A charge executed before a purchase was ‘fed’ by a subsequent purchase and had priority. ‘Feeding the estoppel’ doctrine may apply to charges on registered land. The estoppel was fed by a later purchase without a clear recital of the title in the charge.
Ind Summary 31-Jul-1995, Times 25-Jul-1995, Gazette 15-Sep-1995
England and Wales
Updated: 21 January 2023; Ref: scu.80559
An indulgent father had encouraged his son to build a bungalow on his, the father’s, land. The son had done so in the expectation, encouraged by the father, that he would be permitted to remain in occupation.
Held: The court formulated the principle of equitable estoppel on the footing that where a person has expended money on the land of another with the expectation, induced or encouraged by the owner of the land, that he would be allowed to remain in occupation, an equity is created such that the court would protect his occupation of the land; and that the court has power to determine in what way the equity so arising would be satisfied. The court therefore refused the plaintiff an order for possession of the bungalow which his son had built on the land, and held that the son was entitled to stay there as long as he wanted. It need not be not fatal to a claim under the doctrine of proprietary estoppel that the property in which the right is claimed has not been precisely identified.
Lord Denning MR, Danckwerts and Salmon LJJ
[1965] QB 29, [1965] 2 WLR 212, [1965] 1 All ER 446, [1965] EWCA Civ 465
England and Wales
Followed – Ramsden v Dyson HL 11-May-1866
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .
Cited – Sledmore v Dalby CA 8-Feb-1996
The plaintiff sought possession of a house. She had owned it with her late husband. The defendant lived in and had done much work on the house, but the deceased left it all to the plaintiff and the defendant’s wife who had since also died. She . .
Cited – Parker v Parker ChD 24-Jul-2003
Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
Held: The applicant was entitled to reasonable . .
Cited – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – Strover and Another v Strover and Another ChD 10-May-2005
Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership . .
Cited – Thorner v Curtis and others ChD 26-Oct-2007
The claimant said that the deceased, his father and a farmer, had made representations to him over many years that if the claimant continued to work on the farm, he would leave the farm to him in his will. He died intestate. He claimed a proprietary . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Cited – Dodsworth v Dodsworth and Another CA 3-Jul-1973
. .
Cited – Western Fish Products Ltd v Penwith District Council and Another CA 22-May-1978
Estoppel Cannot Oust Statutory Discretion
The plaintiff had been refused planning permission for a factory. The refusals were followed by the issue of Enforcement Notices and Stop Notices. The plaintiff said that they had been given re-assurances upon which they had relied.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.183816
(New Zealand) Mr Plimmer had occupied land under a revocable licence from the Corporation’s predecessor-in-title and at their request had made extensive improvements to it. He sought compensation when the land was to be vested in the defendant. The defendant denied that he had a sufficient interest.
Held: A person having a reasonable expectation that his occupation would not be disturbed had an interest in land for the purposes of a compensation statute. He had incurred expense at the request of the Government, the owners of the land. These circumstances ‘were sufficient to create in his [Plimmer’s] mind a reasonable expectation that his occupation would not be disturbed . . ‘ In effect, the owner of the land became estopped from asserting that the licence remained revocable. That was sufficient to constitute the licence an ‘estate or interest’ for compensation purposes.
Sir Arthur Hobhouse said: ‘the equity arising from expenditure on land need not fail merely on the ground that the interest to be secured has not been expressly indicated.’ The general aim of a court applying principles of equity is to ‘look at the circumstances in each case to decide in what way the equity can be satisfied’.
Sir Arthur Hobhouse
[1884] 9 AC 699
England and Wales
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Pennine Raceway Ltd v Kirklees Metropolitan Borough Council CA 1983
The claimant had been granted a contractual right to use an airfield for arranging motor racing events. The planning consent was revoked, and compensation was claimed under s164 as ‘a person interested in the land’ which ‘is a section designed to . .
Cited – International Traders Ferry Ltd v Adur District Council CA 26-Feb-2004
The council served a stop notice. The company sought compensation. The council replied that the company had no legal or equitable interest in the land affected.
Held: The company had occupied the land under a licence. A contractual licensee on . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Cited – Western Fish Products Ltd v Penwith District Council and Another CA 22-May-1978
Estoppel Cannot Oust Statutory Discretion
The plaintiff had been refused planning permission for a factory. The refusals were followed by the issue of Enforcement Notices and Stop Notices. The plaintiff said that they had been given re-assurances upon which they had relied.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 December 2022; Ref: scu.193607
[1585] EngR 340, (1585) Bel 302, (1585) 72 ER 132 (E)
England and Wales
Updated: 20 December 2022; Ref: scu.429224
The company had covenanted to pay an annual sum to charity. Since the last payment under the covenant was to be made less than three years after the execution of the deed, an intended tax advantage was not secured.
Held: The company’s appeal failed, and the court denied rectification, on the footing that the company had failed to establish to the required standard that the covenant did not give effect to its true intention. Peter Gibson LJ approved a statement as to rectification in Snells Equity: ‘What is rectified is not a mistake in the transaction itself, but a mistake in the way in which transaction has been expressed in writing’.
Peter Gibson LJ
[1995] STC 1151
England and Wales
Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
Cited – Ashcroft v Barnsdale and Others ChD 30-Jul-2010
The parties sought to rectify a deed of family arrangement varying a will. The variation deed had had several mistakes which in fact increased the sum of Inheritance Tax owed. HMRC refused to accept the rectification deed unless approved by the . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.266514
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: Subject to the 1989 Act the arrangement was enforceable. As to the 1989 Act: ‘section 2(1) deprives any non-compliant agreement of the legal status and hence effect of a binding contract, where section 40 of the 1925 Act (and the predecessor Statute of Frauds) had simply rendered such an agreement unenforceable.’ and ‘as a matter of both principle and authority, that the agreement embodied in mutual non-revocable wills containing a bequest of land is a contract for the disposition of land.’ If section 2 did apply the documents would not satisfy it, and ‘section 2(1) of the 1989 Act applies so as to deprive the mutual will compact of any legal effect as a contract. The significance of this conclusion lies in the fact that the mutual wills doctrine is anchored in contract, and presupposes a legally binding agreement.’ However the doctrine of part performance could in this case be applied to impose a trust on the defendant.
David Donaldson QC HHJ
[2002] 19 EG 147, [2002] EWHC Ch 1405, (2002) 19 EG 147
Law Reform (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited – Dufour v Pereira 1769
Nature of Joint and Mutual Wills
The court was asked as to the validity and effect of a single joint will.
Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
Cited – Re Heys 1914
Any will, even when stated to be non-revocable, is at law by its nature revocable by a testator, and even where the testator has agreed contractually with another person not to revoke it, a subsequent will in breach of any such agreement will . .
Cited – Gray v Perpetual Trustee Co Ltd PC 12-Jun-1928
The Board considered a claim that wills had been mutual. Viscount Haldane said: ‘The case before us is one in which the evidence of an agreement, apart from that of making the wills in question, is so lacking that they are unable to come to the . .
Cited – Birmingham v Renfrew 11-Jun-1937
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as . .
Cited – Horton v Jones 1935
(High Court of Australia) A claim by plaintiff against the personal representatives of her ex-employer for breach of an oral agreement by him to make a will leaving her property which would include interests in land failed on the ground that it fell . .
Cited – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – In re Dale dec’d ChD 1994
The taking of a benefit on the strength of a binding engagement is enough to create a constructive trust. For this doctrine to apply there must be a contract at law. For the doctrine of mutual wills to apply it is not necessary that the second . .
Cited – In re Cleaver dec’d, Cleaver v Insley ChD 1981
Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
Nourse J said: ‘The principle of all these cases is that a court of . .
Cited – Maddison v Alderson HL 1883
The requirement of the doctrine of part performance is that the acts of part performance relied upon must be ‘referable’ to the contract sued on. The principle underlying the doctrine of part performance was expressed by Lord Selborne: ‘In a suit . .
Cited – Lloyds Bank plc v Rosset HL 29-Mar-1990
The house had been bought during the marriage but in the husband’s sole name. The plaintiff’s charge secured the husband’s overdraft. The bank issued possession proceedings. Mr Rosset had left, but Mrs Rosset claimed, as against the bank an interest . .
Cited – Ottaway v Norman ChD 1971
Proof required for mutual wills claim
The testator devised his house to a Miss Hodges intending that she should dispose of the property in her will to specific individuals. He communicated his intention to her and she agreed to it. After the testator’s death, Miss Hodges changed her . .
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.246958
The lease contained a covenant by the landlord to carry out repairs. A balcony of his, not within the area let, was at risk of collapsing.
Held: Damages alone would be not an adequate remedy. The court ordered specific performance of the landlord’s covenant.
[1974] Ch 97
England and Wales
Cited – Co-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.245599
A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form.
Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice Nicholls said: ‘The question arising on this appeal concerns the exercise by the court of its power to set aside a statutory demand ‘on other grounds’ within sub-paragraph (d) [of rule 6.5(4)] In my view, the right approach to paragraph (4) of rule 6.5 is this. Under the Act, a statutory demand which is not complied with founds the consequence that the debtor is regarded as being unable to pay the debt in question or, if the debt is not immediately payable, as having no reasonable prospect of being able to pay the debt when it becomes due. That consequence, in turn, founds the ability of the creditor to present a bankruptcy petition because, under section 268(1), in the absence of an unsatisfied return to execution or other process, a debtor’s inability to pay the debt in question is established if, but only if, the appropriate statutory demand has been served and not complied with. When therefore the rules provide, as does rule 6.5(4)(d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand ‘ought’ to be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court’s intervention is called for to prevent that injustice.’
and ‘When therefore the rules provide, as does rule 6.5(4)(d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand ‘ought’ to be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court’s intervention is called for to prevent that injustice.
This approach to sub-paragraph (d) is in line with the particular grounds specified in sub-paragraphs (a) to (c) of rule 6.5(4). Normally it would be unjust that an individual should be regarded as unable to pay a debt if the debt is disputed on substantial grounds: sub-paragraph (b). Likewise, if the debtor has a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt: sub-paragraph (a). Again, if the creditor is fully secured: sub-paragraph (c).’
and ‘Nevertheless, applying the approach which I have indicated above as the correct approach to these statutory provisions, in my view it by no means follows from the existence of these defects that this statutory demand ought to be set aside. The court will exercise its discretion on whether or not to set aside a statutory demand, having regard to all the circumstances. That must require a court to have regard to all the circumstances as they are at the time of the hearing before the court. There may be cases where the terms of the statutory demand are so confusing or so misleading that, having regard to all the circumstances, justice requires that the demand should not be allowed to stand. There will be other cases where, despite such defects in the contents of the statutory demand, those defects have not prejudiced and will not prejudice the debtor in any way, and to set aside the statutory demand in such a case would serve no useful purpose. For example a debtor may be wholly unable to pay a debt which is immediately payable, either out of his own resources, or with financial assistance from others. In such a case the only practical consequence of setting aside a statutory demand would be that the creditor would immediately serve a revised statutory demand, which also and inevitably would not be complied with. In such a case the need for a further statutory demand would serve only to increase costs. Such a course would not be in the interests of anyone.’ and
‘In these circumstances I am in no doubt that, despite the mistakes in this statutory demand and the use strictly of the incorrect form, and despite the debtor not being aware of the precise amount of the debt when the demand was served on him, justice does not require that this statutory demand should be set aside. I can see no injustice in the consequences which flow from non-compliance with a statutory demand being permitted to flow in this case, despite the existence of those features.’
Lord Justice Nicholls
[1989] 1 WLR 271, [1989] 2 All ER 46
Insolvency Rules 1986 (1986 No 1925) 6.1 6.5(4)(d), Police Act 1996 2
England and Wales
Cited – Coulter v Chief Constable of Dorset Police CA 8-Oct-2004
The appellant had failed in his action against the police and been ordered to pay the costs. A statutory demand was issued in the name of the respondent, but as the new chief constable had no deed of assignment, he was only equitable assignee.
Cited – TS and S Global Ltd v Fithian-Franks and others ChD 18-Jun-2007
Appeal against setting aside of statutory demand disputed as to amount of liability under contract.
Held: The guarantors’ liability under the guarantee was immediately payable by them, without the need for a demand, before service of the . .
Cited – Remblance v Octagon Assets Ltd CA 17-Jun-2009
A statutory demand was served against the guarantor of the lease after rent arrears arose. He applied for the demand to be set aside, and now appealed against its refusal. He said that the court would have set aside such a demand against the tenant, . .
Cited – Budge v AH Budge (Contractors) Ltd CA 1997
When being asked to set aside a statutory demand, and exercising the statutory discretion, the real question is whether the applicant can show ‘a substantial reason comparable to the sort of reason one sees in paras (a), (b) and (c) of r 6.5(4), why . .
Cited – White v Davenham Trust Ltd ChD 1-Nov-2010
. .
Cited – Mahon and Another v FBN Bank (UK) Ltd ChD 6-Jun-2011
The claimants appealed against a refusal to set aside a statutory demand. . .
Cited – White v Davenham Trust Ltd CA 28-Jun-2011
Appeal against order reinstating statutory demand. . .
Cited – Moore (T/A James Moore Earth Moving) v Inland Revenue ChNI 5-Dec-2001
Appeal against conditional setting aside of statutory demand. . .
Cited – Owo-Samson v Barclays Bank Plc, Boyden CA 21-May-2003
The appellant challenged a formal statutory demand which had led to his bankruptcy. The demand had included the anticipated cost of realising the charged property, and also had been inflated to allow for extra costs of dealing the appellant who was . .
Cited – Shaw and Another v MFP Foundations and Piling Ltd ChD 6-Jan-2010
The defendants appealed against a refusal to set aside statutory demands adjudicated due under the 1996 Act. They said that the judge had accepted that he was bound by MFO and that it was on all fours, but he had not followed it.
Held: The . .
Cited – Allen v Burke Construction Ltd ChNI 25-May-2010
. .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.220020
The wife charged the matrimonial home to Lloyds to secure the husband’s indebtedness. The husband subsequently agreed with Barclays for the indebtedness to be refinanced. The husband and an accomplice forged her signature on a transfer of the matrimonial home into joint names and on a remortgage. When Barclays pressed for repayment, the husband applied to the claimant, which agreed to make a loan. The claimants’ loan was applied in paying off the husband’s indebtedness to Barclays, including that part of Barclays’ indebtedness which arose from its having paid off Lloyds. The husband defaulted in repaying the claimant’s loan, and the claimant commenced proceedings against the husband and the wife claiming possession of the matrimonial home on the basis that it was entitled to be subrogated to Barclays. The judge held that Barclays was entitled by subrogation to the Lloyds charge and that the wife was bound in respect of so much of the secured indebtedness under the Barclays charge as derived from the payment by Barclays to discharge the Lloyds charge. She appealed, saying the conditions for subrogation were not satisfied. The claimant contended that it was entitled to be subrogated to the Lloyds charge in respect of the sum paid to Barclays out of the claimant’s loan. Counsel for the claimant submitted that, under the principle of subrogation, the claimant was entitled to step into the shoes of Barclays, which (to the extent of andpound;4735.39) was in turn entitled to step into the shoes of Lloyds and thus to enforce the Lloyds charge.
Held: That submission was accepted. Subrogation ’embraces more than a single concept in English law’. ‘I do not think it is open to this court to reinterpret the Butler v. Rice line of authorities in the way which [counsel for the wife] would have us do in the light of the approval of the broad principle laid down in such cases and approved in decisions binding on us. I feel it right to add that for my part, given that the court in a case like the present is having to choose between allocating a loss, either to the innocent mortgagor or to the innocent provider of the moneys, I do not regard it as unjust that in accordance with Butler v. Rice the loss should fall on the mortgagor who otherwise takes a windfall benefit. I say that despite the fact that, as [counsel for the wife] rightly stressed, the wife in the present case had no contract with [the claimant], was not the principal debtor, knew nothing of the transaction under which [the claimant] lent money to the husband and has never ratified the discharge of the mortgage on the property. [Counsel for the wife] also advanced the further argument that it would be an unwarranted extension of the Butler v. Rice principle if [the claimant] were to be held entitled to step into the shoes of Lloyds by what he called sub-subrogation. For my part, I see no conceptual difficulty in this. As the judge held, Barclays was entitled to the Lloyds security by subrogation when Barclays discharged the debt to Lloyds, thinking that it was to obtain an effective security for its own money. When [the claimant] discharged the debt to Barclays, thinking that it was obtaining an effective security for its own money, it became entitled to the same security as Barclays [had]. I would, therefore, hold that by subrogation [the claimant] became entitled to the same security as that held by Barclays, [that] is to say the Lloyds charge.’ The court rejected the argument advanced on behalf of the claimant based on imputed consent on the part of the wife.
Sir John May, McCowan LJ, McCowan LJ
[1995] 1 FLR 783
England and Wales
Cited – Butler v Rice 1910
The wife owned a Bristol property and a Cardiff property subject to a andpound;450 charge in favour of a bank with whom the title deeds had been deposited. The husband asked the plaintiff to lend him andpound;450 to pay off the mortgage. The . .
Cited – Equity and Law Home Loans Ltd v Prestidge CA 1992
A house was bought in the name of one partner in an unmarried couple. It was subject to a mortgage, and the non-owner contributed a capital sum. The landowner later remortgaged for a larger sum, but without the partner’s consent. The landowner then . .
Cited – Orakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .
Cited – UCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 December 2022; Ref: scu.190506
A court is not able to impose conditions for granting equitable relief.
Gazette 18-Jan-1995
England and Wales
Updated: 09 December 2022; Ref: scu.90017
A gift of a deposit to a Husband and Wife buying a house can operate to give the Wife an equity against the Building Society lender even though house was purchased only in the husband’s sole name.
Times 08-Feb-1995
England and Wales
Updated: 09 December 2022; Ref: scu.81147
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee whose loan is used to repay another charged debt is subrogated to that debt, and can rely on that charge. Millett LJ said: ‘If the plaintiff succeeds in tracing his property, whether in its original or in some changed form, into the hands of the defendant, and overcomes any defences which are put forward on the defendant’s behalf, he is entitled to a remedy. The remedy will be fashioned to the circumstances. The plaintiff will generally be entitled to a personal remedy; if he seeks a proprietary remedy he must usually prove that the property to which he lays claim is still in the ownership of the defendant. If he succeeds in doing this the court will treat the defendant as holding the property on a constructive trust for the plaintiff and will order the defendant to transfer it in specie to the plaintiff. But this is only one of the proprietary remedies which are available to a court of equity. If the plaintiff’s money has been applied by the defendant, for example, not in the acquisition of a landed property but in its improvement, then the court may treat the land as charged with the payment to the plaintiff of a sum representing the sum by which the value of the defendant’s land has been enhanced by the use of the plaintiff’s money. And if the plaintiff’s money has been used to discharge a mortgage on the defendant’s land, then the court may achieve a similar result by treating the land as subject to a charge by way of subrogation in favour of the plaintiff.’
Millett LJ, Stuart-Smit LJ, Millet LJ
Gazette 01-Jun-1995, Independent 23-May-1995, Times 25-Apr-1995, [1996] 1 WLR 328, [1995] 4 All ER 769, [1995] EWCA Civ 15
England and Wales
Cited – Whitworth v Gaugain 1844
. .
Cited – Ghana Commercial Bank v Chandiram PC 1960
The bank made an advance to the owner of property in Accra which was used to pay off his indebtedness to Barclays (DC and O) Ltd, secured by an equitable mortgage. The owner executed a legal mortgage in favour of the Ghana Bank, but this was . .
Cited – Chung Khiaw Bank v United Overseas Bank PC 1970
(Singapore) A judgment creditor who obtains a charging order against his debtor’s property can take only such interest as the debtor has in the property. Charging orders take effect subject to prior mortgages, whether legal or equitable. . .
Cited – Orakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Cited – Ezekiel v Orakpo CA 1977
A lease had been forfeited for non payment of rent. The lessor then took proceedings for possession. The tenant claimed that the action was invalid because a receiving order had been made against him in the meantime.
Held: The Court rejected . .
Cited – Halifax Plc v Omar CA 20-Feb-2002
The respondent occupied a flat as a tenant. The landlord had acquired it by means of a fraud on the claimant lender. The lender had been given an equitable charge over the property, and now claimed possession as subrogated to the original fraudulent . .
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Cited – Cheltenham and Gloucester Plc v Appleyard and Another CA 15-Mar-2004
The owners had purchased their property with a loan from the BBBS. A charge was then given to BCCI, which charge said no further charge could be registered without BCCI ‘s consent. The C and G agreed to lend a sum to refinance the entire borrowings, . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Cited – Bankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
Cited – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.78495
Bribes were taken by an employee, a crown prosecutor in Hong Kong, in a fraud on his employer. He then invested the proceeds in the purchase of property in New Zealand. The property had increased in value. The employer sought repayment of the bribes received from the properties purchased.
Held: The employer had a proprietary interest both in the bribe and in the asset substituted for it. Thus the property belonged in equity to the employer. The first stage in the analysis was the decision that the bribe itself was trust property. The second stage in the analysis was simply the application of the process of tracing the value of the bribe into the asset that had been substituted for it. A fiduciary office holder who accepted a bribe holds both the original sum, and any increase in its value, on a constructive trust for the person to whom he owed that fiduciary duty. Bribery is an evil practice which threatens the foundations of any civilised society. It corrupts not only the recipient but the giver of the bribe. ‘property acquired by a trustee innocently but in breach of trust and the property from time to time representing the same belong in equity to the cestui que trust and not to the trustee personally’:
Lord Templeman Lrd Goff. Lord Lowry, Lord Lloyd, Sir Thomas Eichelbaum
Gazette 26-Jan-1994, Independent 24-Nov-1993, Times 12-Nov-1993, [1994] 1 AC 324, [1993] UKPC 2, [1994] 1 All ER 1
England and Wales
Wrongly decided – Lister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .
Cited – Tesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.77944
The House considered the right to redeem a mortgage. Kindersley VC said: ‘There is no doubt that the broad rule is this: that the Court will not allow the right of redemption in any way ‘to be hampered or crippled in that which the parties intended to be a security either by any contemporaneous instrument with the deed in question, or by anything which this Court would regard as a simultaneous arrangement or part of the same transaction.’ The rule in comparatively recent times was. unsettled by certain decisions in the Court of Chancery in England which seem to have misled the learned Judges in the Full Court. But it is now firmly established by the House of Lords that the old rule still prevails and that equity will not permit any device or contrivance being part of the mortgage transaction or contemporaneous with it to prevent or impede redemption. The learned Counsel on behalf of the Respondents admitted as he was bound to admit that a mortgage cannot be made irredeemable. That is plainly forbidden. Is there any difference between forbidding re demption and permitting it, if the permission be a mere pretence? Here the provision for redemp tion is nugatory. The incumbrance on the lease the subject of the mortgage according to the letter of the bargain falls to be discharged before the lease terminates, but at a time when it is on the very point of expiring when redemption can be of no advantage to the mortgagor even if he should be so fortunate as to get his deeds back before the actual termination of the lease. For all practical purposes this mortgage is irredeem able. It was obviously meant to be irredeemable. It was made irredeemable in and by the mortgage itself.’
Kindersley VC
[1869] 32 LJ Ch 653, [1869] WR 1137
England and Wales
Cited – Fairclough v The Swan Brewery Company Ltd PC 17-May-1912
. .
Cited – Brighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.304591
The owners of a patent for a peculiar mode of manufacturing iron wheels for railway carriages having discovered that several railway companies were violating their patent brought an action for damages against one of such companies only, but did not in any way give notice to the other companies to discontinue theiri nfringements of the Plaintiffs’ right. In the action the validity of the patent was disputed, and it was not decided until three years after the patent had expired, when a verdict was given for the Plaintiffs, with large damages. Thereupon the Plaintiffs filed a bill for an account of profits, and an injunction against another of the companies who had infringed their patent, complaining of acts done nine years before.
Held: The delay was not excused by the pendency of the action, but was fatal to the Plaintiffs’ case,
The right to a decree in equity for an account of the profits made by the manufacturing and use of articles in infringement of a patent is incident to the right to an injunction to restrain future infringement; and where no case is made for the injunction the account will not be decreed.
[1854] EngR 319, (1854) Kay 408, (1854) 69 ER 173
England and Wales
Updated: 09 December 2022; Ref: scu.293176
The endorsement and delivery of a banker’s deposit receipt with the intention to make a gift operated as a good equitable assignment of the amount on deposit at the bank. The instruction had been handed to the donee. It did not matter that no notice had been given to the bank.
Byrne J
[1899] 1 Ch 408
England and Wales
Cited – Pennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.183417
A receiver appointed to manage a business had duties over and above those of mere good faith. A receiver who failed to obtain discounts normally obtainable for supplies to the business might be liable for that failure. when considering the position of a receiver and manager appointed by a mortgagee to run a business, ‘The proposition that, in managing and carrying on the mortgaged business, the receiver owed the mortgagor no duty other than that of good faith offends, in my opinion commercial sense. The receiver is not obliged to carry on the business. He can decide not to do so. He can decide to close it down. In taking these decisions he is entitled, and perhaps bound, to have regard to the interests of the mortgagee in obtaining repayment of the secured debt. Provided he acts in good faith, he is entitled to sacrifice the interests of the mortgagor in pursuit of that end.
The mortgagee or receiver, when exercising the power of sale, must therefore act in good faith with a view to securing repayment of the debt by the conversion of the security into money. The timing of the sale will be a matter for them, unaffected by the wishes of the mortgagor. But the preparation for and the method of sale to be adopted will be matters in respect of which there is no conflict between the interests of the mortgagor and the mortgagee, and where the mortgagee or receiver will be potentially liable to the mortgagor if he fails to act with reasonable care so as to obtain a proper price. In this context it is clear that the property must be fairly and properly exposed to the market, absent perhaps cases of real urgency. Similarly, as part of this duty of care, the receiver may be required to take positive steps to maintain the value of the property. . . . the mortgagee or a receiver appointed by him is required to incur expense in the improvement of the security in order to sell it at a higher price or to embark on making applications for planning permission, granting leases or the like, which, however well-founded, are likely to delay a sale beyond the normal period of marketing.’
Sir Richard Scott V-C
Gazette 16-Jun-1999, [1999] EWCA Civ 1482, [2000] Ch 86, [1999] 3 All ER 97, [1999] 2 EGLR 75, [1999] 3 WLR 922, [1999] 2 BCLC 221, [1999] BCC 771, [1999] 29 EG 119, [1999] EG 81, [1999] Lloyd’s Rep PN 844, [1999] PNLR 920, [1999] BPIR 712
England and Wales
Cited – Knight v Lawrence 1993
As part of his duty of care, a receiver may be required to take positive steps to maintain the value of the property. . .
Cited – Freeguard v Royal Bank of Scotland plc ChD 26-Mar-2002
The applicant had an option to purchase land, but neither the option, nor the subsequent charge were registered. The land was sold by the respondent under a power of sale, and the claimant sought damages for the respondent having negligently failed . .
Cited – The Estate of Mohammed Sabir Raja (Deceased) v Austin Gray (A Firm) QBD 31-Jul-2002
The claimant sought damages for negligent valuation of properties belonging to the deceased, but taken into receivership under charges taken by a company who in turn charged its assets to a bank. When the debenture was enforced, the charges were . .
Cited – Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris CA 21-Oct-2003
The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor . .
Followed – Kenneth Starling v Lloyds TSB Bank plc CA 10-Nov-1999
The setting aside of the statutory power of a mortgagor in possession to grant a lease, by the mortgage itself did not create in the lender a duty of good faith properly to consider a request from the mortgagor for permission to let the property. It . .
Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Cited – Silven Properties Ltd and Another v Royal Bank of Scotland Plc and Others CA 21-Oct-2003
The claimants complained that the receivers appointed by the bank had failed to get the best price for properties charged to the bank and sold, in that they had failed to obtain planning permissions which would have increased the values of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.146397
In relation to a plea of economic duress the trial judge, His Honour Judge Diamond QC, had directed himself ‘impeccably’ by reference to principles stated in Snell ‘s Equity 29th ed. and Goff and Jones on the Law of Restitution. The defence of duress requires counter restitution.
Sir Richard Scott VC
[1999] EWCA Civ 1427
England and Wales
Cited – Halpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 December 2022; Ref: scu.146342
Appeal of Mrs E from a judgment awarding her only nominal damages only for breach of contract by the defendant solicitors in respect of their failure to advise her properly or at all in connection with the acquisition and financing by her of a property.
Morritt, May, Tuckey LJJ
[1999] PNLR 839, [1999] EWCA Civ 1280, [1999] Lloyd’s Rep PN 702
England and Wales
Updated: 09 December 2022; Ref: scu.146195
Application by the joint administrators of a partnership affording the opportunity to consider the application of the equitable doctrines of marshalling and subrogation in relation to a fixed charge over a dog.
Held: The equitable principle of marshalling did appear to apply as between the bank and M. The bank had been able resort to two securities in support of its lending to the partnership: first the agricultural charge over partnership assets (including the dog), and secondly third party legal charges over the farms.
Norris J
[2016] EWHC 2650 (Ch), [2017] Ch 422, [2017] BPIR 164, [2017] 3 WLR 198, [2017] WLR(D) 157
England and Wales
Cited – In Re Ritson, Ritson v Ritson CA 1899
The joint debts of a partnership are payable out of the joint assets if sufficient even though secured on the separate property of one partner.
Chitty LJ said of a deceased partner that his ‘interest in the joint assets [of the partnership] . .
Cited – In Re Ritson ChD 1898
. .
Appeal from – Highbury Pension Fund Management Company and Another v Zirfin Investments Management Ltd and Others CA 3-Oct-2013
Lewison LJ discussed the operation of the principle of marshalling: ‘One consequence of the application of the principle is that if the first mortgagee with more than one security satisfies his debt out of the property over which the second . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.570475
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The common theme running through all the cases in which the court has been willing to pierce the veil is that the company was being used by its controller in an attempt to immunise himself from liability for some wrongdoing which existed entirely dehors the company. It is therefore necessary to identify the relevant wrongdoing – in Gilford and Jones v Lipman it was a breach of contract which, itself, had nothing to do with the company, in Gencor and Trustor it was a misappropriation of someone else’s money which again, in itself, had nothing to do with the company – before proceeding to demonstrate the wrongful misuse or involvement of the corporate structure. But in the present case there is no anterior or independent wrongdoing. All that the husband is doing, in the circumstances with which he is now faced – the wife’s claim for ancillary relief – is to take advantage, in my judgment legitimately to take advantage, of the existing corporate structure and, if one chooses to put it this way, to take advantage of the principle in Salomon.’
Munby J
[2008] EWHC 2380 (Fam), [2008] Fam Law 1179, [2009] 1 FLR 115
Family Proceedings Rules 1991, Matrimonial Causes Act 1973 24(1)(c)
England and Wales
Cited – A v A FD 29-Jan-2007
Munby J referred to the robust approach which had always been adopted in the Family Division in seeing through sham arrangements designed to hide the ownership of assets of the marriage by vesting them in relatives or companies which were in reality . .
Cited – A v A (Maintenance Pending Suit: Provision for Legal Fees) FD 15-Nov-2000
An application for maintenance pending suit could properly be made, to include payment on account of the legal costs of pursuing the action. Such legal expense were of a recurring, and income type nature. Maintenance was not confined to the day to . .
Cited – Trustor Ab v Smallbone and Another (No 2) ChD 30-Mar-2001
Directors of one company fraudulently diverted substantial sums to another company owned by one of them. The defrauded company sought return of the funds, from the company and from the second director on the basis that the corporate veil should be . .
Cited – Re Shephard, Shephard v Cartwright HL 1-Dec-1954
The House considered the equitable doctrine of advancement, and the admission of evidence which might go to rebut it.
Held: The presumption is one which ‘should not . . give way to slight circumstances’.
Viscunt Simonds approved, from . .
Cited – Snook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .
Cited – F v F (Divorce: Insolvency: Annulment of Bankruptcy Order) FD 1994
Thorpe J, having conducted a detailed analysis of the evidence, concluded ‘that the husband has, in my judgment, so obfuscated his financial position and services that it is quite impossible for this court to be sure as to what he has now in . .
Cited – Thomas v Thomas CA 2-May-1995
H was a wealthy businessman, but, as a member of Lloyds, he had been required to charge the family home to secure potential liabilities. Also, the company of which he was managing director had always paid out only smaller sums by way of dividends, . .
Cited – Re W (ex-parte orders) FD 2000
The circumstances in which ex parte relief is obtained in the Family Division are likely to vary very widely. Moreover, relief is often granted by the Division in circumstances which are very much removed from those in which ex parte relief will be . .
Cited – Al-Khatib v Masry FD 2002
The court heard an application for an ancillary relief order in divorce proceedings.
Held: General reputation prevailing in the community, and the mere opinions, inferences or beliefs of witnesses, are inadmissible in proof of material facts. . .
Cited – J v V (Disclosure: Offshore Corporations) FD 2003
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He . .
Cited – Salomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .
Cited – Lee v Lee’s Air Farming Limited PC 11-Oct-1960
Mr Lee had formed a company, Lee’s Air Farming Limited and held nearly all its shares. He was the managing director, but by profession a pilot. The company was formed to conduct an aerial top-dressing business. He appointed himself the chief pilot . .
Cited – Williams and Another v Natural Life Health Foods Ltd and Another HL 30-Apr-1998
A company director was not personally reliable in negligence for bad advice given by him as director unless it could clearly be shown that he had willingly accepted such personal responsibility. A special relationship involving an assumption of . .
Cited – Whig v Whig FD 23-Jul-2007
The court heard ancillary relief and bankruptcy proceedings together.
Held: Munby J refused to annul the husband’s bankruptcy. . .
Cited – Macaura v Northern Assurance Company Limited HL 1925
Macaura owned the large majority of shares in a limited company, trading in timber. The company also owed him substantial sums. He kept on the insurance of timber and other assets within the business but in his own name. When he came to claim, his . .
Cited – Re Shephard, Shephard v Cartwright HL 1-Dec-1954
The House considered the equitable doctrine of advancement, and the admission of evidence which might go to rebut it.
Held: The presumption is one which ‘should not . . give way to slight circumstances’.
Viscunt Simonds approved, from . .
Cited – Tribe v Tribe CA 26-Jul-1995
Illegal intent alone rebutted presumption
The plaintiff held 499 of the 500 issued shares of a company. In 1986 he wished to retire and transferred 30 shares to his son, one of four children, who was to take over the business. In 1988 he was worried about a bill for dilapidations, and, to . .
Cited – Hussey v Palmer CA 22-Jun-1972
A mother had provided a sum to her daughter and son in aw when she moved in with them. The money was used to build an extension. She now appealed against a finding that she did not have an equitable interest in the house.
Held: lord Denning MR . .
Cited – Pettitt v Pettitt HL 23-Apr-1969
A husband and wife disputed ownership of the matrimonial home in the context of the presumption of advancement.
Lord Reid said: ‘These considerations have largely lost their force under present conditions, and, unless the law has lost its . .
Cited – Gilford Motor Co Ltd v Horne CA 1933
The defendant was the plaintiff’s former managing director. He was bound by a restrictive covenant after he left them. To avoid the covenant, he formed a company and sought to transact his business through it. At first instance, Farwell J had found . .
Cited – Re Bugle Press Ltd ChD 1961
Two shareholders held more than 90% of the issued shares of the company. To get rid of the holder of the remaining shares, they incorporated another company for the purpose of acquiring all the shares of the company. The acquiring company offered to . .
Cited – Jones v Lipman and Another ChD 1962
The defendant had contracted to sell his land. He changed his mind, and formed a company of which he was owner and director, transferred the land to the company, and refused to complete. The plaintiff sought relief.
Held: Specific performance . .
Cited – Dadourian Group International Inc and others v Simms and others ChD 24-Nov-2006
The Claimants sought, principally, damages for fraudulent misrepresentation and conspiracy against the first to fourth Defendants and damages for breach of contract against the third and fourth Defendants.
Ownership and control of a company are . .
Cited – Mubarak v Mubarak FD 23-Oct-2000
The court had made an order for payment by H to W on the divorce, and was now asked whether W could take jewelry held by H’s company in part satisfaction of the capital sums due. . .
Cited – Gencor ACP Ltd v Dalby ChD 2000
The plaintiff made a large number of claims against a former director, Mr Dalby, for misappropriating its funds. These included a claim for an account of a secret profit which Mr Dalby was said to have been procured to be paid by a third party, . .
Cited – Yukong Lines Ltd v Rendsburg Investments Corporation and Others (No 2) QBD 23-Sep-1997
Repudiation by charterer: Funds were transferred by a charterer’s ‘alter ego’ to another company controlled by him with intent to defeat owner’s claim – whether ‘alter ego’ acting as undisclosed principal of charterer – whether permissible to pierce . .
Cited – Wallersteiner v Moir CA 1974
The making of a declaration is a judicial act. A shareholder is entitled to bring a derivative action on behalf of the company when it is controlled by persons alleged to have injured the company who refuse to allow the company to sue. It is an . .
Cited – Green v Green FD 1993
In an ancillary relief application, Connell J awarded to the wife assets vested in a limited company whose entire share capital was owned by the husband. . .
Cited – Adams v Cape Industries plc CA 2-Jan-1990
Proper Use of Corporate Entity to Protect Owner
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in . .
Cited – Gencor ACP Ltd v Dalby ChD 2000
The plaintiff made a large number of claims against a former director, Mr Dalby, for misappropriating its funds. These included a claim for an account of a secret profit which Mr Dalby was said to have been procured to be paid by a third party, . .
Cited – N v N and Another FD 16-Dec-2005
. .
Cited – Bosworthick v Bosworthick CA 1927
An annuity secured by a bond was found to be a settlement. . .
Cited – Smith v Smith 1945
Denning J said: where a husband makes a continuing provision for the future needs of his wife in her character as a wife, which is still continuing when the marriage is dissolved, the provision is a `settlement’ which can be brought before the court . .
Cited – Lort-Williams v Lort-Williams CA 1951
two individuals had taken out a single premium insurance policy on the life of Sir John Rolleston Lort-Williams. The benefits were payable to these trustees as ‘moneys payable under this policy, effected for the benefit of the widow or children or . .
Cited – Smith v Smith CA 1970
The husband had deserted the wife and gone abroad to work; the sole asset was the matrimonial home which was in joint names, and which constituted a post-nuptial settlement. The wife applied for variation of the settlement, whereby, on obtaining the . .
Cited – Brooks v Brooks HL 29-Jun-1995
A director’s pension scheme could be treated as a post-nuptial marriage settlement where the director was the only scheme member. It was thus a matrimonial asset capable of variation by a court in ancillary relief proceedings in a divorce. The court . .
Cited – C v C (Ancillary Relief: Nuptial Settlement) FD 2-Apr-2004
Application for ancillary relief to vary post-nuptial settlement. . .
Cited – Charalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement) CA 30-Jul-2004
The parties had been wealthy. Whilst still married, substantial sums had been placed in a trust. Their business interests had crashed and both faced personal bankruptcy. The husband appealed an order setting aside the trust.
Held: A clause in . .
Cited – Dormer v Ward CA 1901
One of the assets included in the marriage settlement was a jointure rent-charge charged on certain specified hereditaments. The CA considered whether what was brought into the settlement so as to be amenable to the court’s statutory jurisdiction . .
Cited – Blood v Blood 1902
Gorell Barnes J, considered the ambit of section 5 of the 1859 Act, and said: ‘Those words are extremely wide, and I am anxious that they should not, by any construction the Court may put upon them, be narrowed in any way. To narrow them would be . .
Cited – Prescott v Fellowes CA 1958
The court considered whether a deed of trust created a post nuptial settlement within the 1950 Act: ‘Inasmuch as the deed vested no property in trustees and created no successive legal or beneficial interests it had none of the attributes of a . .
Cited – Prinsep v Prinsep 1929
Hill J considered what is meant by a nuptial settlement: ‘Is it upon the husband in the character of husband or in the wife in the character of wife, or upon both in the character of husband and wife? If it is, it is a settlement on the parties . .
Cited – In Re Hunter and Hewlett’s Contract 1907
A moiety of a freehold was settled during the life of the trustees and the survivor of them for the benefit of the two daughters of the settlor, their husbands and issue. The reversion in fee expectant remained with the settlor. It was common ground . .
Cited – Hargreaves v Hargreaves 1926
The marriage settlement included an annual sum of pounds 500 appointed by the settler. The question was whether there was any property settled other than the pounds 500.
Held: There was not: ‘to my mind, the property settled is not the whole . .
Cited – Hartopp v Hartopp and Akhurst 1899
Gorell Barnes J said: ‘Now the guiding principle which will be found running through the cases is, in my opinion, this: Where the breaking up of the family life has been caused by the fault of the respondent, the Court, exercising its powers under . .
Cited – Whitton v Whitton 1901
Sir Francis Jeune P said: ‘But one has in these cases to consider what is really for the benefit of the children, because I think the authorities shew that nothing must be done that on the whole would be for the disadvantage of the children. This . .
Cited – Cartwright v Cartwright 1983
Sheldon J said: ‘when considering the financial background of the parties, the standard of life that they and the children have been accustomed to, and that the children will undoubtedly continue to enjoy while living with [their mother], I am of . .
Cited – Purnell v Purnell 1961
Cairns J considered a request for the variation of a post-nuptial trust and said: ‘Now it is well established by authority that the variation may be such as to confer a benefit on a stranger to the settlement provided it also confers a benefit on . .
Cited – Garforth-Bles v Garforth-Bles 1951
Pearce J said: ‘It is, in my view, to the child’s interest in another respect to allow the husband to remove a part of his fund from the settlement. He brought into the settlement reversions that were substantially all that he possessed; he now has, . .
Cited – Egerton v Egerton 1949
The court considered its power to vary a post-nuptial settlement. Barnard J said: ‘No one could quarrel with this statement as a guiding principle, but at the same time I think it would be wrong to interpret it as meaning that it is a principle . .
Cited – Colclough v Colclough and Fisher 1933
Any variation of a post-nuptial settlement should be addressed so as to place the parties in the same position as if the marriage had not come to an end. . .
See Also – Hashem v Shayif and Another FD 17-Apr-2009
. .
See Also – Hashem v Shayif and Others CA 22-Jul-2009
. .
Cited – Law Society of England and Wales v Isaac and Isaac International Holdings Ltd and Others ChD 7-Jul-2010
. .
Cited – Lindsay v O’Loughnane QBD 18-Mar-2010
The claimant had purchased Euros through a foreign exchange dealer. The dealer company became insolvent, causing losses to the claimant, who sought to recover from the company’s managing director, the defendant, saying that he was aware of the . .
Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.278557
The tenant had carried out improvements to the property. It was uncertain whether the length of the term (7, 14 or 21 years) was at the option of the lessee alone.
Held: The case was decided on construction of the lease. Lord Eldon made it clear obiter that the fact of the defendant’s knowledge (of the plaintiff’s mistake) must be proved by strong and cogent evidence. He gave some weight to the fact that the plaintiff was a professional man who had acted incautiously. He said: ‘this Court will not permit a man knowingly, though but passively, to encourage another to lay out money under an erroneous opinion of title; and the circumstance of looking on is in many cases as strong as using terms of encouragement.’
Lord Eldon LC
(1802) 7 Ves Jun 231, [1789] EngR 482, (1789-1817) 2 Ves Jun Supp 26, (1789) 34 ER 982 (A)
England and Wales
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Cited – Rochdale Canal Company v King 1853
Sir John Romilly MR said: ‘The principle on which the Defendants rely is one often recognised by this Court, namely, that if one man stand by and encourage another, though but passively, to lay out money, under an erroneous opinion of title, or . .
Cited – Thorner v Major and others HL 25-Mar-2009
The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.276432
(1849) 3 Ex 662
England and Wales
Cited – Oughtred v Inland Revenue Commissioners HL 4-Nov-1959
The taxpayer and her son owned through a trust the entire beneficial interest in the shares of a company. She agreed to transfer other shares to him in return for his interest in the shares subject to the trust, releasing the trust. The Revenue . .
Cited – Vandervell v Inland Revenue Commissioners HL 24-Nov-1966
The taxpayer made a gift of shares to a trust set up to fund a medical professorship. The shares were in a private company, and an option was given for their repurchase once a certain level of dividends had been attributed to them. He was assessed . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.268058
A mother had provided a sum to her daughter and son in aw when she moved in with them. The money was used to build an extension. She now appealed against a finding that she did not have an equitable interest in the house.
Held: lord Denning MR adopted a free-ranging remedial basis for constructive trusts and came to the view that: ‘The two [resulting trust and constructive trust] runs together. By whatever name it is described, it is trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded upon large principles of equity, to be applied in cases where the defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or a share in it.’
Lord Denning MR, Phillimore, Cairns LJJ
[1972] 1 WLR 1286, [1972] 3 All ER 744, [1972] EWCA Civ 1
England and Wales
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.262751
Money paid under a forged bill may be irrecoverable.
(1762) 3 Burr 1354
England and Wales
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.259528
The House considered the equitable doctrine of advancement, and the admission of evidence which might go to rebut it.
Held: The presumption is one which ‘should not . . give way to slight circumstances’.
Viscunt Simonds approved, from Snell’s Principles: ‘The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration . . But subsequent declarations are admissible as evidence only against the party who made them, and not in his favour.’
Viscount Simonds, Lord Morion of Henryton, Lord Reid, Lord Tucker, Lord Somervell of Harrow
[1954] UKHL 2, [1955] AC 431, [1954] 3 All ER 494
England and Wales
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 December 2022; Ref: scu.248521
[1810] EngR 375, (1810) Wight 76, (1810) 145 ER 1180
England and Wales
Updated: 06 December 2022; Ref: scu.335560
If a Plaintiff applies for an injunction in respect of a violation of a common law right, and the existence of that right, or the fact of its violation is denied, he must establish his right at law, but having done that, he is, except under special circumstances, entitled to an injunction to prevent a recurrence of that violation.
For such a purpose the award of an arbitrator is equivalent to a verdict.
If between the time of the case being referred and the award being made there has been an alteration in the mode of carrying on the business complained of, it may, if in diminution of the cause of injury, be shown as an answer to the application for an injunction; but if in increase of the cause of injury, it need not be the subject of a fresh proceeding at law; that is matter for the discretion of the Court of Equity. A Plaintiff brought an action to recover damages for an injury to his business occasioned by the erection. of gas works; the action was referred to arbitration; nearly two years elapsed before the award was made, in the course of which time alteratione in the mode of carrying on the business complained of were effected; two months after the date of the award the injunction was applied for: Held, that there had not been any such. acquiescence as to deprive the Plaintiff of his right to the injunction.
Lord Campbell LC
[1859] EngR 915, (1859) 7 HLC 600, (1859) 11 ER 239
England and Wales
Appeal from – Broadbent v The Imperial Gas Company 31-Jan-1857
. .
Cited – Armstrong v Sheppard and Short Ltd CA 1959
The plaintiff had a path at the rear of his property. The defendant constructed a sewer under the path, and asked the plaintiff for permission. He gave it informally, not knowing at the time that he owned the land. The sewer was constructed. Though . .
Cited – Miller v Jackson CA 6-Apr-1977
The activities of a long established cricket club had been found to be a legal nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2022; Ref: scu.288267
The plaintiff sought performance of an oral agreement to grant a tenancy having given up her own home to move into her employer’s home.
Held: There had been sufficient part performance.
[1968] 1 WLR 1175
England and Wales
Updated: 06 December 2022; Ref: scu.245851
The maxim ignorantia juris non excusat did not apply only to the law of delict.
(1733) Mor 2930
Scotland
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2022; Ref: scu.236542
A mistake of law was not a good ground for recovery of money paid in error.
Buller J
(1780) 2 Doug 468
England and Wales
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2022; Ref: scu.236533
A tenant for life of settled land set out on an elaborate fraud aiming for the capital. It required first a private Act of Parliament to enable the estate to be sold under the direction of the court and the proceeds paid into court and invested in other land; a fictitious sale of the tenant for life’s own lands to an associate of his; the application of the money in court in the purchase of the land from the associate at an excessive price; and the deliberate deception of the court to obtain an order under which part of the money in court was paid out to the tenant for life. He employed a firm of solicitors to act for him in obtaining the Act and the orders of the court and in every other proceeding under the Act. Brooks, the partner who acted in the transactions knew the circumstances of the transactions, but neither of his partners was aware that there was any fraud or irregularity in them.
Held: Though the partners were blameless, they were jointly and severally liable with Brooks to make good the loss to the trust estate. The court allowed a claim in Chancery for the vicarious liability of partners for his equitable wrongdoing.
Sir Lancelot Shadwell VC
(1842) 12 Sim 369
England and Wales
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2022; Ref: scu.193866
The extent of an implied surrender of a lease by operation of law is commensurate with what is necessary to give validity to the transaction which the surrenderer is to be estopped from disputing.
(1844) 13 M and W 313
England and Wales
Cited – Allen and Another v Rochdale Borough Council CA 23-Mar-1999
Land was sold. It had been used as playing fields. The freehold and leasehold interests in the land were held by the respondent, and the claimants asserted it was held as bare trustees for them as charitable trustees for the school foundation. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2022; Ref: scu.187408
The commander of a naval vessel, HMS Arethusa, had paid to the Admiral in command a proportion of freight received for the carriage of publicly owned bullion on board the Arethusa in the belief that this was due to the Admiral as a matter of usage. On later discovering that the money was not due because the usage had been discontinued, he sought to recover it from the Admiral’s widow and executrix. He challenged the decision in Bilbie v Limley.
Held: The court had no role to play in the recovery of money paid by mistake. Chief Justice, Sir James Mansfield said it was not an affront to conscience to allow the money to be retained, because the admiral acted (as all admirals then did) in accordance with what was generally believed to be his accustomed right, and in particular because he might have changed his position on the faith of the payment.
Chambre J (dissenting said the maxim ‘ignorantia juris non excusat’ applied only in cases of ‘delinquency’.
Gibbs J described the universal opinion among the practitioners in the Court of King’s Bench that where money was paid with knowledge of the facts it could not be recovered on the ground of mistake: ‘We must take this payment to have been made under a demand of right, and I think that where a man demands money of another as a matter of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid a sum, he never can recover back the sum he has so voluntarily paid. It may be, that upon a further view he may form a different opinion of the law, and it may be, his subsequent opinion may be the correct one. If we were to hold otherwise, I think that many inconveniences may arise; there are many doubtful questions of law: when they arise, the Defendant has an option, either to litigate the question, or to submit to the demand, and pay the money. I think, that by submitting to the demand, he that pays the money gives it to the person to whom he pays it, and makes it his, and closes the transaction between them.’
Gibbs J, Heath J, Chief Justice, Sir James Mansfield, Chambre J dissenting
(1813) 5 Taunt 143
England and Wales
Applied – Bilbie v Lumley and Others 28-Jun-1802
Contract Not Set Aside for Mistake as to Law
An underwriter paid a claim under a policy which he was entitled in law to repudiate for non-disclosure. Although he knew the relevant facts, he was not aware of their legal significance. He claimed back the money he had paid.
Held: A contract . .
Cited – Wilson and M’Lellan v Sinclair 1830
Lord Brougham LC said that since Brisbane v. Dacres it had been considered an established point that a mistake must be ‘in the fact’ to allow recovery of money paid in error. . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 December 2022; Ref: scu.236534
Where property is purchased by one person in the name of another there is a presumption that a resulting trust is created: ‘The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold or leasehold; whether taken in the name of the purchasers and others jointly, or in the name of others without that of the purchaser, whether in one name or several; whether jointly or successive – results to the man who advances the purchase money. It is the established doctrine of a court of equity that this resulting trust may be rebutted by circumstances in evidence.’
Eyre CJ
(1788) 2 Cox 92, [1788] EWHC Exch J8, [1788] EWHC Exch J8, [1775-1802] All ER Rep 205, (1788) 2 RR 14, 30 ER 42
England and Wales
Cited – Re a Policy No 6402 of the Scottish Equitable Life Assurance Society 1902
Mr Sanderson effected insurance on his own life ‘for the behoof’ of his sister-in-law, Miss Stiles. The policy moneys were payable to Miss Stiles or her personal representatives but the premiums were paid throughout by Mr Sanderson. The personal . .
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Cited – Drake v Whipp CA 30-Nov-1995
The parties, an unmarried cohabiting couple, disputed their respective shares in a property held in the man’s sole name. Both had made direct contributions both to the purchase of a barn and to its expensive conversion into a home. The plaintiff . .
Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 December 2022; Ref: scu.187423
The court put forward: ‘the general principle that the court will not execute a contract, the performance of which is unreasonable or will be prejudicial to persons interested in the property, but not parties to the contract’
Lord Langdale
(1837) 1 Keen 729, [1837] EngR 595, (1837) 1 Keen 729, (1837) 48 ER 488
England and Wales
Cited – Cedar Holdings Ltd v Green CA 1981
A property was held in the joint names of a former husband and wife. To obtain a loan for the husband, a legal charge over the property was executed by the husband, but he had another woman execute for the wife, pretending to be her. The chargee . .
Cited – Bankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 December 2022; Ref: scu.238940
In confirming that trustees did not have an uncontrolled discretion to determine whether the incapacity of a beneficiary of the trust was permanent, the Court held ‘Now this is not a case of trust where the beneficiaries are simply volunteers. The beneficiaries here are not volunteers. Their rights derive from contractual and commercial origins. They have purchased their rights as part of their terms of employment. Consistently with that, the power of the trustee to decline acceptance of the claim cannot be simply an uncontrolled discretion.’
Fox LJ
Unreported March 26, 1986
England and Wales
Applied – Stannard v Fisons Pension Trust Limited CA 1991
Fisons had sold their fertiliser division to Norsk Hydro. Acting on advice of actuaries and thinking that the fund was in deficit, the trustees made a transfer to a new fund to provide for pensions of transferring employees in accordance with a . .
Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 December 2022; Ref: scu.184586
The court refused to allow rectification of a voluntary settlement, since the mistake was demonstrated by a prior agreement.
[1895] 1 Ch 202, [1895] 1 Ch 642
England and Wales
Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 December 2022; Ref: scu.184582
The court has power to rectify a settlement notwithstanding that it is a voluntary settlement and not the result of a bargain, such as an ante-nuptial marriage settlement.
Page-Wood VC
(1860) 30 LJ Ch 5
England and Wales
Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Cited – Dixon v Clement Jones Solicitors (A Firm) CA 8-Jul-2004
The defendant firm had negligently allowed a claim for damages against a firm of accountants to become statute barred. The defendants said the claim was of no or little value, since the claimant would have proceeded anyway.
Held: The court had . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 December 2022; Ref: scu.184580
In a lease, the parties had agreed in negotiations that the six year term should be extended to 12 years, but had failed altogether to address the issue of a second rent review.
Held: The court would not manufacture an agreement on that point. The court explained the first criterion for rectification: ‘First, there must be a mistake by the party seeking relief in executing the deed which does not translate that party’s subjective intention at the time of the execution of the deed. I distinguish this from an intention which the party would have formed if either he or she had been properly advised, or had even applied their minds to the problem. In those circumstances it is clear that, from the passages I have already cited, the moment of time at which the subjective intention of the party seeking relief must be determined is at, or immediately before, executing the deed. Thus, no ex post facto intention can be admitted in such circumstances.’
Lord Justice Purchas
[1988] 2 EGLR 87
England and Wales
Cited – JIS (1974) Ltd v MCP Investment Nominees I Ltd CA 9-Apr-2003
The parties agreed for a lease to be granted of a new building. Part had been intended to be excluded for shops, but permission was not obtained, the shops area was included and leased back. When the tenants sought to determine the lease, the . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 December 2022; Ref: scu.184540
Remedying of defect in contract by contractual construction or equitable rectification
Simon Salzedo QC, Sitting as a Deputy High Court Judge
[2020] EWHC 1191 (Ch)
England and Wales
Updated: 01 December 2022; Ref: scu.651125
Appeal against a summary judgment on a claim for equitable compensation.
Lord Justice David Richards
[2019] EWCA Civ 2291
England and Wales
Updated: 01 December 2022; Ref: scu.651068
A transfer of the equitable interest in shares in breach of article 8(B) would nonetheless be effective.
Vaisey J said: There is, undoubtedly, a basic principle that a charging order only operates to charge the beneficial interest of the person against whom the order is made, and that it is not possible, for instance, to obtain an effective charging order over shares where the person against whom the order is made holds them as a bare trustee. The charging order affects only such interest, and so much of the property affected, as the person whose property is purported to be affected could himself validly charge. Jeffreys v Reynolds would seem superficially, to throw some doubt on that general basic proposition, but I think that the only effect of that decision is that the true owner of shares cannot, as a matter of procedure, discharge the charging order after it has been made absolute, and his remedy for asserting and establishing his true rights must be of some other character.
Vaisey J
[1951] 1 All ER 22
England and Wales
Applied – Gill v The Continental Union Gas Company Limited 1872
In an action under section 15 against a company for permitting the transfer of shares after notice of a charging order nisi, and before the making of it absolute, it is a good answer to show that the judgment debtor in whose name the shares stood . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 November 2022; Ref: scu.183424
A mortgagee sued the mortgagor for money owing under a mortgage after the sale by the mortgagee of the security. The mortgagors alleged that the sale was at a gross undervalue and sought to set-off their claim against the debt owed to the mortgagee. On an application by the mortgagee for summary judgment, Dunn J. in the Queensland Supreme Court gave the mortgagors conditional leave to defend; if there was a sale at the alleged undervalue of $l0,200, the mortgagee’s claim should be reduced by that sum.
[1975] Qd R 352
Australia
Cited – Platts v Trustees Savings Bank Plc CA 13-Feb-1998
A counterclaim for negligent sale was a valid claim allowing potential against repossessing bank but would not make bank’s claim unliquidated. The Judge could properly hold that there was a liquidated and unsecured debt the subject of the statutory . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 November 2022; Ref: scu.184793
SML sought damages and/or equitable compensation pursuant to section 178(1) of the Companies Act 2006 and an indemnity pursuant to section 195(3)(b) of the 2006 Act against three of its former directors (or in the case of one of them his estate).
[2020] EWHC 1266 (Ch)
Companies Act 2006 178(1) 195(3)(b)
England and Wales
Updated: 27 November 2022; Ref: scu.650852
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant council sought rectification of a contract by which it transferred its housing stock and the staff employed in its housing department to the defendant company. There was a deficit of pounds 2.4m in the staff pension scheme referable to the transferred employees and the contract provided for the council to fund this deficit. An earlier non-binding document which was agreed in principle and signed during the negotiations, objectively interpreted, provided that the cost of funding the deficit would be shared equally between the parties. This was how the council’s agent understood it (as the company’s negotiator knew) but the company’s negotiator thought that a different interpretation of the document was tenable and told the company’s board of directors that the deal was for the council to fund the deficit.
Held: The appeal succeeded. Though the court accepted Etherton LJ’s analysis of the law, Neuberger and Toulson LJJ disagreed as to the interpretation of the facts.
Toulson LJ followed Chartbrook, but with some reluctance and said: ‘In deciding whether on a fair view there was a renegotiation or a mistake in the drafting of the contract, it is necessary to look at all the circumstances. Have the parties behaved in such a way that they would reasonably understand one another to be involved in a process of seeking to negotiate a different deal from the one originally agreed or as involved in a process of drafting an agreement intended to accord with the deal originally agreed? Where it is suggested that there has been a change in the parties’ position prior to the execution of a written contract, it is necessary to look carefully at all the facts to see whether a reasonable person would have understood himself to be involved in the negotiation of a different deal from the one originally agreed or merely seen himself as involved in a process of drafting an agreement intended to conform with the original deal. If the latter is the case, and if the approval and execution of the written contract are affected by a relevant mistake, rectification should be available. It is, of course, for the party claiming rectification to show that in that process a mistake occurred.’
Etherton LJ, dissenting, said: ‘It is difficult to see how or why, once the conditions for mutual mistake are satisfied, the defendant’s carelessness could justify refusal of rectification. As the facts of the present case show, however, the claimant’s carelessness may preclude relief, not on some general ground of discretion, but because the claimant cannot be allowed to rely on its own carelessness in failing to observe that the defendant objectively no longer, at the date of the instrument to be rectified, continued to adhere to the prior common intention. Agip is, in that very loose sense, a useful analogy. ‘ Nor could it be said that the judge had erred in his conclusions as to the facts.
Toulson LJ pointed out: ‘Notwithstanding the immense respect due to Lord Hoffmann and the other members of the House of Lords, I have difficulty in accepting it as a general principle that a mistake by both the parties as to whether a written contract conformed with a prior non-binding agreement, objectively construed, gives rise to a claim for rectification.’
Lord Neuberger MR, Toulson, Etherton LJJ
[2011] EWCA Civ 1153, [2012] 2 All ER (Comm) 142, [2012] Pens LR 57, [2012] 1 P and CR 5, [2011] 42 EG 120, [2012] 1 WLR 1333, [2012] Bus LR 485
England and Wales
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Crane v Hegeman-Harris Co Inc ChD 1939
A continuing common intention of the parties to a document alone will not suffice to justify rectification. For rectification to be appropriate, there must be convincing proof that the concluded instrument does not represent the common intention of . .
Cited – Swainland Builders Ltd v Freehold Properties Ltd CA 2002
Swainland Builders Ltd owned the freehold of a block of flats. It had granted 99-year leases at ground rents of all the flats except numbers 11 and 18. It had intended to sell the block subject to the retention of flats 11 and 18 which it initially . .
Cited – Lovell and Christmas Ltd v Wall CA 1911
The written contract contained a restrictive covenant limiting the defendant’s freedom to carry on the business of a ‘provision merchant’ other than on behalf of the plaintiff company. On the facts found, the parties in their discussions before the . .
Cited – George Cohen Sons and Co Ltd v Docks and Inland Waterways Executive CA 1950
The landlord negotiating a new lease proposed to the tenant that ‘the terms and conditions contained in the present lease to be embodied in the new lease where applicable.’ The tenant accepted this offer, but the new lease as executed made the . .
Cited – Frederick E Rose (London) Ltd v William H Pim Jnr and Co Ld CA 1953
Denning LJ said: ‘Rectification is concerned with contracts and documents, not with intentions. In order to get rectification it is necessary to show that the parties were in complete agreement on the terms of their contract, but by an error wrote . .
Cited – Britoil plc v Hunt Overseas Oil Inc CA 1994
After the failure of the attempt by the Texan oil tycoon, Nelson Bunker Hunt, in the 1970s to corner the world silver market, his fortune collapsed and his companies were forced to sell off assets. In 1979 two of those companies (the defendants in . .
Cited – Carmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
Cited – Cambridge Antibody Technology v Abbott Biotechnology Ltd and Another Patc 20-Dec-2004
Rectification of an agreement was sought.
Held: Laddie J rejected a submission that evidence of the subjective state of mind of one of the parties contained in statements which had not been communicated to the other party (‘crossed the line’) . .
Cited – Thomas Bates and Sons Ltd v Wyndham’s Lingerie Ltd CA 21-Nov-1980
An application was made for rectification of a rent review clause in a lease. When executing the lease, the tenants’ officer, Mr Avon, noticed that the rent review clause in the lease drafted by the landlords was defective in not including a . .
Cited – George Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
Cited – Britoil plc v Hunt Overseas Oil Inc CA 1994
After the failure of the attempt by the Texan oil tycoon, Nelson Bunker Hunt, in the 1970s to corner the world silver market, his fortune collapsed and his companies were forced to sell off assets. In 1979 two of those companies (the defendants in . .
Cited – George Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
Cited – Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd) CA 4-Mar-1995
The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to . .
Appeal from – Daventry District Council v Daventry and District Housing Ltd ChD 30-Jul-2010
The parties had negotiated for the transfer to the defendant of the claimant’s housing stock, the associated management team, and the pension and other related assets and obligations. The claimant sought rectification of the agreement to reflect . .
Cited – Smith v Hughes QBD 6-Jun-1871
Blackburn J said: ‘I apprehend that if one of the parties intends to make a contract on one set of terms, and the other intends to make a contract on another set of terms, or, as it is sometimes expressed, if the parties are not ad idem, there is no . .
Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 November 2022; Ref: scu.445632
(Eastern Africa – Kenya) An accrued right of action for breach of contract is not a necessary precondition to obtaining specific performance.
[1960] UKPC 2, [1958] 1 WLR 1214, [1960] AC 316, [1958] 3 All ER 719, [1960] 2 WLR 374
Commonwealth
Cited – Michaels v Harley House (Marylebone) Limited CA 6-Nov-1998
Appeal from dismissal of claim for relief from forfeiture . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 November 2022; Ref: scu.445340
How far a plea of a stated account shall be good in a Court of Equity.
[1744] EngR 339, (1744) 1 Barn KB 272, (1744) 94 ER 185 (B)
England and Wales
Updated: 26 November 2022; Ref: scu.382195
The vendor was accused of failing to prevent a trespasser removing soil from land between exchange and completion.
Where a vendor under a contract for sale of land keeps possession until completion and payment of the purchase-money, he is in the position of a trustee for the purchaser, and bound as such to take reasonable care to preserve the property.
While a vendor so remained in possession, a trespasser without his authority or knowledge removed large quantities of surface soil from the property. A conveyance of the land was subsequently executed, and completion took place,
neither party being then aware of the removal of soil:-
Held: That, notwithstanding the conveyance, the purchaser could maintain an action against the vendor for a breach of trust in taking no care to prevent such removal of the soil.
Lord Coleridge CJ said: ‘in the case of a contract for the sale and purchase of land, although the legal property does not pass until the execution of the conveyance, during the interval prior to completion the vendor in possession is a trustee for the purchaser, and as such has duties to perform towards him, not exactly the same as in the case of other trustees, but certain duties, one of which is to use reasonable care to preserve the property in a reasonable state of preservation, and, so far as may be, as it was when the contract was made.’
Lord Coleridge CJ
[1891] 2 QB 456, [1891] UKLawRpKQB 133
England and Wales
Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Cited – Michaels v Harley House (Marylebone) Limited CA 6-Nov-1998
Appeal from dismissal of claim for relief from forfeiture . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 November 2022; Ref: scu.223739
The vendors agreed to sell a house which they had insured against fire risk. The house was damaged by fire after contract but before completion, and the issue was whether the purchaser was entitled to the benefit of the insurance.
Held: (Majority) The purchaser, who had completed his contract, was not entitled as against the vendor to the benefit of the insurance.
The court discussed the trusteeship arising on a contract for the sale of land: ‘An unpaid vendor is a trustee in a qualified sense only, and is so only because he has made a contract which a Court of Equity will give effect to by transferring the property sold to the purchaser . .’, but the trusteeship arose in respect of the property only and not any associated insurance policy. Brett LJ: it was a misnomer to describe the vendors as trustees of the house, but even if they were trustees the contract of insurance did not run with the land. James LJ (dissenting) The vendors were trustees and held the insurance money for the purchaser because any benefit which accrued to a trustee by reason of his legal ownership was taken as trustee for the beneficial owner.
Cotton LJ, Brett LJ, James LJ
(1881) 18 Ch D 1, [1881] UKLawRpCh 110
England and Wales
Cited – Jerome v Kelly (Her Majesty’s Inspector of Taxes) HL 13-May-2004
In 1987, trustees holding land for various beneficiaries in undivided shares entered into a contract to sell it to a purchaser. In 1989 Mr and Mrs Jerome, who were absolutely entitled to interests in the land, assigned part of their beneficial . .
Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Cited – Nelson v Greening and Sykes (Builders) Ltd CA 18-Dec-2007
The builders had obtained a charging order for the costs awarded to them in extensive litigation, and a third party costs order but without the third party having opportunity to test the bill delivered. They had agreed to sell land to the defendant, . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Cited – Michaels v Harley House (Marylebone) Limited CA 6-Nov-1998
Appeal from dismissal of claim for relief from forfeiture . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 November 2022; Ref: scu.196887
As regards the trusteeship which arises for a vendor of land after exchange of contracts: ‘there cannot be any doubt of the relation subsisting in the eye of a Court of Equity between the vendor and the purchaser. The vendor was a trustee of the property for the purchaser; the purchaser was the real beneficial owner in the eye of a Court of Equity of the property, subject only to this observation, that the vendor, whom I have called the trustee, was not a mere dormant trustee, he was a trustee having a personal and substantial interest in the property, a right to protect that interest, and an active right to assert that interest if anything should be done in derogation of it’. A purchaser of land obtains rights which are akin to ownership after exchange, and a purchaser had not only the right to devise the property (under the equitable doctrine of conversion) but also the right to alienate it or charge it.
Lord O’Hagan said that the purchaser’s interest could be the subject of a charge or assignment, and that the sub-assignee or encumbrancer could enforce his rights against the original vendor.
Lord Hatherley LC referred to the ‘fiction of Equity which supposes the money to be paid away with one hand and the estate to be conveyed away with the other,’
Lord Cairns, Lord O’Hagan, Lord Hatherley LC
(1872) LR 5 HL 321, [1872] UKLawRpHL 2
England and Wales
Cited – Jerome v Kelly (Her Majesty’s Inspector of Taxes) HL 13-May-2004
In 1987, trustees holding land for various beneficiaries in undivided shares entered into a contract to sell it to a purchaser. In 1989 Mr and Mrs Jerome, who were absolutely entitled to interests in the land, assigned part of their beneficial . .
Cited – Englewood Properties Limited v Patel and Another ChD 16-Feb-2005
The claimant was a property developer, which sought to sell a row of shops at auction. One lot was a Woolworths store, where the company owned both freehold and leasehold interests, with Woolworths occupying an underlease, which the claimant had . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 November 2022; Ref: scu.196886
A limited company is not a trustee of its funds, but their beneficial owner. However, the fiduciary character of the duties of its directors mean that they are treated as if they were trustees of those funds of the company which are in their hands or under their control, and if they misapply them they commit a breach of trust.
The court contrasted the conduct of two directors (one of whom, Mr Brock, was also chairman) in determining their responsibility for an ultra vires investment made by the company. Neither was present at the meeting at which the investment had been approved. Attendance at a later meeting at which the minutes of that meeting were confirmed was held to be insufficient to make either director liable. On the other hand statements made by Mr Brock showing he had taken an active part in the decision to make the investment were sufficient to hold him responsible for it. However the other director had been ‘away on the sea’ and ‘had nothing to do with the transaction at all’ which was ‘past praying for’ on his return. In a case of a company director being treated as a trustee within the limitation provisions of ss1(3) and 8(1) of the Trustee Act 1888 in respect of a claim that unauthorised investments had caused loss to the company. The court recognised the trustee-like nature of a director’s duties as very relevant to the statutory limitation periods for actions by beneficiaries against express trustees for breach of trust and for the recovery of trust property, whether those periods are applied directly or by analogy. In consequence of the fiduciary character of their duties the directors of a limited company are treated as if they were trustees of those funds of the company which are in their hands or under their control, and if they misapply them they commit a breach of trust.
Directors are not regarded as trustees merely by virtue of their office; but they are treated as trustees ‘of money which comes to their hands or which is actually under their control’ (per Lindley LJ); or ‘they are only trustees qua the particular property which is put into their hands or under their control’ (per Kay LJ).
Lindley LJ and Kay L JJ
[1894] 1 Ch 616
England and Wales
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Equitable Life Assurance Society v Bowley and others ComC 17-Oct-2003
The claimant sought damages against its former directors for negligence and breach of fiduciary duty. The defendants asked that the claims be struck out.
Held: It was no longer good law that directors might leave the conduct of the company’s . .
Cited – Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Holland v Revenue and Customs and Another SC 24-Nov-2010
The Revenue sought an order under section 212 of the 1986 Act, for payment of the tax debts of the insolvent company by a de facto director. H had organised a scheme under which IT contractors had worked through companies created by him under a . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 November 2022; Ref: scu.187430
[1998] EWCA Civ 1558
England and Wales
See Also – Target Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.145037
A claim was by lenders against negligent valuers after they failed to spot subsidence. They sought for the difference of pounds 11,880 between the amount advanced and the amount which would have been lent upon a proper valuation. The borrowers’ ultimate repayment of the original advance out of the proceeds of the eventual sale of the house was ignored in the latter case by concession, the rationale being that the repayment had in effect only been achieved out of the lenders’ own further advances totalling pounds 29,000, made to cover repairs necessary to make good the subsidence which the valuers had negligently failed to spot. The lenders therefore continued to suffer, and were to be entitled to recover, loss up to the cap imposed by the difference between the amount advanced and the amount which would have been advanced on a proper valuation.
Stephenson LJ, O’Connor LJ
[1983] 1 WLR 1242
England and Wales
Cited – SS (Sri Lanka), Regina (on The Application of) v The Secretary of State for The Home Department CA 15-Jun-2018
The court was asked whether, in cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) where the credibility of the appellant is in issue, there is a rule that a delay of more than three months between the hearing of oral evidence . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.650924
A lender M advanced pounds 1,200 to pay off an existing mortgage held by T over a property owned by the plaintiff. M made the advance on the basis of certain misleading representations and non-disclosures by the plaintiff’s husband. M was told that he would receive a transfer of T’s mortgage. pounds 1,000 of the advance was applied in reduction of T’s mortgage. T’s mortgage was secured over two properties. The plaintiff was subrogated to the prior mortgage because otherwise the wife would have been unjustly enriched by the discharge of the debt which it secured.
Held: The charge on both properties to the extent of pounds 1,000 was kept alive in equity in favour of M, so far as that could be done without prejudicing T or the plaintiff, with whom M did not deal. T was not prejudiced as the balance of his mortgage debt had priority over M’s charge. The plaintiff was not prejudiced so long as no extra costs were thrown on the mortgaged properties by reason of the original mortgage debt being divided between T and M.
Romer J
[1899] 1 Ch 353
England and Wales
Cited – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.592219
A preliminary issue was tried as to whether the plaintiff had an estate or interest entitling him to maintain an action for waste, either voluntary or permissive, against the defendant, who was tenant for life or lives.
Held: On the basis that equity would afford no relief in an action for permissive waste against a tenant for life, and that if there is any variance between the rules of equity and the rules of common law the former must prevail, decided that the action for permissive waste was not maintainable.
(1881) 44 LT 809
England and Wales
Cited – Dayani v London Borough of Bromley TCC 25-Nov-1999
LA Tenant liable for permissive waste
The local authority was tenant of properties which it sub-licensed to homeless persons for three years was liable for having allowed the properties to deteriorate. It was claimed that they were liable for permissive waste as tenants for a fixed . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.196874
The Lord Chancellor’s court granted an injunction restraining a tenant for life without impeachment of waste who had committed voluntary waste of the mansion-house from committing further waste and obliging him to rebuild the mansion-house and put it into the same condition as it was in at the time of his entry, observing that the clauses of without impeachment of waste extended only to excuse from permissive waste.
Earl Cowper LC
24 ER 203, (1716) Prec Ch 454
England and Wales
Cited – Dayani v London Borough of Bromley TCC 25-Nov-1999
LA Tenant liable for permissive waste
The local authority was tenant of properties which it sub-licensed to homeless persons for three years was liable for having allowed the properties to deteriorate. It was claimed that they were liable for permissive waste as tenants for a fixed . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 November 2022; Ref: scu.196873
The court applied the doctrine of laches and delay to a claim against a trustee, not for the recovery of trust property, but for breach of trust.
(1882) 20 Ch D 109
England and Wales
Cited – Patel and others v Shah and others CA 15-Feb-2005
The parties entered into a commercial agreement for the sale and purchase of properties.
Held: The claimants had failed to meet their part of the bargain, and had failed to make mortgage payments, leaving the defendants to do so. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.223438
The court will not listen to a claim by a cestui que trust trying to challenge accounts settled by his trustees where those accounts had been settled for more than twenty years and he had had ample opportunity to go into them. Lapse of time alone is not sufficient to bar such a suit.
(1860) 29 Beav 606
England and Wales
Cited – Patel and others v Shah and others CA 15-Feb-2005
The parties entered into a commercial agreement for the sale and purchase of properties.
Held: The claimants had failed to meet their part of the bargain, and had failed to make mortgage payments, leaving the defendants to do so. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.223437
‘. . . If a man mixes trust funds with his own, the whole will be treated as the trust property, except so far as he may be able to distinguish what is his own.’
Sir William Page Wood VC
(1865) 2 H. and M. 417
England and Wales
Cited – Foskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.220695
A transaction was held to be of a security nature and to confer right to redeem even though it purported to be merely an agreement of a lender to assign a life policy in event of certain contingencies. A clause which allowed the mortgagor only a limited time period within which to redeem the mortgage was void as a fetter on the mortgagor’s right to redeem.
[1892] AC 1
England and Wales
Updated: 24 November 2022; Ref: scu.219910
Mr Reed held a bond for pounds 500 given by Mr Jones, who had also guaranteed some loans to Mr Reed by third parties. Mr Reed died insolvent and Mr Jones was called to pay pounds 377 to the lenders under the guarantees. When Mr Reed’s assignee Mr Mossop sued Mr Jones on the bond, he brought proceedings in equity claiming to be entitled to set off the pounds 377 he had paid.
Held: Because Mr Reed had never actually been made bankrupt, the insolvency rules did not apply and the court C gave relief under general equitable principles, saying ‘if Richard Reed had been bankrupt, I should have had no difficulty in deciding this case.’
Sir James Wigram V-C
(1844) 3 Hare 568
England and Wales
Cited – In re Charge Card Services Ltd ChD 1987
The court discussed the historic availability of set-off in an insolvency: ‘By the turn of the [20th] century, therefore, the authorities showed that debts whose existence and amount were alike contingent at the date of the receiving order, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.196876
(High Court of Australia) The activities of a company which processed possum meat for export (‘what the processing of possums looks,and sounds like’) were not such as to attract the quality of being confidential for the purpose of the law protecting confidentiality.
Austlii Equity – Equitable remedies – Interlocutory injunction – Principles to be applied – Need for plaintiff to show a serious question to be tried – Defence that plaintiff has no equity – Nature of discretion to grant interlocutory relief – Relevance of implied freedom of political communication under the Constitution.
Practice and procedure – Interlocutory injunctions – Power of Supreme Court to grant interlocutory injunction – Whether s 11(12) of Supreme Court Civil Procedure Act 1932 (Tas) alters basis on which the Supreme Court has power to grant an interlocutory injunction – Purpose for which power exists to grant an interlocutory injunction – Meaning of ‘just and convenient’.
Torts – Privacy – Whether Australian law recognises a tort of invasion of privacy – Whether right to privacy attaches to corporations – Relevance of implied freedom of political communication under the Constitution to the tort of privacy.
Constitutional law (Cth) – Interpretation of Constitution – Implications from Constitution – Implied freedom of communication concerning government and political matters – Whether law providing for interlocutory injunction against broadcaster infringes implied freedom – Whether injunction if granted would infringe freedom – Relevance of implied freedom to grant of injunction – Whether properly or at all taken into account.
Trespass to land – Trespasser illegally made clandestine film of activities and gave it to a broadcaster – Whether owner has right to restrain publication of film by broadcaster.
Words and phrases – ‘unconscionability’ – ‘just and convenient’ – ‘interlocutory injunction’.
Gleeson CJ
[2001] HCA 63, 208 CLR 199, [2001] 185 ALR 1, 76 ALJR 1
England and Wales
Cited – Tillery Valley Foods v Channel Four Television, Shine Limited ChD 18-May-2004
The claimant sought an injunction to restrain the defendants broadcasting a film, claiming that it contained confidential material. A journalist working undercover sought to reveal what he said were unhealthy practices in the claimant’s meat . .
Cited – Murray v Express Newspapers Plc and Another ChD 7-Aug-2007
The claimant, now aged four and the son of a famous author, was photographed by use of a long lens, but in a public street. He now sought removal of the photograph from the defendant’s catalogue, and damages for breach of confidence.
Held: The . .
Applied – Hosking and Hosking v Simon Runting and Another 25-Mar-2004
(Court of Appeal of New Zealand) A photographer was commissioned to take photographs of the children of a well known television personality. He took pictures of Mr Hosking’s eighteen month old twins being pushed down a street by their mother. Mr and . .
Cited – Imerman v Tchenguiz and Others QBD 27-Jul-2009
It was said that the defendant had taken private and confidential material from the claimant’s computer. The claimant sought summary judgement for the return of materials and destruction of copies. The defendant denied that summary judgement was . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.197006
Both voluntary and permissive waste (suffering houses to go out of repair) were alleged against a tenant for life. The relief sought was an account and an injunction. In relation to the permissive waste, the court refused to order an account or an injunction requiring the tenant to rebuild, notwithstanding an argument that the court ought to intervene since the plaintiff had no remedy at law by reason of the intervention of another estate between the plaintiff’s remainder and the defendant’s estate for life. A court of equity never interposes in case of permissive waste either to prohibit or to give satisfaction, as it does in the case of wilful waste.
22 ER 644, (1733) 22 Vin Abr 523, 2 Eq Ca Abr 758
England and Wales
Cited – Dayani v London Borough of Bromley TCC 25-Nov-1999
LA Tenant liable for permissive waste
The local authority was tenant of properties which it sub-licensed to homeless persons for three years was liable for having allowed the properties to deteriorate. It was claimed that they were liable for permissive waste as tenants for a fixed . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.196870
The plaintiff had made a loan to a company in which he had a joint interest in order to enable it to pay the price due under a contract for the purchase of development land. The company failed, and he now claimed to be a secured creditor by subrogation to the vendor’s lien.
Held: A person who pays off a mortgage debt is entitled – and unless the contrary appears is presumed – to preserve the security for its own benefit. The advance to the company was intended to be an unsecured loan and held that this excluded any remedy by way of subrogation, which would give the plaintiff more than he had bargained for.
Oliver J rejected the proposition, advanced by counsel for the company, that the remedy of subrogation was available only when the common intention of the parties was that the plaintiff should have some security which, for one reason or another, he did not get. Oliver J confined himself to a narrower proposition that: ‘where on all the facts the court is satisfied that the true nature of the transaction between the payer of the money and the person at whose instigation it is paid is simply the creation of an unsecured loan, this in itself will be sufficient to dispose of any question of subrogation.’
Oliver J
[1976] Ch 220, [1976] 2 All ER 587
England and Wales
Approved – Burston Finance Ltd v Spierway Ltd ChD 1974
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: . .
Cited – Cheltenham and Gloucester Plc v Appleyard and Another CA 15-Mar-2004
The owners had purchased their property with a loan from the BBBS. A charge was then given to BCCI, which charge said no further charge could be registered without BCCI ‘s consent. The C and G agreed to lend a sum to refinance the entire borrowings, . .
Approved – Banque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.196572
The owners had purchased their property with a loan from the BBBS. A charge was then given to BCCI, which charge said no further charge could be registered without BCCI ‘s consent. The C and G agreed to lend a sum to refinance the entire borrowings, but on the day it was to be completed, provisional liquidators to BCCI were appointed, who refused to acknowledge the discharge of their charge, and the C and G charge could only have protection as an equitable charge. BCCI acknowledged that they had received the sums due, and so had BBBS.
Held: Even though the C and G had received some reduced security, they were entitled to be subrogated to the first chargees whose loan was repaid by their funds. Otherwise the Appleyards would be unjustly enriched to the extent that their property was burdened with a lesser security. Subrogation was a private remedy intended to avoid unjust enrichment.
Lord Justice Kennedy, Lord Phillips Of Worth Matravers, Mr Lord Justice Neuberger
Times 29-Mar-2004, [2004] EWCA Civ 291, Gazette 01-Apr-2004, [2004] 13 EG 127, [2004] 13 EG 12
England and Wales
Cited – Halifax Plc v Omar CA 20-Feb-2002
The respondent occupied a flat as a tenant. The landlord had acquired it by means of a fraud on the claimant lender. The lender had been given an equitable charge over the property, and now claimed possession as subrogated to the original fraudulent . .
Cited – Banque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
Cited – Burston Finance Ltd v Spierway Ltd ChD 1974
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: . .
Cited – Paul v Speirway Ltd (in liquidation) 1976
The plaintiff had made a loan to a company in which he had a joint interest in order to enable it to pay the price due under a contract for the purchase of development land. The company failed, and he now claimed to be a secured creditor by . .
Applied – Orakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .
Cited – Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Cited – Serious Organised Crime Agency v Szepietowski and Others ChD 15-Oct-2010
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 – Pickenham Romford Ltd v Deville ChD 31-Jul-2013
The claimant company’s administrators sought an order to have vacated unilateral notices entered against land titles registered to the claimant. The court now gave its reasons for making the order as requested by way of summary relief. The notices . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.194462
In the particular circumstances a provision made for the benefit of the husband was for the benefit of the wife.
Sir Richard Malins V-C
(1868) LR 6 Eg 322
England and Wales
Cited – In Re the Estate of Marjorie Langdon Cameron (Deceased); Peter David Phillips v Donald Cameron and Others ChD 24-Mar-1999
One of the testatrix’s children was thought to be profligate, and had failed to maintain his own son. Acting under an enduring power of attorney, the testatrix’s attorneys made a substantial gift in establishing an educational trust for that son’s . .
Cited – In Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners HL 8-Oct-1962
The trustees proposed establishing a new trust in respect of the share of an estate to which an infant beneficiary had a contingent entitlement. A portion of the trust fund would be allocated to the new trust.
Held: This was a lawful exercise . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.194494
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: ‘[W]here A’s money is used to pay off the claim of B, who is a secured creditor, A is entitled to be regarded in equity as having had an assignment to him of B’s rights as a secured creditor. It finds one of its chief uses in the situation where one person advances money on the understanding that he is to have certain security for the money he has advanced, and for one reason or another, he does not receive the promised security. In such a case he is nevertheless to be subrogated to the rights of any other person who at the relevant time had any security over the same property and whose debts have been discharged in whole or in part by the money so provided by him.’
Walton J
[1974] 1 WLR 1648, [1974] 3 All ER 735
England and Wales
Cited – UCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
Approved – Paul v Speirway Ltd (in liquidation) 1976
The plaintiff had made a loan to a company in which he had a joint interest in order to enable it to pay the price due under a contract for the purchase of development land. The company failed, and he now claimed to be a secured creditor by . .
Approved – Halifax Plc v Omar CA 20-Feb-2002
The respondent occupied a flat as a tenant. The landlord had acquired it by means of a fraud on the claimant lender. The lender had been given an equitable charge over the property, and now claimed possession as subrogated to the original fraudulent . .
Cited – Cheltenham and Gloucester Plc v Appleyard and Another CA 15-Mar-2004
The owners had purchased their property with a loan from the BBBS. A charge was then given to BCCI, which charge said no further charge could be registered without BCCI ‘s consent. The C and G agreed to lend a sum to refinance the entire borrowings, . .
Applied – Roberts Petroleum Ltd v Bernard Kenny Ltd (in liquidation) CA 1982
The plaintiffs had supplied petrol to the defendant who owned two filling stations. The defendant prepared a statement of affairs ready to hold a meeting of creditors. The plaintiffs took their claim to judgement and obtained a charging order nisi . .
Not approved – Roberts Petroleum Ltd v Bernard Kenny Ltd HL 2-Jan-1983
The plaintiff supplied petrol to the defendant but had not been paid. Anticipating the defendant winding up, the plaintiff got judgment and a charging order nisi. The defendant appealed against that order being made absolute, saying that this gave . .
Cited – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.190504
Under the will, A was to be permitted to reside in a house, part of residue held upon trust for sale. A was also tenant for life of residue. Subject to A’s life interest, residue was given as to one-third to B and two-thirds to others. A codicil provided that B was to be entitled to the house in specie in due course in satisfaction of his one-third share in remainder, even though it should then exceed one-third in value of the estate. It was proposed to sell the house, A not objecting: the house was already worth more than the one-third, and B objected.
Held: The Order protected B’s interests by requiring his consent to the exercise of the trust for sale in A’s lifetime. It also avoided the situation of the house being settled land with A tenant for life by requiring also the consent of A to such exercise, which would not negative an immediate binding trust for sale. It will be noted that A, being tenant for life of residue, required no further protection: she would be entitled to the nett rents of any letting by the trustees.
[1986] 1 WLR 583
England and Wales
Updated: 24 November 2022; Ref: scu.650710
A was by will given a right to reside rent-free in a house. She left due to ill health, and the trustees for sale sold. The question was whether A was entitled to the income of the proceeds of sale on the ground that the house was settled land and A the tenant for life.
Held: It was not settled land, the effect of A’s right to reside being only to require her consent to the exercise of the trust for sale, not depriving it of the character of an immediate binding trust for sale: see the Law of Property Act, 1925, section 205 (1) (XXIX). It seems to have been overlooked that unless A could have prevented the trustees from ousting her from possession in order to let the premises at a rent, the requirement of A’s consent to a sale would not have protected her residential rights: and that, if she could prevent that, it could only be by virtue of some interest taking priority over all aspects of the other trusts, which it would seem to us would make the land settled land with A as tenant for life.
(1967) 204 EG 359
England and Wales
Cited – Dodsworth v Dodsworth and Another CA 3-Jul-1973
. .
Lists of cited by and citing cases may be incomplete.
Updated: 24 November 2022; Ref: scu.650709
Russell L
[1973] EWCA Civ 4, [1973] EGD 233
England and Wales
Cited – Inwards v Baker CA 13-Jan-1965
An indulgent father had encouraged his son to build a bungalow on his, the father’s, land. The son had done so in the expectation, encouraged by the father, that he would be permitted to remain in occupation.
Held: The court formulated the . .
Cited – Ayer v Benton 1967
A was by will given a right to reside rent-free in a house. She left due to ill health, and the trustees for sale sold. The question was whether A was entitled to the income of the proceeds of sale on the ground that the house was settled land and A . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.262740
The power to appoint a receiver is part of the court’s auxiliary equitable jurisdiction and is one of the oldest remedies in the Court of Chancery. It is used in situations requiring interim protection of property (and the income of property), including disputes about partnerships, sales or mortgages of land, and administration of estates. Receivers could also be appointed by way of equitable execution.
(1868) LR 6 Eq 437
England and Wales
Cited – Capewell v Revenue and Customs and Another HL 31-Jan-2007
The defendant appealed against an order regarding the remuneration of a receiver appointed to administer a restraint order placed on the assets of the defendant under the 1988 Act on the basis of an allegation that the defendant had been involved in . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.248335
The solicitor claimed fees for coduct of an action which, but for his own failings would not have been necessary.
Held: The client had a set-off in equity.
(1821) 6 Madd 95
England and Wales
Cited – British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.247742
The testator made one will under which C was to be a residuary legatee. He then made a second will under which C was only to take a defeasible annuity. After the T’s death, S advanced andpound;200 to C on the security of an equitable charge of C’s interest under the first will. S died, the defendant being his executrix. Subsequently a bank (represented by the plaintiff) advanced money to C who conveyed to the bank his supposed interest under the first will subject to S’s interest. The defendant applied to C for the payment of the andpound;200 and interest. C referred the defendant to the bank by whom C’s debt to S was paid. The second will was then discovered and the bank sought recovery from the defendant of the money paid to her.
Held: Pollock CB said the defendant had the right to receive the money owed by C, and said that he thought that the bank must be considered to have paid that sum for C. He said that the case seemed to him to fall within the class of cases in which a man has paid money ‘in his own wrong’. He continued: ‘It may, also, be put upon this ground, that the bankers paid this money rather as the agents of . . . C than as their own money. If so, it cannot be recovered back.’ Platt B referred to the defendant wanting the payment by C of his debt and applying to C for payment. He said: ‘He refers her to the bank. They, acting as his agents, upon being referred to, pay his debt. How can that be properly recoverable? Surely the debt is satisfied. The debt was due. It is not as though there were no debt due, and there was a mistake of fact; but here the debt was actually due, and the money was paid to satisfy that debt. It appears to me clear, beyond all question, that this money cannot be recovered back.’
Pollock CB, Platt B, Bramwell B
(1856) 1 H and N 210
England and Wales
Cited – Lloyds Bank Plc v Independent Insurance Co Ltd CA 26-Nov-1998
The bank had made an electronic transfer of funds for a customer in satisfaction of that customer’s proper debt, but it was done under a mistake of fact as to the cleared status of funds received.
Held: The appeal was turned down. The bank was . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.246225
A beneficiary cannot be divested of his beneficial interest in the capital of the trust by the operation of the doctrine of laches. ‘A trustee who is in possession of property which he admits to be trust property cannot plead the laches of the cestui que trust in a suit to enforce the trust in respect of that property.’
(1855) 20 Beav 632
England and Wales
Cited – Patel and others v Shah and others CA 15-Feb-2005
The parties entered into a commercial agreement for the sale and purchase of properties.
Held: The claimants had failed to meet their part of the bargain, and had failed to make mortgage payments, leaving the defendants to do so. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.223435
The court discussed the change of position needed to be established by a defendant resisting a claim for restitution of money paid under a mistake: The ‘change of position . . must, on the evidence, be referable in some way to the payment of [the] money.’ and ‘whether or not a change of position may be anticipatory, it must . . have been made as a consequence of the receipt of, or (it may be) the prospect of receiving, the money sought to be recovered.’
Jonathan Parker J
[2000] 3 All ER 808
England and Wales
Cited – Commerzbank Ag v Price-Jones CA 21-Nov-2003
The respondent had received a bonus of andpound;250,000. His employers wrote to him in error increasing it. He later chose to stay rather than take redundancy because he now expected the full amount. He resisted an order for restitution. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.188257
A father put a cheque into the hands of his baby son of nine months saying ‘I give this to baby for himself’ and he then took back the cheque and put it away. The donor died and the cheque was found among his effects.
Held: There had been no valid gift. There was no declaration of trust and no gift.
Lord Cranworth LJ
(1865) LR 1 Ch App Cas 25
England and Wales
Cited – Pennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.183414
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 (Hannah) who had never occupied the house claimed that William was liable to Hannah’s estate for a seventh of the rent in respect of his occupation.
Held: Mere occupation (in the absence of agreement) would not make one co-owner liable to the others for rent. The house was open to all the tenants in common, William had been in occupation, but there was no exclusion of the other tenants in common: ‘Where there was neither contract nor exclusion, nor anything received, occupation by one tenant in common created no liability for rent to the other tenants in common.’
Cottenham LC
(1846) 1 Coop t Cott 457 (47 ER 944), SC 2 Ph 127 (41 ER 889)
England and Wales
See Also – MacMahon v Burchell 20-Apr-1843
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 30-Apr-1845
. .
Cited – Byford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
See Also – M’Mohon v Burchell 5-Jun-1846
. .
See Also – William M’Mahon And Wife v Burchell And Another 4-Dec-1846
. .
Lists of cited by and citing cases may be incomplete.
Updated: 23 November 2022; Ref: scu.183863
[2012] EWHC 2233 (Ch)
England and Wales
See Also – Lloyds TSB Bank Plc v Crowborough Properties Ltd and Others (2234) ChD 23-Jul-2012
. .
Lists of cited by and citing cases may be incomplete.
Updated: 22 November 2022; Ref: scu.463539
The Claimants sought specific performance of a number of contracts for the grant of leasehold interests over the individual residential apartments and commercial units in a development
His Honour Judge Stephen Davies (sitting as a Judge of the High Court)
[2010] EWHC 1832 (Ch)
England and Wales
Updated: 22 November 2022; Ref: scu.420965
[1837] EngR 588, (1837) Donn Eq 236, (1837) 47 ER 343
England and Wales
Updated: 22 November 2022; Ref: scu.313705
A settlor executed a transfer of shares but failed to obtain the consent of the Treasury under the Regulations. The transferees argued that the testator had executed documents which were appropriate to the subject matter of the gift, namely the share transfers, that those documents being under seal were irrevocable and that the settlor had done everything he could that was necessary for him to do to divest himself of the legal and equitable interest in the shares in favour of the transferees. Further they argued that even if the donor had failed to succeed in his purpose, so far as the legal title was concerned, he must be regarded as having passed his equitable interest in the shares.
Held: The gift was incomplete, and there is no equity to perfect an imperfect gift. ‘The testator had not done everything that was required to be done by him at the time of his death. He had not obtained permission from the Treasury. The Treasury might have required further information or answers supplemental to those which he had given in reply to it; and he might have refused to concern himself with the matter further, in which case I do not know how anyone could have compelled him to do so. At the time of the testator’s death a complete equitable assignment had been effected. The interest in the shares so acquired by the assignees would indubitably be an ‘interest in securities’ within the meaning of reg. 3A and inasmuch as they are prohibited from acquiring such an interest except with permission granted by the Treasury, this court cannot recognise a claim to such an interest where the consent of the Treasury was never given to its acquisition. The assignment and acceptance of the interest would both be equally incapable of recognition in the absence of Treasury sanction, and that sanction was never in fact obtained; it might indeed (although the probabilities are certainly otherwise) never have been forthcoming at all.’
Romer J
[1946] Ch 312, [1946] 2 All ER 105
The Defence (Finance) Regulations 1939
England and Wales
Cited – Pennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
Distinguished – Goel v Pick ChD 12-Apr-2006
The bankrupt had been entitled to a valuable vehicle registration mark ‘AMR 1T’. He sold it to a creditor, the claimant to clear that debt. The trustee now said that the purported assignment was ineffective.
Held: ‘VRMs are assigned to . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 November 2022; Ref: scu.183419
Morgan J
[2013] EWHC 44 (Ch)
England and Wales
Updated: 20 November 2022; Ref: scu.470369
The plaintiff, a widow, had executed deeds founding two charities and devoting to them a considerable part of the large fortune which she had inherited from her husband, but later brought proceedings to set the deeds aside asserting that she had not been fully and properly advised and had not fairly understood the nature and effect of the documents.
Held: Upheld. Lord Halsbury LC said that he agreed with the judgment of Lindley LJ, but he contemplated that there might be ‘circumstances when misunderstanding on both sides may render it unjust to the giver that the gift should be retained.’
Lord Halsbury LC, Lord Macnaghten, Lord Morris
(1899) 15 TLR 294
England and Wales
Appeal from – Ogilvie v Littleboy CA 1897
Lindley LJ discussed the variation of a gift for mistake: ‘Gifts cannot be revoked, nor can deeds be set aside, simply because the donors wish they had not made them and would like to have back the property given. Where there is no fraud, no undue . .
mentioned – Brazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
Cited – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.416578
[1995] EWCA Civ 14, [1995] 3 FCR 661, [1995] 2 FLR 114, [1995] Fam Law 551
England and Wales
Updated: 19 November 2022; Ref: scu.259344
If all the words of a description are true and correctly describe a thing certain the court will not presume that there is any error so as to extend the meaning of the words to something not properly comprehended in the express words. In 1802 the testator purchased the estate called Arkley Hall Farm in the parish of Ridge in the county of H. In 1813 and 1815 he acquired adjoining land in the parishes of Shirley and Barnet in the same County which was thrown into the farm and occupied therewith and the whole thenceforth called a farm. By his will in 1870 he devised all his estate consisting of the farm in the parish of Ridge in the county to trustees. Held the land in the parishes of Shirley and Barnet did not pass by this specific devise but instead passed under the residuary devise.
Lord Bacon applied the maxim falsa demonstratio non nocet, so that erroneous descriptions of property in documents should not be permitted to defeat the intentions of the parties.
Lord Bacon
(1866) 2 Eq 819, (1866) 14 LT 823, (1866) 14 WR 884 . . 803, (1866) 12 Jur NS 759
England and Wales
Cited – Regina v Dover Magistrates’ Court ex parte Norman Lionel Webb CA 15-Jul-1999
. .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.258738
The occasions upon which the master is called upon to exercise his reserve of authority either by interfering with the conduct of the ship or by taking the navigation out of the hands of a competent pilot are rare and should the master exercise that reserve authority he must justify his action. Section 15 was not limited to cases where the owners of a vessel under compulsory pilotage were facing claims by third parties but extended to a claim by the owners themselves.
Lord Normand discussed the Latin maxim: frustra petis quod mox es restiturus (‘it is no good trying to get something which immediately afterwards you are going to have to hand back’), saying ‘But if the shipowner might have recovered as damages in an action in negligence the sum paid to the harbour authority under section 74, the decision would be saved frustra petis quod mox es restiturus.’
Lord Radcliffe, Lord Normand
[1951] AC 112
England and Wales
Appeal from – Workington Harbour and Dock Board v Towerfield (Owners) CA 1949
. .
Cited – BP Exploration Operating Co Ltd v Chevron Transport (Scotland) HL 18-Oct-2001
A ship owned by the defenders caused substantial damage whilst moored at the claimant’s docks. The claim was made against different members of the defendants as they asserted and denied responsibility. The last company asserted that the claim was . .
Cited – Ahmed v Landstone Leisure Ltd ChD 30-Jan-2009
The claimant appealed against a refusal to set aside a statutory demand. He had given a cheque at a land auction, and it had bounced on his instructions, saying that the property had been misrepresented.
Held: The auctioneer had specifically . .
Cited – Farstad Supply As v Enviroco Ltd SC 5-May-2010
The defendants (E) were liable to F after a serious offshore accident, but sought a contribution from a third party (A), the main charterers, seeking to rely on section 3(2) o the 1940 Act saying that ‘if sued they might have been liable’. The court . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.181790
Manifest disadvantage had to be shown in order to establish a claim of presumed undue influence, but only damage if actual undue influence shown. Equity can only help if restitutio in integrum could be achieved.
Millett LJ
Times 01-Jul-1998, [1998] EWCA Civ 1027, [1998] 3 All ER 876, [1998] 2 FLR 457, [1998] 3 FCR 629, (1999) 31 HLR 402, [1998] Fam Law 595
England and Wales
Cited – Bank of Credit and Commerce International SA v Aboody CA 1989
In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: ‘Ever since the judgments of this court in Allcard v Skinner a . .
Cited – Halpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 November 2022; Ref: scu.80168
There was both an English and a foreign insolvency, the debtors having traded as wine merchants in England and in Portugal. They presented a petition for their adjudication in bankruptcy in England in December 1877. Insolvency proceedings were taken in Portugal after the English petition had already been presented. The Portuguese court took possession of the insolvents’ assets in Portugal, realised them and paid a dividend to the Portuguese creditors. These creditors then proved in the English bankruptcy.
Held: They were not allowed any dividend in the English bankruptcy until they had accounted for the dividend they had received in Portugal.
Cairns LC: ‘ . . the Appellants are perfectly entitled to prove under the English bankruptcy; but if they elect do so they must, as was said in the case of Selkrig v. Davis, bring into the common fund what they have received abroad.’
Lord Selborne noted that the ‘Portuguese assets were, by the Law of England, . . . subject to and bound by the English liquidation, except so far as the local law of Portugal might have intercepted any portion of them while within its jurisdiction’ and continued ‘Every creditor coming in to prove under, and to take the benefit of, the English liquidation, must do so on the terms of the English law of bankruptcy; he cannot be permitted to approbate and reprobate, to claim the benefit of that law, and at the same time insist on retaining, as against it, any preferential right inconsistent with the equality of distribution intended by that law, which he may have obtained either by the use of legal process in a foreign country, or otherwise. As against the Appellants . . . it is unimportant that the presentation of the petition in December 1877 was not per se a cessio bonorum; because . . the Act makes the title of the trustee relate back to the time when the petition was presented, which was before the time when the title of the Portuguese Court to administer the Portuguese assets is said to have accrued. The Appellants cannot come in and prove and take dividends out of the English assets, with the full benefit of the relation back of the title of the trustee to the date of the petition, and at the same time set up against that title a later act of a Portuguese Court, for the purpose of enabling themselves to refuse credit for property belonging to the estate, received by them in Portugal after the date of the petition, through the action of that Court. I must not, however, be supposed to think that it would really have made any difference if the action of the Portuguese Court had been earlier, nothing having been received by the Appellants till long after the title of the English trustee had accrued.’
Cairns LC, Lord Selborne
(1880) 5 App Cas 161
England and Wales
Cited – Cleaver, Bodden v Delta American Reinsurance Company PC 1-Feb-2001
(Cayman Islands) In the course of trading the company had given security to carry on its insurance business. On its insolvency, the administrators required the creditor to bring into hotchpot credit received in a foreign jurisdiction. It was said . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 November 2022; Ref: scu.180691
Claim for rectification and specific performance of a contract for the sale by the defendants to the claimant of a freehold property
[2007] EWHC 2933 (Ch), [2008] 29 EG 92, [2008] 2 EGLR 77
England and Wales
Updated: 14 November 2022; Ref: scu.341751
Lord Denning MR, Browne LJ, Sir John Pennicuick
[1975] 3 All ER 244, [1975] EWCA Civ 2
England and Wales
Followed – Williams v Hensman 10-Jun-1861
A fund of money was bequeathed on trust to be invested so as to generate an income payable to A ‘the principal to go to her children at her death’.
Held: The will created a joint tenancy. The court set out three ways in which a joint tenancy . .
Cited – Barton v Morris 1985
A couple lived together as man and wife and bought a property for use as a guest house business to be run as a partnership. The conveyance executed by both of them included an express declaration that they held the property upon trust for themselves . .
Cited – Re Palmer (A Deceased Debtor), Palmer v Palmer CA 6-Apr-1994
Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.188800
Eder J
[2013] EWHC 214 (Comm), [2013] 2 Lloyds Rep 26
England and Wales
Updated: 14 November 2022; Ref: scu.471177
The court was asked: ‘a) Does the doctrine of marshalling permit the marshalling of securities held over property that does not belong to the common debtor? In particular, is a creditor of a guarantor entitled to marshal (or be subrogated to) securities which have been granted to another creditor of the guarantor by the primary debtor liable under the guaranteed debt?
b) Does the answer depend in any way on the rights which the guarantor has as against the holder of the guarantee or as against the primary debtor?
c) Does any such claim to marshalling or subrogation take precedence over prohibitions contained in the Restraint Order, either as of right or by virtue of the exercise of some discretion of the Crown Court?’
Held: The equitable principle applied. Lady Morrison may claim the proceeds of the assets subject to the Agricultural Charge by the application of the principle of marshalling, and is entitled to prove as an unsecured creditor in the administration for any shortfall.
Norris J said: ‘The principle of marshalling is an equitable principle. In its classic form it applies where two creditors are owed debts by the same debtor, one of whom can enforce his claim against more than one security but the other can resort to only one. In those circumstances the principle gives the second creditor a right in equity to require that the first creditor be treated as having satisfied himself as far as possible out of the security to which the latter has no claim.’
Norris J
[2013] EWHC 238 (Ch), [2013] WLR(D) 71, [2014] 2 WLR 1129, [2014] 1 CH 359
Agricultural Credits Act 1928, Partnership Act 1890 39
England and Wales
Cited – Highbury Pension Fund Management Company and Another v Zirfin Investments Management Ltd and Others CA 3-Oct-2013
Lewison LJ discussed the operation of the principle of marshalling: ‘One consequence of the application of the principle is that if the first mortgagee with more than one security satisfies his debt out of the property over which the second . .
Cited – In Re Ritson ChD 1898
. .
Cited – In Re Ritson, Ritson v Ritson CA 1899
The joint debts of a partnership are payable out of the joint assets if sufficient even though secured on the separate property of one partner.
Chitty LJ said of a deceased partner that his ‘interest in the joint assets [of the partnership] . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.470996
The defendant firm of solicitors had acted for the claimants under instructions to secure a first charge over the secured property. They failed to secure the discharge of the existing first charge, causing losses. AIB asserted breach of trust.
Held: The bank’s appeal failed. However, the judge was wrong to treat the breach of trust as limited to that part of the mortgage advance which was paid to the borrowers instead of being used to discharge their liability to Barclays on the second account. the solicitors had no authority to release any part of the funds advanced by the bank unless and until they had a redemption statement from Barclays coupled with an appropriate undertaking which enabled them to be sure that they would be able on completion to register the bank’s charge as a first charge over the property.
Where the breach of trust occurred in the context of a commercial transaction such as the present, Target Holdings established that equitable principles of compensation ‘although not employing precisely the same rules of causation and remoteness as the common law, do have the capacity to recognise what loss the beneficiary has actually suffered from the breach of trust and to base the compensation recoverable on a proper causal connection between the breach and the eventual loss’.
Given the law, and, on the facts, Patten LJ said: ‘If one asks as at the date of trial and with the benefit of hindsight what loss AIB has suffered then the answer is that it has enjoyed less security for its loan than would have been the case had there been no breach of trust. If [the solicitors] had obtained from Barclays a proper redemption statement, coupled with an undertaking to apply the sums specified in the statement in satisfaction of the existing mortgage, then the transaction would have proceeded to complete and AIB could have obtained a first legal mortgage over the Sondhis’ property. But although that did not happen, AIB did obtain a valid mortgage from the Sondhis which they were eventually able to register as a second charge and use to recover part of their loan from the proceeds of the security in priority to the Sondhis’ other creditors. Even had there been no such mortgage they would have been subrogated to Barclays’ first charge insofar as they discharged part of the Sondhis’ indebtedness by the payment of the andpound;1.2m. In my view all of these are matters to be taken into account in considering what loss has ultimately been caused by the solicitors’ breach of trust. In the light of the judge’s findings it is not open to AIB to contend that but for the breach of trust it simply would have asked for its money back.’
Arden, Sullivan and Patten LJJ
[2013] EWCA Civ 45
England and Wales
Appeal from – AIB Group (UK) Plc v Mark Redler and Co (A Firm) ChD 23-Jan-2012
The claimant bank sought damages from the defendant solicitors, saying that they had paid on mortgage advance moneys but failed to deliver as promised and required, a first mortgage over the property purchased. The solicitors had failed to discharge . .
Cited – Target Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
At CA – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.470899
[1842] EngR 275, (1842) 1 Hare 390, (1842) 66 ER 1084
England and Wales
Updated: 13 November 2022; Ref: scu.307230
[2006] EWCA Civ 1300, [2007] 2 Lloyd’s Rep 148, [2007] 1 WLR 2483
England and Wales
Appeal from – P and O Nedloyd BV v Arab Metals Co and Others (‘The UB Tiger’) QBD 22-Jun-2005
The claimants sought to amend their particulars of claim to add a request for declarations with regard to a bill of lading and contract for carriage.
Held: The application to amend was made more than six years after the cause of action . .
See Also – P and O Nedlloyd Bv v Arab Metals Co and others CA 13-Dec-2006
An order for specific performance had been refused in a disputed contract for carriage. The claimant argued that normal limitation periods should not be applied by analogy.
Held: Because there was no corresponding legal remedy the remedy in . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 November 2022; Ref: scu.245321
(British Virgin Islands) The claimant sought to recover shareholdings given in charge.
Held: There was an event of default, which entitled ATT to accelerate the loan and to appropriate – or forfeit – the charged shares, but that relief against forfeiture should be available to CH and CFI on appropriate conditions. Lord Neuberger giving the judgment of the Privy Council referred to the ‘title’ of the mortgagee in the following way: ‘In equity, a mortgagee has a limited title which is available only to secure satisfaction of the debt. The security is enforceable for that purpose and no other.’ and ‘any act by way of enforcement of the security (at least if it is purely) for a collateral purpose will be ineffective, at any rate as between mortgagor and mortgagee.’
Lord Neuberger, Lord Mance, Lord Kerr, Lord Clarke, Lord Sumption
[2013] UKPC 2
See Also – Cukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 5-May-2009
(British Virgin Islands) Shares in two companies incorporated under the BVI Business Companies Act 2004, Cukurova Finance International Ltd and Cukurova Telecoms Holdings Ltd were provided as security under two sets of equitable mortgages, one set . .
See Also – Cukurova Finance International Ltd and Others v Alfa Telecom Turkey Ltd PC 23-May-2012
(British Virgin Islands) Interlocutory issue as to who should manage the affairs of the Turkcell mobile telephone business pending the Board’s final adjudication (after a hearing which should take place this autumn) on the rights and wrongs of what . .
Cited – Quennell v Maltby CA 15-Nov-1978
A house was mortgaged to a bank. The house was then let to tenants at an annual rate of pounds 1,000. The tenants were protected as against the mortgagor by the Rent Acts. The tenancy was not binding on the bank. The mortgagor’s wife took a transfer . .
See Also – Cukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 9-Jul-2013
British Virgin Islands . .
See Also – Cukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 29-Jul-2013
(British Virgin Islands) . .
See Also – Cukurova Holding As v Sonera Holding Bv PC 13-May-2014
(British Virgin Islands) The appellant sought to have set aside the Final Decision of an arbitrator. . .
Cited – The Co-Operative Bank Plc v Phillips ChD 21-Aug-2014
The bank had brought possession proceedings against the defendant under two legal charges securing personal guarantees. The proceedings had been abandoned, but the court now was asked whether costs for the defendant should be on the standard or . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 November 2022; Ref: scu.470677
(High Court of Australia ) Restitution – Money paid under mistake – Mistake of law – Right to recover – Unjust enrichment – Defences – Change of position.
(1992) 175 CLR 353
Australia
Cited – Goss and others v Laurence George Chilcott As Liquidator of Central Acceptance Limited (In Liquidation) PC 23-May-1996
(New Zealand) Mr and Mrs Goss, had been granted a loan by the claimant finance company under a mortgage instrument that had been avoided by the claimant because it had been fraudulently altered by Mr Haddon, an employee of the claimant, without the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 November 2022; Ref: scu.374392
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant sought an order for its transfer, and an order was so made. Before it was perfected the defendant brought this application, denying that the court had such power in the case of a foreign copyright.
Held: The court had power to hear a new point, but not merely because the parties so agreed. We should treat the fact that the land is situate abroad as affecting the choice of law, not jurisdiction, if the case is one in which it is sought to enforce an equitable claim in personam: ‘a claim to have foreign land conveyed to one, based on an English contract and made against a purchaser of the land with prior notice of that contract, could in principle succeed, provided the foreign law would not overreach our doctrine of notice. It would be a claim in personam, not in rem.’ This case concerned the court’s equitable in personam jurisdiction. As such it was not a breach of international comity to order transfer of the ownership of the foreign copyrights. This avoided the need for a multiplicity of proceedings, and it had not been shown that foreign courts would not respect the order made in equity here. The court did have power to make orders affecting the ownership of foreign intellectual property rights.
Peter Prescott QC
[2004] EWHC 1088 (Ch), Times 27-May-2004, [2005] Ch 153, [2004] FSR 939
Copyright, Patents and Designs Act 1988
England and Wales
See also – R Griggs Group Ltd and others v Evans and others ChD 2-Dec-2003
An advertising agency was requested to provide a logo. It employed an independent designer. Who owned the copyright, in this case of the AirWair logo? The defendants had taken an assignment of the copyright from the first author. The claimants . .
Cited – Oliver v Hinton 1899
The deposit of title deeds to secure the repayment of 400 pounds was accompanied by a memorandum of the deposit, with an undertaking to execute a legal mortgage if asked to do so.
Held: When, two years after the deposit of the title deeds, the . .
Cited – Deschamps v Miller 1908
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband . .
Cited – Stewart v Engel, BDO Stoy Hayward CA 17-May-2000
A judge may reopen a case even after he has delivered his final judgment. A judge invited counsel to amend his pleading to incorporate an improvement, but in the face of his repeated failure to take up the invitation, entered final judgment against . .
Cited – Tyburn Productions Ltd v Conan Doyle ChD 1990
The rule in ‘British South Africa’ extends also to intellectual property. The court was asked whether, many years after the death of Sir Arthur Conan Doyle, there still existed copyrights or other intellectual property rights under the laws of the . .
Cited – Raja Setrucherla Ramabhadraraju v Maharajah of Jeypore PC 1919
. .
Cited – Upper Agbrigg Assessment Committee v Bents Brewery Co PC 1945
. .
Cited – Midland Bank Trust Co Ltd v Green (No 1) HL 11-Dec-1980
A father had granted an option over land to his son, but it had not been registered. The father later tried to frustrate the option by conveying the land to his wife for 500 pounds. The land was worth 40,000 pounds. When the son found out about it, . .
Cited – Muschinski v Dodds 1985
(High Court of Australia) The idea of conscience is too vague a notion to found the principles of equity, it would open the door to ‘idiosyncratic notions of fairness and justice’ and ‘That property was acquired, in pursuance of the consensual . .
Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Cited – Norris v Chambres 1861
A company director had committed suicide; the claim was brought by his estate. The company had been established in England to work a Prussian coal mine, and the director had personally advanced a large sum towards its purchase. The company agreed to . .
Cited – Nocton v Lord Ashburton HL 19-Jun-1914
The defendant solicitor had persuaded his client to release a charge, thus advancing the solicitor’s own subsequent charge on the same property. The action was started in the Chancery Division of the High Court. The statement of claim alleged fraud . .
Cited – Pilcher v Rawlins 1872
Equity has an interest in and a power over a purchaser’s conscience. Good faith is a separate test which may have to be passed even though absence of notice is proved. . .
Cited – Penn v Lord Baltimore 1750
The court compelled Lord Baltimore to comply with the obligations he had assumed to the Penn family, by setting the Mason-Dixon line, demarcating boundaries between the privately-owned territories of Maryland, Pennsylvania and Delaware, and . .
Cited – D C Thomson and Co Ltd v Deakin CA 1952
The defendant Trades Union was alleged to have indirectly prevented a supplier from performing its contract to supply paper to the plaintiffs by inducing its members to withdraw their services from the supplier.
Held: It is a tort at common . .
Cited – Northern Counties Fire Insurance Co v Whipp CA 1884
The court was asked whether a company which had a legal mortgage, had lost its priority to a subsequent equitable mortgage which had been created because the company’s manager, acting on his own account, had a duplicate key to the safe where the . .
Cited – Berwick and Co v Price 1905
A court of equity may enquire into the state of mind of a purchaser to see if he bought in good faith. . .
Cited – Bank of Montreal v Sweeny PC 1887
(Canada) A bank received property from a trustee knowing it to be trust property, although they knew not that the trustee was acting improperly, nor anything else, and made no enquiries. The bank was ordered to restore the property to the rightful . .
Cited – British South Africa Company v Companhia de Mocambique HL 8-Sep-1893
Two companies, one Portuguese, the other British and controlled by Cecil Rhodes, were in dispute about a large territory called Manica. The Portuguese company complained that they owned lands and mineral rights in Manica yet the British company had . .
Cited – Taylor v London and County Banking Co CA 1901
A mere volunteer was postponed to a subsequent equitable claimant for value without notice.
Stirling LJ said: ‘The ground of postponement relied on in this case is that the prior equitable claimants allowed Tasker to remain in possession of the . .
Cited – Norris v Chambres 1862
A company director had advanced part of a loan for the purchase of a mine in Prussia. He died, and because of lack of funds, his estate risked losing everything. His estate sought its recovery.
Held: ‘With respect to this advance, I think . .
Cited – Pearce v Ove Arup Partnership Ltd and others CA 21-Jan-1999
An English court does not have to refuse an application which sought to apply a foreign copyright law in a claim based on acts committed abroad on the basis that not actionable here. Such restrictions applicable to land actions only: ‘It is, we . .
Cited – Webb v Webb ECJ 17-May-1994
A Convention action must be based upon a right in rem not in personam. An action for a declaration that a person holds immovable property as a trustee and for an order requiring that person to execute such documents as are required to vest legal . .
Cited – In re Duke of Wellington ChD 1947
The court was asked to settle the fate of Spanish estates which had been granted to the first Duke together with a title of nobility. To do this it had to consider the effect of Spanish law: ‘It would be difficult to find a harder task than that . .
Cited – The Abidin Daver HL 1984
The House considered the application of the doctrine of forum conveniens.
Held: A stay of an English action on the ground of forum non conveniens could be resisted on the ground that justice could not be obtained in the otherwise more . .
Cited – Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd, Muftizahde HL 1978
No English action lay for trespass to a hotel on the island of Cyprus, but an action did lie for the conversion of the chattels present in that same hotel. Questions of comity might well be involved, and it had to be for Parliament to change the . .
Cited – Lord Cranstown v Johnston 1796
Lord Cranstown was the absentee owner of a valuable estate in a Caribbean island, but he owed the defendant Johnston a modest amount of money. Johnston sued for the money to be brought in the local court, whose laws permitted a form of substituted . .
Cited – Macmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) ChD 1-Jul-1993
Bona fide chargees for value of shares situated in New York and held on trust for Macmillan were able, by application of New York law, to take the shares free of Macmillan’s prior equitable interest of which the chargees had had no notice. Where . .
Cited – Duijnstee v Goderbauer ECJ 15-Nov-1983
There was a dispute between an inventor and the liquidator of a company concerning ownership of patents. The liquidator’s claim was that under Dutch law the inventions had been made on terms that the patents ought to belong to the company. He . .
Cited – Plastus Kreativ AB v Minnesota Mining and Manufacturing Co 1995
English law regards the rules for obtaining negative declaratory relief as being procedural
Aldous J said: ‘For myself I would not welcome the task of having to decide whether a person had infringed a foreign patent. Although patent actions . .
Cited – Def Lepp Music v Stuart-Brown 1986
A claim to infringement of copyright by acts performed in the Netherlands and Luxembourg was not justiciable in England, because such a claim cannot satisfy the double-actionability rule, namely, that the relevant acts must be actionable in the . .
Cited – Celltech Chiroscience Ltd v Medimmune Inc CA 17-Jul-2003
Patents had been granted in the US for human antibodies, and licences issued to the respondent who developed another product themselves. The claimants asserted infringement under the US doctrine of equivalence under which a product or process which . .
Cited – Rey v Lecouturier HL 1910
A ruling by the French courts that the ownership of the trade mark Chartreuse (formerly belonging to the monastery of Grand Chartreuse) had passed to a liquidator under French law, could not affect the title to the English trade mark, since the . .
See also – R Griggs Group Ltd, R Griggs and Co Ltd, Airwair Ltd v Evans, Raben Footwear Pty Ltd, Lewy, Lewy CA 25-Jan-2005
The claimants distributed Doc Marten footwear. They asked an agency to prepare a logo. The agency paid an independent contractor to prepare it, but did not take an assignment of copyright to it. The contractor sold the rights in the logo to the . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 November 2022; Ref: scu.196791
British Columbia
Lord Moulton
[1913] UKPC 10
Canada
Approved – In re Dagenham (Thames) Dock Co; Ex parte Hulse CA 1873
The Court of Appeal in chancery heard an appeal from the Master of the Rolls from his refusal of the Master of the Rolls to make a declaration in the winding up of the purchaser company. The purchaser had sought a direction that if the balance of . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.467453