own stake from the stakeholder but not the stake of the loser. Phillimore J said that: ‘I am bound . .
CitedBlack v S Freeman and Co 1910
(High Court of Australia) A thief stole money from the husband, and gave it to the victim’s wife. The victim sought to recover it from her.
Held: The money was repayable. Once stolen it was subject to a trust in favour of the victim wich could . .
At first instanceLipkin Gorman (a Firm) v Karpnale Ltd 1987
A partner in the plaintiff firm of solicitors stole money from them and spent it gambling in the defendant’s casino. The plaintiff cought to recover the money from the defendant, saying that as a gambling debt, no consideration had been given. They . .
CitedBanque Belge pour L’Etranger v Hambrouck 1921
Money was stolen by a thief. He then paid it by way of a gift into the bank account of the woman with whom he was living. The victim claimed its return from the woman and her bankers. GBP315 of the balance in her account represented part of the . .
CitedTransvaal and Delagoa Bay Investment Co Ltd v Atkinson 1944
Money stolen from a company was paid by the thief into a bank account of his wife. All the money was expended, mostly by being returned to the husband. . .
CitedTaylor and Another v Sir Thomas Plumer KBD 10-Feb-1815
Sir Thomas Plumer gave a bank draft to a stockbroker for the purpose of buying exchequer bills, and the stockbroker instead used the draft for buying American securities and doubloons for his own purposes.
Held: Sir Thomas was able to trace . .
CitedMarsh v Keating HL 1834
Keating owned 12,000 pounds interest or share in joint stock reduced 3 per cent annuities, standing to her with the Bank of England, where the accounts were entered in the form of debtor and creditor accounts in the ledgers of the bank. Under what . .
CitedBolton Partners v Lambert 1889
The equitabe remedy of ratification cannot be relied upon so as to render an innocent recipient a wrongdoer. Cotton LJ said ‘an act lawful at the time of its performance [cannot] be rendered unlawful, by the application of the doctrine of . .
CitedCHT Ltd v Ward 1965
Davies LJ discussed whether a casino gave good consideration when supplying gambling chips to customers: ‘People do not game in order to win chips; they game in order to win money. The chips are not money or money’s worth; they are mere counters or . .
CitedMinistry of Health v Simpson; In re Diplock dec HL 1950
The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an . .
CitedCommercial Banking Co of Sydney Ltd v Mann PC 1961
The respondent Mann practiced as a solicitor in partnership with Richardson. They kept a ‘trust account’ in the partnership name with the Australian and New Zealand Bank in Sydney (‘ANZ’). Under the partnership agreement, all assets belonged to . .
CitedMoses v Macferlan KBD 1760
An action for money had and received will only lie where it is inequitable for the defendant to retain the money. The defendant in an action for money had and received ‘can be liable no further than the money he has received’. . .
CitedLondon and River Plate Bank Ltd v Bank of Liverpool Ltd 1896
Mathew J said: ‘when a bill becomes due and is presented for payment the holder ought to know at once whether the bill is going to be paid or not’. And ‘it is manifest that the position of a man of business may be most seriously compromised, even by . .
CitedDurrant v Ecclesiastical Commissioners for England and Wales 1880
An action would lie against a recipient of money, paid under a mistake if fact, who (without notice of the mistake) had paid on the money in good faith as a principal to a third party from whom the recipient could not recover. The court rejected the . .
CitedPrice v Neal 1762
Money paid under a forged bill may be irrecoverable. . .
CitedGolightly v Reynolds 1774
The identity of funds was traced through different hands and shops. . .
CitedR E Jones Ltd v Waring and Gillow Ltd HL 1926
In the case of a confidence man whose plan might have been frustrated by an unexpected contact between the two innocent parties; the House of Lords were divided as to whether that equivocal contact amounted to a representation. Viscount Cave LC . .
CitedFibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd HL 15-Jun-1942
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated . .
CitedAvon County Council v Howlett CA 1983
The plaintiff, through its computerised system for the payment of wages, had overpaid the defendant to the extent of andpound;1,007. He had suffered an injury and been absent from work. The Council sought to recover the overpayment on the grounds . .
CitedUnion Bank of Australia Ltd v McClintock PC 1922
Where a partner obtains money by drawing on a partnership bank account without authority, he alone and not the partnership obtains legal title to the money so obtained. . .
CitedBute (Marquess) v Barclays Bank Ltd 1955
McGaw was the manager of three farms belonging to the plaintiff. He applied to the Department of Agriculture for Scotland for farm subsidies. After he left, the Department sent him three warrants in respect of the subsidies. The warrants were made . .

Cited by:
CitedRose v AIB Group (UK) plc and Another ChD 9-Jun-2003
The bank had received and paid substantial sums from the company before the petition for insolvency had been presented, and had discharged the director’s charge on his house. The liquidator sought restitution under the Act. The bank replied that it . .
CitedNiru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
CitedCommerzbank Ag v Price-Jones CA 21-Nov-2003
The respondent had received a bonus of andpound;250,000. His employers wrote to him in error increasing it. He later chose to stay rather than take redundancy because he now expected the full amount. He resisted an order for restitution. The . .
CitedDextra Bank and Trust Company Limited v Bank of Jamaica PC 26-Nov-2001
(Jamaica) A cheque was drawn which was used as part a complex financial arrangement intended to purchase foreign currency to work around Jamaica’s foreign exchange control regulations. It was asserted that by presenting the cheque used in the . .
CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
CitedAbouRahmah and Another v Abacha and others QBD 28-Nov-2005
Claims were made as to an alleged fraud by some of the respondents. . .
CitedBoscawen 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 . .
CitedSempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
CitedGrosvenor Casinos Ltd v National Bank of Abu Dhabi ComC 17-Mar-2008
Banker’s reference no guarantee
An Arab businessman lost pounds 18m at the claimant casino, and wrote scrip cheques against his account with the defendant. The claimant obtained judgment, but being unable to enforce that judgment pursued his bank. The club had used a system where . .
CitedKommune and Another v DEPFA Acs Bank ComC 4-Sep-2009
Local authorities in Denmark sought to recover sums paid to the defendant banks for swap trading, saying that the payments had been outwith their powers. . .
CitedBankers 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 . .
CitedJeremy D Stone Consultants Ltd and Another v National Westminster Bank Plc and Another ChD 11-Feb-2013
The claimants asserted an equitable claim against funds held by the defendant bank in the name of a company owned by another defendant who they said defrauded them through a Ponzi investment scheme.
Held: The claim failed. On the evidence, the . .
CitedScottish Equitable v Derby 16-Mar-2001
The claimant company sought repayment of a sum paid in error to the defendant. She replied that she had changed her position as a result of and relying upon the payment.
Held: The court gave as ‘the most obvious example’ of the kind of . .
CitedThe Ritz Hotel Casino Ltd v Al Daher QBD 15-Aug-2014
The claimant sought to recover andpound;1m on unpaid cheques. The cheques represented half of the sum gambled away by the defendant in one evening. She now alleged that the claimant had not complied with its duties under the 2005 Act to act . .
CitedIn re Hampton Capital Ltd ChD 9-Jul-2015
The companyy’s joint administrator requested orders under section 238 as against various payments made by the Company and for payment of the equivalent sums. . .
CitedInvestment Trust Companies v Revenue and Customs CA 12-Feb-2015
The claimants having sought repayment of overpaid VAT, they now complained of sums deducted by the Revenue.
Held: The Court allowed the Lead Claimants’ appeal, to the extent of the notional pounds 75 paid in respect of dead periods, and . .
CitedJohn Ruskin College v Harley QBD 26-Nov-2013
A sum had been paid into court in 1997. Other sums were paid out, but this sum was left against costs liability. It was discovered much laterand paid out to the claimant. The former defendant now said that it had been paid out twice, and alleged . .
CitedRevenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
CitedLowick 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, Contract

Leading Case

Updated: 15 January 2022; Ref: scu.184533

Bainbridge and Another v Bainbridge: ChD 22 Apr 2016

Matthews M
[2016] EWHC 898 (Ch)
Bailii
England and Wales
Citing:
CitedFutter 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.

Equity

Updated: 14 January 2022; Ref: scu.562806

Der Merwe v Goldman and Others: ChD 11 Apr 2016

The claimants had executed a deed creating a trust of their house, in ignorance of tax changes making such an arrangement liable to Inheritance Tax. The claimant now sought the setting aside of the settlement.
Held: The order was made, no consideration having been given.

Morgan J
[2016] EWHC 790 (Ch), [2016] WLR(D) 179, [2016] 4 WLR 71, [2016] WTLR 913
Bailii, WLRD
Inheritance Tax Act 1984 1 2 3
England and Wales

Inheritance Tax, Equity

Updated: 13 January 2022; Ref: scu.562026

Scottish Equitable v Derby: 16 Mar 2001

The claimant company sought repayment of a sum paid in error to the defendant. She replied that she had changed her position as a result of and relying upon the payment.
Held: The court gave as ‘the most obvious example’ of the kind of decision made by a payee which, even though it involves no immediate expenditure, will nonetheless give rise to the defence of change of position, the voluntary giving up of a job at an age when it would not be easy to get new employment.

Robert Walker LJ
[2001] 3 All ER 818, [2001] EWCA Civ 369, [2001] OPLR 181, [2001] 2 All ER (Comm) 274, [2001] Pens LR 163
Bailii
England and Wales
Citing:
CitedLipkin 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 . .
CitedAvon County Council v Howlett CA 1983
The plaintiff, through its computerised system for the payment of wages, had overpaid the defendant to the extent of andpound;1,007. He had suffered an injury and been absent from work. The Council sought to recover the overpayment on the grounds . .

Cited by:
CitedCommerzbank Ag v Price-Jones CA 21-Nov-2003
The respondent had received a bonus of andpound;250,000. His employers wrote to him in error increasing it. He later chose to stay rather than take redundancy because he now expected the full amount. He resisted an order for restitution. The . .

Lists of cited by and citing cases may be incomplete.

Equity

Updated: 13 January 2022; Ref: scu.188258

Derby v Scottish Equitable Plc: CA 16 Mar 2001

The court was asked questions of some general interest and importance as to claims for money paid under a mistake and the defences of change of position and estoppel.

Simon Brown, Robert Walker, Keene LJJ
[2001] EWCA Civ 369, [2001] 3 All ER 818, [2001] OPLR 181, [2001] 2 All ER (Comm) 274, [2001] Pens LR 163
Bailii
England and Wales

Equity, Estoppel

Updated: 13 January 2022; Ref: scu.147474

Legal Services Commission v Henthorn: QBD 4 Feb 2011

The claimant sought to recover overpayments said to have been made to the defendant barrister in the early 1990s. Interim payments on account had been made, but these were not followed by final accounts. The defendant, now retired, said that the claims were defeated by limitation and laches and were an abuse of process because of long delay by the claimant.
Held: The case of Rasool was on point and settled it that the relation between the lawyer and his client under the legal aid system remained the same despite the funding arrangement under legal aid. Under that arrangement the claimant could have begun its claim, time ran from the date that the work under the certificate was actually completed and all but two of the claims were time barred.
The claimant also claimed in restitution. However, ‘the exclusive remedy available to the LSC is that provided for by regulation 100(8)’ and no restitutionary claim could arise on the basis of the claims pleaded, and if it were available it would now be defeated by laches and limitation. Similarly the claimant had been unreasonable or unfair in its use of its powers in this way. The claim for abuse of process succeeded.
‘the Regulations gave the LSC full powers to obtain all necessary information and also provided strict time limits for the assessment process. What regrettably occurred throughout the 1990s was a culture of acquiescence in which the LSC did not seek regular reports on stale cases, did not exercise its powers of discharge when cases went to sleep and were not reported on, did not ensure that bills that were lodged for taxation outside the three month period permitted by the RSC were subject to penalties so as to discourage such delays and did not require solicitors who delayed in lodging bills of costs to lodge them under threat of discharge and consequent non-payment. In any event, it is not possible to identify the ingredients of the relevant cause of action by reference to the relaxed way in which the regulations were implemented.’

Anthony Thornton QC J
[2010] EWHC 3329 (QB)
Bailii
Civil Legal Aid (General) Regulations 1989, Limitation Act 1980
England and Wales
Citing:
CitedCoburn v Colledge CA 1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
CitedLondon Borough of Hillingdon v ARC Limited CA 7-Apr-1998
The company sought compensation for land taken under compulsory purchase powers by the defendants several years before. It now appealed against the defeat of its claim as time-barred.
Held: The appeal failed. The limitation period for a claim . .
CitedLegal Services Commission v Rasool CA 5-Mar-2008
The defendant had in 1993 obtained legal aid. Work was done but the certificate was then revoked. The Commission sought repayment of the sums paid on account to his solicitors. He replied that the claim was out of time. The Commission argued that . .
CitedLeivers v Barber Walker and Co Ltd CA 1943
Goddard LJ (dissenting) said that section 2(1)(d) of the 1939 Act changed the former position altogether, leaving the provision for limitation as regards specialties to apply only to deeds and other documents under seal (or to claims other than for . .
CitedCentral Electricity Generating Board v Halifax Corporation HL 1963
Under the 1947 Act, the assets of electricity undertakings were transferred to to electricity boards. Property held by local authorities as authorised undertakers should, on vesting day, vest in the relevant board. A question arose as to whether . .
CitedThe Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
CitedChild Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions CA 14-Oct-2009
CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court . .
CitedDoherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
CitedBarber v London Borough of Croydon CA 11-Feb-2010
The tenant who suffered learning and behavioural difficulties appealed against an order for possession of his council flat. He had become aggressive with the caretaker. The council sought possession, and he defended the claim saying that the council . .

Cited by:
Appeal fromLegal Services Commission v Henthorn CA 30-Nov-2011
The Commission sought to recover what it said were payments made on account to the respondent barrister, but only after many years had passed. The Commission argued that time only began to run once it requested repayment.
Held: The appeal . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Equity, Limitation, Legal Aid

Updated: 12 January 2022; Ref: scu.428706

Taylor v Dickens and Another: ChD 24 Nov 1997

The court has no general equitable power to enforce a promise even though broken in unconscionable circumstances.

Times 24-Nov-1997, [1998] 1 FLR 806
England and Wales
Cited by:
CitedThorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .

Lists of cited by and citing cases may be incomplete.

Equity

Updated: 09 January 2022; Ref: scu.89745

Thomas Finden v Charles Stephens, Wm Blandy, Ann Frances Quelch, Jemima Quelch, Edward Chambers, And Eliz Eleanor, His Wife, Joshua Brown, And Sarah, His Wife, And Ann Bushnell: 11 Dec 1846

Wish and desire that a particular person should be appointed manager of the testator’s estate for all purposes for which his trustees might have occasion for a manager, considered only as opinion and advice and not as a trust. Words of recommendatory are never construed as trusts, unless the subject be certain.

[1846] EngR 1202, (1846) 1 Coop T Cott 318, (1846) 47 ER 874
Commonlii
England and Wales

Trusts, Equity

Updated: 08 January 2022; Ref: scu.303097

Wilkinson And Another v Godefroy: 17 Jan 1839

The court considered a claim for the recovery of money from a stakeholder to whom it had been entrusted, in which case a demand is necessary to throw upon the depositee a duty to repay.

[1839] EngR 396, (1839) 9 Ad and E 536, (1839) 112 ER 1315
Commonlii
Cited by:
CitedFreeman v Jeffries CExC 1868
(Court of Exchequer) The incoming tenant plaintiff had agreed to buy the outgoing tenant’s interest in a farm at a price determined by two valuers. He paid pounds 2,000 on account; the valuation took place; the plaintiff gave to the outgoing tenant . .
CitedFuller v Happy Shopper Markets Ltd and Another ChD 6-Mar-2001
A tenant complained to the landlord about his failure to repair. He ceased paying rent, and the landlord eventually distrained for rent by direct action.
Held: The tenant was unable to claim a legal set-off because there was no context of . .

Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 07 January 2022; Ref: scu.310928

Behrens v Heilbut: 1956

A voluntary settlement was rectified despite it not being a representation of a previously negotiated bargain.

Harman J
(1956) 222 LJ Jo 290
England and Wales
Cited by:
CitedAMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .

Lists of cited by and citing cases may be incomplete.

Equity

Updated: 05 January 2022; Ref: scu.184581

Cadlock v Dunn and Another: ChD 13 May 2015

The equity of exoneration could be applied for a wife who had charged her beneficial half share of the matrimonial property to secure a loan to her husband to enable him to re-acquire his half share from his trustee in bankruptcy. The wife obtained no financial benefit from the payment. The benefit to the wife was being able to stay in her house, a benefit incapable of financial valuation. It was clear from Re Pittortou that if any sums are spent on joint or household expenditure or otherwise for the joint benefit of the parties, the equity does not arise in respect of those sums.

Behrens HHJ
[2015] EWHC 1318 (Ch), [2015] BPIR 739
Bailii
England and Wales
Cited by:
CitedArmstrong v Onyearu and Another CA 11-Apr-2017
Exoneration of partner’s equity on insolvency
The court considered the equity of exoneration, where property jointly owned by A and B is charged to secure the debts of B only, A is or may be entitled to a charge over B’s share of the property to the extent that B’s debts are paid out of A’s . .

Lists of cited by and citing cases may be incomplete.

Equity

Updated: 30 December 2021; Ref: scu.546559

Graham-York v York and Others: CA 10 Feb 2015

The claimant challenged a possession order made in respect of the house she occupied, alleging a constructive trust in her favour. The house had been occupied by the unmarried co-habiting couple for nearly 25 years before the death of one of them. He was the registered proprietor of the property but his partner, the appellant, claimed a beneficial interest under a common intention constructive trust. The issues were, first, whether she had any such interest and, if so, its size and, secondly, whether any such interest had priority over a registered legal charge granted by the deceased. At first instance, the judge held that the appellant had a 25% beneficial interest over which the charge took priority. The appellant now contended that her interest was 50% and that it took priority over the charge but this second issue became in the course of argument a question whether the appellant was entitled to an equity of exoneration in respect of the secured indebtedness.
Held: The sole issue at trial had been whether the appellant’s interest took priority over the charge, and reliance on an equity of exoneration as against the deceased’s estate had never been pleaded. It was raised only after judgment and it was by then too late because the judge had not made findings as to the use or destination of the loan proceeds. If it had been pleaded, it would have raised the issue ‘whether all or some of the debt secured by the mortgage charge represented lending which was not incurred for the benefit of the joint household but solely for the benefit of the deceased Norton York and/or his business interests’. If that was the case, there would have been the possibility, but not the inevitability, that she would be entitled to the equity. Whether the equity arises ‘depends upon the presumed intention of the parties and is highly fact-sensitive.’
As regards the possibility of an equity of exoneration arising, Tomlinson LJ said: ‘However for what it is worth the inference from such evidence as there was seems to me to point away from, rather than towards, the conclusion that the borrowing was for the benefit of Norton York alone. It was the judge’s implicit finding that Norton York was responsible for generating almost all of the income, and thus the assets, which the family unit enjoyed. It is apparent therefore that Miss Graham-York shared the benefit of the deceased’s business ventures and it would be unconscionable that she should do so without sharing the burden of the mortgage. As noted in paragraph 18 above, it was in fact her evidence that Norton York’s business ventures ‘provided us with the wherewithal to live on’. The point was well made by Miss Haren that the question whether it was intended by the parties that the beneficial interest of one of them should be exonerated from the burden of the mortgage debt, is dependent upon the same factors as come into the equation when considering the whole course of dealing between the parties in relation to the property, for the purpose either of deducing their intention or of determining what is fair in relation to their respective shares of the beneficial entitlement. The judge having concluded that Miss Graham-York’s entitlement was 25%, it would be artificial and illogical not to acknowledge that that must in the circumstances be a 25% interest subject to the mortgage indebtedness from which both she and Norton York had derived benefit.’

Moore-Bick VP, Tomlinson, King LJJ
[2015] EWCA Civ 72
Bailii
England and Wales
Cited by:
CitedArmstrong v Onyearu and Another CA 11-Apr-2017
Exoneration of partner’s equity on insolvency
The court considered the equity of exoneration, where property jointly owned by A and B is charged to secure the debts of B only, A is or may be entitled to a charge over B’s share of the property to the extent that B’s debts are paid out of A’s . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 27 December 2021; Ref: scu.542439

Nilon Ltd and Another v Royal Westminster Investments Sa and Others: PC 21 Jan 2015

(British Virgin Islands) The primary questions which were the subject of argument were (1) whether a claimant (A) can bring proceedings for rectification of the share register of a company (D1) when the reason for rectification is an untried allegation that a defendant (D2) has agreed to allot shares in D1 to A; and (2) if so, whether D2 is a necessary and proper party to A’s claim against D1 and whether the BVI is an appropriate forum for A’s claim against D.

Lord Mance, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Collins
[2015] UKPC 2
Bailii

Commonwealth, Company, Equity, Jurisdiction

Updated: 27 December 2021; Ref: scu.541689

Nexus Communications Group Ltd v Lambert and Others: ChD 31 Jan 2005

The purchaser under a share sale agreement sought money due in default. The vendors had accounts prepared for them which would give rise to a large sum being payable to the claimant. They served a notice disputing the accounts. The notice implied that a discussion period had been reached, but they also claimed that the purchaser had not himself completed certain stages and that therefore that stage had not been reached.
Held: The equitable doctrine of election, requiring a party taking the benefit of a document to accept also the burden applied to litigation where a party was seeking to present inconsistent arguments. In order for the claimant to put the defendant to that election, he had to show that the defendant had taken some futher step beyond the pleadings which would make it inequitable to pursue both lines of argument.

Gabriel Moss QC
Times 03-Mar-2005
England and Wales

Equity, Litigation Practice

Updated: 27 December 2021; Ref: scu.223462

Dibbins v Dibbins: 1896

A partnership deed provided an option for a surviving partner to purchase a deceased’s partner’s share upon giving notice within three months of the death. The partner who survived was not of sound mind, but his solicitor gave timely notice, later confirmed by an order under the Lunacy Acts. A second notice was then given, but out of time.
Held: The option had not been exercsied within the necessary time limit, and no contract had been created of which the second notice could take the benefit.
Chitty J said: ‘The doctrine of equity, that time is not of the essence of the contract, is not one of universal application, and it is settled with reference to options of this kind that there is no difference as to time between the rule of equity and the rule of common law; in other words, in exercising an option of this nature where time is limited the option must be exercised (if at all) within the time for which it is expressed to be given, both at law and in equity.’
To be valid, the exercise of an option to acquire an interest in property must be performed strictly in accordance with its prescribed terms. A failure could not be rectified by the executor out of time since ratification of an act does not apply retrospectively.

Chitty J
[1896] 2 Ch 348, [1896] 65 LJ Ch 724, 75 LT 137, 44 WR 595, 40 Sol Jo 599
England and Wales
Citing:
DistinguishedBolton Partners v Lambert 1889
The equitabe remedy of ratification cannot be relied upon so as to render an innocent recipient a wrongdoer. Cotton LJ said ‘an act lawful at the time of its performance [cannot] be rendered unlawful, by the application of the doctrine of . .

Cited by:
CitedHaugland Tankers As v RMK Marine Gemi Yapim Sanayii Ve Deniz Tasimaciligi Isletmesi As ComC 9-Mar-2005
An option agreement was granted for the sale of a ship hull. The option was excercised but the defendant claimed the commitment fee required was not paid.
Held: The exercise of an option had to be in the precise terms set out in the contract. . .
CitedDi Luca v Juraise (Springs) Limited; Amess and Amess CA 6-Oct-1997
In regard to options for the purchase of land, time constraints are of the essence. An option is not a contract but an irrevocable offer that matures into a bilateral contract upon due exercise of the option during the option term . .

Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 27 December 2021; Ref: scu.223446

Halsall v Brizell: ChD 1957

Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the retained lands were intended to be left upon trust to be used and enjoyed by the owners of the plots and their successors in title. The owners of the plots by the deed covenanted that they and their successors in title would pay a due proportion of the expenses of maintenance of the roads, sewers promenade and sea wall. That proportion was to be determined in an Annual General Meeting of the owners of the plots. The successors in title of an original covenantor were prepared to pay a contribution in respect of one plot but challenged the validity of a resolution at an Annual General Meeting requiring them to pay several contributions because the building on their plot had been subdivided into flats.
Held: Upjohn J said that the successors in title to the covenantors could not be sued on the covenants, but ‘it is conceded that it is ancient law that a man cannot take benefit under a deed without subscribing to the obligations thereunder.’
and
‘If the defendants did not desire to take the benefit of this deed, for the reasons I have given, they could not be under any liability to pay the obligations thereunder. But, of course, they do desire to take the benefit of this deed. They have no right to use the sewers which are vested in the plaintiffs, and I cannot see that they have any right, apart from the deed, to use the roads of the park which lead to their particular house. The defendants cannot rely on any way of necessity or on any right by prescription, for the simple reason that when the house was originally sold in 1931 to their predecessor in title he took the house on the terms of the deed of 1851 which contractually bound him to contribute a proper proportion of the expenses of maintaining the roads and sewers, and so forth, as a condition of being entitled to make use of those roads and sewers. Therefore, it seems to me that the defendants here cannot, if they desire to use this house, as they do, take advantage of the trusts concerning the user of the roads contained in the deed and the other benefits created by it without undertaking the obligations thereunder. Upon that principle it seems to me that they are bound by this deed, if they desire to take its benefits.’

Upjohn J
[1957] 1 All ER 371, [1957] Ch 169
England and Wales
Cited by:
CitedBhullar and Another v McArdle CA 10-Apr-2001
The defendant had registered a caution against the claimant’s land at the Land Registry. The claimant sought its removal and now appealed an order for rectification of the register against him. The parties had reached oral agreements as to the . .
CitedIDC Group Ltd and others v Clark and others CA 25-Jun-1991
Sir Nicolas Browne-Wilkinson VC reviewed the cases about constructive trust claims summarising the result as follows: ‘That decision [Lyus] was approved by the Court of Appeal in Ashburn Anstalt v Arnold . . The Court of Appeal put what I hope is . .
CitedAllied London Industrial Properties Limited v Castleguard Properties Limited CA 24-Jul-1997
The parties disputed the effect of a conveyance of land from 1985 and an associated deed of variation. The variation added an easement which was argued by the purchaser to have attached to the land, and was said by the vendor to have been personal . .
CitedBeckenham Mc Ltd v Centralex Ltd and others ChD 10-Jun-2004
. .
CitedSchiffahrtsgesellschaft Detlef Von Appen Gmbh v Wiener Allianz Versichrungs Ag and Voest Alpine Intertrading Gmbh CA 16-Apr-1997
. .
CitedBluestorm Ltd v Portvale Holdings Ltd CA 13-Feb-2004
The appellant was a lessee of some premises within a development. They purchased the freehold through a subsidiary but then failed to make repairs. When the other tenants withheld the service charges, the company was liquidated. Another tenant . .
CitedRhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
CitedTito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
CitedRhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
CitedDavies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .
CitedThompson v Bee and Another CA 20-Nov-2009
The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, . .

Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 22 December 2021; Ref: scu.189960

Tulk v Moxhay: 22 Dec 1848

Purchaser with notice bound in Equity

A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was bound by it in equity, whether he was bound at law or not, and an injunction was granted to restrain him infringing the covenant. The equitable doctrine is that restrictive covenants follow the land to the new owner on notice. The subsequent owner must be found to have notice before he will be bound by the covenants.
The burden of a positive covenant will not run with the land. In order to bind a successor in title: 1) the covenant must be negative in substance 2) It must benefit the land of the covenantee, 3) The burden must be intended to run with the land, and 4) the successor must have notice of the covenant.
Lord Cottenham LC said: ‘It is said that the covenant being one which does not run with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.’ and ‘if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.’

Lord Cottenham LC, Knight Bruce LJ
(1848) 2 Ph 774, [1848] 1 H and TW 105, [1848] 18 LJ Ch 83, [1848] 13 LTOS 21, [1848] 13 Jur 89, [1848] 41 ER 1143 LC, (1848) 11 Beavan 571, [1848] EWHC Ch J34, [1848] EngR 1059, (1848) 1 H and Tw 105, (1848) 47 ER 1345, [1848] EngR 1065, (1848) 41 ER 1143, [1848] EngR 1005, (1848) 11 Beav 571, (1848) 50 ER 937
Bailii, Commonlii, Commonlii, Commonlii
England and Wales
Citing:
CitedKeppell v Bailey ChD 29-Jan-1834
The court was asked whether the owner of land can burthen it in the hands of future owners by the creation of novel rights.
Held: Lord Brougham said: ‘It must not be supposed that incidents of a novel kind can be devised and attached to . .
CitedWhatman v Gibson 5-Apr-1838
A, the owner of a piece of land, divided it into lots for building a row of houses, and a deed was made between him of the one part and X and Y, (who had purchased some of the lots from him) and the several persons who should at any time execute the . .
CitedThe Duke of Bedford v The Trustees of The British Museum 6-Jul-1822
Where land is conveyed in fee, by deed of feoffment, subject to a perpetual ground rent, and the feoffee covenants for himself, his heirs and assigns, with the feoffor, the owner of adjoining lands, his heirs, executors, administrators, and assigns, . .
CitedMann v Stephens 23-Jul-1846
A. being seised in fee of a house and a piece of open land near to it, sold and conveyed the house to E, and covenanted, for himself, his heirs and assigns, with B., his heirs and assigns, that no building whatever should at any time thereafter be . .

Cited by:
CriticisedLondon County Council v Allen 1914
A landowner applied to the plaintiffs for their sanction to a new street scheme. It was given but subject to his covenant to keep certain land unbuilt upon. He gave the covenant. The plaintiffs themselves had no land in the area capable of . .
ConsideredPatching v Dubbins 1853
The purchase-deed of a house in a terrace contained a covenant on the part of the vendor, unexplained by any recital, that no building should be erected on any part of the land of the vendor lying on the east side of the said terrace and opposite to . .
ConsideredChild v Douglas 5-May-1854
. .
CitedCrest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
AppliedHemingway Securities Ltd v Dunraven Ltd and another ChD 16-Aug-1994
The lease contained a covenant against sub-letting. The tenant created a sub-lease in breach of that covenant and without the consent of the landlord.
Held: The head landlord was entitled to an injunction requiring the sub-tenant to surrender . .
CitedAbbey Homesteads (Developments) Limited v Northamptonshire County Council CA 1986
Clause 1 of an agreement between a company and the District Council required that the land should be sold subject to the conditions restricting and regulating the development. A clause provided ‘An area of 1.3 hectares adjacent to the playing field . .
CitedUniversity of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
CitedRhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
CitedLondon and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
CitedNoakes and Co Ltd v Rice HL 17-Dec-2001
A charge on a public house provided that even after repayment of the principal, the owner continued to be obliged to purchase his beer from the brewery, and that any non-payment would be charged on the property.
Held: The clauses operated as a . .
CitedColes v Sims 16-Jan-1854
. .
CitedTaylor v Gilbertson 3-Jul-1854
. .
CitedJohnstone v Hall 11-Mar-1856
. .
CitedHodson v Coppard 6-Nov-1860
. .
CitedHeywood v Heywood 19-Nov-1860
. .
CitedEarl of Zetland v Hislop HL 12-Jun-1882
. .
CitedBath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Leading Case

Updated: 22 December 2021; Ref: scu.181987

Tito v Waddell (No 2); Tito v Attorney General: ChD 1977

Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a trustee has not sold to himself, in substance he has. Again one must regard the realities. If the question is asked: ‘Will a sale of trust property by the trustee to his wife be set aside?’, nobody can answer it without being told more; for the question is asked in a conceptual form, and manifestly there are wives and wives. In one case the trustee may have sold privately to his wife with whom he was living in perfect amity; in another the property may have been knocked down at auction to the trustee’s wife from whom he has been living separate and in enmity for a dozen years.’
The issue arose, in relation to ‘the 1931 transaction’, as to whether the acts of which the claimants complained were done on behalf of the Government of the Gilbert and Ellice Islands Colony (in which case no claim lay against the Crown, because excluded by the 1947 Act) or the Government of the United Kingdom (in which case, if a claim lay, it was not excluded). The court accepted that the colonial government was a subordinate government, all important decisions being referred to London, and the Crown, on the advice of the United Kingdom Government, having important powers that could be used to override acts of the colonial government. But the Vice-Chancellor concluded: ‘In my judgment the government of the United Kingdom was not the government of the Gilbert and Ellice Islands Colony at any material time. It had important advisory and supervisory functions, as well as paramount powers. It also contributed much to the governing of the colony, in general and to the 1931 transaction in particular, eg in settling the form of the 1931 lease; but it was not the government.’
As to damages: ‘Per contra, if the plaintiff has suffered little or no monetary loss in the reduction of value of his land, and he has no intention of applying any damages towards carrying out the work contracted for, or its equivalent, I cannot see why he should recover the cost of doing work which will never be done. It would be a mere pretence to say that this cost was a loss and so should be recoverable as damages.’

Megarry VC
[1977] Ch 106, [1977] 3 All ER 129, [1977] 3 WLR 972
Crown Proceedings Act 1947 40(2)(b)
England and Wales
Citing:
AppliedWrotham Park Estate Ltd v Parkside Homes Ltd ChD 1974
55 houses had been built by the defendant, knowingly in breach of a restrictive covenant, imposed for the benefit of an estate, and in the face of objections by the claimant.
Held: The restrictive covenant not to develop other than in . .
CitedBracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
CitedHalsall v Brizell ChD 1957
Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the . .

Cited by:
CitedBath and North East Somerset Council v HM Attorney General, The Treasury Solicitor (Bona Vacantia) ChD 31-Jul-2002
Land was conveyed to the Council’s predecessor on condition that it be left available for use for sports and similar recreations, and left as an open space. It was now sought to develop the land as a home for a football club. The Council sought . .
CitedRhone and Another v Stephens CA 17-Mar-1993
A house had been divided. The original owner covenanted to repair the roof over the part which had been sold off. A later purchaser of the that part sought to enforce the covenant against a subsequent owner of the main house. At first instance the . .
CitedWrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
CitedSurrey County Council v Bredero Homes Ltd CA 7-Apr-1993
A local authority had sold surplus land to a developer and obtained a covenant that the developer would develop the land in accordance with an existing planning permission. The sole purpose of the local authority in imposing the covenant was to . .
CitedJaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
CitedRegina v Secretary of State for Home Department ex parte Bancoult Admn 3-Mar-1999
Application for leave to appeal granted. . .
CitedRadford v De Froberville 2-Jan-1977
A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a . .
CitedAlfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
CitedNewgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
CitedRegina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
CitedManuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
CitedCo-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
CitedRhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
CitedDavies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .
CitedBelmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
CitedRuxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .

Lists of cited by and citing cases may be incomplete.

Land, Equity, Constitutional, Damages

Leading Case

Updated: 22 December 2021; Ref: scu.183016

Rhone and Another v Stephens: HL 17 Mar 1994

A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house.
Held: His appeal was dismissed. Equity can enforce negative covenants on a freehold against subsequent owners, but not the burden of positive burdens. Such a burden did not pass with the land. To allow the enforcement would go against the common law rule preventing a third party enforcing a contract to which he was not party. The burden of a positive covenant will not be enforced against the covenantor’s successors in title, and nothing in section 79 has the effect of causing the burden of a positive covenant to run with the land.
Lord Templeman said: ‘Conditions can be attached to the exercise of a power in express terms or by implication. Halsall v. Brizell was just such a case and I have no difficulty in wholeheartedly agreeing with the decision. It does not follow that any condition can be rendered enforceable by attaching it to a right nor does it follow that every burden imposed by a conveyance may be enforced by depriving the covenantor’s successor in title of every benefit which he enjoyed thereunder. The condition must be relevant to the exercise of the right.’ and ‘Restrictive covenants deprive an owner of a right which he could otherwise exercise. Equity cannot compel an owner to comply with a positive covenant entered into by his predecessors in title without flatly contradicting the common law rule that a person cannot be made liable upon a contract unless he was a party to it. Enforcement of a positive covenant lies in contract; a positive covenant compels an owner to exercise his rights. Enforcement of a negative covenant lies in property; a negative covenant deprives the owner of a right over property.’

Lord Templeman, Lord Oliver of Aylmerton, Lord Woolf, Lord Lloyd, Lord Nolan
Independent 23-Mar-1994, Times 18-Mar-1994, [1994] 2 WLR 429, [1994] 2 AC 310, [1994] UKHL 3, [1994] 2 All ER 65
Bailii
England and Wales
Citing:
CitedAusterberry v Oldham Corporation CA 1882
Land was conveyed to trustees, they covenanting to maintain and repair it as a road. The covenant was given to the owners and their heirs and assigns, and was given on behalf of the covenantors and their heirs and assigns.
Held: Neither the . .
Appeal fromRhone and Another v Stephens CA 17-Mar-1993
A house had been divided. The original owner covenanted to repair the roof over the part which had been sold off. A later purchaser of the that part sought to enforce the covenant against a subsequent owner of the main house. At first instance the . .
CitedHalsall v Brizell ChD 1957
Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the . .
CitedSpencer’s Case 1583
An assignee of a lease will take both the benefit and burden of the covenants in the lease provided that there is privity of estate as between the person enforcing the covenant and the person against whom enforcement is sought, and the covenant . .
CitedTulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
CitedHaywood v The Brunswick Permanent Benefit Building Society CA 1881
The land had been conveyed in consideration of a rent charge and a covenant to build and repair buildings.
Held: A mortgagee of the land was not liable on the covenant either at law or in equity even though he had notice of it.
Brett LJ . .
CitedCooke v Chilcott 1876
The purchaser of land with a well covenanted to erect a pump and reservoir and to supply water from the well to all houses built on the vendor’s land. Enforcement was sought against a purchaser.
Held: He had purchased with notice of the . .
CitedCox v Bishop 1857
The lease was assigned to a man of straw.
Held: The covenants in the lease could not be enforced against an equitable assignee of the lease who had entered into possession. The covenants were not enforceable because there was no privity of . .
CitedLondon and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
CitedMorland v Cook CA 1868
Land below sea level was partitioned by a deed with a covenant that the expense of maintaining the sea wall should be borne by the owners of the lands and payable out of the lands by an acre-scot.
Held: The covenant was enforced against a . .
CitedIn re Nisbet and Potts’ Contract 1905
Where a party asserted he was a purchaser in good faith without notice and for value, the burden of proving all the elements of the defence is upon the purchaser. A title acquired by adverse possession was not paramount to, and did not destroy the . .
CitedHalsall v Brizell ChD 1957
Land in Liverpool was sold in building plots. The vendors retained the roads and sewers and a promenade and sea wall. A separate deed of covenant of 1851 between the vendors and the owners of the plots which had by then been sold, recited that the . .
CitedJones v Price 1965
Willmer LJ said: ‘a covenant to perform positive acts . . is not one the burden of which runs with the land so as to bind the successors in title of the covenantor: see Austerberry v. Oldham Corporation.’ and ‘ . . properly speaking, an easement . .
CitedTophams Ltd v Earl of Sefton HL 1967
Section 79 of the Law of Property Act (relating to the burden of covenants) achieved no more than the introduction of statutory shorthand into the drafting of covenants. It does does not have the effect of causing covenants to run with the land . .
CitedTito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .

Cited by:
CitedAllied London Industrial Properties Limited v Castleguard Properties Limited CA 24-Jul-1997
The parties disputed the effect of a conveyance of land from 1985 and an associated deed of variation. The variation added an easement which was argued by the purchaser to have attached to the land, and was said by the vendor to have been personal . .
CitedCantrell v Wycombe District Council CA 29-Jul-2008
The appellant had bought a house at auction. It had previously been sold by a local authority subject to a covenant by the buyer allowing the authority to nominate tenants. The covenant was said to be binding on successors in title, and was . .
CitedDavies and Others v Jones and Another CA 9-Nov-2009
The parties contracted for the sale of land for development. The contract allowed for the costs of environmental remediation, but disputed the true figure set by the eventual builder and retained. The court now heard argument about whether the sum . .
CitedCGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
cgis_britelChD2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
CitedBath Rugby Ltd v Greenwood and Others CA 21-Dec-2021
This appeal concerns the question whether an area of land in Bath known as the Recreation Ground, commonly called ‘the Rec’, is still subject to a restrictive covenant imposed in a conveyance of the Rec dated 6 April 1922 (‘the 1922 conveyance’). . .

Lists of cited by and citing cases may be incomplete.

Equity, Land

Leading Case

Updated: 22 December 2021; Ref: scu.88768

Freeman v Jeffries: CExC 1868

(Court of Exchequer) The incoming tenant plaintiff had agreed to buy the outgoing tenant’s interest in a farm at a price determined by two valuers. He paid pounds 2,000 on account; the valuation took place; the plaintiff gave to the outgoing tenant a post-dated promissory note for pounds 3,319, being the amount of the valuation (after deducting the pounds 2,000 paid on account); and the plaintiff entered into possession. Later, when he sold his interest in the farm to a third party, he claimed to have discovered errors in the valuation in respect of the inclusion of items that ought not to have been included, and items that did not exist. Nevertheless, he paid the promissory note at maturity without objection, but later, without any prior complaint or demand for repayment, he sued the defendant, claiming as moneys had and received to his use the whole price paid, namely pounds 5,319; alternatively, the deposit of pounds 2,000; alternatively, the remaining pounds 3,319; or, alternatively, an undefined sum that a jury should find to be the value of the items that ought not to have been included in the valuation.
Held: He was not entitled to recover. The valuers’ award was final between the parties.
Kelly CB and Martin B held that the conduct of the claimant had made it impossible to restore the parties to their original condition, or to do justice between them (ie rescind), and that therefore the claimant could not maintain an action for money had and received. Martin and Bramwell BB held that, to enable the plaintiff to maintain an action for money paid by mistake as money had and received by the defendant, notice of the mistake must have been given to the defendant and a demand made.
Martin B said: ‘The parties have entered into an agreement for the sale of the defendant’s interest in the farm, stock and crops, for an entire sum to be put on it by two valuers, and of which 2000l. was paid down . . A promissory note is given for the amount of the valuation according to the agreement, and is paid; the plaintiff enters into possession of the farm; he again sells his interest, and so ceases to be able to return to the defendant what he had got from him; and now, the valuer on this sale having discovered what he thinks to be a mistake (and what we must suppose to be such) in the former valuation, the plaintiff without notice brings an action against the defendant to recover the whole sum which he has paid under that valuation. We are asked to treat the whole affair as a nullity, and are told that this is the essence of justice. But the effect contended for could only be produced by a rescission of the contract, and the contract cannot be rescinded unless the parties can be restored to their original condition. But if one party has done an act by reason of which it has become impossible to put the other in the same situation as before, there can be no rescission, and the remedy, if any, must be on the contract. It is contended that under these circumstances, a contract will be implied to return the money; but I am not of that opinion. If an action lies for recovering the money paid for those items which ought not to have been included in the valuation, it would be an action for the return of a portion of the money paid, on the ground that the consideration had failed, and after notice given that it had failed. But unless some communication has been made by the plaintiff, he is not entitled to recover either the whole or any part of this sum. On the ground, therefore, that the plaintiff is not in a position to sue without having made a demand on the defendant, I am of opinion that this rule must be made absolute.’
Bramwell B said: ‘I give no opinion on many of the questions which have been discussed; but on the ground I am about to mention I think this rule must be made absolute. The plaintiff’s case is this: ‘I have paid money which I was not bound to pay, and which, if I had known facts which I now know, I should not have paid. I paid it on the footing of a valuation having been made, when, in fact, no valuation had been made; neither a valuation including in distinct items the matters which were to be valued, nor a valuation in general of the whole of the items for which I ought to pay.’ But if the plaintiff were under the circumstances entitled to be repaid the sum he claims, he ought to have given notice to the defendant of the facts by reason of which he was so entitled; because until he did so there could be no duty on the defendant to pay, it over.’
Orse Freeman v Jefferies

Kelly CB, and Martin and Pigott BB
(1868-69) LR 4 Ex 189
Commonlii
England and Wales
Citing:
CitedWilkinson And Another v Godefroy 17-Jan-1839
The court considered a claim for the recovery of money from a stakeholder to whom it had been entrusted, in which case a demand is necessary to throw upon the depositee a duty to repay. . .

Cited by:
DistinguishedBaker v Courage and Co 1910
The plaintiff had owned a public house. On selling the leasehold to the defendants brewers, they had overpaid him by andpound;1,000. He deposited a sum at interest with the defendants. When he came to withdraw the last of the deposit (by coincidence . .
CitedFuller v Happy Shopper Markets Ltd and Another ChD 6-Mar-2001
A tenant complained to the landlord about his failure to repair. He ceased paying rent, and the landlord eventually distrained for rent by direct action.
Held: The tenant was unable to claim a legal set-off because there was no context of . .

Lists of cited by and citing cases may be incomplete.

Equity, Landlord and Tenant

Updated: 20 December 2021; Ref: scu.416722

Three Rivers District Council and Others v Governor and Company of Bank of England: CA 6 Dec 1994

Equitable assignors of a deposit cannot pursue a claim for recovery of the assigned debt without joining in the assignee as a party, though it can sue in its own name.

Peter Gibson LJ
Times 06-Dec-1994, Independent 13-Dec-1994, [1996] QB 292
England and Wales
Cited by:
CitedRoberts 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 . .

Lists of cited by and citing cases may be incomplete.

Equity, Banking, Litigation Practice

Updated: 20 December 2021; Ref: scu.89885

Baker v Courage and Co: 1910

The plaintiff had owned a public house. On selling the leasehold to the defendants brewers, they had overpaid him by andpound;1,000. He deposited a sum at interest with the defendants. When he came to withdraw the last of the deposit (by coincidence andpound;1,000) the defendants discovered their earlier mistake and refused to return the money. When sued they pleaded set-off and made a counterclaim, both of which the plaintiff opposed as statute-barred.
Held: A claim in restitution for a payment made under a mistake of law arises at the date of the payment. There was no requirement for a demand where the claim is for repayment of moneys paid under a mistake common to both parties (as opposed to a unilateral mistake).
Hamilton J discussed the judgments of Barons Martin and Bramwell saying: ‘in that case at the time the first instalment of the money was paid neither the plaintiff nor the defendant made any mistake. The mistake was made by the two valuers who were subsequently employed to value the farm which was the subject- matter of the sale. It was not until the plaintiff afterwards consulted a third valuer on his negotiating for the resale of the property that he discovered that the former valuers had included in their valuation certain items which they ought not to have included, and after this he paid over the balance of the money to the defendant at a time when he knew of the valuers’ mistake but the defendant did not. It was under those circumstances that Martin and Bramwell BB held that there was no duty on the defendant to repay the excess valuation until after notice of the mistake, which was not his mistake and of which he was unaware. I think it is clear that they so decided without reference to a case in which not only the party paying paid under a mistake, but also the party receiving the money was under a mistake at the time when he received it. In my opinion, therefore, the case of Freeman v Jefferies does not support the contention of the defendants.’

Hamilton J
[1910] 1 KB 56
England and Wales
Citing:
DistinguishedFreeman v Jeffries CExC 1868
(Court of Exchequer) The incoming tenant plaintiff had agreed to buy the outgoing tenant’s interest in a farm at a price determined by two valuers. He paid pounds 2,000 on account; the valuation took place; the plaintiff gave to the outgoing tenant . .

Cited by:
CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
CitedFuller v Happy Shopper Markets Ltd and Another ChD 6-Mar-2001
A tenant complained to the landlord about his failure to repair. He ceased paying rent, and the landlord eventually distrained for rent by direct action.
Held: The tenant was unable to claim a legal set-off because there was no context of . .
CitedTest Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .

Lists of cited by and citing cases may be incomplete.

Equity

Updated: 18 December 2021; Ref: scu.236525

Fuller v Happy Shopper Markets Ltd and Another: ChD 6 Mar 2001

A tenant complained to the landlord about his failure to repair. He ceased paying rent, and the landlord eventually distrained for rent by direct action.
Held: The tenant was unable to claim a legal set-off because there was no context of legal proceedings upon which such a claim must depend, but nevertheless he was able to assert an equitable set-off, because of the close relationship between the claim and the basis of the set-off, which would leave a balance due to him.

Lightman J
Gazette 15-Feb-2001, Times 06-Mar-2001, [2001] EWHC Ch 702, [2001] 25 EG 159, [2001] 2 LLR 49, [2001] 2 Lloyd’s Rep 49, [2001] 2 EGLR 32, [2001] L and TR 16, [2001] 1 WLR 1681
Bailii
England and Wales
Citing:
CitedWilkinson And Another v Godefroy 17-Jan-1839
The court considered a claim for the recovery of money from a stakeholder to whom it had been entrusted, in which case a demand is necessary to throw upon the depositee a duty to repay. . .
CitedFreeman v Jeffries CExC 1868
(Court of Exchequer) The incoming tenant plaintiff had agreed to buy the outgoing tenant’s interest in a farm at a price determined by two valuers. He paid pounds 2,000 on account; the valuation took place; the plaintiff gave to the outgoing tenant . .
CitedBaker v Courage and Co 1910
The plaintiff had owned a public house. On selling the leasehold to the defendants brewers, they had overpaid him by andpound;1,000. He deposited a sum at interest with the defendants. When he came to withdraw the last of the deposit (by coincidence . .
CitedKleinwort Benson Ltd v South Tyneside Metropolitan Borough Council ChD 1994
A claim for money had and received fell within section 5 Limitation Act, should be treated with caution. Hobhouse J said: ‘The cause of action in money had and received arises when the relevant money is paid by the plaintiff to the defendant.’
CitedSim v Rotherham Metropolitan Borough Council 1981
The 1870 Act applied where an employee’s contract was terminated in the course of a period at the end of which payment would be made. Scott J said: ‘Mr Goudie submitted that the real question was whether a teacher was entitled to be paid for the . .
CitedAectra Refining and Marketing Inc v Exmar NN CA 15-Aug-1994
A time loss claim can found a legal set-off claim against ship owners, provided that the loss claim can be made in the same court. The court referred to a ‘transaction set-off and independent set-off’. Cross-claims must both be due and payable, and . .
CitedFederal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .
CitedEller v Grovecrest Investments Ltd CA 1995
The court set out the history of the development of the law relating to the availability of set-off in the case where a landlord has levied or intends to levy distress.
Held: The law had developed, and an equitable right of set off against a . .
CitedTalbot v Frere CA 1878
Sir George Jessel MR said: ‘there could not be a set-off until action brought and set-off pleaded.’ . .
CitedStein v Blake HL 18-May-1995
Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity

Updated: 18 December 2021; Ref: scu.80707

Wagstaff v Read: 20 Nov 1683

Purchaser not hurt in Chancery – Portman became bankrupt, the commissioners assign his Estate, whereof the Plaintiff made Title to some Goods, and exhibits his Bill. against the Defendant to discover the Goods, and their Value, and what and how much he paid for them, because the Plaintiff charges, they came to the Defendant’s possession after the bankrupt broke : The Defendant sets forth, for what Goods did ever come to his Hands, he bought of Portman bona fide, for a full and valuable consideration, nor did not know, nor had any Notice that at the Time of buying until the now Bill, was a bankrupt, or of any Account of his Bankruptcy, and pleads this Matter against any Discovery.

[1683] EngR 80, (1683) 2 Chan Cas 156, (1683) 22 ER 892 (C)
Commonlii
England and Wales

Equity, Insolvency

Updated: 16 December 2021; Ref: scu.401091

Stannard v Fisons Pension Trust Limited: CA 1991

Fisons had sold their fertiliser division to Norsk Hydro. Acting on advice of actuaries and thinking that the fund was in deficit, the trustees made a transfer to a new fund to provide for pensions of transferring employees in accordance with a method of calculation which placed upon the new employer the burden of carrying on employer contributions at the current rate. But at the time of the transfer the trustees were not informed that rises in the stock market meant that the fund was in surplus. If they had known, another method of calculation would have been used which would have resulted in a reduction of employer’s contributions or the possibility of augmented benefits.
Held: There should be a recalculation, because the trustees had failed to take into account a highly material factor. Trustees have a fiduciary duty to follow a correct procedure in the decision-making process. This duty lies at the heart of the Rule in Hastings-Bass, which is directed at ensuring for the protection of the beneficiaries under the trust that they are not prejudiced by any breach of such duty.
Dillon LJ: ‘I should add that I have no difficulty in reconciling the judgment in Kerr v. British Leyland (Staff)Trustees Ltd. with the decision of this court in Re Hastings-Bass [1975] Ch 25 to which we were also referred. What was material in Hastings-Bass was that in order to save estate duty the trustees wanted by way of advancement to create an immediate life interest in the funds in question. This they had effectively done. Had they appreciated that the trusts in remainder after the life interest which they also purported to appoint would be void for perpetuity, they would no doubt have appointed other, valid, trusts in remainder. But they would still have created the same life interest, and any difference in the trusts in remainder was immaterial to that.’

Staughton LJ, Dillon LJ, Ralph Gibson LJ
[1991] Pensions Law Reports 225, [1992] IRLR 27
England and Wales
Citing:
CitedRe 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 . .
AppliedKerr v British Leyland (Staff Trustees) Ltd 26-Mar-1986
In confirming that trustees did not have an uncontrolled discretion to determine whether the incapacity of a beneficiary of the trust was permanent, the Court held ‘Now this is not a case of trust where the beneficiaries are simply volunteers. The . .
Appeal fromStannard 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 by:
CitedAMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
CitedSieff 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 . .
CitedAbacus 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 . .
CitedBurrell and Sharman v Burrell, Shore, Tyrrell, etc ChD 23-Feb-2005
burrell_burrellChD05
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 . .
CitedGallaher Limited v Gallaher Pensions Limited, C Foster, D Silver ChD 21-Jan-2005
Construction of amendments to pension scheme. . .
CitedAllan v Rea Brothers Trustees Limited CA 8-Feb-2002
The claimant appealed dismissal of his claim for damages for breach of trust. The respondent had administered his pension, a ‘small self-administered scheme’. The regulations required a pensioner trustee who took on specific duties. He had been . .
CitedFutter 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 . .

Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 10 December 2021; Ref: scu.181651

Suttill v Graham: CA 1977

The husband remained in the home after the divorce and paid all mortgage instalments.
Held: An occupation rent was payable.
Stamp LJ said: ‘a beneficiary entitled to an equal share in equity of property of which he is a trustee, and which he himself occupies, is to be charged with at least an occupation rent so that if as here he seeks to charge his co-beneficiary trustee with half the outgoings he should be charged with half the occupation rent . . That will normally produce a fair result and save costs and where, as here, the husband in possession does not submit to be charged with an occupation rent, it must be wrong that he should seek to charge the wife with half the mortgage interest which he has paid while living in the property rent free and resisting a sale of the property.’
and ‘. . in Leake (formerly Bruzzi) v Bruzzi [1974] 1 WLR 1528 this court arrived at a similar conclusion by regarding the mortgage interest paid by the husband while in possession as something equivalent to rent or payment for use and occupation. That will normally produce a fair result and save costs; and where, as here, the husband in possession does not submit to be charged with an occupation rent, it must be wrong that he should seek to charge the wife with half the mortgage interest which he has paid while living in the property rent free.’
Ormrod LJ said: ‘So far as my recollection goes, it has been the normal practice in this class of case to allow the occupying spouse to take credit for repayments of capital but not of interest, because he or she has had the benefit of the use of the house. It was certainly so where the husband was in occupation, although it may not always have been the case where the wife, and particularly the children, were in occupation.’

Stamp, Ormerod LJJ
[1977] 1 WLR 819
Married Women’s Property Act 1882 17
England and Wales
Cited by:
CitedByford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
CitedRe Gorman ChD 1990
The matrimonial home was in the joint names of husband and wife. After the marriage broke down, the husband left the home, and the wife discharged all mortgage payments (both capital and interest). The husband was adjudicated bankrupt. The wife . .

Lists of cited by and citing cases may be incomplete.

Equity, Family

Updated: 10 December 2021; Ref: scu.183862

Moule v Garrett: CA 3 Feb 1872

An original tenant sought an indemnity from an assignee for a later claim by the landlord.
Held: The principles of recoupment are that where a plaintiff has been compelled by law to pay, or, being compellable by law, has paid, money which the defendant was ultimately liable to pay, so that the latter obtains the benefit of the payment by the discharge of his liability; under such circumstances the defendant is held indebted to the plaintiff in the amount.

Cockburn CJ
(1872) LR 7 Exch 101, [1872] UKLawRpExch 18
Commonlii
England and Wales
Cited by:
CitedNIRU Battery Manufacturing Company and Another v Milestone Trading Ltd and others ComC 8-May-2003
There was a contract for the sale of lead ingots. The sale was supported by letters of credit but inaccurate certificates were issued to release payment. The parties sought now to amend the contributions in the light of the Royal Brompton Hospital . .
CitedScottish and Newcastle Plc v Raguz CA 6-Mar-2007
The claimant was the original tenant under two 99 year underleases granted in 1967, and assigned them to the defendant who then himself assigned them. The eventual assignee had become insolvent. The landlord recovered the rents from the claimant who . .

Lists of cited by and citing cases may be incomplete.

Equity, Damages, Landlord and Tenant

Updated: 10 December 2021; Ref: scu.181986

Ciro Citterio Menswear plc (in Administration) and Others v Thakrar and Others: ChD 27 Feb 2002

A loan had been made by the company to a director. The money had been used to purchase property, and upon the company’s insolvency, the Administrator sought to trace the loan into the property.
Held: Unless there were special circumstances, a loan to a company director by the company was voidable only. Since it remained valid until avoided, no trusteeship arose in respect of the advance, and equitable remedies including tracing could not be used.

Anthony Mann, QC
Times 02-Apr-2002
Companies Act 1985 330 341
England and Wales

Company, Equity

Updated: 06 December 2021; Ref: scu.168113

Sainsbury’s Supermarkets Ltd v Olympia Homes Limited, Hughes etc: ChD 17 Jun 2005

The claimant sought rectification of the land register. In a development deal, an option agreement had not been registered, and the land sold on. The land was required to allow the building of a roundabout necessary for the intended store. An application had been made for registration of the option, but requisitions had not been answered. The purchaser had bought the land from chargees of the buyer, and who were aware of the possible legal interest of the claimant.
Held: ‘the main characteristics of an option are that it is an undertaking to sell property to the grantee if the latter wishes to purchase it, usually within a specified period.’ An option had been created which was not void for uncertainty, and an equitable interest had arisen in favour of the claimant. On cancellation of the application for first registration, the land reverted to the seller on trust for the buyer who then had only an equitable interest. His chargee had therefore only an equitable interst and could proceed to enforce his charge only by a court order. The order made only affected the buyer’s equitable estate, and therefore the chargee was unable to convey the legal estate. The claimant had established that it would be unjust for the rectication not to be made.

The Honourable Mr Justice Mann
[2005] EWHC 1235 (Ch)
Bailii
Law of Property Act 1925 90, Land Registration Act 1925, Land Registration Act 2002 65 Sch 4
Citing:
CitedLondon and Blenheim Estates v Ladbroke Retail Parks Ltd CA 1-Jun-1993
The land-owner sold part of his land, granting easements over the retained land, and an agreement that, if further plots were purchased, similar easements would be granted. The agreement stated that the purchaser should have the right to give notice . .
CitedPearce v Watts CA 9-Jun-1875
An agreement for the sale included the reservation: ‘[The Vendor] reserves the necessary land for making a railway through the estate to Prince Town.’ Specific performance was sought by the purchaser, and the vendor objected that it was void for . .
CitedLondon and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
CitedMidland Bank Trust Co Ltd v Green (No 1) HL 11-Dec-1980
A father had granted an option over land to his son, but it had not been registered. The father later tried to frustrate the option by conveying the land to his wife for 500 pounds. The land was worth 40,000 pounds. When the son found out about it, . .
CitedJames Hay Pension Trustees Ltd v Cooper Estates Ltd ChD 20-Jan-2005
The court ordered rectification of the land register where not to do so would give the then registered proprietor an unattractive and uncovenanted ransom position. . .
CitedHorrill v Cooper CA 1999
(Year?) The appelant had bought unregistered land knowing of restrictive covenants and paying accordingly, but the covenants had not been registered and his title was free of them. He now appealed an order for rectification of the register which had . .
CitedHorrill v Cooper QBD 1998
Restrictive covenants were registered against unregistered land, but were not revealed by a subsequent formal search with the result (as found) that as matter of technicality the purchaser took free from them. However, that purchaser knew of the . .
CitedPallant 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 . .
CitedBanner 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 . .
CitedGreasley v Cooke 1980
For a proprietary estoppel to arise the plaintiff must have incurred expenditure or otherwise have prejudiced himself or acted to his detriment. However, once it has been established that promises were made, and that there has been conduct by the . .
CitedGillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .

Cited by:
CitedGold Harp Properties Ltd v Macleod and Others CA 29-Jul-2014
The company appealed against an order re-instating to the register leases which the company said it had forfeited for non-payment of rent. After the forfeiture, the landlord had granted new leases. It appealed saying that exceptional circumstances . .

Lists of cited by and citing cases may be incomplete.

Registered Land, Contract, Equity

Updated: 05 December 2021; Ref: scu.226740

Lee-Parker v Izzett (1): ChD 1971

Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence of set-off at law to a claim for unpaid rent. Justice Goff discussed the case of Taylor v Beal: ‘I do not think this is bound up with technical rules of set off. It is an ancient common law right. I therefore declare that so far as the repairs are within the express or implied covenants of the landlord, the third and fourth defendants are entitled to recoup themselves out of future rents and defend any action for payment thereof. It does not follow however that the full amount expended by the third and fourth defendants on such repairs can properly be treated as payment of rent. It is a question of fact in every case whether and to what extent the expenditure was proper.
For the sake of avoiding misunderstanding I must add that of course the Taylor v Beal right can only be exercised when and so far as the landlord is in breach and any necessary notice must have been given to him.’

Goff J
[1971] 1 WLR 1688, [1971] 3 All ER 1099
England and Wales
Citing:
CitedBeall v Smith CA 6-Dec-1873
Lord Justice James discussed the practice in the Court of Chancery on claims brought by people without mental capacity: ‘The law of the Court of Chancery undoubtedly is that in certain cases where there is a person of unsound mind, not so found by . .

Cited by:
CitedSmith v Muscat CA 10-Jul-2003
The tenant was sued by his landlord for arrears of rent, but sought an equitable set-off for damages for disrepair accruing under the previous landlord.
Held: If the entitlement to recover arrears of rent passes from assignor to assignee, and . .
CitedAndrews and Another v Brewer and Another CA 17-Feb-1997
Tenants challenged an order for possession, saying the form of notice was defective. The date specified in the notice was clearly a clerical error. It provided that the tenancy would commence on 29 May 1993 and end on 28 May 1993, on the face of it, . .
CitedGraham v Pitkin PC 9-Mar-1992
A delay in completion was not challenged by a notice to complete; mere delay may itself be repudiatory. Specific performance was considered. As to Lee-Parker v Izzett, the Board doubted the finding that there was no contract in that case, because . .
CitedThe Mortgage Corporation Ltd v Ubah CA 21-Mar-1996
The respondent mortgagee had obtained an order for possession against the mortgagor freeholder, referred to in the judgment as ‘the Chief’, who had, prior to the mortgage, granted a tenancy to the appellant.
Held: The landlord’s retention of a . .
CitedEdlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
CitedBritish Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
See AlsoLee-Parker v Izzett (2) 1972
A contract was exchanged subject to ‘the purchaser obtaining a satisfactory mortgage’.
Held: A contract which is said to be conditional, but where the condition is not expressed clearly or is too imprecise as in this case, may be void for . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity

Updated: 05 December 2021; Ref: scu.185861

Adamson and Others v Paddico (267) Ltd: SC 5 Feb 2014

Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
Held: The appeal were solely as to the way the lapse of time may be relevant to whether or not it wa just to rectify register. The statute itself laid don no time limit for the application of the power to rectify, and the section contained no bias for or against rectification, and: ‘although the interests of the wider public are not irrelevant, the section is principally focussing on justice as between the applicant for rectification of a registration and the local inhabitants who are the beneficiaries of that registration.’
Applying tose principles, the court decided to allow one appeal and reject the oher.

Lord Neuberger, President, Lady Hale, Deputy President, Lord Sumption, Lord Toulson, Lord Hodge
[2014] UKSC 7, [2014] 1 AC 1072, [2014] 1 P and CR 24, [2014] 2 WLR 300, [2014] 2 All ER 1, [2014] JPL 745, [2014] WLR(D) 51, [2014] BLGR 249, [2014] 1 P andCR 24, UKSC 2012/0089
Bailii, WLRD, Bailii Summary, SC Summary, SC
Commons Registration Act 1965 1(2)(a), Commons Registration (New Land) Regulations, SI 1969 No 1843, Countryside and Rights of Way Act 2000 22
England and Wales
Citing:
At First InstancePaddico (267) Ltd v Kirklees Metropolitan Council and Others ChD 23-Jun-2011
The company sought the rectification of the register of village greens to remove an entry relating to its land, saying that the Council had not properly considered the need properly to identify the locality which was said to have enjoyed the rights . .
Appeal fromAdamson v Paddico (267) Ltd CA 7-Mar-2012
Appeal was made against an order that the register of town and village greens be amended by the deletion of an entry. . .
CitedRegina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
CitedRegina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
CitedOxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
CitedLewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
CitedRegina v Dairy Produce Quota Tribunal for England and Wales, Ex parte Caswell HL 17-May-1990
The House sought to reconcile section 31 of the 1981 Act, with RSC Order 53 r4 as to the time within which judicial review proceedings must be brought.
Held: Whenever there was a failure to act promptly or within three months there was ‘undue . .
CitedRegina v Newbury District Council and Newbury and District Agricultural Society ex parte Chieveley Parish Council CA 23-Jul-1998
Planning authority could not reserve matters where outline approval given under General Development Order. A three year delay between the decision, and the application for judicial review was an undue delay defeating that application. Undue delay . .
CitedRegina v Bassetlaw District Council, Ex parte Oxby CA 11-Dec-1997
Hobhouse LJ stated that ‘if it has been clearly established . . that a planning consent was improperly and invalidly granted, then it should, in principle, be declared to be void’. . .
CitedSmith v Clay 10-May-1767
Long Delay in Application Debarred Remedy
Review was sought of a decree pronounced some thirty or forty years before. The defect was apparent on the face of the record.
Held: The review was barred by the length of time elapsed.
Lord Camden LC applied the doctrine of laches, . .
CitedCorbett v Restormel Borough Council and Land and Property Limited CA 8-Aug-1997
. .
CitedCorbett v Restormel Borough Council and Another CA 2-Mar-2001
Schiemann LJ said: ‘However, as is well known, there clashes with this principle of legal certainty another principle which is also of great value – the principle of legality which requires that administrators act in accordance with the law and . .
CitedBahamas Hotel Maintenance and Allied Workers Union v Bahamas Hotel Catering and Allied Workers Union and Others PC 23-Feb-2011
Two trade union disputed the right of the other to be registered with and to use a similar name to their own. There had been considerable delays in the conduct of the judicial review proceeding.
Held: The Board upheld the trial judge’s refusal . .
CitedWright v Vanderplank 20-Jul-1855
In every case of a gift to a parent by a child, shortly after the child attains majority, the Court looks with jealousy upon the transaction, more especially when the parent has, during the minority, been guardian of the child’s property, and in . .
CitedWeld v Petre 1929
Delay simpliciter is immaterial in the case of equitable remedies. A mortgagor’s redemption suit was held not time-barred under laches despite his delay of twenty-six years. . .
CitedBurroughs v Abbott 1922
The court granted rectification of an instrument after a delay of twelve years. . .
CitedRB Policies at Lloyd’s v Butler 1949
A car insured by the plaintiffs had been stolen by an unknown person in June 1940. In January 1947 the car was found in the possession of the defendant who it seems had ‘given good consideration for it without knowledge that it was a stolen car’. It . .
CitedFisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
CitedA v Hoare HL 30-Jan-2008
Each of six claimants sought to pursue claims for damages for sexual assaults which would otherwise be time barred under the 1980 Act after six years. They sought to have the House depart from Stubbings and allow a discretion to the court to extend . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 29 November 2021; Ref: scu.521156

Roadchef (Employee Benefits Trustees) Ltd v Hill and Another: ChD 29 Jan 2014

Challenge to share transfer.

Proudman J
[2014] EWHC 109 (Ch)
Bailii
England and Wales
Cited by:
CitedEclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Equity, Company

Updated: 29 November 2021; Ref: scu.520825

Day v Shaw and Another: ChD 17 Jan 2014

Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the shareholders and directors of Avon. Mrs Shaw had no involvement in the company, and, while she may have held some shares in it, there was no evidence that it was a substantial shareholding. On the sale of their home, the liability to the bank was discharged out of the proceeds. In proceedings brought by a creditor with a judgment against Mr Shaw to enforce a charging order against the property, the issue arose whether Mrs Shaw was entitled to an equity of exoneration as against Mr Shaw’s share of the property.
At first instance, the district judge held that Mrs Shaw was entitled to be exonerated out of Mr Shaw’s share of the property and rejected the claimant’s case that, because Mr and Mrs Shaw’s financial position was tied up with the prosperity of Avon, the borrowings for Avon’s business were indirectly for their joint benefit, so precluding the equity from arising in Mrs Shaw’s favour.
Held: The sub-sureties (Mr and Mrs Shaw) were entitled to be indemnified by the sureties (Mr Shaw and Mrs Shergold) in just the same way as a surety was entitled to be indemnified by a principal debtor. Although, overall, Avon waqs the principal debtor, if one asked as between the guarantors and the mortgagors who was the principal debtor, the answer was: the guarantors.
Mr Shaw as one of the two guarantors was liable to indemnify Mrs Shaw as one of the two mortgagors in relation to the debt owed to Barclays and her right to an indemnity gave her a proprietary right in relation to Mr Shaw’s share in the property.

Morgan J
[2014] EWHC 36 (Ch)
Bailii
England and Wales
Citing:
CitedRe Cronmire, ex parte Cronmire CA 1901
At the husband’s request his wife deposited with his bankers the title deeds of her property as security for advances to be made to him. Before he became bankrupt the debt was paid off by her.
Held: The court acknowledged the entitlement of a . .
CitedHall v Hall ChD 1911
An equity of exoneration in favour of a wife arises ‘at the time she charges her estate’. The doctrine of exoneration is based on an inference in each case from all the facts of that particular case. Where one co-habitee joins in granting a charge . .
CitedGee v Liddell ChD 1913
A co-mortgagor has an ‘interest in [and] a charge upon the estate of the principal debtor’. An equity of exoneration was applied as between brothers.
An equity of exoneration operates in the nature of ‘a charge upon the estate of the principal . .
CitedRe a debtor (No 24 of 1971), ex parte Marley (J) v Trustee of the property of the debtor ChD 1976
The court will look to the realities of the relationship between the mortgagors and will not be governed by the terms of the mortgage instrument if they do not accord with the actual facts.
Held: the court accepted that an equity of . .
CitedIn Re Pittortou (a bankrupt) ChD 1985
H and W charged the property to secure the H’s overdrawn bank account. The account was used both for his business and for payment of expenses relating to the matrimonial home. H was adjudicated bankrupt. W sought her equity to be exonerated from H’s . .
CitedPaget v Paget CA 1898
The plaintiff wife was ‘a lady of fortune’, with the bulk of her property settled on her for life for her separate use without power of anticipation. They ‘moved in good society and, large as their income was, they lived far beyond it.’ They were . .
CitedRe Woodstock (a bankrupt) ChD 19-Nov-1979
Walton J drew attention in his judgment to the need for the courts, in considering how the equity of exoneration should work as between a husband and a wife, to take into account the relationship which husbands and wives bear, or ought to bear, to . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedCraythorne v Swinburne 23-Jul-1807
No contribution in favour of one Surety against another : his engagement, according to the bond, and parol evidence, which was held admissible, being, not as Co-surety, but, without the privity of the other, as a distinct collatteral secnrity, . .
CitedFox et al v Royal Bank of Canada et al 7-Oct-1975
Canlii Supreme Court of Canada – Guarantee -Surety and sub-surety – Co-sureties – Sub-surety guaranteeing liability of surety – Surety paying creditor-Right of sub-surety to indemnity from the co-sureties. . .
CitedScholefield Goodman and Sons Ltd v Zyngier PC 16-Aug-1985
(Victoria) By a mortgage executed in favour of the bank Mrs Zyngier covenanted to pay to the bank any sums which might be owed to it either by herself or by a named company, including any amounts for or in respect of any bills of exchange on which . .
CitedOfficial Trustee in Bankruptcy v Citibank Savings Ltd 1995
(New South Wales) Mr and Mrs P owned and controlled W Ltd. W Ltd borrowed monies from Citibank which took security for repayment in the form of a charge over the home of Mr and Mrs P and also a charge over the home of the parents of Mr P. On the . .

Cited by:
CitedArmstrong v Onyearu and Another CA 11-Apr-2017
Exoneration of partner’s equity on insolvency
The court considered the equity of exoneration, where property jointly owned by A and B is charged to secure the debts of B only, A is or may be entitled to a charge over B’s share of the property to the extent that B’s debts are paid out of A’s . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 29 November 2021; Ref: scu.520821

Transvaal and Delagoa Bay Investment Co Ltd v Atkinson: 1944

Money stolen from a company was paid by the thief into a bank account of his wife. All the money was expended, mostly by being returned to the husband.

[1944] 1 All ER 579
England and Wales
Cited by:
CitedLipkin 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 . .

Lists of cited by and citing cases may be incomplete.

Equity

Updated: 29 November 2021; Ref: scu.259420

Swift and Another v Dairywise Farms Limited and others: CA 1 Feb 2001

The company lent money to farmers secured against their milk quotas. They had to petition for a winding up, and the liquidators requested authority to continue the milk loan repayment schemes. The milk quotas had been vested in the farmers, and the liquidators sought directions form the court as to protection of the milk quotas, which it had been decided, was property capable of being held in trust. The milk quotas were protected by means of tenancy agreements, but an attempt was made to forfeit, or surrender, certain tenancy agreements, which would defeat the arrangement protecting the liquidators. The judge made a ‘safe haven’ order to protect the quotas. That order was appealed.
Held: Under the agreements, the company could require the re-transfer of the milk quota to farmers who completed the loan repayments. If the borrower defaulted, the quota could be sold defeating the equity of redemption. Milk quota may be an ‘asset’ for the purposes of capital gains tax; or property for the purposes of the law of trusts. The safe haven order was properly made.

Lord Justice Chadwick, Lady Justice Hale And Sir Martin Nourse
[2001] EWCA Civ 145
Bailii
Insolvency Act 1986 112, Council Regulations (EEC) 856/84 and 857/84, Dairy Produce Quotas Regulations 1997
England and Wales
Citing:
CitedHarries v Barclays Bank Plc CA 16-Jul-1997
Milk quotas. . .
CitedWachauf v Bundesamt Fur Ernahrung und Forstwirtschaft ECJ 13-Jul-1989
ECJ 1. The term ‘holding’ in Article 12(d) of Council Regulation No 857/84 relating to the application of the additional levy on milk covers all the agricultural production units which are the subject of a lease, . .
CitedDeverges v Sandeman Clark and Co 1-Mar-1902
It is an incident of a mortgage of chattels and choses in action that the mortgagee has a power of sale exercisable if the defendant fails to pay the monies due on the day fixed for payment or where no day is fixed after a proper demand and notice . .

Cited by:
CitedUltraframe (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 . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Agriculture, Equity

Updated: 28 November 2021; Ref: scu.147419

Deverges v Sandeman Clark and Co: 1 Mar 1902

It is an incident of a mortgage of chattels and choses in action that the mortgagee has a power of sale exercisable if the defendant fails to pay the monies due on the day fixed for payment or where no day is fixed after a proper demand and notice has been given and a reasonable time has elapsed. However: ‘Now the defendants, being mortgagees, have in equity, notwithstanding their title to the shares, no estate sufficient to enable them to sell, and thus exclude the mortgagor from his equitable right to redeem unless there is either an express or an implied power of sale in the mortgage.’ There are circumstances in which a power of sale will be implied at common law into a mortgage. A pledgee also has an implied right of sale at common law upon the default of the pledgor.

Lord Justice Vaughan Williams, Lord Justice Stirling and Lord Justice Cozens-Hardy
[1902] 1 Ch 579
England and Wales
Cited by:
CitedSwift and Another v Dairywise Farms Limited and others CA 1-Feb-2001
The company lent money to farmers secured against their milk quotas. They had to petition for a winding up, and the liquidators requested authority to continue the milk loan repayment schemes. The milk quotas had been vested in the farmers, and the . .

Lists of cited by and citing cases may be incomplete.

Equity

Updated: 28 November 2021; Ref: scu.182800

Steedman v William R Drinkle and Another: PC 21 Dec 1915

(Saskatchewan) Land in Canada was purchased under an agreement, where the price was to be paid by one initial payment and annual instalments. If the purchaser was to default on any payment, the vendor was free to cancel the agreement and to retain, as liquidated damages, the payments already made. It was also provided that time was to be considered as of the essence of the contract. The first deferred payment was not made on the due date. The vendor gave notice cancelling the agreement. Three weeks after the due date the purchaser tendered the amount due, which was refused. He thereupon brought an action claiming specific performance and relief from forfeiture of the amount already paid.
Held: The Board upheld the decision of the Canadian Court, that the stipulation as to the retention of the sums already paid was a penalty. But the Board declined to grant specific performance.
Viscount Haldane said:
‘Courts of Equity, which look at the substance as distinguished from the letter of agreements, no doubt exercise an extensive jurisdiction which enables them to decree specific performance where justice requires it, even though literal terms as to stipulation as to time have not been observed. But they never exercise this jurisdiction where the parties have expressly intimated in their agreement that it is not to apply by providing that time is to be of the essence of the bargain’.
And ‘As to the relief from forfeiture, their Lordships think that the Supreme Court was right in holding, for the reasons assigned in the former decision of this Board, that the stipulation in question was one for a penalty, against which relief should be given on proper terms. But as regards specific performance they are of opinion that the Supreme Court was wrong in reversing the judgment of Newlands J. Courts of Equity, which look at the substance as distinguished from the letter of agreements, no doubt exercise an extensive jurisdiction which enables them to decree specific performance in cases where justice requires it, even though literal terms of stipulations as to time have not been observed. But they never exercise this jurisdiction where the parties have expressly intimated in their agreement that it is not to apply by providing that time is to be of the essence of their bargain. If, indeed, the parties, having originally so provided, have expressly or by implication waived the provision made, the jurisdiction will again attach.’

Viscount Haldane
[1915] UKPC 71, [1916] AC 275
Bailii
Canada

Commonwealth, Land, Equity

Updated: 22 November 2021; Ref: scu.423780

B4U Network (Europe) Ltd v Performing Right Society Ltd: CA 16 Oct 2013

Composers had entered an agreement with the respondent, assigning all copyrights in their works to the respondent. The respondent asserted also an equitable assignment of all future works. The appellant asserted that the rights in the particular work had not been assigned, having being written for them.
Held: The appeal failed. The relative clause in 2 (a), describing the rights assigned to PRS, is designed to include a category of future rights, namely, those which the composer may own. The category of future rights assigned does not contain any requirement that, once the work is created, the rights must be owned by the composer. It does no more than refer to rights capable of being owned by the composer.
‘It is, in my view, inconsistent with the concept of a higher right created by an equitable assignment, independent of the contract, to suggest that a reasonable person would have understood the parties to have intended only to transfer rights in works of which they became owner once the works had been composed. To do so would turn the priority rules in relation to equitable assignments topsy-turvy; it permits the property rights created by the equitable assignment to be undermined by a subsequent equitable assignment.’

Moses, Kitchin, Underhill LJJ
[2013] EWCA Civ 1236, [2014] FSR 17, [2014] BUS LR 207, [2013] WLR(D) 385, [2014] ECC 3
Bailii, WLRD
Copyright, Designs and Patents Act 1988 91(1)
England and Wales
Citing:
CitedPerforming Right Society Limited v London Theatre of Varieties Limited HL 1924
The parties, the plaintiff who was the equitable assignee of performing rights and the infringing defendant, joined specific issue on the absence of the legal owner of the rights.
Held: His absence was critical. PRS failed to obtain a . .
CitedChaplin v Leslie Frewin (Publishers) Ltd 1966
It had been agreed that the defendant publishers should during the legal term of the copyright have the exclusive right of producing, publishing and selling a work in volume form in any language throughout the world. The author warranted that he was . .
CitedIn re Lind; Industrials Finance Syndicate Ltd v Lind CA 1915
The court considered the nature of an equitable assignment of a copyright. Phillimore LJ opined said: ‘The assignment does, however, operate as a contract to assign if and when the property comes into existence, and to use the words of [Jessel . .
CitedPeer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
CitedRainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Appeal fromPerforming Right Society Ltd v B4U Network (Europe) Ltd ChD 22-Oct-2012
. .

Lists of cited by and citing cases may be incomplete.

Contract, Intellectual Property, Equity

Updated: 21 November 2021; Ref: scu.516497

In re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose: ChD 1949

The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
Held: Equity will not compel an imperfect gift to be completed. Nevertheless, the testator had done everything in his power to divest himself of the shares in question to Mr Hook. He had executed a transfer. It was not suggested that the transfer was not in accordance with the company’s regulations. He had handed that transfer together with the certificates to Mr Hook. There was nothing else the testator could do. Mr Hook’s legal title would not be perfected until the directors passed the transfer for registration, but that was not an act which the testator had to do, it was an act which depended on the discretion of the directors. The gift was effective

Jenkins J
[1949] Ch 78
England and Wales
Cited by:
CitedPennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
ApprovedIn re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
CitedMascall v Mascall CA 13-Jun-1984
The question was whether a gift of land was completely constituted by delivery of the land certificate
Held: Equity will not come to the aid of a volunteer. Therefore, if a donee needs to get an order from a court of equity in order to . .
CitedPennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
CitedBurnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Appeal fromIn re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
MentionedZeital and Another v Kaye and Others CA 5-Mar-2010
The deceased had held an apartment through beneficial interests in shares in a limited company. He died intestate. The parties disputed the ownership of the two shares. The company had been put into a members’ liquidation, and the company liquidator . .

Lists of cited by and citing cases may be incomplete.

Company, Wills and Probate, Equity

Updated: 17 November 2021; Ref: scu.183412

Lily Property Nominees Ltd and Another v Stonebridge and Others: ChD 31 Jul 2020

This is an unfair prejudice petition under section 994 of the Companies Act 2006 concerning a dispute between homeowners and residents of a private estate in South London. Each holds a share in the company which manages the common parts of the estate. The Petitioners claim that the company’s affairs have been managed in bad faith, resulting in their interests in the company being unfairly prejudiced.

Insolvency and Companies Court Judge Burton
[2020] EWHC 2113 (Ch)
Bailii
England and Wales

Company, Equity

Updated: 17 November 2021; Ref: scu.653372

Prime Sight Ltd v Lavarello: PC 9 Jul 2013

(Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.
Held: The company’s appeal succeeded. Parties are free to contract on their own terms and the court’s role was to enforce them. There is nothing contrary to public policy in parties agreeing that certain facts were to be treated as established for the purposes of their transaction, although they knew the facts to be otherwise.
The doctrine of estoppel by deed overlaps with the doctrines of estoppel by representation and estoppel by convention. The basis of estoppel by representation is that the representor induced the representee to enter into the relevant transaction on the faith of a statement in circumstances which would make it unfair that the representor should go back on the statement. The basis of estoppel by convention is that the parties expressly or impliedly agreed that a certain state of facts or law was to be treated as true for the purposes of the transaction, and that it would be unfair for one or other to resile from the basis on which the transaction had proceeded. The w’aiver’ analysis did not fit naturally with the language of the deed of assignment and the Board considers that the Court of Appeal was justified in rejecting the company’s argument that there was some form of collateral waiver.

Lord Neuberger of Abbotsbury PSC, Lord Wilson, Lord Reed, Lord Carnwath, Lord Toulson JJSC
[2013] WLR (D) 514, [2013] UKPC 22, [2014] 2 WLR 84, [2013] 4 All ER 659, [2014] 1 AC 436
Bailii, WLRD
Commonwealth
Citing:
CitedBrooke v Haynes CA 1868
Lord Romilly MR said: ‘A party to a deed is not estopped in equity from averring against or offering evidence to controvert a recital therein contrary to the fact, which has been introduced into the deed by mistake of fact, and not through fraud or . .
CitedGreer v Kettle HL 1938
A corporate borrower agreed to repay andpound;250,000 with interest and to charge certain specified shares in another company as security. A guarantee was procured from another company, Parent Trust. The deed of guarantee recited that the lender had . .
CitedGrundt v Great Boulder Proprietary Gold Mines Limited 8-Oct-1937
(High Court of Australia) Parties to a transaction may choose to enter into it on the basis that certain facts are to be treated as correct as between themselves for the purpose of the transaction, although both know that they are contrary to the . .
CitedCarpenter v Buller 28-Apr-1841
The defence to an action of trespass was that the defendant was seised of the land in question. He produced a deed, made between himself, the plaintiff and a third party, in which this was stated to be the case
Held: The plaintiff was not . .
CitedStroughill v Buck 13-Feb-1850
Patteson J said: ‘When a recital is intended to be a statement which all parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But, when it is intended to be the statement of one party only, the estoppel is confined . .
CitedHorton v The Westminster Improvement Commissioners 2-Jun-1852
The plaintiff was assignee of the defendants’ bond to A to pay andpound;10,000. It recited that the defendants had borrowed andpound;5,000 from A for the purposes of carrying out works under the Westminster Improvement Acts 1845 and 1847. The . .
CitedM’Cance v The London And North Western Railway Company 20-Jun-1864
The plaintff contracted with the defendant for the transport of horses, understating their value. On their loss, the plaintiff sought their full value. The defendant had succeeded in limiting the award to the value stated.
Held: Williams J . .
CitedCentral Newbury Car Auctions Limited v Unity Finance Limited CA 1957
The defendant finance company alleged that the plaintiff car dealer, by its conduct, was estopped from denying the authority of their (rogue) customer to sell the car at issue, because they had permitted the customer, unkown to them, to take . .
CitedFerrier v Stewart 24-Jun-1912
High Court of Australia – The plaintiffs were the surviving members of a firm, owed money by the defendant’s husband confirmed promissory notes. The firm extend his credit against new promissory notes, provided that they were indorsed by the . .

Cited by:
CitedRichards v Wood CA 27-Feb-2014
The defendants had purchased their council house with financial asistance from their son, the claimant. He now asserted that a trust existed in the property in his favour.
Held: ‘unless there is a secure tenancy the statutory right to buy . .

Lists of cited by and citing cases may be incomplete.

Estoppel, Equity

Updated: 17 November 2021; Ref: scu.513390

Benedetti v Sawiris and Others: SC 17 Jul 2013

The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a quantum meruit where there is no valid and subsisting contract between the parties, is to ask whether the defendant has been unjustly enriched and, if so, to what extent. In a contractual claim however, the focus would in principle be on the intentions of the parties. The Court emphasised the objective nature of a quantum meruit assessment in a claim based on restitution, but were careful to treat as calling for separate consideration the related and perhaps mis-named quantum meruit process, where engaged for the purpose of working out the amount payable under a contract with no expressly agreed price or price formula.
Lord Clarke of Stone-cum-Ebony said: ‘It is common ground that the correct approach to the amount to be paid by way of a quantum meruit where there is no valid and subsisting contract between the parties is to ask whether the defendant has been unjustly enriched and, if so, to what extent. The position is different if there is a contract between the parties. Thus, if A consults, say, a private doctor or a lawyer for advice there will ordinarily be a contract between them. Often the amount of his or her remuneration is not spelled out. In those circumstances, assuming there is a contract at all, the law will normally imply a term into the agreement that the remuneration will be reasonable in all the circumstances. A claim for such remuneration has sometimes been referred to as a claim for a quantum meruit. In such a case, while it is no doubt relevant to have regard to the benefit to the defendant, the focus is not on the benefit to the defendant in the way in which it is where there is no such contract. In the contractual claim the focus would in principle be on the intentions of the parties (objectively ascertained).’

Lord Neuberger P, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed
149 Con LR 1, [2013] 2 All ER (Comm) 801, [2013] 4 All ER 253, [2013] WLR(D) 286, [2013] UKSC 50, [2013] 3 WLR 351, UKSC 2011/0087
Bailii, WLRD, Bailii Summary, SC summary, SC
England and Wales
Citing:
At first instanceBenedetti and Another v Sawiris and Others ChD 15-Jun-2009
The claimant sought payment for his services to the defendants for his work in facilitating a substantial buy out of an Italian energy company.
Held: The claim succeeded on a quantum meruit basis to the extent of 75m euros but not otherwise. . .
First instance consequential judgmentBenedetti and Another v Sawiris and Others ChD 21-Jul-2009
Orders consequential on the main judgement to apportion liability as between the various defendants. . .
Appeal fromBenedetti v Sawiris and Others CA 16-Dec-2010
The claimant had claimed a reward for his role in securing a very substantial business deal for the defendants. The judge had rejected claims in contract but had awarded a sum of 67m Euros on a quantum meruit basis. He appealed saying that the award . .
CitedPallant 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 . .
CitedBanque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
CitedInvestment Trust Companies v HM Revenue and Customs ChD 2-Mar-2012
The claimant had properly accounted for VAT on its transactions for many years, but a decision of the European court had latterly ruled that the services were exempt. The claimant sought restitution from HMRC, who responded by arguing that . .
CitedBP Exploration Co (Libya) Ltd v Hunt (No 2) 1979
The contract between the parties relating to an oil concession in Libya had been frustrated by the nationalisation of the field.
Held: The court considered the setting of damages where the plaintiff had delayed in notifying the defendant of . .
CitedBoake Allen Ltd and others v HM Revenue and Customs CA 31-Jan-2006
The claimant companies had paid corporation tax under rules which had later been found to be discriminatory. They now sought repayment by virtue of double taxation agreements with the countries in which the parent companies were based.
Held: . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
CitedR McDonald v Coys of Kensington Ltd CA 5-Feb-2004
The claimants were car auctioneers. They had been instructed to sell a car, but to withhold the cherished number plate. By mistake it was transferred with the car. Before the plate could be returned, the defendant had transferred it to his partner. . .
CitedSempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .

Cited by:
CitedLittlewoods Retail Ltd and Others v HM Revenue and Customs (No 2) ChD 28-Mar-2014
The claimants had recovered very substantial overpayments made of VAT. They sought recovery of compound interest. The ECJ, on reference, said that this was a matter for national law.
Held: The claim succeeded. The sections of the 1994 Act were . .
CitedHarrison v Madejski and Another CA 28-Mar-2014
. .
CitedTallington Lakes Ltd and Others v Larking Gowen CA 9-Jul-2014
The defendant appealed rejection of its defence that a contract with the claimant, its accountant, was on a fixed fee contract. . .
CitedBank 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 . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Equity

Updated: 15 November 2021; Ref: scu.512424

Menelaou v Bank of Cyprus Plc: ChD 19 Jul 2012

On the sale of the claimant’s property, the solicitors received agreement by the defendant bank to the release of their charge over the property for a certainsum, being less than the loan outstanding. In the course of discharging the loan, a bank employee ineffectively simply changed the name on the charge. They made further a loan, but the secuity was ineffective. The bank claimed in just enrichment.
Held: As regards the totality of the purchase price of Great Oak Court, it was not discharged by the use of monies belonging to the Bank. This both eliminates the claim that Great Oak Court is pro tanto held on trust for the Bank and destroys the traditional route to subrogation to an unpaid vendor’s lien.

David Donaldson QC
[2012] EWHC 1991 (Ch)
Bailii
England and Wales
Citing:
CitedBanque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
CitedBuhr v Barclays Bank plc CA 26-Jan-2001
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 . .

Cited by:
Appeal fromMenelaou v Bank of Cyprus UK Ltd CA 19-Jun-2013
The Court was asked questions about the law of unjust enrichment, and one of the remedies which may be granted to reverse the effect of unjust enrichment, namely subrogation to an unpaid vendor’s lien. The bank had released its charges over property . .
At ChDMenelaou v Bank of Cyprus UK Ltd CA 4-Jul-2013
The court set out answers to consequential questions raised by their judgment, and the form of declaration required. . .
At First InstanceBank 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 . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 15 November 2021; Ref: scu.512281

Performing Right Society Ltd v B4U Network (Europe) Ltd: ChD 22 Oct 2012

Vos J
[2012] EWHC 3010 (Ch), [2013] FSR 19, [2013] Bus LR 664
Bailii
England and Wales
Cited by:
Appeal fromB4U Network (Europe) Ltd v Performing Right Society Ltd CA 16-Oct-2013
Composers had entered an agreement with the respondent, assigning all copyrights in their works to the respondent. The respondent asserted also an equitable assignment of all future works. The appellant asserted that the rights in the particular . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract, Equity

Updated: 14 November 2021; Ref: scu.510811

Hall v Hall: ChD 1911

An equity of exoneration in favour of a wife arises ‘at the time she charges her estate’. The doctrine of exoneration is based on an inference in each case from all the facts of that particular case. Where one co-habitee joins in granting a charge over the jointly-owned property to secure a loan to the other co-habitee, there is a presumption that the former is entitled to exoneration. Tthis is an evidential presumption, capable of rebuttal by evidence from which an actual or inferred contrary intention can be drawn. It is ‘a prima facie inference’. In my view, it is no different from the position of any surety. The evidence may show an actual or inferred intention on the part of the surety and principal debtor that the surety would have no, or only limited, rights against the principal debtor. But, in the absence of such evidence, there is a presumption that the parties would intend the natural result that, as between them, the principal debtor was to bear responsibility for the debt.
Commenting on Paget, Warrington J said that the MR: ‘intended the two parts of his judgment to stand together – that if the facts are those which he stated in the early part of his judgment there is a prima facie inference to be drawn from those facts, but not a legal presumption in the strict sense, in favour of the wife, and, unlike the case of a legal presumption, you are entitled to go into all the facts of the case to see whether there is or is not that prima facie inference.’:

Warrington J
[1911] 1 Ch 487
England and Wales
Citing:
DiscussedPaget v Paget CA 1898
The plaintiff wife was ‘a lady of fortune’, with the bulk of her property settled on her for life for her separate use without power of anticipation. They ‘moved in good society and, large as their income was, they lived far beyond it.’ They were . .

Cited by:
CitedIn Re Pittortou (a bankrupt) ChD 1985
H and W charged the property to secure the H’s overdrawn bank account. The account was used both for his business and for payment of expenses relating to the matrimonial home. H was adjudicated bankrupt. W sought her equity to be exonerated from H’s . .
CitedDay v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .
CitedRe Woodstock (a bankrupt) ChD 19-Nov-1979
Walton J drew attention in his judgment to the need for the courts, in considering how the equity of exoneration should work as between a husband and a wife, to take into account the relationship which husbands and wives bear, or ought to bear, to . .
ApprovedArmstrong v Onyearu and Another CA 11-Apr-2017
Exoneration of partner’s equity on insolvency
The court considered the equity of exoneration, where property jointly owned by A and B is charged to secure the debts of B only, A is or may be entitled to a charge over B’s share of the property to the extent that B’s debts are paid out of A’s . .

Lists of cited by and citing cases may be incomplete.

Equity

Updated: 12 November 2021; Ref: scu.567248

Barton v Morris: 1985

A couple lived together as man and wife and bought a property for use as a guest house business to be run as a partnership. The conveyance executed by both of them included an express declaration that they held the property upon trust for themselves as beneficial joint tenants. It was bought for andpound;40,000, of which the man contributed andpound;900. There was no written partnership agreement, but profits and losses were shared equally. The woman kept the partnership’s books and accounts. Her draft accounts showed the property as an asset of the partnership. Rates were shown as a partnership outgoing, as was interest on a temporary bank loan. The woman died intestate and there was a dispute between the estates. The man said that he took the property as the survivor of a joint tenancy. The woman’s mother, as administratix, said that the joint tenancy had been severed or alternatively that the proper inference was that the property should be treated as a partnership asset.
Held: The man succeeded: ‘For the plaintiff, Mr Jennings advanced the case in favour of severance in two ways. He accepted that the onus of severance lay on the plaintiff, but he pointed out that equity leans in favour of tenancies in common. He observed, and I accept, that, in a case such as this, the evidence of the defendant must be viewed with caution . . In short, the third of these three modes of severance is by any course of dealing sufficient to intimate that the interests of the joint tenants were mutually treated as constituting a tenancy in common . .
Mr Jennings’ alternative formulation was closely related. It was that from the matters I have just mentioned the inference to be drawn is that the parties agreed that the property should be treated as a partnership asset. So treating the property gives rise to the presumption of severance mentioned in Lindley on Partnership, 15th ed. (1984), p. 77: ‘where jointly owned property is brought into partnership, and thereafter constitutes a partnership asset, a severance will be presumed, since the right of survivorship has no place in a partnership.’
I shall consider the two claims in that order.
To my mind the evidence established clearly that when the express declaration of joint tenancy in the conveyance was executed by the parties in mid-August 1979 they both knew what the effect of that joint tenancy would be, and they both intended that the property should automatically accrue to the survivor on the death of the first to die. I accept the evidence of Miss Malthouse, the solicitor who acted for the parties on their purchase, concerning what passed between her and Miss Barton and the defendant on this topic prior to completion . . . Again, it is plain from the evidence that from the outset the parties hoped and intended that the farmhouse would be used by them as a guest house, and indeed, they took over one booking from their vendor. They planned to carry on such a business there together, with the house also being their home . . .

Further, I think it is clear that when the draft accounts were discussed with Mr Howells [their accountant] in January 1981 nothing was said to suggest that the inclusion of the property in the partnership accounts would alter or was intended to alter in any way the existing arrangements agreed between the parties regarding the property when it was acquired in 1979.
In those circumstances . . . I do not accept that . . . Miss Barton’s inclusion of the property in the draft accounts as I have mentioned, and the defendant’s awareness of this, showed an intention on her part, let alone the defendant’s part, that henceforth the property was to be held as tenants in common . . . That would have represented a fundamental change in the parties’ intention from what was expressed when the property was bought . . . Nor . . . am I able to accept the plaintiff’s alternative formulation. With the parties’ intention being as I have mentioned, I can see no justification for treating that intention as defeated by such evidence as there is of an intention that the property should be a partnership asset. There may well be some inconsistency between those two intentions, but I am unable to regard the evidence that the property should be an asset of their joint venture as evidence of an intention superseding or affecting the intention that the survivor should by right of survivorship take the property. In truth so far as Miss Barton and the defendant were concerned, the partnership and the accounting records kept of the partnership business were formalities necessary because of tax considerations: receipts and expenditure were recorded and profits and losses were arrived at and formally split between them. But really, as Miss Barton said to her solicitor, Miss Malthouse, on one occasion, they did not have a business relationship.
In my judgment, therefore, on the evidence before me, it is not established that at any time before Miss Barton’s death Miss Barton or the defendant, or either of them, intended to treat the property as no longer held by them as beneficial joint tenants.’ Equity leans in favour of tenancies in common.

Nicholls J
[1985] 1 WLR 1257
England and Wales
Citing:
CitedBurgess v Rawnsley CA 15-Apr-1975
. .
CitedWilliams v Hensman 10-Jun-1861
A fund of money was bequeathed on trust to be invested so as to generate an income payable to A ‘the principal to go to her children at her death’.
Held: The will created a joint tenancy. The court set out three ways in which a joint tenancy . .

Cited by:
CitedBathurst (As Administrator of the Estate of Michael David Bathurst Deceased) v Scarborow CA 1-Apr-2004
The deceased and defendant had been partners and friends. They had bought a property expressly for the partnership and was conveyed into their names as joint tenants.
Held: The declaration in the partnership was not itself sufficient cogent . .
CitedBathurst (As Administrator of the Estate of Michael David Bathurst Deceased) v Scarborow CA 1-Apr-2004
The deceased and defendant had been partners and friends. They had bought a property expressly for the partnership and was conveyed into their names as joint tenants.
Held: The declaration in the partnership was not itself sufficient cogent . .

Lists of cited by and citing cases may be incomplete.

Equity, Company

Updated: 12 November 2021; Ref: scu.238853

Amalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd: CA 1982

The court explained the nature of an estoppel by convention.
Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.’ and ‘If parties to a contract, by their course of dealing, put a particular interpretation on the terms of it – on the faith of which each of them — to the knowledge of the other — acts and conducts their mutual affairs — they are bound by that interpretation just as much as if they had written it down as being a variation of the contract. There is no need to inquire whether their particular interpretation is correct or not — or whether they were mistaken or not — or whether they had in mind the original terms or not. Suffice it that they have, by their course of dealing, put their own interpretation on their contract, and cannot be allowed to go back on it.’

Lord Denning MR, Brandon LJ
[1982] QB 84, [1981] 1 All ER 923, [1981] 2 WLR 554, [1982] 1 Lloyds Rep 27
England and Wales
Cited by:
CitedParry v Edwards Geldard (A Firm) ChD 1-May-2001
The court had to decide the measure of damages. The claimant had lost the opportunity to acquire without charge a milk quota. The claimant asserted an estoppel by convention. This failed. Also the judge had not properly allowed for the marriage . .
CitedWilson v Truelove ChD 25-Mar-2003
The claimants requested a declaration that an option to repurchase land was void under the 1964 Act.
Held: The option to repurchase land was prima facie void. The right arose on the coming into existence of the agreement, or at the latest on . .
CitedValentine v Allen and others CA 4-Jul-2003
There was a claim in trespass arising from mistakes arising on the setting up of a small residential development. An easement necessary to the enjoyment of the plots sold off, was required over land no longer owned by the grantor at the time of the . .
CitedDun and Bradstreet Software Services (England) Ltd; Dun and Bradstreet Software Services Ltd v Provident Mutual Life Assurance Association and General Accident Linked Life Assurance CA 9-Jun-1997
Break clauses had been exercised on behalf of the plaintiffs. The defendant landlords appealed a decision upholding the notices. A penalty rent had been sought.
Held: There had been no sufficient agency established to validate the notice. The . .
CitedGodden v Merthyr Tydfil Housing Association CA 15-Jan-1997
The Plaintiff was a building contractor; the Defendant a housing association engaged in developing suitable sites for residential accommodation for letting to tenants. Before the contract the parties had successfully completed what was been called . .
CitedWayling v Jones CA 2-Aug-1993
The plaintiff and defendant were in a homosexual relationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .
CitedStrover and Another v Strover and Another ChD 10-May-2005
Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership . .
CitedNorwegian American Cruises A/S (formerly Norwegian American Lines A/S) v Paul Munday Ltd (The ‘Vistafjord’) 1988
A party may be precluded by an estoppel by convention from raising a contention contrary to a common assumption of fact or law (which could include the validity of a notice) upon which they have acted. . .
CitedStancliffe Stone Company Ltd v Peak District National Park Authority QBD 22-Jun-2004
The claimants sought a declaration. Planning permission had been confirmed for four mineral extraction sites by letter in 1952. In 1996, two were listed as now being dormant. The claimant said the letter of 1952 created on single planning permision . .
CitedTrustee Solutions Ltd and others v Dubery and Another ChD 21-Jun-2006
The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and . .
CitedJohnson 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 . .
CitedScottish and Newcastle Plc v Lancashire Mortgage Corporation Ltd CA 5-Jul-2007
The parties each had a charge over a property, and now disputed which had priority. The brewery appealed an order for rectification of the registers to reverse priority on the basis of an estoppel. The charge in their favour had been registered . .
CitedCity Connect Management Ltd v Telia International Carrier UK and Another TCC 30-Jul-2004
The parties sought the expenses incurred in negotiating a development contract which failed before the documents were signed. . .
CitedAJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .

Lists of cited by and citing cases may be incomplete.

Equity, Estoppel, Land, Estoppel

Leading Case

Updated: 11 November 2021; Ref: scu.180371

Ebrahimi v Westbourne Galleries Ltd and Others (on Appeal from In Re Westbourne Galleries Ltd): HL 3 May 1972

Unfair Prejudice to Minority Shareholder

A company had operated effectively as a partnership between two and then three directors. No dividends had been paid, but the directors had received salaries. One director was removed and sought an order for the other to purchase his shares, or alternatively for the company to be wound up on the just and equitable ground. The company had promised to begin to pay dividends. The appellant sought an order for the winding up of the company.
Held: In the case of a small company the rights and obligations of a company went beyond bare company law requirements. The applicant had been excluded from being involved in the management of the company against his reasonable expectations. Since he was unable effectively to dispose of his interest, the company should be wound up. The term ‘quasi-partnership’ is dangerously misleading. Equitable considerations can come to be applied where the association has personal characteristics and rests on a relationship of trust and confidence, and all members are expected to take an active part and share transfers are restricted.
Lord Wilberforce said: ‘A limited company is more than a mere legal entity, with a personality in law of its own: that there is room in company law for recognition of the fact that behind it, or amongst it, there are individuals, with rights, expectations and obligations inter se which are not necessarily submerged in the company structure. That structure is defined by the Companies Act and by the articles of association by which shareholders agree to be bound. In most companies and in most contexts, this definition is sufficient and exhaustive, equally so whether the company is large or small. The ‘just and equitable’ provision does not, as the respondents suggest, entitle one party to disregard the obligation he assumes by entering a company, nor the court to dispense him from it. It does, as equity always does, enable the court to subject the exercise of legal rights to equitable considerations; considerations, that is, of a personal character arising between one individual and another, which may make it unjust, or inequitable, to insist on legal rights, or to exercise them in a particular way.’

Lord Wilberforce, Viscount Dilhorne, Lord Pearson, Lord Cross of Chelsea and Lord Salmon
[1975] 235 EG 901, [1973] AC 360, [1972] 2 All ER 492, [1972] 2 WLR 1289
lip
Companies Act 1948 220 222(f)
England and Wales
Citing:
ApprovedIn re Wondoflex Textiles Pty Ltd 1951
The court contrasted the literal meaning of the company’s articles with the true intentions of the parties: ‘It is also true, I think, that, generally speaking, a petition for winding up, based upon the partnership analogy, cannot succeed if what is . .
ApprovedIn re Straw Products Pty Ltd 1942
The court considered the requirement on a partner to retire under a ‘just and reasonable’ provision: ‘All that Hinds has done in the past in exercise of his control has been within his legal powers. The question is whether he has used those powers . .
ApprovedLoch v John Blackwood Ltd PC 1924
The section gave five grounds upon which a company may be wound up and a ‘just and equitable’ ground.
Held: the latter was not to be construed restrictively by ejusdem generis with the other grounds. A company could be wound up if a . .
ApprovedIn re Yenidje Tobacco Co Ltd CA 1916
A company had been set up by two tobacco manufacturers, Mr Rothman and Mr Weinberg. The relationship between them had broken down to the extent that the two shareholders were not on speaking terms and that no business which deserved the name of . .
ApprovedSymington v Symington’s Quarries Ltd IHCS 1905
. .
AppliedBlisset v Daniel 1853
The court considered the limits on a power of expulsion from a partnership.
Held: (Page-Wood V-C) Construing the articles, two-thirds of the partners could expel a partner by serving a notice upon him without holding any meeting or giving any . .

Cited by:
CitedO’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992) HL 20-May-1999
The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the . .
CitedCVC/Opportunity Equity Partners Limited and Opportunity Invest II Limited v Luis Roberto Demarco Almeida PC 21-Mar-2002
(Cayman Islands) The respondent was a minority shareholder. An offer was made to buy out his interest. He petitioned for the winding up of the company on the just and equitable ground. The claimants obtained an injunction to prevent him doing so, . .
CitedBermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
CitedIn the Matter of Pectel Limited; O’Neill; O’Neill v Phillips; Phillips and Pectel Limited CA 1-May-1997
The petitioners sought either the purchase of their shares, or the winding up of the company alleging unfair prejudice in the management of the company. The defendants argued that what was complained of did not fall within section 459 since it was . .

Lists of cited by and citing cases may be incomplete.

Equity, Company

Leading Case

Updated: 11 November 2021; Ref: scu.174274

Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd): CA 4 Mar 1995

The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to mislead the plaintiff into making the relevant mistake, the plaintiff had in fact made it, and this was sufficiently unconscionable conduct on the part of the defendant to render it liable to rectification. The deliberate attempt to hide the other’s mistake made the contract unenforceable. An offer and acceptance of a land contract may not be by letter. Rectification may in certain circumstances be ordered, where there has been no common mistake, but one party has proceeded on a base which the other knew to be mistaken. Where A intends B to be mistaken as to the construction of a contract and diverts B’s attention from discovering the mistake by making false and misleading statements and B makes the mistake which A intends, then suspicion and not actual knowledge of the mistake is enough for rectification to be granted.
Stuart-Smith LJ said: ‘[W]here a false representation is made for the purpose of inducing the other party to adopt a certain course of conduct and the representation is such as to influence a person behaving reasonably to adopt that course of conduct, the court should infer, in the absence of evidence to the contrary, that the representation did have that effect.’ and
‘In the case of unilateral mistake, that is to say where only one party is mistaken as to the meaning of the contract, rectification is not ordinarily appropriate. This follows from the ordinary rule that it is the objective intention of the parties which determines the construction of the contract and not the subjective intention of one of them. Also, it would generally be inequitable to compel the other party to execute a contract, which he had no intention of making, simply to accord with the mistaken interpretation of the other party: see Olympia Sauna Shipping Co SA v Shinwa Kaiun Kaisha Ltd [1985] 2 Lloyds Rep. 364, 371 per Bingham J. But the court will intervene if there are ‘additional circumstances that render unconscionable reliance on the document by the party who has intended that it should have effect according to its terms:’ Spry, Equitable Remedies, 4th ed. (1990), p.599. The debate in this case turns on what amounts to unconscionable conduct.’

Stuart-Smith LJ, Evans LJ, Farquharson LJ
Times 04-Mar-1995, Independent 15-Mar-1995, [1995] 2 All ER 929, [1995] Ch 259, [1995] 26 EG 129
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited by:
CitedWell Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
CitedGeorge Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedColes and Others v William Hill Organisation Ltd ChD 18-Mar-1998
When agreeing an extension of an existing lease, the new lease by mistake included a break clause which had been intended by neither party. The tenant’s solicitors noticed the error in their client’s favour but did not mention it. The landlord only . .
CitedNorth Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
CitedDaventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.79287

Harries and Others v Church Commissioners for England and Another: ChD 25 Oct 1991

Trustees Investing using Wider Considerations

The applicant sought a declaration that the Commissioners were obliged to have regard to the object of promoting the Christian faith and not to act in a manner which would be incompatible with that object when managing the assets of which they were trustees. The plaintiffs said that the commissioners, in making investment decisions, attached overriding importance to financial considerations, and that they were only prepared to take non-financial considerations into account to the extent that they did not significantly jeopardise or interfere with accepted investment principles.
Held: The declarations sought were refused. The Church Commissioners were entitled to take ethical considerations into account in forming an investment policy provided there was no risk of detriment to the Trust funds. Ethical investments putting financial return at risk were not open to trustees. Investments should aim for the best return, and be chosen only not to conflict with any express aims of the charity, and should not be used to make moral statements. Trustees must find balance neither bringing their charity into disrepute, nor failing to act with prudence. Such considerations could be allowed provided they did not adversely affect the return.
When property was held by trustees for the purpose of generating money, then prima facie, the purposes of the trust were best served by the trustees seeking to obtain the best return which was consistent with commercial prudence and in most cases, the best interests of the charity required that the trustees’ choice of investments be made solely on the basis of well-established investment criteria. The circumstances in which charity trustees were bound or entitled to make financially disadvantageous investment decisions for ethical considerations were extremely limited and there was no evidence that such circumstances existed in the case before the court. The declaration was refused.
Donald Nicholls VC said: ‘the law is not so cynical as to require trustees to behave in a fashion which would bring them or their charity into disrepute . . on the other hand, trustees must act prudently. They must not use property held by them for investment purposes as a means for making moral statements at the expense of the charity of which they are trustees.’

Sir Donald Nicholls VC
Gazette 11-Nov-1991, [1992] 1 WLR 1241, [1992] 2 All ER 300, [1991] 135 SJLB 180, Times 30-Oct-1991, Independent 29-Oct-1991
England and Wales

Trusts, Equity, Charity

Leading Case

Updated: 11 November 2021; Ref: scu.81250

In re Diplock’s estate: CA 1948

After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were described: ‘the metaphysical approach of equity coupled with and encouraged by the far-reaching remedy of a declaration of charge that enabled equity to identify money in a mixed fund.’ and
‘In the absence of authority to the contrary, our conclusion is that as regards the Diplock money used in these cases it cannot be traced in any true sense; and, further, that even if this were not so, the only remedy available to equity, viz., that of a declaration of charge, would not produce an equitable result and is inapplicable accordingly’
and ‘In the case of adaptation of property of the volunteer by means of trust money, it by no means necessarily follows that the money can be said to be present in the adapted property. The beneficial owner of the trust money seeks to follow and recover that money and claims to use the machinery of a charge on the adapted property in order to enable him to do so. But in the first place the money may not be capable of being followed. In every true sense the money may have disappeared. …. The result may add not one penny to the value of the house. Indeed the alteration may well lower the value of the house. …. Can it be said that in such cases the trust money can be traced and extracted from the altered asset? Clearly not for the money will have disappeared leaving no monetary trace behind. ….’
As regards limitation, the 12 year period for enforcing a will trust runs from the date of the death, even though a personal representative is not bound to distribute within a year from death.

Lord Greene MR
[1948] Ch 465
England and Wales
Citing:
ExplainedSinclair v Brougham HL 1914
An insolvent building society had, outside its powers, run a banking business. The House considered the competing claims of the unadvanced shareholders of the building society’s intra vires business, members of the society who had not been granted . .

Cited by:
CitedAluminium Industrie Vaassen B V v Romalpa Aluminium Ltd ChD 11-Feb-1975
The plaintiffs sold aluminium to the defendant and by a clause in the contract retained their title in the materials sold until payment was received. The purchaser went into insolvent receivership, and the seller sought recovery of the equipment and . .
CitedFoskett 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 . .
CitedFoskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
CitedGreen and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Appeal fromMinistry of Health v Simpson; In re Diplock dec HL 1950
The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an . .
CitedGomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .

Lists of cited by and citing cases may be incomplete.

Equity, Limitation

Leading Case

Updated: 11 November 2021; Ref: scu.182265

O’Sullivan v Management Agency and Music Limited: CA 1985

The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the rescission of contracts for misrepresentation or mistake, and did not apply to equitable relief where contracts had been entered into as the result of undue influence.’
Held: Rescission might still be granted if practical justice can be achieved. Agreements obtained by undue influence were set aside even though the parties could not be restored to their original positions.
Dunn LJ said: ‘If the case had to be decided according to the principles of the common law, it might have been argued that at the date when the respondent issued his writ he was not entitled to rescind the purchase, because he was not then in a position to return to the appellant in specie that which he had received under the contract, in the same plight as that in which he had received it: Clarke v. Dickson, E.B. and E. 148. But it is necessary here to apply the doctrine of equity, and equity has always regarded as valid the disaffirmance of a contract induced by fraud even though precise restitutio in integrum is not possible, if the situation is such that, by the exercise of its powers, including the power to take accounts of profits and to direct inquiries as to allowances proper to be made for deterioration, it can do what is practically just between the parties, and by so doing restore them substantially to the status quo: Erlanger v. New Sombrero Phosphate Co., 3 App.Cas. 1218, at pp.1278, 1279, Brown v. Smith (1924) 34 C.L.R. 160, 165,169; Spence v.Crawford [1939] 3 All E.R. 271, 279, 280. It is not that equity asserts a power by its decree to avoid a contract which the defrauded party himself has no right to disaffirm, and to revest property the title to which the party cannot affect. Rescission for misrepresentation is always the act of the party himself: Reese River Silver Mining Co. Ltd. (Directors of the) v. Smith (1869) L.R. 4 H.L. 64, 73. The function of a court in which proceedings for rescission are taken is to adjudicate upon the validity of a purported disaffirmance as an act avoiding the transaction ab initio, and, if it is valid, to give effect to it and make appropriate consequential orders: see Abram Steamship Co. Ltd. v. Westville Shipping Co. Ltd. [1923] A.C. 773. The difference between the legal and the equitable rules on the subject simply was that equity, having means which the common law lacked to ascertain and provide for the adjustments necessary to be made between the parties in cases where a simple handing back of property or repayment of money would not put them in as good a position as before they entered into their transaction, was able to see the possibility of restitution in integrum, and therefore to concede the right of a defrauded party to rescind, in a much wider variety of cases than those which the common law could recognise as admitting of rescission. Of course, a rescission which the common law courts would not accept as valid cannot of its own force revest the legal title to property which had passed, but if a court of equity would treat it as effectual the equitable title to such property revests upon the rescission.’ and ‘This analysis of the authorities shows that the principle of restitutio in integrum is not applied with its full rigour in equity in relation to transactions entered into by persons in breach of a fiduciary relationship, and that such transactions may be set aside even though it is impossible to place the parties precisely in the position in which they were before, provided that the court can achieve practical justice between the parties by obliging the wrongdoer to give up his profits and advantages, while at the same time compensating him for any work that he has actually performed pursuant to the transaction.’
Fox LJ said: ‘Accordingly, it seems to me that the principle that the court will do what is practically just as between the parties is applicable to a case of undue influence even though the parties cannot be restored to their original position. That is, in my view, applicable to the present case. The question is not whether the parties can be restored to their original position; it is what does the justice of the case require? That approach is quite wide enough, if it be necessary in the individual case, to accommodate the protection of third parties. The rights of a bona fide purchaser for value without notice would not in any event be affected’.

Dunn LJ, Fox LJ
[1985] QB 428, (1984) 2 IPR 499, [1984] 3 WLR 448, [1985] 3 All ER 351
Citing:
ApprovedAlati v Kruger 29-Nov-1955
(High Court of Australia) The remedy of rescission is only available if the parties can be returned to their respective positions before the contract was made. Dixon CJ said: ‘It is not that equity asserts a power by its decree to avoid a contract . .

Cited by:
CitedHalpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
CitedFiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
CitedHalpern and others v Halpern and Another (No 2) CA 3-Apr-2007
The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could . .
CitedImageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .

Lists of cited by and citing cases may be incomplete.

Contract, Undue influence, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.244663

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 the will was to be found and that with it would be found a letter. This was all that was known to have passed between them. The letter listed many gifts of money and annuities; and contained several expressions as G carrying into effect the intention of the testator as he ‘might think best’, and this sentence, ‘I do not wish you to act strictly on the foregoing instructions, but leave it entirely to your own good judgement to do as you think I would if living, and as the parties are deserving; and as it is not my wish that you should say anything about this document there cannot be any fault found with you by any of the parties, should you not act in strict accordance with it.’ G paid money to some of the person’s mentioned in the letter but not to all.
Held: In this case there was no Trust created which was binding on G.
If a legatee states to a testator that upon testator’s confiding his property, apparently disposing of it to him the legatee, by a regular and formal instrument, he will carry into effect all such as intentions as testator shall confide to him, then that legatee shall have fastened upon his conscience the trust of carrying into full effect those instructions which he received upon such representations period.
There is a need to prove the testator considered that the donee has accepted the obligation.
Lord Westbury said: ‘the jurisdiction which is invoked here by the Appellant is founded altogether on personal fraud. It is a jurisdiction by which a Court of Equity, proceeding on the ground of fraud, converts the party who has committed it into a trustee for the party who is injured by that fraud. Now, being a jurisdiction founded on personal fraud, it is incumbent on the Court to see that a fraud, a malus animus, is proved by the clearest and most indisputable evidence. It is impossible to supply presumption in the place of proof, nor are you warranted in deriving those conclusions in the absence of direct proof, for the purpose of affixing the criminal character of fraud, which you might by possibility derive in a case of simple contract.’
Lord Hatherley LC said: ‘a person apparently taking property by devise or bequest from a testator with this knowledge of the existence of another instrument, which he actually or impliedly undertakes to carry into effect, will be fixed as trustee with the performance of such instructions and directions as are given in that other instrument. . . But this doctrine evidently requires to be carefully restricted within proper limits. It is in itself a doctrine which involves a wide departure from the policy which induced the Legislature to pass the Statute of Frauds, and it is only in clear cases of fraud that this doctrine has been applied – cases in which the Court has been persuaded that there has been a fraudulent inducement held out on the part of the apparent beneficiary in order to lead the testator to confide to him the duty which he so undertook to perform.’
As to the maxim ‘Equity does not allow a statute to be made a medium of fraud’, the court of equity has from a very early period, decided that even an Act of Parliament shall not be used as an instrument of fraud; and if in the machinery of perpetrating a fraud an Act of Parliament intervenes, the court of equity does not set aside the Act of Parliament but it fastens on the individual who gets a title under that Act, and imposes upon him a personal obligation because he applies the Act as an instrument for accomplishing a fraud.

Lord Hatherley LC, Westbury L
(1869) LR 4 HL 82, [1869] UKHL 1, (1869-70) LR 4 HL 82, 17 WR 961
Bailii
England and Wales
Cited by:
CitedParagon 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. . .
CitedOttaway 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, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.223733

In re Sir Thomas Spencer Wells; Swinburne-Hanham v Howard: CA 1933

In the case of a dissolved corporation, its assets vest in the Crown bona vacantia. The equity of redemption is an interest or equitable right inherent in the land. Equity recognises the pre-eminence of the right to redeem, with the consequence that the mortgaged property was owned by the mortgagor, subject to the mortgage.
Lawrence LJ referred to part of the judgment of Wright J in Re Higginson and Dean dealing with the position of a debt owing to a dissolved company and expressed doubt whether the Crown could sue for such a debt unless there was a trust, and said: ‘In my judgment this doubt is not justified; long before choses in action became transferable at common law they were regarded in equity as assignable and could be dealt with inter vivos and on the death of the owner devolved upon his legal personal representative as part of his personal estate. The statement in Blackstone’s Commentaries, vol. I., p.484, that the debts of a corporation either to or from it are totally extinguished by its dissolution and similar statements made by Kyd and Grant must either be read as having reference merely to the rights and liabilities of the individual corporators or else are obsolete. Moreover I find it difficult to reconcile the doubt expressed by the learned judge with his decision that the Crown had the right to recover its distributive share of the assets of the bankrupt’s estate from the trustee. There is no difference in principle between a right to enforce payment of a share in a trust fund in the hands of a trustee and the right to enforce payment of a debt – both are choses in action and personal property which admittedly would pass to the Crown as bona vacantia in the case of persons dying intestate without next of kin.’

Lawrence LJ
[1933] Ch 29
England and Wales
Cited by:
CitedHSBC Bank Plc v Dyche and Another ChD 18-Nov-2009
The parties disputed the claimed beneficial interest of the second defendant. The second defendant (C) said that it had been purchased for him by the first defendant (D) from C’s trustee in bankruptcy, and was thereafter held in trust for him on the . .

Lists of cited by and citing cases may be incomplete.

Land, Equity, Company

Leading Case

Updated: 11 November 2021; Ref: scu.219903

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 agreement, the first company had allowed its position to be worsened relying upon the expectation which the second party had allowed to arise, and had not informed the claimant before the purchase of its intention not to honour the agreement. At the date of exchange: ‘It is clear, therefore, that, to Banner’s knowledge, exchange of contracts was to occur, and did occur, before the parties were signed up to any formal written agreement. It is equally clear that Luff had given Banner to understand that it was content to exchange contracts without requiring any form of separate guarantee committing Banner to contribute one half of the costs of the net site and that the reason for this was that the mutual rights and obligations of the parties would be set out in the shareholder agreement. It is also clear that both sides intended to enter into the shareholder agreement as soon as possible, the only reason for the delay being Mr. Vass’s absence on holiday. At no stage was any indication given that reasons existed why the agreement should not be entered into. Specifically nothing was said on either side to indicate that any difference of principle existed which would prevent the parties from agreeing terms.’

Chadwick LJ
Gazette 10-Feb-2000, Times 17-Feb-2000, [2000] EWCA Civ 18, [2002] 2 All ER 117, [2000] EWCA Civ 3016, [2000] 2 WLR 772, [2000] Ch 372
Bailii, Bailii
England and Wales
Citing:
CitedIsland Holdings Ltd v Birchington Engineering Co Ltd 7-Jul-1981
Two prospectively separate purchasers in a later ‘subject to contract’ arrangement between them had replaced their earlier concluded agreement as to how a property, if acquired, would be dealt with.
Held: Effect was to be given to the . .
ExaminedPallant 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 . .
CitedGrant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
CitedYaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
CitedParagon 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. . .
CitedTime Products Ltd v Combined English Stores 2-Dec-1974
The plaintiff and the defendant were each interested in buying a property and had agreed that one of them would make an offer, the other refraining from doing so, and that if the offer were to be accepted the purchaser would deal with the property . .

Cited by:
CitedGonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
CitedThames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited ChD 16-Dec-2003
The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .
LimitedLondon and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .
FollowedKilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
CitedCobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
CitedVan Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
CitedSainsbury’s Supermarkets Ltd v Olympia Homes Limited, Hughes etc ChD 17-Jun-2005
The claimant sought rectification of the land register. In a development deal, an option agreement had not been registered, and the land sold on. The land was required to allow the building of a roundabout necessary for the intended store. An . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
CitedKilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd and Another CA 16-Nov-2005
The defendant had brought in the claimant in order to assist in satisfying its own obligations under a lease. The joint venture was not recorded in a formal agreement. The appellant asserted that a constructive trust had been created. The judge had . .
CitedClarke and Another v Corless and Another ChD 8-Jul-2009
The parties disputed whether one could retain for his own benefit land on an estate reserved for an estate road. A trust was claimed under Pallant saying that the parties had made an informal agreement before the property was purchased.
Held: . .
CitedNational 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 . .
CitedClarke and Another v Corless and Another CA 31-Mar-2010
The claimants appealed against refusal of a declaration that a neighbouring access road and land was held on a constructive trust. They said that an agreement bewteeen the parties should have been effective to impose a trust on the defendants. The . .

Lists of cited by and citing cases may be incomplete.

Trusts, Equity, Company

Leading Case

Updated: 11 November 2021; Ref: scu.78169

Swaine v The Great Northern Railway Company: 25 Jan 1864

Occurrences of nuisance, if temporary and occasional only, are not grounds for the interference of the Court of Chancery by injunction, except in extreme cases. Therefore, where a railway company carried down to and deposited on a siding to their line manure which was occasionally not proper manure, and they occasionally allowed it to remain there longer than it ought to have remained : Held, in a suit by a neighbouring landowner for an injunction to restrain the nuisance and for damages:
1. That the court would not interfere by way of injunction.
2. That the Court would not enter into the question of damages, the case being one which, in the judgment ofthe Court, could be more effectually disposed of at law than in equity, and Sir Hugh Cairns’s Act (21 and 22 Vict. c. 27) only giving the Court of Chancery jurisdiction to give damages in any case where a bill is properly filed in it, while Mr. Rolt’s Act (25 and 26 Vict. c. 42) does not make it compulsory on the Court so to do.

[1864] EngR 173, (1864) 4 De G J and S 211, (1864) 46 ER 899
Commonlii

Nuisance, Equity, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.281887

Re Maddever: 1884

A specialty creditor who applied to set aside a conveyance as fraudulent under the statute 13 Eliz. c.5 was not barred by laches and could be brought at any time before his own claim as a creditor became statute-barred.

(1884) 27 Ch D 523
Cited by:
CitedHill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .

Lists of cited by and citing cases may be incomplete.

Equity, Land

Leading Case

Updated: 11 November 2021; Ref: scu.244181

Vadim Schmidt v Rosewood Trust Limited: PC 27 Mar 2003

PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had taken more and more indirect ways of conferring benefits. The settlements were badly drafted, but that should not be used to excuse a court fulfilling its duties. The right to seek disclosure did not depend upon a fixed and transmissible beneficial interest. The object of a discretion may have similar rights, and the right was not dependant upon establishing a proprietary interest, but the remedy would be in equity and subject to the court’s discretion. A beneficiary of a discretionary trust has a non-assignable and non-transmissible interest in the trust, and has no entitlement as of right to any trust documents or other information relating to the trust in the possession or control of the trustees.

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough, Lord Walker of Gestingthorpe
Times 29-Mar-2003, [2003] UKPC 26, Gazette 05-Jun-2003, [2003] 2 AC 709, (2002-03) 5 ITELR 715, [2003] 3 All ER 76, [2003] 2 WLR 1442, [2003] Pens LR 145, [2003] WTLR 565
PC, Bailii, PC
Citing:
CitedMcPhail v Doulton (on appeal from In re Baden’s Deed Trusts) HL 6-May-1970
The settlor asked whether the test for validity, in point of certainty of objects, is the same for trusts and powers, or whether the test for trusts is more demanding.
Held: The test is the same. The context was a provision, held to be a . .
CitedIn re Manisty’s Settlement ChD 1974
The court contrasted the exercise by trustees of an intermediate power with the exercise of a wide special power.
Held: A wide power, whether special or intermediate, does not negative or prohibit a sensible approach by trustees to the . .
CitedO’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
CitedIn re Londonderry’s Settlement; Peat v Lady Walsh CA 3-Nov-1964
The Court considered limitations on the right to disclosure of trust documents, and in particuar the need to protect confidentiality in communications between trustees as to the exercise of their dispositive discretions, and in communications made . .

Cited by:
CitedFranses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
CitedBreakspear and others v Ackland and Another ChD 19-Feb-2008
Beneficiaries sought disclosure of a wishes letter provided by the settlor to the trustees in a family discretionary trust.
Held: The confidentiality in the letter was, in the absence of some express term by the settlor, in the trustees, and . .
CitedDawson-Damer and Others v Taylor Wessing Llp and Others ChD 6-Aug-2015
The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .
CitedTN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .
CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.180352

Hopper and Another v Hopper: CA 12 Dec 2008

Appeals were made after an order declaring an account a between former partners in a wholesale fruit and vegetable business. The dispute related to the applicability of limitation to undrawn profit shares, and the doctrine of Laches.
Held: The judge had been entitled to find on the evidence that undrawn profits had been capitalised. There was no inequity in allowing the widow to draw the undrawn capitalised earnings of the business. Limitation did not apply and nor did the doctrine of laches. ‘When a partnership at will is dissolved by the death of a partner, the surviving partner or partners, and the personal representatives of the deceased partner, may all agree, solely for the purpose of the winding up, to continue the business of the former partnership in order best to maximise the value of its business and goodwill on sale or other realisation. If they do all so agree, their rights and obligations, including their shares of any profit from the continued trading, and the authority of each former partner to bind the others continue as before: 1890 Act s.38. The surviving partners and the personal representatives of the deceased partner put themselves at risk if they take that course. The surviving partners, and possibly the personal representatives, will be personally liable for any losses incurred in the continued trading, and any such losses will diminish their and the deceased’s respective partnership shares. ‘ The widow of the deceased partner was an outgoing partner for the purposes of section 42(1) of the 1890 Act, and the judge’s order was adjusted accordingly.

Thomas LJ, Moore-Bick LJ, Etherton LJ
[2008] EWCA Civ 1417
Bailii
Limitation Act 1980, Partnership Act 1890 38 42(1)
England and Wales
Citing:
CitedBouche v Sproule 1887
Lord Bramwell discussed the capitalisation of undistributed profis within a partnership: ‘Where there is a partnership, whether an ordinary partnership or an incorporated partnership . . There the undivided profits of any period, a year or shorter . .

Lists of cited by and citing cases may be incomplete.

Company, Limitation, Equity

Updated: 11 November 2021; Ref: scu.278673

Knight v Bowyer: 7 May 1858

knight_bowyer1858

The doctrine of laches and delay did not apply to an express trust, save possibly where there was a release or abandonment by the beneficiary and that was capable of being presumed from the facts of the case.

(1858) 2 De G and J 421, [1858] EngR 673, (1858) 2 De G and J 421, (1858) 44 ER 1053
Commonlii
Cited by:
CitedPatel 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 . .
See AlsoKnight v Bowyer 1-Aug-1859
. .

Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Leading Case

Updated: 11 November 2021; Ref: scu.223436

Heath v Kelly and Another: ChD 24 Jul 2009

The defendant and the deceased had purchased a house as joint tenants in equity. The claimant sought to enforce an agreement for the sale of the defendant’s half share. Payment having been made. The defendant argued that the agreement was uncertain and unenforceable.
Held: The agreement appeared to have been made under a misapprehension as to the legal position. The mistake appeared to have been created by the party seeking to rely on it, and equity could refuse specific performance of the contract. The claimant had also delayed her action. Specific performance was refused. Declaration as to interests accordingly.

Purle QC J
[2009] EWHC 1908 (Ch), [2009] Fam Law 1044, [2010] 1 FLR 610, [2009] 2 P and CR DG21
Bailii
England and Wales
Citing:
CitedGreat Peace Shipping Ltd v Tsavliris (International) Ltd CA 14-Oct-2002
The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability.
Held: . .
CitedMilward v Earl Thanet CA 1801
Lord Alvanley MR said: ‘a party cannot call upon a Court of Equity for specific performance, unless he has shewn himself ready, desirous, prompt, and eager.’ . .
CitedP and O Nedlloyd Bv v Arab Metals Co and others CA 13-Dec-2006
An order for specific performance had been refused in a disputed contract for carriage. The claimant argued that normal limitation periods should not be applied by analogy.
Held: Because there was no corresponding legal remedy the remedy in . .
CitedWilliams v Greatrex CA 1956
A purchaser agreed to buy land to be laid out in building plots. On payment of a deposit and giving notice, the purchaser was to be entitled to enter onto a particular plot in order to build on it. The arrangement met with difficulties, with the . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Updated: 11 November 2021; Ref: scu.361469

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 J said: ‘It is plain in my judgment that a mistake of fact is capable of bringing the equitable jurisdiction into play. All that is required is a mistake of a sufficiently serious nature. In my judgment a mistake about an existing or pre-existing fact if sufficiently serious is enough to bring the jurisdiction into play. If and to the extent that Millett J intended to restrict the scope of the equitable jurisdiction to a mistake about the effect of a transaction, I respectfully disagree.’

Lewison J
[2008] EWHC 118 (Ch), [2008] STC 776, [2008] 2 All ER 654, [2009] 2 WLR 394, [2009] Ch 162, [2008] WTLR 685, [2008] STI 250, [2009] BTC 8027
Bailii
England and Wales
Cited by:
ApprovedFender (Administrator of FG Collier and Sons Ltd) v National Westminster Bank Plc ChD 26-Sep-2008
The administrator sought declarations as to whether to treat the bank as a secured or unsecured creditor.
Held: The court directed the Administrator to recognise the Bank as a secured creditor, as if the Deed of Release had never been . .
CitedPitt and Another v Holt and Others ChD 18-Jan-2010
The deceased had created a settlement in favour of his wife. He suffered serious injury and placed the damages in trust, but in a form which created an unnecessary liability to Inheritance Tax on his death. The wife’s mental health act receiver now . .
CitedPitt 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 . .
CitedFutter 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 . .
CitedBrazzill 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 . .
CitedFutter 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.

Contract, Equity, Trusts

Updated: 11 November 2021; Ref: scu.264025

Ketteringham and Another v Hardy: ChD 3 Feb 2011

Two partners had together bought several properties for development, and now disputed the interests in one of them. One partneer had dies, and the refusal of development permission and the fall in property values left the land in negative equity. The court was asked to find that a partnership existed and that the estate was liable to contribute to the losses.
Held: No partnership existed. The matter was to be resolved according to the principles of equitable accounting. The real question to be determined is whether it was the common intention of the parties that Nick Ketteringham would contribute to the liability under the mortgage in the event that the net proceeds of sale were less than the sum outstanding under the mortgage. No such common contention had been expressed, and therefore the estate could not be held liable to contribute.

Behrens J
[2011] EWHC 162 (Ch), [2011] WTLR 1367
Bailii
Partnership Act 1890 24
England and Wales
Citing:
CitedClarke v Harlowe ChD 12-Aug-2005
A house was bought in the joint names of the parties. It was in bad condition. An express declaration of trust said they held as beneficial joint tenants. One tenants was earning much more than the other. He paid all the mortgage instalments. Very . .
CitedWilcox v Tait CA 13-Dec-2006
The court considered the principles of equitable accounting as between co-owners of land.
Held: The question of whether there is a liability to account depends on the intention of the parties. Jonathan Parker LJ said: ‘Moreover, it is in any . .
CitedFrench v Styring 8-May-1857
A and B were joint owners of a race horse, and had agreed that A should keep and train and have the general management of the horse, conveying him to and entering him for the different races ; that 35s. per week should be allowed for his keep ; and . .
CitedJaenicke v Schulz 1924
. .

Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 11 November 2021; Ref: scu.428427

Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd: ChD 1981

The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment than to enquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick of unconscionable behaviour.’
A party who seeks to set up an estoppel, whether a proprietary estoppel, estoppel by acquiescence or estoppel by encouragement, must establish that it would be unconscionable for the other party to be permitted to deny what he has allowed or encouraged the first party to assume to his detriment: ‘If A under an expectation created or encouraged by B that A shall have a certain interest in land thereafter, on the faith of such expectation and with B’s knowledge, and without objection by B, acts to his detriment in connection with such land, a Court of equity will compel B to give effect to such expectation’.
Estoppel is a principle of broad even protean application: ‘Furthermore the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson LR 1 HL 129 principle – whether you call it proprietary estoppel by acquiescence or estoppel by encouragement is really immaterial – requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.’
The court considered the situations in which an estoppel may arise: ‘Furthermore the more recent cases indicate, in my judgment, that the application of the Ramsden v Dyson L.R. 1 H.L. 129 principle – whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial – requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.’ and ‘The inquiry which I have to make therefore, as it seems to me, is simply whether, in all the circumstances of this case, it was unconscionable for the defendants to seek to take advantage of the mistake which, at the material time, everybody shared, and, in approaching that, I must consider the cases of the two plaintiffs separately because it may be that quite different considerations apply to each.’

Oliver J
[1982] QB 133, [1981] 2 WLR 576, [1981] 1 All ER 897, [1979] 251 EG 159, [1979] EWHC Ch 1
Bailii
England and Wales
Citing:
CitedRamsden v Dyson HL 1866
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
ExplainedWillmott v Barber ChD 19-Jun-1880
In 1869 Barber granted a 99-year lease of three acres of land in east London, subject to a covenant against assignment or sub-letting without consent. In 1874, in breach of covenant, he sub-let one acre on an annual tenancy to Willmott (who owned a . .

Cited by:
CitedJennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
CitedIn re Basham dec’d; Basham v Basham 1986
The claimant and her husband had helped her mother and her stepfather throughout the claimant’s adult life. She received no remuneration but understood that she would inherit her stepfather’s property when he died. After her mother’s death and until . .
CitedParker v Parker ChD 24-Jul-2003
Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
Held: The applicant was entitled to reasonable . .
CitedDun and Bradstreet Software Services (England) Ltd; Dun and Bradstreet Software Services Ltd v Provident Mutual Life Assurance Association and General Accident Linked Life Assurance CA 9-Jun-1997
Break clauses had been exercised on behalf of the plaintiffs. The defendant landlords appealed a decision upholding the notices. A penalty rent had been sought.
Held: There had been no sufficient agency established to validate the notice. The . .
CitedGonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
CitedKing v Jackson (T/a Jackson Flower Company) CA 16-Jul-1997
The defendant appealed an award of pounds 11,000 damages for unlawful eviction of his tenant. The tenant had found herself unable to pay the rent and had given notice to quit. She was then told to leave immediately. The judge awarded statutory . .
CitedGeoffrey Allan Chadwick, Sylvia Joyce Chadwick, Edward James Chadwick v Abbotswood Properties Ltd, Gordon Leonard Hauser, Pamela Ann Hauser, Rectory Pump Ltd ChD 18-May-2004
Between to new houses was a steep bank. Who owned it? Before the transfer there had been different plans and much correspondence.
Held: Where there was doubt as to the extent of land transferred, the court could look to the physical boundaries . .
CitedActionstrength Limited v International Glass Engineering In Gl En SpA and others HL 3-Apr-2003
Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim . .
RestatedHodgens v Beckingham CA 19-Feb-2003
The defendant appealed a finding of infringement in a music copyright work, ‘Young at Heart’, based on a claim of joint authorship. The claimant had delayed his claim for many years, but now sought only rights to future royalties.
Held: The . .
CitedFisher v Brooker and Another ChD 20-Dec-2006
The claimant said that he had contributed to the copyright in the song ‘A Whiter Shade of Pale’ but had been denied royalties. He had played the organ and particularly the organ solo which had contrbuted significantly to the fame of the record.
ApprovedBlue Haven Enterprises Ltd v Tully and Another PC 21-Feb-2006
(Jamaica ) . .
CitedBarrett v Universal-Island Records Ltd and others ChD 15-May-2006
The claimant was entitled to share in the copyright royalties of Bob Marley and the Wailers, and claimed payment from the defendants. The defendants said that the matters had already been settled and that the claim was an abuse of process, and also . .
CitedA and M Records Ltd v VCI 1995
Sir Mervyn Davies said: ‘However that may be, I am satisfied that Mr Ross was at all material times quite unaware of any activities of the plaintiffs being activities of a kind that he as owner of the copyright in the sound recordings could object . .
CitedJohnson 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 . .
CitedScottish and Newcastle Plc v Lancashire Mortgage Corporation Ltd CA 5-Jul-2007
The parties each had a charge over a property, and now disputed which had priority. The brewery appealed an order for rectification of the registers to reverse priority on the basis of an estoppel. The charge in their favour had been registered . .
ApprovedGillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
ApprovedBrooker and Another v Fisher CA 4-Apr-2008
The claimant had asserted a joint authorship of the song ‘A Whiter Shade of Pale’ written in the sixties. The defendant appealed saying that the claim had been brought too late, and that the finding ignored practice in the music industry. The . .
CitedLondon Borough of Bexley v Maison Maurice Ltd ChD 15-Dec-2006
The council had taken land by compulsory purchase in order to construct a dual carriageway. It then claimed that it had left undedicated a strip .5 metre wide as a ransom strip to prevent the defendant restoring access to the road.
Held: The . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
CitedSQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
CitedSt Pancras and Humanist Housing Association Ltd v Leonard CA 17-Dec-2008
The claimant sought possession of a garage. The defendant claimed adverse possession.
Held: The defendant’s appeal against an order for possession failed. The defendant had attended a meeting where his behaviour had allowed other parties to . .
CitedThorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
CitedFisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
EndorsedHabib Bank Ltd v Habib Bank AG Zurich CA 1981
A combination of defences based on delay was pleaded in a passing off action objecting to the use of a name which the defendants had been using without objection for many years. A permanent injunction was claimed.
Held: Oliver LJ said as to . .
CitedBudejovicky Budvar Narodni Podnik v Anheuser-Busch Inc CA 20-Oct-2009
The parties had long disputed the use of the trade marks ‘Bud’ and ‘Budweiser’ for their beers. The claimant now said that the defendants had made an abusive registration under the 1994 Act, by requesting a declaration that the registration by the . .
CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
CitedBrightlingsea Haven Ltd and Another v Morris and others QBD 30-Oct-2008
The caravan park operated under planning consents requiring the caravans to be occupied only during certain months. The defendants had bought their mobile homes from the claimants to occupy full time, and said that the claimants knew of this. The . .
CitedBabbage v North Norfolk District Council CA 1990
The court considered the extent of its ability to insert conditions into caravan site agreements under the 1960 Act. The site licence contained two relevant conditions. One required that no caravan should be occupied between November 1 and March 19. . .

Lists of cited by and citing cases may be incomplete.

Estoppel, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.188170

Ex Parte Lacey: 5 Feb 1802

Trustee Not To purchase Property of Trust

Lord Eldon held that equity imposed stringent duties on persons who were appointed trustees of trusts and that these duties were imposed with ‘relentless jealousy’ in order to ensure that trustees fulfilled their duties, and that trustees had to be ‘watched with infinite and the most guarded jealousy’
No trustee shall buy the trust property, until he strips himself of that character. Or by universal consent has acquired a ground for becoming the purchaser: ‘I say, whether he makes advantage or not, if the connection does not satisfactorily appear to have been dissolved, it is the choice of the cestui que trusts, whether they will take back the property, or not; if the trustee has made no advantage. It is founded upon this; that though you may say in a particular case that he has not made advantage, it is utterly impossible to examine upon satisfactory evidence and the power of the court, by which I mean, in the power of the parties, in 99 cases out of 100 whether he made advantage or not’
The beneficiaries of a trust can, by giving their fully informed consent, agree to authorise or permit their fiduciary to act notwithstanding a conflict of interest or to receive certain profits

Lord Eldon LC
[1802] EngR 75, (1802) 6 Ves Jun 625, (1802) 31 ER 1228
Commonlii
England and Wales
Citing:
See AlsoEx Parte Lacey 1789
. .

Cited by:
CitedLehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Leading Case

Updated: 11 November 2021; Ref: scu.344892

Deutsche Morgan Grenfell Group Plc v Inland Revenue and Another: HL 25 Oct 2006

The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when the claimants discovered their mistake. The appellants had submitted that section 33 of the 1973 Act provided the second of only two remedies for recovery of tax paid under a mistake of law. The first remedy was said to be a common law right to recover tax unlawfully demanded, of which Lord Walker of Gestingthorpe said: ‘When parliament enacts a special regime providing special rights and remedies, that regime may (but does not always) supersede and displace common law rights and remedies (or more general statutory rights and remedies). Whether it has that effect is a question of statutory construction.’
Lord Hoffmann said: ‘The answer, at any rate for the moment, is that unlike civilian systems, English law has no general principle that to retain money paid without any legal basis (such as debt, gift, compromise, etc) is unjust enrichment. In the Woolwich case [1993] AC 70, 172 Lord Goff said that English law might have developed so as to recognise such a general principle – the condictio indebiti of civilian law – but had not done so. In England, the claimant has to prove that the circumstances in which the payment was made come within one of the categories which the law recognizes as sufficient to make retention by the recipient unjust. Lord Goff provided a list in the Woolwich case at pp 164-165 and the decision itself added another. [i.e. money paid by way of tax to a public body which was acting ultra vires]’

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe and Lord Brown of Eaton-under-Heywood
Times 26-Oct-2006, [2006] UKHL 49, [2007] 1 AC 558, [2006] BTC 781, [2007] Eu LR 226, [2007] 1 CMLR 14, [2006] STI 2386, [2006] 3 WLR 781, [2007] 1 All ER 449
Bailii, HL
Limitation Act 1980 32(1), Taxes Management Act 1973 33
England and Wales
Citing:
CitedMeadows v Grand Junction Waterworks Company 1905
. .
CitedWoolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
CitedHenderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
CitedMarcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
CitedNational Provincial Bank Limited v Ainsworth HL 1965
The significance of the distinction between occupation and rights was that although the deserted wife was in actual occupation of the former matrimonial home, the quality of her rights was not such as to be capable of amounting to an overriding . .
CitedMetallgesellschaft Ltd and Others v Inland Revenue Commissioners and Another Hoechst Ag and Another v Same ECJ 8-Mar-2001
The British law which meant that non-resident parent companies of British based businesses were not able to recover interest on payments of advance corporation tax, was discriminatory against other European based companies. Accordingly the law was . .
At First InstanceDeutsche Morgan Grenfell Group Plc v The Commissioners of Inland Revenue, HM Attorney General ChD 18-Jul-2003
The taxpayer sought to bring an action for restitution by the revenue of sums paid under a mistake of law. Under the Metallgesellschaft decision, rights of election for recovery of overpaid tax applied only between UK resident companies.
Held: . .
Appeal fromInland Revenue and Another v Deutsche Morgan Grenfell Group Plc CA 4-Feb-2005
The company sought repayment of excess advance corporation tax payments made under a mistake of law. The question was the extent of the effect of the ruling in Klienwort Benson, in particular whether it covered sums paid as taxation, and how the law . .

Cited by:
CitedTotal Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
CitedAwoyomi v Radford and Another QBD 12-Jul-2007
The claimant sought damages from the defendant barristers who had represented her in criminal proceedings. They had not passed on to her the statement made by the judge in chambers that if she pleaded guilty he would not impose a sentence of . .
CitedSempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedTotal Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
CitedFender (Administrator of FG Collier and Sons Ltd) v National Westminster Bank Plc ChD 26-Sep-2008
The administrator sought declarations as to whether to treat the bank as a secured or unsecured creditor.
Held: The court directed the Administrator to recognise the Bank as a secured creditor, as if the Deed of Release had never been . .
CitedMcE, Re; McE v Prison Service of Northern Ireland and Another HL 11-Mar-2009
Complaint was made that the prisoner’s privileged conversations with his solicitors had been intercepted by the police.
Held: The Act made explicit provisions allowing such interception and set out the appropriate safeguards. The interceptions . .
CitedKommune and Another v DEPFA Acs Bank ComC 4-Sep-2009
Local authorities in Denmark sought to recover sums paid to the defendant banks for swap trading, saying that the payments had been outwith their powers. . .
CitedChild Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions CA 14-Oct-2009
CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court . .
CitedThe Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
CitedTest Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .
CitedZurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
CitedMarine Trade Sa v Pioneer Freight Futures Co Ltd Bvi and Another ComC 29-Oct-2009
The parties stood to make substantial losses against each other under contracts for differences after the dramatic fall in the freight market in the financial turmoil of late 2008. . .
CitedLittlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .

Lists of cited by and citing cases may be incomplete.

Corporation Tax, Limitation, Equity, Taxes Management

Leading Case

Updated: 11 November 2021; Ref: scu.245608

Keech v Sandford: ChD 1726

Trustee’s Renewed Lease also Within Trust

A landlord refused to renew a lease to a trustee for the benefit of a minor. The trustee then took a new lease for his own benefit. The new lease had not formed part of the original trust property; the minor could not have acquired the new lease from the landlord; and the trustee acted innocently, believing that he committed no breach of trust and that the new lease did not belong in equity to his cestui que trust.
Held: A trustee of a lease may not renew a lease for his own benefit but holds the renewed lease upon a constructive trust for the beneficiaries. The court forbade the trustee to take for himself a renewed term under a lease which he held for the benefit of an infant.
Lord Harcourt LC said: ‘though I do not say there is a fraud in this case, yet he should rather have let it run out, than to have had the lease to himself. This may seem hard, that the trustee is the only person of all mankind who might not have the lease: but it is very proper that rule should be strictly pursued, and not in the least relaxed; for it is very obvious what would be the consequence of letting trustees have the lease, on refusal to renew to cestui que use.’ The benefit of the lease was assigned by decree to the infant and the trustee, subject to indemnity, made to account for profits.
King L said: ‘I very well see, if a trustee, on the refusal to renew, might have a lease to himself, few trust-estates will be renewed to cestuis que use.’

Lord Harcourt LC, King L
[1726] Sel Cas 1 King 61, [1726] EWHC Ch J31, [1726] EngR 954, (1726) 25 ER 223 (C), [1726] EWHC Ch J76
Bailii, Commonlii, Bailii
England and Wales
Cited by:
CitedCrown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
CitedUltraframe (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 . .
CitedWarman International Ltd v Dwyer 1995
(High Court of Australia) A fiduciary diverted a business in breach of his fiduciary duty.
Held: ‘The outcome in cases of this kind will depend upon a number of factors. They include the nature of the property, the relevant powers and . .
CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
CitedHalton 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 . .

Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Leading Case

Updated: 10 November 2021; Ref: scu.192209

Santley v Wilde: CA 1899

Classic Definition of a Mortgage

Lord Lindley considered the nature of a mortgage and said: ‘The principle is this: a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt, or the discharge of some other obligation for which it is given. This is the idea of a mortgage; and the security is redeemable on the payment or discharge of such debt or obligation, any provision to the contrary notwithstanding.
That, in my opinion, is the law. Any provision inserted to prevent redemption on payment or performance of the debt or obligation for which the security was given is what is meant by a clog or fetter on the equity of redemption, and is therefore void. It follows from this that ‘once a mortgage always a mortgage,’ but I do not understand that this principle involves the further proposition that the amount or nature of the further debt or obligation, the payment or performance of which is to be secured, is a clog or fetter within the rule.’
Lord Lindley MR said: ‘a clog or fetter is something which is inconsistent with the idea of security; a clog or fetter is in the nature of a repugnant condition.’

Lord Lindley MR
[1899] 2 Ch 474, 68 LJ Ch 681, 81 LT 393, 48 WR 90, 15 TLR 528
England and Wales
Cited by:
CitedNoakes and Co Ltd v Rice HL 17-Dec-2001
A charge on a public house provided that even after repayment of the principal, the owner continued to be obliged to purchase his beer from the brewery, and that any non-payment would be charged on the property.
Held: The clauses operated as a . .
CitedBrighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .

Lists of cited by and citing cases may be incomplete.

Equity, Land

Leading Case

Updated: 10 November 2021; Ref: scu.276435

Shiloh Spinners Ltd v Harding: HL 13 Dec 1972

A right of re-entry had been reserved in the lease on the assignment (and not on the initial grant) of a term of years in order to reinforce covenants (to support, fence and repair) which were taken for the benefit of other retained land of the assignor. The House considered the availability of an order for specific performance of a positive covenant in a lease.
Held: Lord Wilberforce said: ‘There cannot be any doubt that from the earliest times courts of equity have asserted the right to relieve against the forfeiture of property. The jurisdiction has not been confined to any particular type of case. The commonest instances concerned mortgages, giving rise to the equity of redemption, and leases, which commonly contained re-entry clauses; but other instances are found in relation to copyholds, or where the forfeiture was in the nature of a penalty. Although the principle is well established, there has undoubtedly been some fluctuation of authority as to the self-limitation to be imposed or accepted on this power.’
and ‘. . it remains true today that equity expects men to carry out their bargains and will not let them buy their way out by uncovenanted payment. But it is consistent with these principles that we should reaffirm the right of courts of equity in appropriate and limited cases to relieve against forfeiture for breach of covenant or condition where the primary object of the bargain is to secure a stated result which can effectively be attained when the matter comes before the court, and where the forfeiture provision is added by way of security for the production of that result.’
and ‘[W]hat the court has to do is to satisfy itself, ex post facto, that the covenanted work has been done, and it has ample machinery, through certificates, or by inquiry, to do precisely this.’

Lord Wilberforce, Viscount Dilhorne, Lord Pearson, Lord Simon of Glaisdale and Lord Kilbrandon
[1973] 2 WLR 28, [1973] AC 691
lip
England and Wales
Cited by:
CitedCo-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
CitedSommer and Another v Sweet and Another CA 10-Mar-2005
The claimants had sought entry into theirs and their neighbour’s registered land titles of entries to acknowledge their rights of way. The neighbours appealed the finding of a right of way of necessity and by proprietary estoppel, and an order for . .
CitedAllied London Industrial Properties Limited v Castleguard Properties Limited CA 24-Jul-1997
The parties disputed the effect of a conveyance of land from 1985 and an associated deed of variation. The variation added an easement which was argued by the purchaser to have attached to the land, and was said by the vendor to have been personal . .
CitedTotal Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
CitedCelestial Aviation Trading 71 Ltd v Paramount Airways Private Ltd ComC 4-Dec-2009
The claimant sought summary judgment for recovery of three aircraft (valued at US$36m each) leased to the defendant after non-payment of instalments. The defendant said that the default was based on a demand for supplementary rents which had not . .
CitedCavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity

Leading Case

Updated: 10 November 2021; Ref: scu.183780

G, Re (Human Fertilisation and Embryology Act 2008): FD 6 Apr 2016

The applicant sought a declaration of parenthood. She and her same sex partner had been asked to signthe wrong forms when undergoing fertility treatment.
Held: The court was able to rely upon the euitable doctrine of recification were there had, as here, been a clear mistake. In this cas a wholesale transposition of the content from the correct form was better calculated to achieve the desired result.

Sir James Munby P FD
[2016] EWHC 729 (Fam), [2016] 4 WLR 65, [2016] WLR(D) 177
Bailii, WLRD
Family Law Act 1986 55A, Human Fertilisation and Embryology Act 2008 42(1)
England and Wales

Health Professions, Children, Equity

Updated: 10 November 2021; Ref: scu.561546

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 trust. Unfortunately it was done in such a way as to create an immediate liability to Inheritance Tax. In each case the trustees applied to have the ineffective deeds declared void to correct the mistakes. They were set aside, but the Court of Appeal allowed the Revenue’s appeals on the basis that the rule in Hastings-Bass (the Rule) applied at first instance.
Held: As to the appeals under the Rule, the taxpayers’ appeals failed. However P’s appeal on the basis of mistake was allowed.
The Rule applied to a failure of trustees to perform a decision making function. In such situations there had to such a serious failure as to amount to a breach of the trustees’ fiduciary duties. In each of these cases, they had acted on professional advice, but the failures of such advisers could not be transferred to the trustees so as to allow the application of the Rule. Nevertheless the Rule had to be applied respecting each different factual situation, and other results might be reache din future in settling the balance between the need to protect beneficiaries, and for legal certainty without imposing too rigid a test on trustees.
As to the rescision for mistake in P’s case, there had to be a mistake which was both of sufficient gravity and causative of the failing. Such a mistake may well be as to the legal character of the transaction, and tax consequences go as to the gravity of the error. Mere ignorance would be insufficient. The court would have to conclude that it would be unconscionable or injust to leave the situation uncorrected.
Lord Walker said: ‘Rectification is a closely guarded remedy, strictly limited to some clearly established disparity between the words of a legal document, and the intentions of the parties to it. It is not concerned with consequences.’

Lord Neuberger, President, Lord Walker, Lady Hale, Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath
[2013] 3 All ER 429, [2013] UKSC 26, [2013] WLR (D) 172, [2013] STC 1148, 15 ITELR 976, 81 TC 912, [2013] 2 WLR 1200, [2013] STI 1805, [2013] WTLR 977, [2013] Pens LR 195, [2013] BTC 126, [2013] 2 AC 108
Bailii, Bailii Summary, SC Summary, SC, WLRD
Taxation of Chargeable Gains Act 1992 2(4)
England and Wales
Citing:
At First InstanceFutter 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 . .
CitedAbacus 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 . .
CitedGibbon 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 . .
CitedRe 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 . .
CitedMettoy 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 . .
CitedStannard 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 . .
Appeal fromPitt and Another v Holt and Another CA 9-Mar-2011
. .
At First InstancePitt 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 . .
CitedScott v The National Trust CA 1998
Trustees, in the exercise of their fiduciary discretions, are under constraints which do not apply to adult individuals disposing of their own property. Walker LJ said: ‘Certain points are clear beyond argument. Trustees must act in good faith, . .
CitedEdge 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 . .
CitedOgilvie 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 . .
CitedOgilvie v Allen HL 1899
The plaintiff, a widow, had executed deeds founding two charities and devoting to them a considerable part of the large fortune which she had inherited from her husband, but later brought proceedings to set the deeds aside asserting that she had not . .
CitedDirector of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith HL 12-Jul-1990
Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when . .
CitedMarshall v NM Financial Management Ltd ChD 10-Jul-1995
A post-termination restriction on an employment was in restraint of trade and ineffective despite a payment having been made for the restriction. The agent was not entitled to any commission after termination under the relevant clause.
Mr . .
CitedNM Financial Management Limited v Marshall CA 13-Mar-1997
The court considered a provision that a commission agent would be paid commission following the termination of his agency provided that he did not within a year become an independent intermediary or work for a competitor. Here the suspension of . .
CitedEquitable 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 . .
MentionedWollaston v King 1869
Rectification for mistake . .
CitedIn Re Vestey’s Settlement ChD 1950
The income of a fund was to be held on trust for the support or benefit of the members of a class as the trustees might decide in their discretion. The trustees resolved in each of three successive periods to distribute part of the income to certain . .
CitedIn Re Vestey’s Settlement CA 2-Jan-1951
The trustees of a large settlement made by Lord Vestey and his brother Sir Edmund Vestey exercised their discretion over the allocation of income with the apparent intention of income being accumulated during the minorities of a number of . .
CitedIn Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners HL 8-Oct-1962
The trustees proposed establishing a new trust in respect of the share of an estate to which an infant beneficiary had a contingent entitlement. A portion of the trust fund would be allocated to the new trust.
Held: This was a lawful exercise . .
CitedSieff 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 . .
CitedAbacus 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 . .
CitedIn re Hubbard’s Will Trusts 1962
The rule that a gift may fail on the failure of a prior interest upon which it is dependent and which is void for remoteness is a ‘rule of invalidity by contagion with another and invalid limitation’. . .
CitedIn re Buckton’s Settlement Trusts 1964
. .
CitedIn re Abrahams’ Will Trusts 1969
The trustees sought to mitigate estate duty by terminating a life interest, and accelerating the interest fo the next generation.
Held: There had been no valid exercise of the power of advancement. Cross J rejected an argument approximating an . .
CitedVestey v Inland Revenue Commissioners (No 2) ChD 1979
The Commissioners of Inland Revenue do not have, any more than does any other emanation of the Crown, any power to suspend or dispense with laws. ‘It is at this point that there arises what Mr Potter, for the taxpayers, has denominated as a serious . .
CitedOgden 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 by:
CitedBainbridge and Another v Bainbridge ChD 22-Apr-2016
. .
CitedFSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
CitedBank 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 . .

Lists of cited by and citing cases may be incomplete.

Trusts, Taxes Management, Equity

Leading Case

Updated: 10 November 2021; Ref: scu.503501