Category: Equity

Alati v Kruger; 29 Nov 1955

References: (1955) 94 CLR 216, [1955] HCA 64, [1955] ALR 1047
Links: Austlii
Coram: Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ
Ratio: (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 which the defrauded party himself has no right to disaffirm, and to revest property the title to which the party cannot affect. Rescission from misrepresentation is always the act of the party himself . . 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 inito, and, if it is valid, to give effect to it and make appropriate consequential orders . . 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 restitutio 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 recognize as admitting of rescission.’ and
‘When a contract is rescinded by reason of a recognised vitiating factor, the contract, as just noted, is set aside from the beginning. In such a case there can be no claim for damages for breach of contract, because in such situations there is no contract. Equally, if a claim is made by the victim for damages for breach of contract, there can be no rescission of the contract as the victim has by suing for breach clearly elected not to rescind.’
This case is cited by:

  • Approved – O’Sullivan v Management Agency and Music Limited CA ([1985] QB 428, (1984) 2 IPR 499, [1984] 3 WLR 448, [1985] 3 All ER 351)
    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 . .

(This list may be incomplete)

Last Update: 29-Aug-16
Ref: 470685

Turner v Bladin; 20 Apr 1951

References: (1951) 82 CLR 463, [1951] HCA 13
Links: Austlii
Coram: Williams, Fullagar, and Kitto JJ
Ratio: Austlii (High Court of Australia) Contract – Specific performance – Outstanding obligations on either side – Contract of sale completely performed by vendor – Decree of specific performance against purchaser to enforce payment of purchase price.
Statute of Frauds – Action – Debt – Sale of interest in land – Contract not evidenced by writing – Consideration fully executed by vendor – Action by vendor in indebitatus assumpsit to recover purchase price or instalments thereof – Instruments Act 1928-1936 (No. 3706 – No. 4370) (Vict.), s. 128.

Last Update: 29-Aug-16
Ref: 395052

Craythorne v Swinburne; 23 Jul 1807

References: [1807] EngR 343, (1807) 14 Ves Jun 160, (1807) 33 ER 482
Links: Commonlii
Coram: Lord Eldon LC
Ratio: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, limited to default of payment by the Principle and the other surety.
This case cites:

(This list may be incomplete)
This case is cited by:

  • Cited – Day v Shaw and Another ChD (Bailii, [2014] EWHC 36 (Ch))
    Claim for equity of exoneration as to proceeds of sale of a house.
    Held: The sub-sureties (Mr and Mrs Shaw) are entitled to be indemnified by the sureties (Mr Shaw and Mrs Shergold) in just the same way as a surety is entitled to be . .

(This list may be incomplete)

Last Update: 26-Jul-16
Ref: 340514

Fox et al v Royal Bank of Canada et al; 7 Oct 1975

References: [1976] 2 SCR 2, 1975 CanLII 150 (SCC)
Links: Canlii
Coram: Martland, Judson, Ritchie, Spence and Dickson JJ
Ratio: 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.
This case is cited by:

  • Cited – Day v Shaw and Another ChD (Bailii, [2014] EWHC 36 (Ch))
    Claim for equity of exoneration as to proceeds of sale of a house.
    Held: The sub-sureties (Mr and Mrs Shaw) are entitled to be indemnified by the sureties (Mr Shaw and Mrs Shergold) in just the same way as a surety is entitled to be . .

(This list may be incomplete)

Last Update: 20-Jul-16
Ref: 567254

Burke v LFOT Pty Ltd; 18 Apr 2002

References: 187 ALR 612, [2002] HCA 17
Links: Austlii
Coram: Gaudron ACJ, McHugh, Kirby, Hayne, Callinan JJ
Ratio:(High Court of Australia) Trade and commerce – Damages – Equitable contribution – Liability to pay damages under ss 75B, 82, 87 of Trade Practices Act 1974 (Cth) for breach of s 52 of the Act – Whether solicitor who gave negligent advice should contribute to the loss suffered by his client as a consequence of another’s misrepresentation which loss could have been avoided by careful advice by the solicitor – Whether equitable maxims prevent requirement of contribution.
Equity – Equitable contribution – Scope of – Requirement of co-ordinate liability – Whether solicitor who gave negligent advice should contribute to loss suffered by client as a consequence of another’s representation where the loss could have been avoided by careful advice by the solicitor.
Contribution – Equitable contribution – Scope of and availability – Co-ordinate liability – Requirements of – Whether compatible with the obligations imposed by Trade Practices Act 1974 (Cth) for breach of s 52 of the Act.
Words and phrases – ‘co-ordinate liability’, ‘natural justice’.
This case is cited by:

(This list may be incomplete)

Last Update: 01-Jul-16
Ref: 566220

Dering v Earl of Winchelsea; 8 Feb 1787

References: [1787] EngR 39, (1787) 1 Cox 319, (1787) 29 ER 1184
Links: Commonlii
Coram: Lord Chief Baron Eyre, Baron Hotham
Ratio:The doctrine of contribution amongst sureties is not founded in contract, but is the result of general equity on the ground of equality of burthen and benefit, Therefor where three sureties are bound by different instruments, but for the same principal and the same engagement, they shall contribute.

Last Update: 01-Jul-16
Ref: 368713

Holland v Russell; 13 Jun 1861

References: [1861] EngR 728, (1861) 1 B & S 424, (1861) 121 ER 773
Links: Commonlii
Ratio:Insurance. Suppression of material fact. Principal and agent. Money had and received. A, as agent for a foreign owner, entered into a policy of insurance on a ship in the usual form. At the time of effecting the insurance, A was in possession of a letter from the captain, informing him that the ship had received injury, which fact he, without fraudulent intention to deceive, omitted to disclose to the underwriters. The ship waa lost, and B, one of the underwriters paid to A, his amount of the insurance ; but, having subsequently become acquainted with the above circumstance, brought an action for money had and received against him to recover it back. A., before he was aware of B.’s intention to dispute the policy, and acting bona fide throughout, transmitted to his principal the money he had received from the various underwriters; with the exception of a certain amount for which he had allowed the principal credit iri a settled account, and of another which, with the autbority of the principal, he had expended in a suit brought by him on behalf of the principal against C, another underwriter, on the policy :
Held: (In accordance with the decision in Russell v. Thornton, 4 H. & N. 788, affirmed on error, 6 Id. 140), that, in consequence of the concealment from the underwriters of the fact stated in the captain’s letter, the policy was voidable at the election of the underwriters. 2. That A. being only an agent, of which B. was aware, and having, without notice of B’s intention to repudiate the contract, paid over to his principal the amount received from the underwriters, B. was not entitled to recover back from A. his amount of the insurance. 3. That there was no difference in this respect between the money actually paid over by A. to his principal, and the moneys which had either been allowed in account between them or expended in the suit agaitist C, 4. Quaere, whether B. would have been entitled to recover, if he had not known that A. was acting merely as agent?
This case is cited by:

  • Cited – Portman Building Society -v- Hamlyn Taylor Neck (a Firm) CA ([1998] 4 All ER 202, Bailii, [1998] EWCA Civ 686)
    The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had . .
  • See Also – Holland -v- Russell ([1863] EngR 546, Commonlii, (1863) 4 B & S 14, (1863) 122 ER 365)
    . .

(This list may be incomplete)

Last Update: 17-Jun-16
Ref: 284489

Knight v Bowyer; 7 May 1858

References: (1858) 2 De G & J 421, [1858] EngR 673, (1858) 2 De G & J 421, (1858) 44 ER 1053
Links: Commonlii
Ratio: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.
This case is cited by:

  • Cited – Patel and others -v- Shah and others CA (Bailii, [2005] EWCA Civ 157, Times 02-Mar-05)
    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 Also – Knight -v- Bowyer ([1859] EngR 908, Commonlii, (1859) 4 De G & J 619, (1859) 45 ER 241)
    . .

(This list may be incomplete)

Last Update: 17-Jun-16
Ref: 223436

Tulk v Moxhay; 22 Dec 1848

References: (1848) 2 Ph 774, [1848] 1 H & 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 1005, (1848) 11 Beav 571, (1848) 50 ER 937, [1848] EngR 1059, (1848) 1 H & Tw 105, (1848) 47 ER 1345, [1848] EngR 1065, (1848) 41 ER 1143
Links: Bailii, Commonlii, Commonlii, Commonlii
Coram: Lord Cottenham LC, Knight Bruce LJ
Ratio: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.’
This case cites:

  • Cited – Keppell -v- Bailey ChD (Bailii, [1834] EWHC Ch J77, (1834) 2 My & K 517, [1834] 39 ER 1042, Commonlii, [1834] EngR 193, (1834) Coop T Br 298, (1834) 47 ER 106, Commonlii, [1834] EngR 448, (1834) 39 ER 1042)
    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 . .
  • Cited – Whatman -v- Gibson (, Commonlii, [1838] EngR 539, (1838) 9 Sim 196, (1838) 59 ER 333 (B))
    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 . .
  • Cited – The Duke of Bedford -v- The Trustees of The British Museum (Commonlii, [1822] EngR 457, (1822) 2 My & K 552, (1822) 39 ER 1055)
    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, . .
  • Cited – Mann -v- Stephens ([1846] EngR 921 (B), Commonlii, (1846) 15 Sim 377)
    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 . .

(This list may be incomplete)
This case is cited by:

  • Criticised – London County Council -v- Allen ([1914] 3 KB 642)
    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 . .
  • Considered – Patching -v- Dubbins ((1853) Kay 1, [1853] EngR 894, Commonlii, (1853) 69 ER 1)
    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 . .
  • Considered – Child -v- Douglas ((1854) Kay 560, 23 LJ Ch 45, 22 LTOS 116, 17 Jur 1113, 2 WR 2, 69 ER 1)
    . .
  • Cited – Crest Nicholson Residential (South) Ltd -v- McAllister CA (Bailii, [2004] EWCA Civ 410, Times 06-May-04, [2004] 1 WLR 2409, [2004] 2 All ER 991, [2004] 2 P & CR 486)
    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 . .
  • Applied – Hemingway Securities Ltd -v- Dunraven Ltd and another ChD ([1995] 1 EGLR 61, (1995) 09 EG 322, Bailii, [1994] EWHC Ch 1, (1996) 71 P & CR 30)
    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 . .
  • Cited – Abbey Homesteads (Developments) Limited -v- Northamptonshire County Council CA ([1986] 1EGLR 24)
    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 . .
  • Cited – University of East London Higher Education Corporation -v- London Borough of Barking & Dagenham and others ChD (Bailii, [2004] EWHC 2710 (Ch), Times 03-Jan-05)
    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 . .
  • Cited – Rhone and Another -v- Stephens HL (Independent 23-Mar-94, Times 18-Mar-94, [1994] 2 WLR 429, [1994] 2 AC 310, Bailii, [1994] UKHL 3, [1994] 2 All ER 65)
    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. . .
  • Cited – London and South Western Railway Co -v- Gomm CA ((1882) 20 ChD 563)
    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 . .
  • Cited – Noakes and Co Ltd -v- Rice HL ([1902] AC 24, Bailii, [1901] UKHL 3)
    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 . .
  • Cited – Coles -v- Sims ([1854] EngR 103, Commonlii, (1854) 5 De G M & G 1, (1854) 43 ER 768)
    . .
  • Cited – Taylor -v- Gilbertson ([1854] EngR 705, Commonlii, (1854) 2 Drew 391, (1854) 61 ER 770)
    . .
  • Cited – Johnstone -v- Hall ([1856] EngR 336, Commonlii, (1856) 2 K & J 414, (1856) 69 ER 844)
    . .
  • Cited – Hodson -v- Coppard ([1860] EngR 1088, Commonlii, (1860) 29 Beav 4, (1860) 54 ER 525)
    . .
  • Cited – Heywood -v- Heywood RC ([1860] EngR 1155, Commonlii, (1860) 29 Beav 9, (1860) 54 ER 527)
    . .
  • Cited – Earl of Zetland -v- Hislop HL (Bailii, [1882] UKHL 1, (1882) 9 R (HL) 40, (1881-82) LR 7 App Cas 427)
    . .

(This list may be incomplete)

Last Update: 17-Jun-16
Ref: 181987

Swaine v The Great Northern Railway Company; 25 Jan 1864

References: [1864] EngR 173, (1864) 4 De G J & S 211, (1864) 46 ER 899
Links: Commonlii
Ratio 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 & 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 & 26 Vict. c. 42) does not make it compulsory on the Court so to do.

Last Update: 21-Apr-16
Ref: 281887

Moses v Macferlan: 1760

References: (1760) 2 Burr 1005
An action for money had and received will only lie where it is inequitable for the defendant to retain the money.
This case is cited by:

  • Cited – Lipkin Gorman (a Firm) -v- Karpnale Ltd HL ([1991] 2 AC 548, Bailii, [1988] UKHL 12, [1991] 3 WLR 10)
    The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
  • Cited – Sempra Metals Ltd -v- Inland Revenue Commissioners and Another HL (Bailii, [2007] UKHL 34, [2007] 3 WLR 354, Times 25-Jul-07, [2008] 1 AC 561, [2008] Eu LR 1, [2007] 4 All ER 657, [2007] STC 1559, [2007] BTC 509, [2008] Bus LR 49, [2007] All ER (D) 294, 151 Sol Jo 985)
    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 . .

(This list may be incomplete)
Last Update: 08-Jan-16 Ref: 259527

Lac Minerals v International Corina Resources Ltd; 11 Aug 1989

References: (1989) 61 DLR (4th) 14 Can SC (Canada), [1989] 2 SCR 574, [1990] FSR 441, 69 OR (2d) 287, 1989 CanLII 34 (SCC)
Links: Canlii
Coram: McIntyre, Lamer, Wilson, La Forest and Sopinka JJ
Supreme Court of Canada on appeal from the court of appeal for ontario – Commercial law — Confidentiality — Mining companies discussing possible joint venture — Confidential exploration results disclosed during discussions — High potential property adjacent to lands of exploration company — Mining company in receipt of information purchasing property for own use — Whether or not company in breach of duty respecting confidences — Whether or not breach of fiduciary duty — If so, the appropriate remedy.
Industrial and intellectual property — Trade secrets — Confidentiality — Mining companies discussing possible joint venture — Confidential exploration results disclosed during discussions — High potential property adjacent to lands of exploration company — Mining company in receipt of information purchasing property for own use — Whether or not company in breach of duty respecting confidences — If so, the appropriate remedy.
Trusts and trustees — Fiduciary duty — Trade secrets — Confidentiality — Mining companies discussing possible joint venture — Confidential exploration results disclosed during discussions — High potential property adjacent to lands of exploration company — Mining company in receipt of information purchasing property for own use — Whether or not breach of fiduciary duty — If so, the appropriate remedy.
Remedies — Unjust enrichment — Restitution — Constructive trust — Nature of constructive trust — When constructive trust available.
Last Update: 03-Dec-15 Ref: 556253

Leon Corporation v Atlantic Lines and Navigation Co Inc (‘The Leon’): 1985

References: (1985) 2 Lloyd’s Rep 470
Coram: Justice Hobhouse
The court discussed the application of the equitable doctrine of set-off. Justice Hobhouse said: ‘Equitable principles derive from a sense of what justice and fairness demand. This does not mean that equitable set-off has been reduced to an exercise of discretion. Since the merging of equity and law equitable set-off gives rise to a legal defence. This defence does not vary according to the length of the Lord Chancellor’s or arbitrator’s foot. The defence has to be granted or refused by an application of legal principle.’
When pressed to depart from the rule in Nanfri for fairness, the court said: ‘It is also correct that equitable principles derive from a sense of what justice and fairness demand and should therefore include the capacity to develop and adapt as the need arises . . But this does not mean that equitable set-off has been reduced to an exercise of discretion. Since the merging of equity and law, equitable set-off gives rise to a legal defence. This defence does not vary according to the length of the Lord Chancellor’s foot. The defence has to be granted or refused by an application of legal principle.
The relevant principle is that identified by Lord Cottenham in Rawson v. Samuel (1841) Cr. & Ph. 161, at p. 179: ‘The equity of the bill impeached the title to the legal demand’. What this requires is that the Court or arbitrator should consider the relationship between the claim and the cross-claim. This is why not every cross-claim, even though it arises out of the same transaction, necessarily gives rise to an equitable set-off. This element of the cross-claim impeaching the plaintiff’s demand is to be found in all the modern cases and is a recognition that the principle being applied is essentially the same as that stated by Lord Cottenham.’
This case is cited by:

  • Cited – Geldof Metaalconstructie Nv -v- Simon Carves Ltd CA (Bailii, [2010] EWCA Civ 667, [2010] WLR (D) 146, WLRD)
    The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .

(This list may be incomplete)
Last Update: 12-Nov-15 Ref: 200255

Libertarian Investments Ltd v Hall; 6 Nov 2013

References: [2014] 1 HKC 368, [2013] HKCFA 93
Links: Hklii
Coram: Millett NPJ, Ribeiro PJ
(Hong Kong) A trustee owes a duty to hold trust funds and apply them for the purposes of the trust (a stewardship or custodial duty). He is bound to answer for his stewardship when called on by the beneficiary to do so. If for any reason he misapplies the trust fund, or part of it, he must immediately reconstitute the trust fund in full. If he fails to do so, the court will order him to reconstitute the fund in specie, if that is possible, or pay the equivalent sum in money so as to produce the same result in financial terms.
Millett NPJ said that the relevant principle, in a case of unauthorised dissipation of trust funds is that: ‘Where the defendant is ordered to make good the deficit by the payment of money, the award is sometimes described as the payment of equitable compensation; but it is not compensation for loss but restitutionary or restorative. The amount of the award is measured by the objective value of the property lost determined at the date when the account is taken and with the full benefit of hindsight.’
Ribeiro PJ carried out a valuable review of the authorities concerned with equitable compensation in the context of a commercial relationship. He noted that where a relationship was fiduciary, there might be obligations which were not fiduciary in nature; and, equally, even in a commercial relationship, there might be aspects which engaged fiduciary obligations.
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 09-Nov-15 Ref: 553779

Premium Real Estate Ltd v Stevens; 6 Mar 2009

References: [2009] 2 NZLR 384, [2009] NZSC 15, (2009) 9 NZBLC 102
Links: Nzlii
Coram: Elias CJ, Blanchard, Tipping, McGrath and Gault JJ
Supreme Court of New Zealand – In relation to remoteness of damage, it was observed that the question of foreseeability in common law claims was effectively overtaken by the relationships out of which fiduciary duties arose, and that different policy considerations might affect remoteness of damage in cases of breach of fiduciary duty than in common law claims. But the necessity of demonstrating that a loss was caused by the claimed breach of fiduciary duty followed from the compensatory justification for the remedy.
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 06-Nov-15 Ref: 554209

Maguire v Makaronis; 25 Jun 1997

References: (1997) 188 CLR 449, [1997] HCA 23, (1997) 144 ALR 729, (1997) 71 ALJR 781
Links: Austlii
Coram: Brennan CJ, Gaudron, McHugh, Gummow, Kirby JJ
High Court of Australia – Equity – Fiduciary duties – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Ascertainment of particular fiduciary duties.
Equity – Equitable remedies – Rescission – Relevance of causal connection between breach of fiduciary duty and execution of mortgage – Scope of equity for rescission – Whether clients required to ‘do equity’ by honouring contractual obligation to pay principal and interest secured by mortgage – Rate of interest payable on principal sum outstanding under mortgage.
Legal practitioners – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Fiduciary duties – Equitable remedies.
‘In Australia, the measure of compensation in respect of losses sustained by reason of breach of duty by a trustee or other fiduciary is determined by equitable principles and . . these do not necessarily reflect the rules for assessment of damages in tort or contract.’
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 05-Nov-15 Ref: 554208

Agricultural Land Management Ltd v Jackson (No 2); 2 May 2014

References: [2014] WASC 102
Links: Austlii
Coram: Edelman J
(Supreme Court of Western Australia) Equity – Fiduciary duties – Whether mere existence of conflict is actionable – Whether a breach of conflict rule requires a fiduciary actually to act in a position of conflict and pursue or prefer a personal interest – Judgment pars [263] – [275]
Equity – Fiduciary duties – Whether a clause of a constitution of a trustee company can exclude all fiduciary duties – Consistency with s 601FC Corporations Act 2001 (Cth) – Effect on fiduciary duties owed by directors to the company
Equity – Equitable compensation – Where fiduciary duties owed by directors to a company – Whether the company can sue its directors for loss if contract entered into at an undervalue by trustee company on behalf of beneficiaries – Misleading to ask whether fiduciary duties are owed to the company ‘in its own right’ or ‘as trustee’ – Irrelevance to the award of compensation of whether the trustee will hold any recovery on trust for beneficiaries – Judgment pars
Equity – Equitable compensation – Difference between substitutive compensation and reparative compensation – When substitutive compensation is available – Judgment pars
Equity – Equitable compensation – Causation – ‘Common sense’ test of causation – Scope of liability for consequences – Need to identify precisely the scope of duty owed – Judgment pars
Corporations – Meaning of ‘compensation’ and causation requirements in s 1317H of the Corporations Act – Judgment pars
Corporations – Effect of deregistration of a registered scheme on ‘compensation’ in s 1317H of the Corporations Act – Judgment pars
Corporations – Meaning of ‘knowingly concerned in’ in s 79(c) of the Corporations Act – Requirement of ‘practical connection’ with at least one element of the contravention – Judgment pars
Limitation of actions – Application of limitation period by analogy – Limitation period for breach of equitable duty of care and skill by analogy with breach of common law duty of care and skill and by analogy with s 180 of Corporations Act – Judgment pars
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 03-Nov-15 Ref: 553780

Canson Enterprises Ltd v Boughton and Co; 21 Nov 1991

References: [1991] 3 SCR 534, 1991 CanLII 52 (SCC), 85 DLR (4th) 129, [1992] 1 WWR 245, 1 BCLR (2d) 1
Links: Canlii
Coram: Lamer CJ and Wilson, La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ
Canlii Supreme Court of Canada – Canada – Damages — Breach of fiduciary duty — Solicitor preparing conveyance not advising purchasers of secret profit made on a flip — On agreed facts, purchasers fully apprised of situation would not have entered the transaction — Action arising because inability of other professionals found liable in tort for faulty construction of building on subject lands to pay damages — Whether or not damages recoverable.
The claim was brought by developers of land against the lawyers who had acted for them in the purchase of the land. The lawyers acted in breach of their fiduciary duty by failing to disclose their knowledge that a third party was making a secret profit from the purchase. The development proved to be a failure as a result of the negligence of the engineers and contractors involved. The appellants sought to recover the loss incurred on the development from the lawyers, on the basis that they would not have proceeded with the purchase if they had known of the secret profit. Recognising that the loss would not be recoverable in an action founded on breach of contract, negligence or deceit, the appellants instead sought equitable compensation for breach of fiduciary duty, arguing that such compensation was unlimited by principles of causation, remoteness or intervening acts.
La Forest J (majority) distinguished between the breach of a trustee’s obligation to hold the object of the trust, where ‘on breach the concern of equity is that it be restored . . or, if that cannot be done, to afford compensation for what the object would be worth’, and on the other hand ‘a mere breach of duty’, where ‘the concern of equity is to ascertain the loss resulting from the particular breach of duty.’ In the former situation the difference between restoration and damages was abundantly clear, but in the latter situation ‘the difference in practical result between compensation and damages is by no means as clear’. He went on to observe in relation to claims of the latter kind: ‘The truth is that barring different policy considerations underlying one action or the other, I see no reason why the same basic claim, whether framed in terms of a common law action or an equitable remedy, should give rise to different levels of redress.’
McLachlin J dissented as to the way the result was obtained but not as to the result. She rejected the argument that the starting point, when quantifying compensation for breach of fiduciary duty, should be an analogy with tort or contract. In her view, that approach overlooked the unique foundation and goals of equity. In negligence and contract the parties were taken to be independent and equal actors, concerned primarily with their own self-interest. Consequently, the law sought a balance between enforcing obligations by awarding compensation, and preserving optimum freedom for those involved in the relationship. The essence of a fiduciary relationship, by contrast, was that one party pledged herself to act in the best interests of the other. The freedom of the fiduciary was diminished by the nature of the obligation she had undertaken. The fiduciary relationship had trust, not self-interest, at its core.
She concluded: ‘In summary, compensation is an equitable monetary remedy which is available when the equitable remedies of restitution and account are not appropriate. By analogy with restitution, it attempts to restore to the plaintiff what has been lost as a result of the breach, ie, the plaintiff’s loss of opportunity. The plaintiff’s actual loss as a consequence of the breach is to be assessed with the full benefit of hindsight. Foreseeability is not a concern in assessing compensation, but it is essential that the losses made good are only those which, on a common sense view of causation, were caused by the breach.’
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 03-Nov-15 Ref: 553778

Cadbury Schweppes v FBI Foods; 28 Jan 1999

References: [1999] 1 SCR 142, 1999 CanLII 705 (SCC), 85 ACWS (3d) 166, 191 WAC 161, [1999] SCJ No 6 (QL), JE 99-317, AZ-99111005, 83 CPR (3d) 289, 235 NR 30, 117 BCAC 161, 42 BLR (2d) 159, 59 BCLR (3d) 1, 167 DLR (4th) 577
Links: Canlii
Coram: L’Heureux-Dube, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ
Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction appropriate remedy for breach of confidence in this case – Whether ‘head start’ concept applies — Whether calculation of equitable compensation differs from common law damages.
This case cites:

  • Cited – Hodgkinson -v- Simms ([1994] 3 SCR 377, Canlii, 117 DLR (4th) 161, [1994] 9 WWR 609, 97 BCLR (2d) 1, 16 BLR (2d) 1, 171 NR 245, 22 CCLT (2d) 1, 49 BCAC 1, 57 CPR (3d) 1, 5 ETR (2d) 1, [1994] CarswellBC 438, AZ-94111096, JE 94-1560, [1994] SCJ No 84 (QL), [1994] ACS no 84, 50 ACWS (3d) 469, 80 WAC 1, 95 DTC 5135)
    Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by . .

(This list may be incomplete)
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 03-Nov-15 Ref: 554203

Akai Holdings Ltd v Kasikornbank PCL; 8 Nov 2010

References: [2011] 1 HKC 357
Links: Hklii
Coram: Chief Justice Ma, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and, Lord Neuberger of Abbotsbury NPJ
Court of Final Appeal – Hong Kong – Lord Neuberger of Abbotsbury NPJ said: ‘the notion that equitable compensation is assessed on a somewhat different basis from common law damages is clearly right (albeit that the difference can be overstated)’ and ‘the losses made good are only those which, on a common sense view of causation, were caused by the breach’
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 03-Nov-15 Ref: 554210

KM v HM; 29 Oct 1992

References: (1992) 96 DLR (4th) 289, [1992] 3 SCR 6, 14 CCLT (2d) 1, AZ-92111111, EYB 1992-67549, JE 92-1644, [1992] SCJ No 85 (QL), 36 ACWS (3d) 466, 57 OAC 321
Links: Canlii
Coram: La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ
Supreme Court of Canada – Limitation of actions – Torts – Assault and battery – Incest – Woman bringing action against father for damages for incest – Whether or not action limited by Limitations Act – Application of the reasonable discoverability principle – Whether or not incest a separate and distinct tort – Limitations Act, R.S.O. 1980, c. 240, s. 45(1)(j), 47.
Limitation of actions – Equity – Fiduciary relationship – Parent/child – Woman bringing action against father for incest – Whether incest constitutes a breach of fiduciary duty by a parent – Whether limitation period applicable and whether the defence of laches applies.
Limitation of actions – Fraudulent concealment – Incest – Whether a limitation period in an incest action is postponed by defendant’s fraudulent concealment.
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 03-Nov-15 Ref: 554205

Tasker v Small; 3 Jun 1836

References: , [1836] EngR 780, (1836) Donn Eq 82, (1836) 47 ER 241 (B)
Links: Commonlii
Coram: Lord Cottenham LC
The words in a Settlement to raise Money by ‘Mortgage, Annuity or otherwise,’ authorises a Sale of a reversionary Estate.
Lord Cottenham LC said that the rule by which a purchaser becomes in equity the owner of the property sold ‘applies only as between the parties to the contract, and cannot be extended so as to affect the interests of others.’
This case is cited by:

(This list may be incomplete)
Last Update: 30-Oct-15 Ref: 315112

Barker v Harrison; 16 Apr 1846

References: [1846] EngR 533, (1846) 2 Coll 546, (1846) 63 ER 854
Links: Commonlii
Coram: Sir James Knight-Bruce V-C
A vendor’s agent had secretly negotiated a sub-sale of part of the property from the purchaser at an advantageous price.
Held: that asset was held on trust for the vendor.
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    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 . .

Diplock And Others v Blackburn; 19 Jul 1811

References: [1811] EngR 468, (1811) 3 Camp 43, (1811) 170 ER 1300 (A)
Links: Commonlii
If the master of a ship in a foreign port, from the state of the exchange, receives a premum for a bill drawn upon England on account of the ship, this belongs to his owner, although there may have been a usage for masters of shps to apprapriate such premiums to their own use.
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    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 . .

Grimaldi v Chameleon Mining NL (No 2); 21 Feb 2012

References: [2012] FCAFC 6, (2012) 200 FCR 296, (2012) 287 ALR 22, (2012) 87 ACSR 260
Links: Austlii
Coram: Finn, Stome, and Perram JJ
Federal Court of Australia
CORPORATIONS – Corporations Act 2001 (Cth), s 9 – ‘director’ – ‘officer’ – de facto director – no single test for determining whether a person is such – assuming or performing the functions of a director of the company in question – directors or consultants or both – blurring of ‘de facto’ and ‘shadow’ – de facto officer – unnecessary to differentiate de facto director from de facto officers
CORPORATIONS – Corporations Act 2001 (Cth), ss 181 and 182 – director and de facto director misappropriating corporate funds – effecting a transaction in which they had a personal interest – using position in expectation of obtaining an introduction fee
CORPORATIONS – Corporations Act 2001 (Cth), s 1317H – construction of provision – inclusion of ‘profits’ within ‘damage suffered’ – whether profits can be sought without claim for, or proof of, loss
CORPORATIONS – knowledge of corporation – imputation of director’s knowledge to corporation – knowledge of own wrongdoing – ‘fraud on the company’ exception – receipt of a secret commission
EQUITY – Fiduciary obligations – imposing standards of conduct – overlap of conflict of duty and interest and misuse of fiduciary position – defining the subject matter over which fiduciary obligations extend
EQUITY – Fiduciary obligations – receipt of civil law bribe or secret commission – characteristics of secret commission – third party payer’s position – assumption of risk of agent’s nondisclosure to its principal
EQUITY – Participation in the wrongdoing of a trustee or fiduciary – classes of case – Barnes v Addy – liabilities as a knowing recipient or a knowing assistant – fault based liabilities – the ‘knowledge’ of wrongdoing required of a knowing recipient – present Australian law – unhelpful formulae
EQUITY – Corporate property as ‘trust property’ for Barnes v Addy purposes – money paid or property transferred under a contract – breach of fiduciary duty – whether the transaction must be avoided before proprietary relief can be awarded – Daly v Sydney Stock Exchange – constructive trusts and tracing corporate property
EQUITY – Remedies – fashioning remedy to fit the nature of the case and its facts – doing what is ‘practically just’ – awarding the remedy which is ‘appropriate’ in the circumstances – the remedial constructive trust and appropriateness – discretionary considerations
EQUITY – Fiduciaries’ Liability to Account and the Account of Profits – purpose and limits of an account of profits – breach of duty only one of several sources of profit – misuse of ‘trust moneys’ in a fiduciary’s trade or business – applicable principles – the ‘just allowance’ device
EQUITY – Account of Profits – accounting for the profits actually made – when parties may be jointly and severally liable for profits
EQUITY – Interest awards where trust moneys misused – presumption of profit made reflected in award of interest – award of compound interest and periodic rests
EQUITY – Remedies – against knowing recipients and knowing assistances – whether joint and several as between fiduciary/trustee and the third party participants
EQUITY – Remedies – for bribes and secret commissions – Lister & Co v Stubbs not followed – constructive trust of the property received an available remedy if appropriate in the circumstances
PRACTICE AND PROCEDURE – Appeals – application to amend – application to reopen decision to refuse amendment to Notice of Contention – application to reopen on grounds of legal error – Grimaldi v Chameleon Mining NL (No 1) [2011] FCAFC 95 reopened – Federal Court Rules 2011 r 39.04 – application to further amend notice of appeal
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    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 . .

Smith v Brooksbank; 25 Jun 1834

References: , [1834] EngR 880, (1834) 7 Sim 18, (1834) 58 ER 743 (B)
Links: Commonlii
A bequeathed a reversionary interest, expectant on his wife’s death, in a sum of stock to B. B. bequeathed it to C., and C. bequeathed it to D, who, on the death of A’s wife, filed a bill against the trustees to have the stock transferred to him, alleging that the executors of A. and B, and C. had successively assented to the bequests.
Held: that the executors were not necessary parties.
This case is cited by:

  • See Also – Brooksbank -v- Smith (, Commonlii, [1836] EngR 447, (1836) Donn Eq 11, (1836) 47 ER 193 (B))
    In this case, trustees under a will, who were solicitors, had by mistake transferred stock to a person not entitled. Baron Alderson said, this being under circumstances of mistake, it appeared clear to him that the Plaintiffs were entitled to . .
  • See Also – Brooksbank And Another -v- Smith (, Commonlii, [1836] EngR 446, (1836) 2 Y & C Ex 59, (1836) 160 ER 311)
    The testatrix died in 1818 leaving a fund in trust, subject to a life interest, for her children in equal shares, with substitutional gifts if any child predeceased her leaving issue. Her daughter Elizabeth did predecease her by two months, but on . .

Holland v Russell; 9 May 1863

References: [1863] EngR 546, (1863) 4 B & S 14, (1863) 122 ER 365
Links: Commonlii
This case cites:

  • See Also – Holland -v- Russell ([1861] EngR 728, Commonlii, (1861) 1 B & S 424, (1861) 121 ER 773)
    Insurance. Suppression of material fact. Principal and agent. Money had and received. A, as agent for a foreign owner, entered into a policy of insurance on a ship in the usual form. At the time of effecting the insurance, A was in possession of a . .

M’Mohon v Burchell; 5 Jun 1846

References: [1846] EngR 760, (1846) 5 Hare 322, (1846) 67 ER 936
Links: Commonlii
This case cites:

  • See Also – MacMahon -v- Burchell ([1843] EngR 526, Commonlii, (1843) 3 Hare 97, (1843) 67 ER 312)
    A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .
  • See Also – M’Mohan -v- Burchell ([1845] EngR 724, Commonlii, (1845) 1 Holt Eq 186, (1845) 71 ER 716)
    . .
  • See Also – M’Mahon -v- Burchell CA ((1846) 1 Coop t Cott 457 (47 ER 944), SC 2 Ph 127 (41 ER 889))
    Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .

This case is cited by:

Scottish Equitable v Derby; 16 Mar 2001

References: [2001] 3 All ER 818, [2001] EWCA Civ 369, [2001] OPLR 181, [2001] 2 All ER (Comm) 274, [2001] Pens LR 163
Links: Bailii
Coram: Robert Walker LJ
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.
This case cites:

  • Cited – Lipkin Gorman (a Firm) -v- Karpnale Ltd HL ([1991] 2 AC 548, Bailii, [1988] UKHL 12, [1991] 3 WLR 10)
    The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
  • Cited – Avon County Council -v- Howlett CA ([1983] 1 WLR 605, [1983] 1 All ER 1073)
    The plaintiff, through its computerised system for the payment of wages, had overpaid the defendant to the extent of £1,007. He had suffered an injury and been absent from work. The Council sought to recover the overpayment on the grounds that . .

This case is cited by:

  • Cited – Commerzbank Ag -v- Price-Jones CA (Bailii, Times 26-Nov-03, [2003] EWCA Civ 1663)
    The respondent had received a bonus of £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 employer . .

Falcke v Gray; 13 Jun 1859

References: [1859] EngR 710, (1859) 4 Drew 651, (1859) 62 ER 250
Links: Commonlii
The Court will enforce specific performance of a contract to purchase chattels, if damages will not be an adequate compensation.
But where the contract, although not actually fraudulent, was one in which the parties were not on an equal footing, the Plaintiff knowing, and the purchaser being ignorant, of the value of the thing sold, and the price appeared to be inadequate, the Court refused relief.

Stone v Godfrey; 10 Dec 1853

References: [1853] EngR 1085, (1853) 1 Sm & G 590, (1853) 65 ER 258
Links: Commonlii
The father of a female infant, who was himself tenant by the curtesy, but whose right was regarded as doubtful, became next friend of his daughter in a suit against the trustee of his late wife’s real estates, in which a decree was obtained for a partition, and conveyance of the infant’s portion to the father, until she attained twenty one, and then to the use of the infant in fee. The father received the rents and profits, and duly accounted to his daughter in respect of them ; but, on her marriage, filed a bill against her and her husband, for a declaration that his daughter’s interest in the estate might be declared, subject to his estate by curtesy. Held, that the Plaintiff, having relinquished what was regarded as a doubtful right, by an arrangement under which he derived a benefit, was not entitled to relief. Semble -A wife, entitled to real estate sested in trustees, who, under an erroneous impression of her rights, paid the rents to other persons, died, without having received the rents, leaving her husband and one daughter her surviving that; the husband was tenant by the curtesy.
This case is cited by:

  • Cited – Gibbon -v- Mitchell ChD ([1990] 1 WLR 1304, [1990] 3 All ER 338)
    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 . .

Joyce v Joyce; 2 Jan 1978

References: [1978] 1 WLR 1170, [1979] 1 All ER 175
Coram: Megarry V-C
A claim was made for specific performance of an oral agreement to sell shares.
Held: The plaintiff had failed to show that if he issued another writ for the same relief, it would be not be defeated by the doctrine of laches. Payment of the purchase price is neither here nor there if the contract against which it is said to have been paid was in dispute. A plea of laches is available to a person against whom it is alleged that he holds the disputed asset as a bare trustee under an uncompleted contract: ‘In applying Birkett v James [1978] AC 297 to cases that are the subject to laches rather than any fixed period of limitation, I think that it is for the plaintiff to demonstrate the futility of striking out the earlier action; and to do this he must at least show that in the second action there is a prima facie case for his being able to overcome the difficulties resulting from the doctrine of laches. In this case the plaintiff has wholly failed to persuade me of this. Certainly the plaintiff has been very far from showing himself to be ‘ready, desirous, prompt and eager.’ The court therefore considered that ‘ it would be futile to dismiss the first action for want of prosecution, for although the defendant would still be exposed to the claims in the second action, those claims face greater difficulties than did the claims in the first action. In other words, the defendant is better off in facing only the second action and not having to meet the first. ‘
This case cites:

  • Cited – Birkett -v- James HL ([1978] AC 297, [1977] 2 All ER 801, [1977] 3 WLR 38)
    The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .

This case is cited by:

  • Cited – Inglorest Investments Ltd -v- Robert Campbell & Another CA ([2004] EWCA Civ 408, Bailii)
    The appellants appealed an order that property be part of the estate of the deceased. There had been an agreement to assign the reversion of the lease to the claimant. That was not completed, but he later acquired the freehold reversion. No written . .

Legg v Goldwire; 10 Nov 1736

References: [1736] EngR 81, (1736) Cas T Talbot 20, (1736) 25 ER 637
Links: Commonlii
Coram: Talbot LC
By Lord Chancellor Talbot – Where articles are entered into before marriage, and a settlement is made after marriage different from those articles (as if by articles the estate was to be in strict settlement, and by the settlement the husband is made tenant in tail whereby he hath it in his power to bar the issue), this Court will set up the articles against the settlement; but where both articles and settlement are previous to the marriage, at a time when all parties are at liberty, the settlement differing from the articles will be taken as a new agreement between them and shall control the articles. And although, in the case of West v Errissey . . afterwards in the House of Lords, in 1727, the articles were made to control the settlement made before marriage, yet that resolution no way contradicts the general rule; for in that case the settlement was expressly mentioned to be made in pursuance and performance of the said marriage articles, whereby the intent appeared to be still the same as it was at the making of the articles.

Fowler v Fowler; 12 May 1859

References: [1859] EngR 598, (1859) 4 De G & J 250, (1859) 45 ER 97
Links: Commonlii
Coram: Lord Chelmsford LC
Lord Chelmsford LC said that a party seeking rectification must establish clearly ‘that the alleged intention to which he desires’ (the instrument) ‘to be made conformable continued concurrently in the minds of all parties down to the time of its execution, and also must be able to shew exactly and precisely the form to which the deed ought to be brought’.

Brooksbank v Smith; 24 Feb 1836

References: , [1836] EngR 447, (1836) Donn Eq 11, (1836) 47 ER 193 (B)
Links: Commonlii
Coram: Baron Alderson
In this case, trustees under a will, who were solicitors, had by mistake transferred stock to a person not entitled. Baron Alderson said, this being under circumstances of mistake, it appeared clear to him that the Plaintiffs were entitled to equitable relief ; for, on looking into the authorities he found that fraud or mistake were each of them grounds for relief in equity. Then came the question, whether the Statute of Limitations was a bar? The Statute of Limitations did not apply to Courts of Equity so as to bind them, Undoubtedly, they had exercised discretion, and very rightly, upon the rules laid down. For instance, in cases of fraud, Courts of Equity did not apply the rule in the same manner as Courts of law, which were so bound by the words of the statute, that if the cause of action bad occurred more than six years before, however equitabIe it might be, they could not permit the statute to run. Courts of Equity held, that in cases of fraud, the statute of Limitations ran from the discovery of the fraud, It appearet to jim that cases of mistake fell under the same rule, and that it would be inequitable to apply the Statute of Limitations, except in cases where a party had lain by after the mistake had been discovered, more than six years ; in this case the mistake had been discovered within six years, the statute did not, therefore, bar the Plaintiff’s claim.
This case cites:

  • See Also – Smith -v- Brooksbank (, Commonlii, [1834] EngR 880, (1834) 7 Sim 18, (1834) 58 ER 743 (B))
    A bequeathed a reversionary interest, expectant on his wife’s death, in a sum of stock to B. B. bequeathed it to C., and C. bequeathed it to D, who, on the death of A’s wife, filed a bill against the trustees to have the stock transferred to him, . .

This case is cited by:

  • See Also – Brooksbank And Another -v- Smith (, Commonlii, [1836] EngR 446, (1836) 2 Y & C Ex 59, (1836) 160 ER 311)
    The testatrix died in 1818 leaving a fund in trust, subject to a life interest, for her children in equal shares, with substitutional gifts if any child predeceased her leaving issue. Her daughter Elizabeth did predecease her by two months, but on . .
  • Cited – Test Claimants In The Franked Investment Income Group Litigation -v- Inland Revenue SC (Bailii, [2012] UKSC 19, [2012] WLR(D) 161, [2012] STC 1362, [2012] 2 WLR 1149, [2012] 3 All ER 909, [2012] BTC 312, [2012] 2 AC 337, [2012] Bus LR 1033, [2012] STI 1707)
    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 . .

Wagstaff v Read; 20 Nov 1683

References: [1683] EngR 80, (1683) 2 Chan Cas 156, (1683) 22 ER 892 (C)
Links: Commonlii
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.

Parkin v Thorold; 2 Jun 1851

References: [1851] EngR 542, (1851) 2 Sim NS 1, (1851) 61 ER 239
Links: Commonlii
A purchase was to be completed on the 25th October. Before that, day arrived the purchaser, at the vendor’s request, extended the time to the 5th of November. The title, however was not completed on that day. Held, that the purchaser was at liberty to abandon the contract.
This case is cited by:

  • Appeal from – Parkin -v- Thorold CA ((1852) 22 LJ Ch 170, [1852] EngR 535, Commonlii, (1852) 16 Beav 59, (1852) 51 ER 698)
    The parties had exchanged contracts to complete on a day. The vendor requested a postponment and the buyer agreed. On the new day fixed, the title was still complete. The vendor now appealed against refusal of his request for an order for specific . .

Horton v The Westminster Improvement Commissioners; 12 Jun 1852

References: [1852] EngR 729, (1853) 7 Exch 911, (1852) 155 ER 1220
Links: Commonlii
This case cites:

  • See Also – Horton -v- The Westminster Improvement Commissioners ([1852] EngR 658, Commonlii, (1853) 7 Exch 780, (1852) 155 ER 1165)
    The plaintiff was assignee of the defendants’ bond to A to pay £10,000. It recited that the defendants had borrowed £5,000 from A for the purposes of carrying out works under the Westminster Improvement Acts 1845 and 1847. The defendants . .

Bonney v Ridgard; 3 Dec 1784

References: [1784] EngR 230, (1784) 1 Cox 145, (1784) 29 ER 1101 (B), (1784) 1 Cox Eq Cas 145
Links: Commonlii
A purchaser of leasehold premises from an executor need not (in general) see to the application of the purchase money, nor need there be any recital in such an assignment of the purpose for which it is sold ; but if on the face of the assignment it appears to have been made in satisfaction of the private debt of the executor, such a sale is fraudulent against the persons interested in the premises under the will, and a court of equity will relieve against it. But such a claim will be barred by a great length of time having run against the parties seeking relief.
This case is cited by:

  • Cited – Williams -v- Central Bank of Nigeria SC (Bailii, [2014] UKSC 10, 16 ITELR 740, [2014] WLR(D) 88, [2014] 2 All ER 489, [2014] 2 WLR 355, [2014] WTLR 873, WLRD, Bailii Summary, UKSC 2012/0113, SC Summary, SC)
    The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .

Wilson v Moore; 22 Mar 1834

References: , [1834] EngR 607, (1834) 1 My & K 337, (1834) 39 ER 709
Links: Commonlii
Merchants who, by the direction of an executor, their commercial correspondent, applied a fund, which they knew to be part of the testator’s assets, in satisfaction of advances made by them, in the course of trade, to relieve the embarrasments of their correspondent, were held to be responsible for the fund so applied, to general pecuniary legatees under the will of the tesator.
Affirmed upon appeal.
This case is cited by:

  • Cited – Williams -v- Central Bank of Nigeria SC (Bailii, [2014] UKSC 10, 16 ITELR 740, [2014] WLR(D) 88, [2014] 2 All ER 489, [2014] 2 WLR 355, [2014] WTLR 873, WLRD, Bailii Summary, UKSC 2012/0113, SC Summary, SC)
    The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .

Roxborough v Rothmans of Pall Mall Australia Ltd; 6 Dec 2001

References: (2001) 208 CLR 516
Coram: Gleeson CJ, Gaudron, Gummow, Kirby, Haynes, Callinan JJ
High Court of Australia – Rothmans were licensed to act as wholesalers of tobacco products under a New South Wales statute. They sold products to retailers for a price including licence fees, which were in reality a form of indirect taxation, payable by Rothmans to the New South Wales government. The Act imposing that liability on Rothmans was held by the High Court to be unconstitutional. The retailers then sued Rothmans to recover the amounts which they had paid in respect of the tax which had until then been unlawfully imposed on Rothmans.
The retailers argued unsuccessfully that there was an implied agreement under which they could claim repayment of any unpaid tax. This argument was described in the leading judgment of Gleeson CJ, Gaudron and Hayne JJ, as ‘artificial and unconvincing’. However, the retailers succeeded in restitution.
Gleeson CJ, Gaudron and Hayne JJ, stated that ‘Failure of consideration is not limited to non-performance of a contractual obligation, although it may include that’. They also rejected Rothmans’ argument that the restitution claims failed because there had not been a total failure of consideration, by interpreting the consideration for the total payments made by the retailers as containing severable parts.
Gummow J (concurring), advocated: ‘caution in judicial acceptance of any all-embracing theory of restitutionary rights and remedies founded upon a notion of ‘unjust enrichment’. To the lawyer whose mind has been moulded by civilian influences, the theory may come first, and the source of the theory may be the writing of jurists not the decisions of judges. However, that is not the way in which a system based on case law develops; over time, general principle is derived from judicial decisions upon particular instances, not the other way around.’
After reviewing the authorities Gummow J held that failure of consideration in this area of law may include the collapse of a bargain, which need not be contractual in nature. There had been no failure in the performance by Rothmans of any promise made by them, but there had been a ‘failure of consideration’ in the ‘failure to sustain itself of the state of affairs contemplated as a basis for the payments the appellants seek to recover’.
This case is cited by:

Kendall, Ex Parte; 25 May 1813

References: [1813] EngR 348, (1813) 1 Ves & Bea 543, (1813) 35 ER 211 (B)
Links: Commonlii
This case cites:

  • See Also – Kendall, Ex Parte (Commonlii, [1811] EngR 268, (1811) 17 Ves Jun 514, (1811) 34 ER 199)
    Lord Eldon LC said: ‘The equity is clear upon the authorities, that, if two funds of the debtor are liable to one creditor, and only one fund to another, the former shall be thrown upon that fund, to which the other cannot resort; in order that he . .

Aldrich v Cooper, Durham v Lankester, Durham v Armstrong; 26 Apr 1803

References: [1803] EngR 542, (1803) 8 Ves Jun 382, (1803) 32 ER 402 (B)
Links: Commonlii
Coram: Lord Eldon LC
Lord Eldon LC discussed the equitable principle of marshalling and said: ‘two estates [were] mortgaged to A; and one of them mortgaged to B. He has no claim under the deed upon the other estate. It may be so constructed that he could not affect that estate after the death of the mortgagor. But it is the ordinary case to say a person having two funds shall not by his election disappoint the party having only one fund; and equity, to satisfy both, will throw him, who has two funds, upon that, which can be affected by him only; to the intent that the only fund, to which the other has access, may remain clear to him.’
This case is cited by:

  • Cited – Serious Organised Crime Agency -v- Szepietowski and Others ChD (Bailii, [2010] EWHC 2570 (Ch), [2010] NPC 101, [2011] Lloyd’s Rep FC 81)
    The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . .
  • Cited – Szepietowski -v- The National Crime Agency SC (Bailii, [2013] UKSC 65, [2013] 3 WLR 1250, [2014] Lloyd’s Rep FC 1, [2014] 1 BCLC 143, [2014] 1 All ER 225, [2014] 1 AC 338, [2013] WLR(D) 408, Bailii Summary, WLRD, UKSC 2011/0196, SC Summary, SC)
    S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .

Kendall, Ex Parte; 7 May 1811

References: [1811] EngR 268, (1811) 17 Ves Jun 514, (1811) 34 ER 199
Links: Commonlii
Coram: Lord Eldon LC
Lord Eldon LC said: ‘The equity is clear upon the authorities, that, if two funds of the debtor are liable to one creditor, and only one fund to another, the former shall be thrown upon that fund, to which the other cannot resort; in order that he may avail himself of his only security: where that can be done without injustice to the debtor or the creditor: but that principle has never been pressed to the effect of injustice to the common debtor . .’
This case is cited by:

  • See Also – Kendall, Ex Parte (Commonlii, [1813] EngR 348, (1813) 1 Ves & Bea 543, (1813) 35 ER 211 (B))
    . .
  • Cited – Szepietowski -v- The National Crime Agency SC (Bailii, [2013] UKSC 65, [2013] 3 WLR 1250, [2014] Lloyd’s Rep FC 1, [2014] 1 BCLC 143, [2014] 1 All ER 225, [2014] 1 AC 338, [2013] WLR(D) 408, Bailii Summary, WLRD, UKSC 2011/0196, SC Summary, SC)
    S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .

Jackson v Jackson; 4 Jul 1804

References: (1804) 9 Ves Jr 591, [1804] EngR 302, (1804) 9 Ves Jun 591, (1804) 32 ER 732
Links: Commonlii
Coram: Lord Eldon LC
A testator left his business and land to his two sons jointly to carry on that business after his death. They did so as partners. One issue was whether in doing so they severed the joint tenancy in the land, which was accessory to the business. Lord Eldon LC said that if the father’s will had made clear that the joint tenancy was to survive despite the sons’ dealings with it as partnership property, then the intention of the testator should prevail. As it was, in the absence of such an intention, it was open to the sons to sever the joint tenancy, and they had done so: ‘after transactions for 12 years; shewing that William lived and died in the persuasion, maintained by the acts of the other, that he was entitled to one-half; and after his death the Defendant acting upon the idea; which is the rational inference from the nature of the property and the transactions till his brother’s death; who was, during his whole life, entitled to sever his interest.’
This case is cited by:

Lanoy v The Duke And Dutchess of Athol; 13 Nov 1742

References: [1742] EngR 130, (1742) 2 Atk 444, (1742) 26 ER 668
Links: Commonlii
Coram: Lord Hardwicke LC
There being a borrowing and a lending in the case of a mortgage, the real estate is considered only as a pledge, and the personal liable in the first place ; but this rule has never been carried so far, as to extend it to a provision in a settlement.
Lord Hardwicke LC said: ‘Is it not then the constant equity of this court that if a creditor has two funds, he shall take his satisfaction out of that fund upon which another creditor has no lien . . Suppose a person, who has two real estates, mortgages both to one person, and afterwards only one estate to a second mortgagee, who had no notice of the first; the court, in order to relieve the second mortgagee, have directed the first to take his satisfaction out of that estate only which is not in mortgage to the second mortgagee, if that is sufficient to satisfy the first mortgage, in order to make room for the second mortgagee, even though the estates descended to two different persons . .’
This case is cited by:

  • Cited – Szepietowski -v- The National Crime Agency SC (Bailii, [2013] UKSC 65, [2013] 3 WLR 1250, [2014] Lloyd’s Rep FC 1, [2014] 1 BCLC 143, [2014] 1 All ER 225, [2014] 1 AC 338, [2013] WLR(D) 408, Bailii Summary, WLRD, UKSC 2011/0196, SC Summary, SC)
    S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .

Boyse v Rossborough; 11 Feb 1854

References: [1854] EngR 252, (1854) 3 De G M & G 817, (1854) 43 ER 321
Links: Commonlii
Coram: Lord Carnworth LC
A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the direction or decree of a court of Equity.
This case cites:

  • See Also – Boyse -v- Rossborough ([1853] EngR 1056, Commonlii, (1853) Kay 71, (1853) 69 ER 31)
    A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee. . .

This case is cited by:

  • See Also – Boyse -v- Rossborough ([1854] EngR 853, Commonlii, (1854) 1 K & J 124, (1854) 69 ER 396)
    A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .
  • See Also – Boyse -v- Rossborough HL ([1857] 6 HLC 2, [1857] EngR 299, Commonlii, (1857) 5 HLC 1, (1857) 10 ER 1192)
    In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .

Hogg v Kirby; 15 Mar 1803

References: [1803] EngR 513, (1803) 8 Ves Jun 215, (1803) 32 ER 336 (B)
Links: Commonlii
Coram: Lord Eldon LC
Injunction to restrain publishing a Magazine as a continuation of the Plaintiff’s Magazine in numbers, and as to communications from correspondents, received by the Defendant while publishing for the Plaintiff ; not preventing the publication of an original work of the same nature, and under a similar title. The Plaintiff was proprietor of a work, published in monthly numbers under the title ‘The Wonderful Magazine’.
Held: In assessing damages in a passing off case, the court said, ‘what is the consequence in Law and in Equity? . . a Court of Equity in these cases is not content with an action for damages; for it is nearly impossible to know the extent of the damage; and therefore the remedy here, though not compensating the pecuniary damage except by an account of profits, is the best: the remedy by an injunction and account.’ The reason for the general rule in courts of equity that an injunction would be granted as a matter of course to restrain infringements of property rights was the inadequacy of damages as a remedy.’
This case cites:

  • See Also – Hogg -v- Kirby (Commonlii, [1789] EngR 1227, (1789-1817) 2 Ves Jun Supp 100, (1789) 34 ER 1013 (B))
    . .

This case is cited by:

  • Cited – HM Attorney General -v- Blake (Jonathan Cape Ltd third Party intervening) HL (Gazette 17-Aug-00, Times 03-Aug-00, House of Lords, Bailii, [2000] UKHL 45, [2000] 4 All ER 385, [2000] 3 WLR 625, [2001] 1 AC 268)
    The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
  • Cited – Ludlow Music Inc -v- Williams and others ChD (Bailii, [2000] EWHC 456 (Ch), [2001] EMLR 7, [2001] FSR 19)
    The claimant sought damages for copyright infringement in respect of two works which parodied a song to which they owned the rights.
    Held: The amount copied, being as much as a quarter of the original work, meant that the claim was . .

Boyse v Rossborough; 5 Dec 1853

References: [1853] EngR 1056, (1853) Kay 71, (1853) 69 ER 31
Links: Commonlii
A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee.
Previously to the Statute of Frauds the Court of Chancery frequently took upon itself to determine the validity of wills by inquiry before some of the Masters of the Court, a practice which has ceased since the case of Kerrich v. Brandy, 7 Bro. P. C. 437, But, as early as the time of James the First, it appears to have been considered that the proper mode of trying the validity or invalidity of a will of real estate was by a trial at law, the Court of Chancery reserving the power to deal with the case as justice might require.
The proceeding in equity to establish a will against the heir differs very much from assisting to try its validity or invalidity, either by removing the obstacle of an outstanding
term, in which case the trial at law would be by ejectment, or by perpetuating testimony concerning the will; because, by a decree establishing the will, the heir at law is so bound that a perpetual injunction wouid be granted against him if, after such decree, he should attempt to impeach the will.
The origin of this jurisdiction is obscure ; but, on principle, it cannot arise from the fact of the devise being upon trust, for that can make no difference to the heir ; or because the Court experiences a difficulty, for then, in all other cases of difficulty occurring under deeds, there would be the same jurisdiction.
Nor can it be for the protection of trustees, because the jurisdiction exists where there is no trust, but only the obstacle of an outstanding legal estate, which prevents an action at law.
But upon principle and authority there is an inherent equity on the part of the devisee, whether legal or equitable, arising from the mere fact of the devise, to have the will established against the heir.
An averment in such a bill that A. claims to be heir of the testator, supported by a statement that he has sued in that character in Ireland, and succeeded, is sufficient.
That the legal estate has been conveyed by the Plaintiff to his own trustee since then this cause came on to be heard upon a general demurrer for want of equity.
This case is cited by:

  • See Also – Boyse -v- Rossborough ([1854] EngR 252, Commonlii, (1854) 3 De G M & G 817, (1854) 43 ER 321)
    A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the . .
  • See Also – Boyse -v- Rossborough ([1854] EngR 853, Commonlii, (1854) 1 K & J 124, (1854) 69 ER 396)
    A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .
  • See Also – Boyse -v- Rossborough HL ([1857] 6 HLC 2, [1857] EngR 299, Commonlii, (1857) 5 HLC 1, (1857) 10 ER 1192)
    In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .

Wright v Vanderplank; 8 Mar 1856

References: [1856] EngR 331, (1856) 8 De G M & G 133, (1856) 44 ER 340
Links: Commonlii
A daughter executed a deed of gift of a life-interest to her fathr, soon after she attained twenty-one, having no advice except that of her father’s solicitor who however stated that he had on that occasion acted as the solicitor of the daughter, and had informed the father that he could take no instruction from him. She afterwards consulted a different solicitor as to the validity of the deed, and corresponded with her father on the subject of the application of the rents of the property. A year afterwards she married, and negotiations took plaoe between her father and a solicitar, who acted for her intended husband and also for her, from which it appeared that she was aware of her father’s interest under the deed of gift, and made no objection to it. She and her husband executed a post-nuptial settlement, which was expressed to be subject to the father’s life estate, She died more ten years after the date of the deed of gift, and then her husband, to whom her right devolved, filed a bill to set that deed aside.
Held: 1st that it might have been set aside but for subsequent acts of acquiescence ; 2nd that there had been such acquiescence as to afford an effectual defence to the suit.
This case cites:

  • Appeal from – Wright -v- Vanderplank ([1855] EngR 696, Commonlii, (1855) 2 K & J 1, (1855) 69 ER 669)
    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 . .

Knight v Bowyer; 1 Aug 1859

References: [1859] EngR 908, (1859) 4 De G & J 619, (1859) 45 ER 241
Links: Commonlii
This case cites:

  • See Also – Knight -v- Bowyer ((1858) 2 De G & J 421, [1858] EngR 673, Commonlii, (1858) 2 De G & J 421, (1858) 44 ER 1053)
    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. . .

Wright v Vanderplank; 20 Jul 1855

References: [1855] EngR 696, (1855) 2 K & J 1, (1855) 69 ER 669
Links: Commonlii
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 receipt of the rents of a considerable estate ; and throws upon the parent the onus of shewing plainly and unequivocally that the gift was made not in consequence of representations on his part, but by the spontaneous act of the child, and that the child had full knowledge of the nature of the deed by which the gift was effected? and of his own position and rights in reference to the property.
A deed was executed by a lady, five months after she came of age, disentailing part of her estates, and giving, for a nominal consideration, an estate for life in the disentailed part to her father, who, during her minority, had been her guardian, and in receipt of the rents of her estates. Held (obiter), that if a bill had been filed shortly after the transaction, either before or possibly after the lady’s marriage, which was solemnised sixteen months after the execution of the deed, the transaction could not have been supported, the deed itself not explaining the nature of the transaction, aud it not being shewn that the daughter had proper professional advice, that the nature of the transaction was explained to or understood by her, or that the gift was spontaneous or made at a time or under circumstances when she was free from parental influence.
But a bill, which, after the daughter’s decease, and nearly ten years after the execution of the deed, was filed by her husband on whom her rights had devolved, praying to have the father declared a trustee of the life interest, and an account of the rents which accrued during his daughter’s minority or afterwards, was dismissed on the ground of laches, it appearing (inter alia) that the Plaintiff was aware of all the circumstances previously to his marriage, and the Court being of opinion, upon the evidence, that, eight years before the bill was filed, both the Plaintiff and his
deceased wife had acquiesced in the transaction.
This case is cited by:

  • Appeal from – Wright -v- Vanderplank ([1856] EngR 331, Commonlii, (1856) 8 De G M & G 133, (1856) 44 ER 340)
    A daughter executed a deed of gift of a life-interest to her fathr, soon after she attained twenty-one, having no advice except that of her father’s solicitor who however stated that he had on that occasion acted as the solicitor of the daughter, . .
  • Cited – Adamson and Others -v- Paddico (267) Ltd SC (Bailii, [2014] UKSC 7, [2014] 1 AC 1072, [2014] 1 P & CR 24, [2014] 2 WLR 300, [2014] 2 All ER 1, [2014] JPL 745, [2014] WLR(D) 51, [2014] BLGR 249, [2014] 1 P &CR 24, WLRD, Bailii Summary, SC Summary, SC, UKSC 2012/0089)
    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 . .

Knight Since Deceased And His Executors, Tomkinson v Bowyer etc; 1 Jul 1857

References: [1857] EngR 716 (C), (1857) 23 Beav 609
Links: Commonlii
An annuity was granted free of all taxes ‘ except the property tax,’ and the deed contained a proviso, that in cwe the income tax should be reduced, the reduction should enure to the benefit of the grantor. This proviso was omitted in the memorial.
Held: that the memorial was sufficient.
If a solicitor purchase from his client, and institute a suit against third parties to enforce his right, the objection to the transaction, on the ground of its being a purchase by a solicitor from his client, cannot be maintained by such third parties.

Sir Ralph Bovey v Skipwith; 25 May 1671

References: [1671] EngR 28, (1671) 1 Chan Cas 201, (1671) 22 ER 762 (A)
Links: Commonlii
This case cites:

  • See Also – Sir Ralph Bovey -v- Skipwith (Commonlii, [1671] EngR 9, (1671) 3 Rep Ch 67, (1671) 21 ER 731 (A))
    In 1651, Sir Francis Drake made the Plaintiff a Security out of the Manor and Rectory of Waltham upon Thames. Afterwards in 1656, Drake made the Defendant a Security for Money out of the Rectory only (the Defendant having no Notice then of the . .

Lindsay Petroleum Company v Hurd: 1873

References: (1874) LR 5 PC 221, [1873] 5 AC 221
Coram: Sir Barnes Peacock, Lord Selbourne LC
The court discussed the basis of the equitable doctrine of laches.
Lord Selbourne LC said: ‘Now the doctrine of laches in courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy, either because the party has by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case if an argument against relief which otherwise would be just is founded upon mere delay that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantial equitable. Two circumstances, always important in such case, are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.’
This case is cited by:

  • Cited – Mcivor -v- The Northern Bank Executor and Trustee Company Ltd ChNI (Bailii, [2002] NICh 12)
    . .
  • Cited – Fisher -v- Brooker and Another ChD (Bailii, [2006] EWHC 3239 (Ch))
    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.
  • Cited – Brooker & Another -v- Fisher CA (Bailii, [2008] EWCA Civ 287, [2008] Bus LR 1123, [2008] FSR 26, [2008] EMLR 13)
    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 . .
  • Cited – Fisher -v- Brooker and Others HL (Bailii, [2009] UKHL 41, Times, [2009] 1 WLR 1764, [2009] FSR 25, [2009] Bus LR 1334, [2009] 4 All ER 789, [2009] ECDR 17, [2010] EMLR 2)
    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 . .
  • Cited – Adamson and Others -v- Paddico (267) Ltd SC (Bailii, [2014] UKSC 7, [2014] 1 AC 1072, [2014] 1 P & CR 24, [2014] 2 WLR 300, [2014] 2 All ER 1, [2014] JPL 745, [2014] WLR(D) 51, [2014] BLGR 249, [2014] 1 P &CR 24, WLRD, Bailii Summary, SC Summary, SC, UKSC 2012/0089)
    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 . .

Kemble v Farren; 6 Jul 1829

References: [1829] EngR 590, (1829) 5 Bing 141, (1829) 130 ER 1234
Links: Commonlii
Coram: Tindall CJ
The manager of Covent Garden sought damages from an actor (a principal comedian) in the form of liquidated damages for breach of a contract. He had contracted to perform for four seasons, but had refused to continue after the first.
Held: Liquidated damages cannot be reserved on an agreement containing various stipuations, of various degrees of importance, unless the agreement specify the particular stipulation or stipulations to which the liquidated damages are to be confined.
Tindall CJ said: ‘We see nothing illegal or unreasonable in the parties, by their mutual agreement, settling the amount of damages, uncertain in their nature, at any sum upon which they may agree. In many cases, such an agreement fixes that which is almost impossible to be accurately ascertained; and in all cases, it saves the expense and difficulty of bringing witnesses to that point.’
If the terms had been limited to breaches which were of an uncertain nature and amount, it would have been good. But the provision extended to any term including the payment of small amounts of money, or other trivial non-money breaches: ‘But that a very large sum should become immediately payable, in consequence of the nonpayment of a very small sum, and that the former should not be considered as a penalty, appears to be a contradiction in terms; the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by breach of the agreement.’
This case cites:

  • See Also – Kemble -v- Farren CCP (Commonlii, [1829] EngR 519, (1829) 3 Car & P 623, (1829) 172 ER 574 (A))
    Where it appeared on the record, that an agreement sued on was made by the plaintiff, on behalf of himself and the other proprietors of a theatre, evidence of the declarations of one of such other proprietors was held admissible on the part of the . .

(This list may be incomplete)
This case is cited by:

  • Cited – Dunlop Pneumatic Tyre Company Ltd -v- New Garage and Motor Company Ltd HL ([1915] AC 67, Bailii, [1914] UKHL 1, (1904) 12 SLT 498, (1904) 7 F (HL) 77)
    The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
  • Cited – Parkingeye Ltd -v- Beavis CA (Bailii, [2015] EWCA Civ 402)
    The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of £85.00. The judge had found that the appellant was in breach of a . .

(This list may be incomplete)
Last Update: 04-Feb-16 Ref: 322458

Smith v Clay; 10 May 1767

References: [1767] EngR 55, (1767) 3 Bro CC 646, (1767) 29 ER 743
Links: Commonlii
Coram: Lord Camden LC
Ratio 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.
Ratio Lord Camden LC applied the doctrine of laches, saying: ‘A Court of Equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the Court is passive, and does nothing.’ Equity would not countenance laches beyond the period for which a legal remedy had been limited by statute, and that where the legal right had been barred, the equitable right to the same thing was also barred: ”Expedit reipublicae ut sit finis litium’, is a maxim that has prevailed in this court at all times, without the help of parliament.
But, as the Court has no legislative authority, it could not properly define the time of bar, by a positive rule, to an hour, a minute, or a year; it was governed by circumstances.
But as often as parliament had limited the time of actions and remedies, to a certain period, in legal proceedings, a Court in Chancery adopted that rule, and applied to similar cases in equity.
For when the Legislature had fixed the time at law, it would have been preposterous for equity (which, by its own proper authority, always maintained a limitation), to countenance laches beyond the period, that law had been confined to by parliament.
And therefore in all cases where the legal right has been barred by parliament, the equitable right to the same thing has been concluded by the same bar.’
This case cites:

  • See Also – Smith -v- Clay (Commonlii, [1767] EngR 54, (1767) Amb 645, (1767) 27 ER 419)
    Bill of review for error apparent will not lie after twenty years from the making of the decree. The time runs from the decree, not from the inrolment. . .

(This list may be incomplete)
This case is cited by:

  • Cited – Adamson and Others -v- Paddico (267) Ltd SC (Bailii, [2014] UKSC 7, [2014] 1 AC 1072, [2014] 1 P & CR 24, [2014] 2 WLR 300, [2014] 2 All ER 1, [2014] JPL 745, [2014] WLR(D) 51, [2014] BLGR 249, [2014] 1 P &CR 24, WLRD, Bailii Summary, SC Summary, SC, UKSC 2012/0089)
    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 . .

(This list may be incomplete)

Last Update: 25-Mar-16
Ref: 374834

Curtis v Perry; 10 Mar 1802

References: (1802) 6 Ves 739, [1802] EngR 125, (1802) 6 Ves Jun 739, (1802) 31 ER 1285
Links: Commonlii
Coram: Lord Eldon
Ratio Ships had been purchased by a partnership, but were then held seperately in the name of one of them. Only later were they included within the partnership acounts, but the separate registrations were maintained, and unlawfully so so as to avoid them being traced. The other partner had been a member of parliament, and would have been pennalised if he had been party to transactions with the government. On his death, his estate claimed an interest in the ships.
Held: The plaintiff failed to recover. Equity will assist neither party to an illegal transaction.
Lord Eldon said:’The reason for waiving any right Chiswell had in consequence of the manner, in which Nantes made this purchase, the object of keeping the ships registered in the name of Nantes, was, that a profit might be made by the employment of them in contracts with Government; and Chiswell was a Member of Parliament; who, the law says , shall not be a contractor. The moment the purpose to defeat the policy of the law by fraudulently concealing, that this was his property, is admitted, it is very clear, he ought not to be heard in this Court to say, that is his property.’
This case is cited by:

  • Cited – Bowmakers Ltd -v- Barnet Instruments Ltd CA ([1945] KB 65)
    An action was brought for the wrongful conversion of machine tools delivered under hire purchase agreements which contravened wartime statutory orders. The plaintiff established its legal title to the goods at issue without relying upon the illegal . .
  • Cited – Tinsley -v- Milligan HL (Independent 06-Jul-93, Times 28-Jun-93, [1994] 1 AC 340, Bailii, [1993] UKHL 3, [1993] 3 WLR 126, [1993] 3 All ER 65)
    Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
  • Cited – Costello -v- Chief Constable of Derbyshire Constabulary CA (Bailii, [2001] EWCA Civ 381, [2001] 1 WLR 1437, [2001] 2 Lloyd’s Rep 216, [2001] 3 All ER 150)
    The police seized a car from Mr Costello, believing that it was stolen. The seizure was lawful at the time, by virtue of section 19 of PACE. The police never brought any criminal proceedings against Mr Costello, but they refused to return the car to . .

(This list may be incomplete)

Last Update: 25-Mar-16
Ref: 194099