Earl Beauchamp v Winn: HL 1873

The rules in equity as to restitution after a payment made under a mistake of law apply as much to mistakes of fact as to mistakes of law.

Citations:

(1873) LR 6 HL 223

Jurisdiction:

England and Wales

Cited by:

CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 19 May 2022; Ref: scu.236541

Hector v Lyons: 1988

The appellant contracted to buy a house but used his under-aged son’s name. He sought specific performance when the vendor failed to complete.
Held: Since he was neither the purchaser nor the purchaser’s agent, specific performance was refused. In unilateral mistake case goods are sold by V, to P, believing P to be X. P may fraudulently represent that he is X. In a face to face sale, the fact that V mistakes the identity of X does not render the contract void for mistake. It is a unilateral mistake as to a quality of the purchaser; only in cases where the identity of the purchaser is of direct and important materiality in inducing the vendor to enter into the contract is a mistake of that kind capable of avoiding the contract. Those principles have no application where the contract is wholly in writing. The identity of the parties is established by the names put in the contract. Once there, the court’s only task is to identify who they are. ‘In the present case the deputy judge has found as a fact that the party named in the written contract was Mr. Hector junior. It follows, in my judgment, that in the absence of rectification, which has not been claimed, or Mr. Cogley’s alternative argument based on agency the only person who can enforce that contract is the party to it, namely Mr. Hector junior.’

Judges:

Sir Nicolas Browne-Wilkinson V-C

Citations:

(1988) 58 PandCR 156

Jurisdiction:

England and Wales

Citing:

CitedLewis v Averay CA 22-Jul-1971
A private seller had parted with his car in return for a worthless cheque to a rogue who persuaded him that he was the well-known actor who played Robin Hood on television, and who sold it on to the defendant.
Held: ‘When two parties have come . .
CitedKing’s Norton Metal Co Ltd v Edridge Merrett and Co Ltd CA 1879
A crook ordered some brass rivet wire from a metal manufacturer. On his stationery he represented falsely that he was in business in a big way, running a large factory and having several depots and agencies. The manufacturer supplied the goods but . .

Cited by:

CitedNorman Hudson v Shogun Finance Ltd CA 28-Jun-2001
A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
Held: The dealer had not taken all the steps he might have done to check the identity of the . .
CitedShogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Lists of cited by and citing cases may be incomplete.

Land, Equity, Contract

Updated: 19 May 2022; Ref: scu.188421

Lonhro v Fayed (No 2): 1992

Citations:

[1992] 1 WLR 1

Jurisdiction:

England and Wales

Cited by:

CitedShalson v Russo ChD 11-Jul-2003
The claimant sought recovery of substantial sums he had advanced by way of loan, where the loan was induced by fraud. He sought to trace the funds into, inter alia, a motor yacht which it had been used to purchase.
Held: The transaction was . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 19 May 2022; Ref: scu.186101

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 claimant’s authority. Mr Haddon was the brother of Mrs Goss. The advance from the claimant having been made available to Mr and Mrs Goss, it was as agreed between them and Mr Haddon in fact received by Mr Haddon. Mr and Mrs Goss took no security from Mr Haddon. Mr Haddon was unable to repay the advance. Mr and Mrs Goss argued that their inability to recover the money from Mr Haddon constituted a defence of change of position to the claimant’s action for restitution of the money paid for a consideration that had totally failed.
Held: The loan remained repayable despite the unenforceability of the mortgage instrument under which it was secured. The defence failed because Mr and Mrs Goss knew that the money lent would have to be repaid to the claimant and, in paying it to Mr Haddon, they had taken the risk that the loss would fall on them.
Lord Goff said: ‘From the beginning, the Defendants were under an obligation to repay the advance once it had been paid to them or to their order; and this obligation was of course unaffected by the fact that they had allowed the money to be paid over to Mr Haddon. The effect of the alteration of the mortgage instrument was that their contractual obligation to repay the money was discharged; but they had nevertheless been enriched by the receipt of the money, and prima facie were liable in restitution to restore it. They had however allowed the money to be paid over to Mr Haddon in circumstances in which, as they well knew, the money would nevertheless have to be repaid to the company. They had, therefore, in allowing the money to be paid to Mr Haddon, deliberately taken the risk that he would be unable to repay the money, in which event they themselves would have to repay it without recourse to him. Since any action by them against Mr Haddon would now be fruitless they are seeking, by invoking the defence of change of position, to shift that loss onto the company. This, in their Lordships’ opinion, they cannot do. The fact that they cannot now obtain reimbursement from Mr Haddon does not, in the circumstances of the present case, render it inequitable for them to be required to make restitution to the company in respect of the enrichment which they have received at the company’s expense.’

Judges:

Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Steyn, Lord Hoffmann, Lord Cooke of Thorndon

Citations:

Gazette 12-Jun-1996, Times 06-Jun-1996, [1996] UKPC 17, [1996] AC 788

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedDavidson, Public Officer, &Amp;C v Cooper And Another 6-Jul-1844
. .
CitedFibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd HL 15-Jun-1942
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated . .
CitedDavid Securities Pty Ltd v Commonwealth Bank of Australia 7-Oct-1992
(High Court of Australia ) Restitution – Money paid under mistake – Mistake of law – Right to recover – Unjust enrichment – Defences – Change of position. . .

Cited by:

CitedKommune and Another v DEPFA Acs Bank ComC 4-Sep-2009
Local authorities in Denmark sought to recover sums paid to the defendant banks for swap trading, saying that the payments had been outwith their powers. . .
Lists of cited by and citing cases may be incomplete.

Banking, Commonwealth, Equity

Updated: 19 May 2022; Ref: scu.80939

Frawley v Neill: CA 1 Mar 1999

The modern approach to a laches claim, was not to test the facts against numbers of earlier cases, but to look at the situation as a whole, and to ask whether the delay made it unconscionable to permit the party to assert those rights. Aldous LJ said: ‘In my view, the more modern approach should not require an inquiry as to whether the circumstances can be fitted within the confines of a preconceived formula derived from earlier cases. The inquiry should require a broad approach, directed to ascertaining whether it would in all the circumstances be unconscionable for a party to be permitted to assert his beneficial right. No doubt the circumstances which gave rise to a particular result in decided cases are relevant to the question whether or not it would be conscionable or unconscionable for the relief to be asserted, but each case has to be decided on its facts applying the broad approach.’

Judges:

Aldous, Ward, and Swinton Thomas LJJ

Citations:

Times 05-Apr-1999, Gazette 24-Mar-1999, [1999] EWCA Civ 875, [2000] CP Rep 20

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedWilliams v Greatrex CA 1956
A purchaser agreed to buy land to be laid out in building plots. On payment of a deposit and giving notice, the purchaser was to be entitled to enter onto a particular plot in order to build on it. The arrangement met with difficulties, with the . .

Cited by:

CitedPatel and others v Shah and others CA 15-Feb-2005
The parties entered into a commercial agreement for the sale and purchase of properties.
Held: The claimants had failed to meet their part of the bargain, and had failed to make mortgage payments, leaving the defendants to do so. The . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 19 May 2022; Ref: scu.80671

Eagle Trust Plc v SBC Securities Ltd; Same v Sbci Bank Corporation Investment Banking Ltd: ChD 28 Sep 1994

A financial adviser was not liable in negligence for the allegedly negligent selection of sub-underwriters. On the issue of knowing receipt in a claim for restitution, ‘What the decision in Belmont (No 2) . . shows most clearly is that in a ‘knowing receipt’ case it is only necessary to show that the defendant knew that the monies paid to him were trust monies and of circumstances which made the payment a misapplication of them. Unlike a ‘knowing assistance’ case it is not necessary, and never had been necessary, to show that the defendant was in any sense a participator in the fraud.’

Judges:

Vinelott J

Citations:

Independent 28-Sep-1994, [1993] 1 WLR 484

Citing:

CitedBelmont 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 by:

ApprovedBank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
CitedCriterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
CitedCriterion Properties Plc v Stratford UK Properties Llc and others ChD 27-Mar-2002
Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Equity

Updated: 19 May 2022; Ref: scu.80209

Don King Productions Inc v Warren and Others: ChD 13 Apr 1998

Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence of an obligation binding the conscience of the person vested with the legal ownership is the hallmark of a trust.’ and ‘in principle I can see no objection to a party to contracts involving skill and confidence or containing non-assignment provisions from becoming trustee of the benefit of being the contracting party as well as the benefit of the rights conferred. I can see no reason why the law should limit the parties’ freedom of contract to creating trusts of the fruits of such contracts received by the assignor or to creating an accounting relationship between the parties in respect of the fruits.’

Judges:

Lightman J

Citations:

Times 13-Apr-1998, Gazette 13-May-1998, [2000] Ch 291, [1998] 2 All ER 608

Citing:

See AlsoDon King Productions Inc v Warren King and Another (No 2) ChD 18-Jun-1998
An application for a Mareva injunction made ex parte was exceptionally justified when a partner failed to explain unaccounted for receipts after a full opportunity had been given, and there was no logical or innocent basis for the concealment of . .
CitedVandepitte v Preferred Accident Insurance Corp. of New York PC 1933
The plaintiff was injured in a motor accident. He failed in a direct claim against the insurers of the negligent defendant driver. The insurance was effected by the father (Mr Berry) of the negligent driver and provided that an indemnity would be . .
CitedTarget 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 . .

Cited by:

See AlsoDon King Productions Inc v Warren King and Another (No 2) ChD 18-Jun-1998
An application for a Mareva injunction made ex parte was exceptionally justified when a partner failed to explain unaccounted for receipts after a full opportunity had been given, and there was no logical or innocent basis for the concealment of . .
Appeal fromDon King Productions Inc v Warren; Roberts; Centurion Promotions Limited (Formerly Sports Network Limited); Sports Network Usa, Inc; Time Warner Entertainment Company, Lp and Sport International, Inc CA 19-Nov-1998
Contracts between the members of a firm and third parties, and which were subject to the partnership contract, but which were expressed to be personal and incapable of assignment, were still held on trust for the partnership, and renewals made . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedBarbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 19 May 2022; Ref: scu.80091

Crantrave Ltd (In Liquidation) v Lloyd’s Bank Plc: CA 18 May 2000

The bank received a garnishee order nisi, but acted before it was made absolute to pay the judgment creditor.
Held: The bank had no defence against the customer claiming restitution relying on the equitable doctrine that one person paying the debts of another without authority was allowed the benefit of the payment. To establish that, the bank would have to show that the act had been subsequently ratified, or that it had been made on his behalf. The mere absence of loss to the customer is insufficient.
‘ in the absence of authorisation or ratification by the company of the bank’s payment to the third party, the ‘mere fact’ that the bank’s payment enured to the benefit of the company does not establish an equity in favour of the bank against the company.’

Citations:

Times 24-Apr-2000, Gazette 18-May-2000, [2000] EWCA Civ 127, [2000] QB 917, [2000] 4 All ER 473, [2000] 3 WLR 877

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

LimitedCB Liggett (Liverpool) Limited v Barclays Bank Limited 1928
The defendant bank had paid cheques drawn on the plaintiff’s account in breach of a mandate requiring two signatories. The plaintiff brought an action for money had and received.
Held: The action failed. The bank was entitled to the benefit of . .

Cited by:

See AlsoCrantrave Ltd (In Liquidation) v Lloyd’s Bank Plc CA 2002
A payment made by a person without compulsion, intending to discharge another’s debt, will not discharge that debt unless he acted with that other’s authority or if that other subsequently ratifies the payment. . .
CitedEarles v Barclays Bank plc Merc 8-Oct-2009
earles_barclaysQBD2009
The claimant had lost his claim against the bank, but resisted the amount of costs claimed.
Held: The trial had been of a simple factual dispute, and the bank had failed adequately to disclose electronically held material in its possession. . .
Lists of cited by and citing cases may be incomplete.

Contract, Banking, Equity

Updated: 19 May 2022; Ref: scu.79598

Corporacion Nacional Del Cobre: ChD 13 Dec 1996

No defence of contributory negligence was to be allowed against a claim involving an allegation of corruption by means of bribery. The defendants had bribed one of the plaintiff’s employees. The plaintiff claimed restitution, and an account from the defendants as constructive trustees for profits. The defendants wanted to assert that there was an equivalent to contributory negligence within the law of equity. There was no proper reason for distinguishing deceit by bribery from other forms of deceit. There had to be something to have put the plaintiff on notice of the deceit, and that was absent here.

Citations:

Gazette 13-Dec-1996

Damages, Equity

Updated: 19 May 2022; Ref: scu.79515

Brinks Ltd v AbuSaleh and Others (No 3): ChD 23 Oct 1995

A person must know of the existence of an obligation of trust to be liable as an accessory to an act in breach of that trust. A person cannot be liable for dishonest assistance in a breach of trust unless he knows of the existence of the trust or at least the facts giving rise to the trust.

Judges:

Rimer J

Citations:

Times 23-Oct-1995, [1996] CLC 133

Citing:

See AlsoBrinks Ltd and Another v AbuSaleh and Others ChD 6-Mar-1995
A delay in issuing Order 14 proceedings is not in itself relevant. . .

Cited by:

Not approvedBarlow Clowes International Ltd and Another v Eurotrust International Ltd and others PC 10-Oct-2005
(Court of Appeal of the Isle of Man) Defendants appealed a finding of dishonest assistance in the activities of Barlow Clowes.
Held: The judge had been able to reach the conclusions on the basis of the evidence. The appeal of the deemster . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 18 May 2022; Ref: scu.78584

Re Woodstock (a bankrupt): ChD 19 Nov 1979

Walton J drew attention in his judgment to the need for the courts, in considering how the equity of exoneration should work as between a husband and a wife, to take into account the relationship which husbands and wives bear, or ought to bear, to one another in their family affairs in current times. The guide that Victorian cases can provide to the inferences which should be drawn from the dealings with one another of husbands and wives today is often not very valuable.
As to the case of Hall v Hall: ‘I do not think I have to go into the interesting question whether that case is now good law in view of completely changed social conditions. It appears to me that that case was decided in the days when the wife did nothing except sit at home and run the household and boss the servants about, and the husband was expected to be, and indeed was, the provider. Times have now changed, and I am very far from that if that case were to be heard on precisely the same facts tomorrow, the decision would necessarily be the same.’ ‘

Judges:

Walton J

Citations:

Unrported,19 November 1979

Citing:

CitedHall v Hall ChD 1911
An equity of exoneration in favour of a wife arises ‘at the time she charges her estate’. The doctrine of exoneration is based on an inference in each case from all the facts of that particular case. Where one co-habitee joins in granting a charge . .

Cited by:

CitedIn Re Pittortou (a bankrupt) ChD 1985
H and W charged the property to secure the H’s overdrawn bank account. The account was used both for his business and for payment of expenses relating to the matrimonial home. H was adjudicated bankrupt. W sought her equity to be exonerated from H’s . .
CitedDay v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 18 May 2022; Ref: scu.567253

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

Canlii Supreme Court of Canada – Guarantee -Surety and sub-surety – Co-sureties – Sub-surety guaranteeing liability of surety – Surety paying creditor-Right of sub-surety to indemnity from the co-sureties.

Judges:

Martland, Judson, Ritchie, Spence and Dickson JJ

Citations:

[1976] 2 SCR 2, 1975 CanLII 150 (SCC)

Links:

Canlii

Cited by:

CitedDay v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity

Updated: 18 May 2022; Ref: scu.567254

Official Trustee in Bankruptcy v Citibank Savings Ltd: 1995

(New South Wales) Mr and Mrs P owned and controlled W Ltd. W Ltd borrowed monies from Citibank which took security for repayment in the form of a charge over the home of Mr and Mrs P and also a charge over the home of the parents of Mr P. On the face of the documents, Mr and Mrs P and the parents of Mr P were co-sureties for the debt of W Ltd. W Ltd defaulted and Mr and Mrs P were made bankrupt. Their trustee in bankruptcy sold their home and repaid the debt to Citibank. The trustee then claimed an equal contribution from Mr P’s parents on the basis that they were co-sureties with Mr and Mrs P and that the default position was that the co-sureties were equally liable to contribute to the payment of the debt.
Held: The claim by the trustee in bankruptcy was dismissed. Mr P’s parents had entered into the charge at the request of Mr and Mrs P and therefore Mr and Mrs P were liable to indemnify Mr P’s parents and, accordingly, were not entitled to claim a contribution from them. A right of contribution may not arise where two persons borrow money but that money is applied for the purposes of only one of them, or if one guarantor enjoys the whole benefit of the guarantee in another capacity to the exclusion of his co-surety.
In considering whether common intention is essential to rebut contribution, Bryson J said: ‘The position taken by the plaintiff’s counsel before me was to the effect that the prima facie right of contribution can only be rebutted if a common intention to the contrary is clearly proved by evidence of some agreement or arrangement. No doubt it is very usual that rebuttal takes that form, but in my opinion it is not necessary that there should be a common intention or a bilateral arrangement, and it is not necessary that there should be any expression of an intention or arrangement, as circumstances can occur in which an intended outcome is so clear and obvious that it must be imputed to the parties that they intended it. Quite apart from any intention held by the parties or imputed to them, circumstances can occur in which, without there being any expression of intention or actual advertence to the subject of contribution, it is clear that equity does not require that an obligation to make contribution should be imposed on a party. The court should not lose sight of the origin of the right to contribution in the equitable principle that equity is equality, or forget that facts may exist in which it is not appropriate to treat parties under a common liability as in an equal position, or in which some other equitable principle ought to be given effect.’

Judges:

Bryson J

Citations:

[1999] BPIR 754, (1995) 38 NSWLR 116

Cited by:

CitedDay v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity

Updated: 18 May 2022; Ref: scu.567255

Burke v LFOT Pty Ltd: 18 Apr 2002

(High Court of Australia) Trade and commerce – Damages – Equitable contribution – Liability to pay damages under ss 75B, 82, 87 of Trade Practices Act 1974 (Cth) for breach of s 52 of the Act – Whether solicitor who gave negligent advice should contribute to the loss suffered by his client as a consequence of another’s misrepresentation which loss could have been avoided by careful advice by the solicitor – Whether equitable maxims prevent requirement of contribution.
Equity – Equitable contribution – Scope of – Requirement of co-ordinate liability – Whether solicitor who gave negligent advice should contribute to loss suffered by client as a consequence of another’s representation where the loss could have been avoided by careful advice by the solicitor.
Contribution – Equitable contribution – Scope of and availability – Co-ordinate liability – Requirements of – Whether compatible with the obligations imposed by Trade Practices Act 1974 (Cth) for breach of s 52 of the Act.
Words and phrases – ‘co-ordinate liability’, ‘natural justice’.

Judges:

Gaudron ACJ, McHugh, Kirby, Hayne, Callinan JJ

Citations:

187 ALR 612, [2002] HCA 17

Links:

Austlii

Cited by:

CitedZurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Equity, Natural Justice

Updated: 18 May 2022; Ref: scu.566220

In Re Wallis and Simmonds (Builders) Ltd: ChD 1974

The deposit of title documents, without more, gives rise to an inference that the deposit was intended by the parties to operate as creating an equitable charge or mortgage over the property whose title document is deposited. In logic there could be no distinction between deposits to secure a first and third party indebtedness.
Templeman J said: ‘But in my judgment this is a contractual lien – it is said to be a contractual lien – and that makes all the difference. It is also a contractual charge; true it is that the charge arises by presumption, but it does not arise by operation of law. What the court does is to say: `We shall not compel the parties to write down in so many words what the effect of the deposit of title deeds is; we shall simply assume that when they contract, and although they probably do not know the consequences, the person who takes the title deeds contracts not only to retain them but also to have an equitable charge on the land.’ The presumption reads into the contract the charge which is implied. If that is right, the charge was created by the company and is therefore registrable under s95.’

Judges:

Templeman J

Citations:

[1974] 1 WLR 391, [1974] 1 All ER 561, [1974] AC 467

Cited by:

CitedUnited Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge.
Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 18 May 2022; Ref: scu.434815

Theobald Butler v Sir Thomas Prendergast And Others: PC 13 May 1720

A. agreed with B. for the purchase of timber, and together with C. entered
into a bond, that A. his executors and administrators, should not cut any
timber under a particular size; but, A.’s name was only made use of in this
agreement for C. C. cuts down timber under the size stipulated; but as
there could be no remedy against C. upon the bond, it was held to be a
fraud upon B. the selleir, and therefore relievable in equity.

Citations:

[1720] EngR 49, (1720) 4 Bro PC 174, (1720) 2 ER 119

Links:

Commonlii

Jurisdiction:

Commonwealth

Equity, Contract

Updated: 18 May 2022; Ref: scu.390475

Craythorne v Swinburne: 1789

Citations:

[1789] EngR 449, (1789-1817) 2 Ves Jun Supp 363, (1789) 34 ER 1133 (E)

Links:

Commonlii

Cited by:

See AlsoCraythorne v Swinburne 23-Jul-1807
No contribution in favour of one Surety against another : his engagement, according to the bond, and parol evidence, which was held admissible, being, not as Co-surety, but, without the privity of the other, as a distinct collatteral secnrity, . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 18 May 2022; Ref: scu.366080

Dering v Earl of Winchelsea: 8 Feb 1787

The doctrine of contribution amongst sureties is not founded in contract, but is the result of general equity on the ground of equality of burthen and benefit, Therefor where three sureties are bound by different instruments, but for the same principal and the same engagement, they shall contribute.

Judges:

Lord Chief Baron Eyre, Baron Hotham

Citations:

[1787] EngR 39, (1787) 1 Cox 319, (1787) 29 ER 1184

Links:

Commonlii

Equity

Updated: 18 May 2022; Ref: scu.368713

Craythorne v Swinburne: 23 Jul 1807

No contribution in favour of one Surety against another : his engagement, according to the bond, and parol evidence, which was held admissible, being, not as Co-surety, but, without the privity of the other, as a distinct collatteral secnrity, limited to default of payment by the Principle and the other surety.

Judges:

Lord Eldon LC

Citations:

[1807] EngR 343, (1807) 14 Ves Jun 160, (1807) 33 ER 482

Links:

Commonlii

Citing:

See AlsoCraythorne v Swinburne 1789
. .

Cited by:

CitedDay v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 18 May 2022; Ref: scu.340514

Pryor v Pryor: CA 29 Apr 1864

Parents having a power of appointing an estate to all or any of their children appointed it absolutely to two of their sons, upon the understanding that the appointments should resettle the estate upon certain trusts for the benefit of all the children then living during their respective lives, and subject thereto for the benefit of the children of the sons. This resettlement was made by a contemporaneous deed. Held, that the transaction could not be supported by analogy to the common case of an appointment to a daughter in contemplation of her marriage, accompanied by a contemporaneous settlement of the appointed fund, but that the appointment was void in equity, as made upon a bargain for the benefit of persons not objects of the power,

Judges:

Knight Bruce LJ

Citations:

[1864] EngR 412, (1864) 3 De G J and S 205, (1864) 46 ER 353

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedEclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 18 May 2022; Ref: scu.282126

Lupton v White: 19 Dec 1808

Whatever alteration of form any property may undergo, the true owner is entitled to seize it in its new shape if he can prove the identity of the original material.

Citations:

(1808) 15 Ves 442, [1808] EngR 429, (1808) 15 Ves Jun 432, (1808) 33 ER 817

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedFoskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
CitedIndian Oil Corporation v Greenstone Shipping SA 1988
A ship had on board some oil of the shipowners and it was mixed with oil, the property of the receivers, and transported to India. The mixture could not be separated for practical purposes and the question was how much of the oil were the receivers . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 16 May 2022; Ref: scu.220693

Plowright v Lambert: 1885

The courts of equity have recognised that a fiduciary relationship can exist ‘in almost every shape’.

Judges:

Field J

Citations:

(1885) 52 LT 646

Cited by:

CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 16 May 2022; Ref: scu.216364

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.

Judges:

James LJ

Citations:

(1872) LR 7 Ch App 259

Jurisdiction:

England and Wales

Cited by:

CitedR Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
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 . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 16 May 2022; Ref: scu.199509

Classic International Pty Ltd v Lagos: 2002

(New South Wales Supreme Court) ‘I am satisfied that both parties believed that the agreement for lease would validly take effect according to its terms and that had they known of the substantial variation which the Retail Leases Act 1994 would impose upon the agreement, they would not have entered into it’ and ’42. I do not need to consider the vexed question of whether the mistake in the present case is one of fact or one of law. As to whether, in the law of Australia, the doctrine of common ‘mistake applies to’ a mistake of law, I need do no more that set out the following passage from Cheshire and Fifoot’s Law of Contract 8th Aust Ed., para 12.8: ‘Operative mistake traditionally has been confined to mistakes of fact and not of law. This distinction has always been blurred and has been notoriously difficult to apply. It appears that equity did not draw a clear line between mistakes of fact and law. If there was such a rule, it was often honoured in the breach. In Western Australia the law/fact distinction has been abolished by legislation (with certain safeguards). The whole question has now almost certainly been laid to rest by the decision of the High Court in David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353. In that case the distinction between mistake of law and mistake of fact was rejected in the light of a very considerable body of judicial and academic criticism of the distinction. . . . the rule precluding recovery of moneys paid under a mistake of law should be held not to form part of the law in Australia.’

Judges:

Palmer J

Citations:

[2002] NSWSC 115

Jurisdiction:

England and Wales

Cited by:

CitedMargaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity, Contract

Updated: 16 May 2022; Ref: scu.187292

Pankhania v The London Borough of Hackney: ChD 2002

A brochure listing properties to be sold at auction decribed the property as being subject to a terminable licence. In fact it was a secure tenancy. The question arose as to whether a misrepresentation of law could found a cause of action.
Held: ‘I have concluded that the ‘misrepresentation of law’ rule has not survived the decision in Klienwort Benson Ltd. Its historical origin is as an off-shoot of the ‘mistake of law’ rule, created by analogy with it, and the two are logically inter-dependent. Both are grounded in the maxim ‘ignorantia juris non excusat’, a tag whose dubious utility would have been enhanced, had it gone on to explain who was not excused and from what. As it stands, it means no more than that ignorance of the general law does not excuse anyone from compliance with it, a proposition with which criminal lawyers are familiar. In translation, it has become distorted and amplified meaning, in such expressions as ‘everyone’ is taken to know the Law’, from which follow two further propositions (underpinning the ‘mistake of law’ and ‘misrepresentation of law’ rules respectively) (i) ‘ as you are taken to know the law, it is your fault if you are mistaken as to it, even if I have misrepresented it to you, and because of that you should have no relief’. Those two propositions bear little relation to, and do not follow logically from, the maxim ‘ignorantia juris non excusat’, but save for its Latin roots, no basis for the ‘misrepresentation of law’ rule is to be found, as Lane L.J. remarked in Andre. The distinction between fact and law in the context of relief from misrepresentation has no more underlying principle to it than it does in the context of relief from mistake. Indeed, when the principles of mistake and misrepresentation are set side by side, there is a stronger case for granting relief against a party who has induced a mistaken belief as to law in another, than against one who has merely made the same mistake himself. The rules of the common law should, so far as possible, be congruent with one another, and based on coherent principle. The survival of the ‘misrepresentation of law’ rule following the demise of the ‘mistake of law’ rule would be more than a quixotic anachronism. Its demise rids this area of the law of a series of distinctions, such as the ‘private rights’ exception, whose principal function has been to distinguish the ‘mistake of law’ rule, and confine it to a very narrow compass, albeit not to extinguish it completely.’

Judges:

Rex Tedd QC

Citations:

[2002] EWHC 2441 (Ch)

Jurisdiction:

England and Wales

Citing:

AppliedKleinwort 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 . .
CitedStreet v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .

Cited by:

CitedMargaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
CitedBrennan v Bolt Burdon and Others, London Borough of Islington, Leigh Day and Co CA 29-Jul-2004
The claimant sought damages for injury alleged to have been suffered as tenant of a house after being subjected to carbon monoxide poisoning, and also from her former solicitors for their delay in her claim. The effective question was whether the . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 16 May 2022; Ref: scu.187291

David Securities Pty Ltd v Commonwealth Bank of Australia: 1992

(High Court of Australia) Moneys paid away as a result of a causative mistake of law are recoverable: ‘the payer will be entitled prima facie to recover moneys paid under a mistake if it appears that the moneys were paid by the payer in the mistaken belief that he or she was under a legal obligation to pay the moneys or that the payee was legally entitled to payment of the moneys. Such a mistake would be causative of the payment.’ but ‘It is a defence to a claim for restitution of money paid or property transferred under a mistake of law that the defendant honestly believed, when he learnt of the payment or transfer, that he was entitled to receive and retain the money or property.’

Judges:

Brennan J

Citations:

(1992) 175 CLR 353

Jurisdiction:

England and Wales

Cited by:

LimitedKleinwort 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.

Commonwealth, Equity

Updated: 16 May 2022; Ref: scu.187274

A Schroeder Music Publishing Co Ltd v Macaulay: 1974

Assignments of copyright which were manifestly inequitable and oppressive could be void or unenforceable on grounds of public policy.

Citations:

[1974] 1 WLR 1308

Jurisdiction:

England and Wales

Cited by:

CitedPeer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Equity

Updated: 16 May 2022; Ref: scu.186117

Goddard v Nationwide Building Society: CA 1986

A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, and he disclosed his note of the attendance on the plaintiff to the defendant. The note was protected by legal professional privilege. The defendant referred to the note in its defence, which was subsequently the subject of litigation between them, sent to the defendant a copy of his file note of the information which he had given to the plaintiff prior to the completion of the transaction. The defendant pleaded the substance of the contents of the note in its Defence. The plaintiff sought to restrain its use. The defendant now appealed against an order striking out those elements of its defence.
Held: The defendant’s appeal succeeded. In the circumstances in which the file note was made, the privilege attaching to it belonged exclusively to the plaintiff. Orders were made requiring the defendant to deliver up the document and restraining him from using it.
Nourse LJ said: ‘The second question has confronted us, in a simple and straightforward manner, with the task of reconciling the decisions of this court in Calcraft v. Guest [1898] 1 Q.B. 759 and Lord Ashburton v. Pape [1913] 2 Ch. 469. I agree that those decisions are authority for the proposition which May L.J. has stated. However unsatisfactory its results may be thought to be, that proposition must hold sway unless and until it is revised by higher authority.
. . Although, for the reasons given by May LJ, I am in no doubt that our decision must be governed by Lord Ashburton v. Pape [1913] 2 Ch. 469, the confusion which the existing authorities have caused in this case and are liable to cause in others has prompted me to deal with the matter at somewhat greater length than would otherwise have been necessary.’
It was crucial that the holder of the privilege should seek relief before the party to whom the confidential communication was disclosed has adduced it in evidence or otherwise relied on it at trial. Second, this equitable jurisdiction can prevail over the rules of evidence relating to privilege. Thirdly, the right of the party seeking equitable relief ‘does not in any way depend on the conduct of the third party into whose possession the record of the confidential communication has come’ Fourth, once the equitable jurisdiction in Ashburton has arisen, there is no discretion to rely upon views of the materiality of the communication or the justice of admitting or excluding it or like considerations: ‘The injunction is granted in aid of the privilege which, unless and until it is waived, is absolute. In saying this, I do not intend to suggest that there may not be cases where an injunction can properly be refused on general principles affecting the grant of a discretionary remedy, for example on the ground of inordinate delay.’
Fifth, even if the equitable jurisdiction can no longer apply, public policy (rather than the exercise of discretion) may nevertheless preclude a party who has acted improperly in the proceedings from using the communication. Last, there should be no distinction in the exercise of the equitable jurisdiction in relation to civil and criminal proceedings.
The court discussed the requirement for confidence in the protection given by legal professional privilege: ‘A lawyer must be able to give his client an unqualified assurance, not only that what passes between them shall never be revealed without his consent in any circumstances, but that should he consent in future to disclosure for a limited purpose those limits will be respected.’
May LJ said: ‘I think that the ratio of the decision in Lord Ashburton v. Pape was founded upon the confidential nature of the content of the letters written by Lord Ashburton to Nocton. The Court of Appeal was concerned to protect that confidence, in the same way for instance, as the courts protect the trade secrets of an employer against the unauthorised use of them by an employee, both while he remains such as well as after he has left the employment . . I confess that I do not find the decision in Lord Ashburton v. Pape logically satisfactory, depending as it does upon the order in which applications are made in litigation. Nevertheless I think that it and Calcraft v. Guest [1898] 1 Q.B. 759 are good authority for the following proposition. If a litigant has in his possession copies of documents to which legal professional privilege attaches he may nevertheless use such copies as secondary evidence in his litigation; however, if he has not yet used the documents in that way, the mere fact that he intends to do so is no answer to a claim against him by the person in whom the privilege is vested for delivery up of the copies and to restrain him from disclosing or making any use of any information contained in them.’

Judges:

Nourse, May LJJ

Citations:

[1987] 1 QB 670, [1986] 3 WLR 734

Jurisdiction:

England and Wales

Citing:

AppliedLord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
AppliedCalcraft v Guest CA 1898
A trial had taken place in which the principal issue was the upper boundary of the plaintiff’s fishery. On appeal the defendant proposed to rely on new evidence discovered among the papers in another action tried over a hundred years before. The . .
ConsideredButler v Board of Trade ChD 1970
Goff J discussed the criterion for admissibility of evidence:’If one rejects the bare relevance test, as I have done, then what has to be shown prima facie is not merely that there is a bona fide and reasonably tenable charge of crime or fraud but a . .

Cited by:

CitedDerby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
CitedL v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
CitedEnglish and American Insurance Co Ltd and Others v Herbert Smith ChD 1987
Where documents with the benefit of legal professional privilege come into the hands of the opposing side, the court should be ready to grant an injunction to prevent their misuse. . .
CitedStiedl v Enyo Law Llp and Others ComC 18-Oct-2011
The applicant, defendant in the main proceedings, sought an injunction to restrain the solicitors from acting for the claimant and from making any use of documents which had come into their privileged possession whilst acting for him. . .
CitedGuinness Peat Properties Ltd v Fitzroy Robinson Partnership CA 1987
Property developers (‘GPR’) were suing their architects (‘FRP’) in negligence. The claim against FRP was covered by a professional indemnity insurance policy. Once FRP was notified of GPR’s claim, FRP sent a ‘notification of claim’ to its insurer . .
CitedWebster v James Chapman and Co 1989
An expert’s report prepared for the plaintiff was by mistake enclosed along with a letter to the defendant’s solicitors. When informed of the mistake the plaintiff’s solicitors sought its return with an undertaking to make no use of it. The . .
CitedBell Cablemedia Plc etc v Simmonds CA 29-Apr-1997
Any person who is legitimately in premises may refer any material found there to the police. . .
CitedISTIL Group Inc, Metalsukraine Corporation Limited v Zahoor, Reventox Consulting Limited ChD 14-Feb-2003
Lawrence Collins J reviewed the authorities, and held that, where a privileged document had been seen by an opposing party through fraud or mistake, the court has power to exercise its equitable confidentiality jurisdiction, and ‘should ordinarily . .
CitedTrevorrow v State of South Australia (No 4) 16-Feb-2006
(Supreme Court of South Australia – full Court) Appeals against two decisions – Whether legal professional privilege applies to eleven documents discovered by the defendant – if privilege existed whether it had been waived – Whether defendant . .
CitedIn Re A Firm of Solicitors ChD 9-May-1995
A solicitor moving from a firm acting on one side of a dispute to the firm on the other side must be able to show that no conflict of interest would arise. The court should intervene unless it is satisfied that there is no risk of disclosure. It . .
CitedBBGP Managing General Partner Ltd and Others v Babcock and Brown Global Partners ChD 20-Aug-2010
Norris J held:
‘Although the case law refers to crime or fraud or dishonesty (such as fraudulent breach of trust, fraudulent conspiracy, trickery or sham contrivances) it is plain that the term ‘fraud’ is used in a relatively wide sense: Eustice’s . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice, Equity

Updated: 16 May 2022; Ref: scu.182250

Nant-y-glo and Blaina Ironworks Co v Grave: 1878

Shares in a company had been given by a promoter to the defendant to induce him to become a director.
Held: They belonged to the company.

Judges:

Sir James Bacon V-C

Citations:

(1878) 12 Ch D 738

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 16 May 2022; Ref: scu.551506

Libertarian Investments Ltd v Hall: 6 Nov 2013

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

Judges:

Millett NPJ, Ribeiro PJ

Citations:

[2014] 1 HKC 368, [2013] HKCFA 93

Links:

Hklii

Jurisdiction:

England and Wales

Cited by:

CitedAIB 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 . .
CitedHenchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Updated: 16 May 2022; Ref: scu.553779

Canson Enterprises Ltd v Boughton and Co: 21 Nov 1991

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

Judges:

Lamer CJ and Wilson, La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ

Citations:

[1991] 3 SCR 534, 1991 CanLII 52 (SCC), (1991) 85 DLR (4th) 129, [1992] 1 WWR 245, 1 BCLR (2d) 1

Links:

Canlii

Jurisdiction:

Commonwealth

Cited by:

CitedAIB 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 . .
CitedMichael Wilson and Partners Ltd v Emmott ComC 8-Jun-2011
The claimant challenged an arbitration award made concerning the agreement under which the defendant had been admitted to partnership. MWP contended that the Tribunal were guilty of a large number of serious irregularities in their conduct of the . .
Lists of cited by and citing cases may be incomplete.

Equity, Damages

Updated: 16 May 2022; Ref: scu.553778

In re Lind; Industrials Finance Syndicate Ltd v Lind: CA 1915

The court considered the nature of an equitable assignment of a copyright. Phillimore LJ opined said: ‘The assignment does, however, operate as a contract to assign if and when the property comes into existence, and to use the words of [Jessel M.R.], when it come into existence, equity, treating as done that which ought to be done, fastens upon that property, and the contract to assign thus becomes a complete assignment.
This is intelligible and workable if nothing happens between the date of the assignment (construed as a contract to assign) and the date when the property comes into existence; but if in the intervening period something happens which may affect the contract, as, for instance, a statutory discharge of the assignor from all his obligations, does the contract to assign still become in due course a complete assignment?
. . If the assurance rest in contract and if by consequence the only way in which equity fastens upon the property be by the operation of the doctrine of specific performance, then the liability under the contract would be, as it seems to me, discharged by bankruptcy.
. . In order that the assignment may survive and have its effect it must give to the assignee something more than a mere right in contract, something in the nature of an estate or interest.’
Swinfen Eady LJ said: ‘an agreement to charge future property creates an immediate charge upon the property coming into existence, independently of the contract to execute some further charge, and cannot be said to rest in contract only.’
Bankes LJ said ‘that equity regarded an assignment for value of future-acquired property as containing an enforceable security as against the property assigned quite independent of the personal obligation of the assignor arising out of his imported covenant to assign’.

Judges:

Phillimore LJ, Swinfen Eady LJ, Bankes LJ

Citations:

[1915] 2 Ch 345

Cited by:

CitedB4U Network (Europe) Ltd v Performing Right Society Ltd CA 16-Oct-2013
Composers had entered an agreement with the respondent, assigning all copyrights in their works to the respondent. The respondent asserted also an equitable assignment of all future works. The appellant asserted that the rights in the particular . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Equity

Updated: 15 May 2022; Ref: scu.541518

In Re Alton Corporation: 1985

Sir Robert Megarry V-C, said in relation to a loan accompanied by the deposit of title deeds: ‘I have to remember that the basis of an equitable mortgage is the making of an agreement to create a mortgage, with the deposit of the land certificate and, since Steadman v. Steadman [1976] AC 536 . . probably the paying of the money as well, ranking as sufficient acts of part performance to support even the purely oral transaction. But some contract there must be.’

Judges:

Robert Megarry VC

Citations:

[1985] BCLC 27

Citing:

CitedSteadman v Steadman HL 1976
A mere payment of a sum of money might amount to an act of part performance, as might the act of a purchaser instructing solicitors to prepare and submit a draft conveyance or transfer, so as to leave asituation capable of enforcement in equity. . .

Cited by:

CitedUnited Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge.
Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 15 May 2022; Ref: scu.434816

Burchell v Thompson: CA 1920

A printed form of bill of sale set out that in consideration of andpound;250 being ‘now paid by the grantees to’ and then identifying a third person ‘at the request of the grantor’ chattels were assigned by way of security for the repayment of the loan with interest at andpound;55 per cent per annum. The printed form originally stated the interest to be at ‘one shilling in the pound per month’ with the printed words being struck out. The words ‘per annum’ were omitted in what was said to be a true copy of a the bill when lodged in relation to the rate of interest, and no receipt was given within the bill.
Held: The omission of the words ‘per annum’ did prevent the filed version being a true copy.
However, not all omissions would prevent the copy being a true copy. The expression ‘true copy’ in the bills of sale legislation indicates that the copy need not be an exact one and immaterial differences between the original and the copy which do not mislead the reader as to the contents can be ignored: ‘mere mis-spellings, mere failures to fill up blanks which can be filled up from other parts of the deed – matters which do not in any way affect the purpose for which the true copy is required – will not prevent the document registered from being a ‘true copy’ within the meaning of the Act.’
The former notion that a receipt contained in a deed gave rise to an estoppel whereas one not in a deed did not had long been discarded. It derived from times when a greater distinction was made between practice in courts of equity and of common law. The fact of a receipt being in a deed had not since days prior to the 1873 Act, given rise to no greater presumption. A party to a deed was not estopped from setting up the truth.

Judges:

Scrutton LJ, Lush J

Citations:

[1920] 2 KB 80, (1920) LJKB 533, (1920) 122 LT 758, (1920) 38 TLR 257, (1920) 64 Sol Jo 68, [1920] BandCR 7

Statutes:

Supreme Court of Judicature Act 1873

Jurisdiction:

England and Wales

Cited by:

CitedCarey v HSBC Bank plc, Yunis v Barclays Bank plc and similar QBD 23-Dec-2009
(Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 15 May 2022; Ref: scu.384473

Hurst v Picture Theatres Ltd: CA 1915

The plaintiff had paid to enter the cinema, but was asked to leave by the manager who said he had not paid. He was forcibly removed. The jury found as a fact that he had paid the entrance fee. The defendant argued that the plaintiff had only a revocable licence to enter the premises, and had no interest which would entitle him to stay after revocation of the licence.
Held: The Court of Appeal rejected this argument holding that in the circumstances the contract provided him with a licence plus a grant of an interest which was enforceable in equity and which after the judicature Acts clearly provided not withstanding the absence of a legal interest (created by deed).
Buckley LJ said: ‘We have listened in this case to a very ingenious and interesting argument from Mr. Mackinnon, but, if I may borrow the words of Lord Esher in Butler v. Manchester, Sheffield and Lincolnshire Railway (1888) 21 Q.B.D. 207, 211, it may have been quite right for the appellants’ counsel to suggest the point, but when considered it is contrary to good sense. I may add that I think it is not only contrary to good sense, but contrary also to good law as administered since the Judicature Act in this Court. The proposition Mr. McKinnon sets out to affirm is that if a man has paid for his seat at the opera, or the theatre, and has entered and taken his seat, and is behaving himself quite properly, it is competent to the proprietors of the theatre, merely because they choose so to do, to call him to withdraw before he has seen the performance for the enjoyment of which he has paid; that what he has obtained for his money is a mere revocable licence to come upon the land of the proprietor of the theatre, and that the proprietor may, simply because he chooses, say ‘I revoke your licence; go.’ If that proposition be true, it involves startling results.
Kennedy LJ has suggested one. Suppose that there be sitting in the stalls a man who is a constant patron of the opera or the thentre, to whom the management pay great deference, whether from his rank or his habit of attendance: he goes to the management and says, ‘I do not like the person sitting in front of me or next to me; ask him to go.’ It would be competent to the management to go to that person and say: ‘Please go; you cannot have your money back, go.’ Further, if the proposition is right, it follows that, having let the seat to A., the management may come to A. at the end of the first act or before and say, ‘I revoke your licence, go,’ and he has to go. The management may let the seat to B. for the rest of the performance, and at the end of the second act or sooner they may come to B. and say, ‘I revoke your licence, go.’ He will have to go, and they may let the seat a third time to C. Those consequences ensue from this proposition if it be well founded.
It was for that reason I said at the outset of my remarks that it seems to me, when the point comes to be considered, it is contrary to good sense. Next it is to my mind contrary also to good law. The proposition is based upon the well-known decision in Wood v. Leadbitter 13 M. and W. 838.
Let me at the outset say what Wood v. Leadbitter seems to me to have decided. It affirmed that a mere licence, whether or not it be under seal, by which I mean a, licence not coupled with an interest or a gra.nt whether it be under seal or not, is revocable. It affirmed also that if there be a licence coupled with an interest or coupled with a grant, it is not, or at any rate in general it is not, revocable. For those two propositions I read these two sentences from the case of Wood v. Leadbitter at p. 844: ‘A mere licence is revocable; but that which is called a licence is often something more than a licence; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it, so as to defeat his grant, to which it was incident. It may further be observed, that a licence under seal (provided it be a mere licence) is as revocable as a licence by parol; and, on the other hand, a licence by parol, coupled with a grant, is as irrevocable as a licence by deed, provided only that the grant is of a nature capable of being made by parol.’
Those are propositions with which, as it seems to me, no one quarrels or can quarrel. Wood v. Leadbitter rested, I think, upon one of two grounds-I will indicate them both-but I think it was the second of those which I am going to mention. The first ground is that the man who bought his ticket for the race meeting not obtained any grant of the right to come during the currency of the meeting to see any particular spectacle from its commencement to its termination. If that were the ground, it would, I think, be erroneous. I conceive he had the right to see what was to be seen during the days covered by his ticket. But I do not think that was the ground on which the Court decided it. They decided it upon the ground, which will be found at p. 842 and onwards, that no incorporeal inheritance affecting land can be created or transferred otherwise than by deed, a proposition which was discussed with some elaboration in the course of the judgment.
What Alderson B. was saying there was: this man has got no deed; he has got nothing under seal; he has therefore not got a grant; he cannot in this Court be heard to say he is a grantee, and because he is not a grantee he is a mere licensee, and being a mere licensee (whether it is under seal or not under seal does not make any difference) the licence is revocable.
Let me for a moment discuss this present case upon the footing that Wood v Leadbitter stands as good law at this date. I am going to say presently that to my mind it does not, but suppose it does, stand as good law at this date. What is the grant in this case? The plaintiff in the present action paid his money to enjoy the sight of a particular spectacle. He was anxious to go into a picture theatre to see a series of views or pictures during I suppose, an hour or a couple of hours. That which was granted to him was the right to enjoy looking at a spectacle, to attend a performance from its beginning to its end. That which was called the licence, the right to go upon the premises, was only something granted to him for the purpose of enabling him to has e that which had been granted him, namely the right to see, he could not see the performance unless he went into the building His right to go into the building was something given to him in order to enable him to have the benefit of that which had been granted to him, namely, the right to hear the opera, or see the theatrical performance, or see the moving pictures as was the case here. So that here there was a licence coupled with a grant. If so, Wood v. Leadbitter does not stand in the way at all. A licence coupled with a grant is not revocable; Wood v. Leadbitter affirmed as much.
So far I have been treating it as if Wood v Leadbitter were law as now administered in every Court. Let us see how that matter stands. Wood v Leadbitter was a case decided in a Court of law before the Judicature Act; it was a case to be decided, therefore, simply upon the principles which are applicable in a Court of law as distinguished from a Court of Equity. What was the principle which would have been administered in a Court of Equity in the year 1845, the date of Wood v. Leadbitter, or subsequently. For that I look at the decision of Wood V.C. in Frogley v. Earl of Lovelace (1859) John. 333. Other cases have been cited to us; I select this one because it seems to me to be the most pertinent, and to state the proposition in the most plate manner. The facts in Frogley v. Earl of Lovelace were these: the defendant was lessor to the plaintiff of certain lands for twenty-one years; he had executed a lease to him, but preciously to the execution of the lease this was [the lessee] but was not under seal: ‘It is hereby agreed that [the lessee] shall have the exclusive right of sporting over, and killing the game upon, the lands included in the withinwritten lease, and also upon the lands adjacent thereto belonging to the said Earl’ (describing such adjacent lands) ‘during the continuance of the said term, if the said Ralph Frogley shall so long live; he undertaking to keep and leave a fair stock of game thereupon, and not to keep such an excessive quantity of hares and rabbits as to do damage to the said Earl or his under-tenants in the neighbourhood.’ On February 9, 1859, the lessor served the lessee with a notice that after that date he revoked, rescinded, and put an end to that agreement. The question was whether he could do so or not. The suit was brought in a Court of Equity for specific performance for the execution of a proper instrument under seal giving effect to the document which was not under seal. The plaintiff moved for an injunction as prayed by his bill, namely, an injunction to give effect to his rights until that deed had been executed, and that was the matter which came before the Vice Chancellor. At p. 339 the Vice-Chancellor says this: ‘ The memorandum is a mere writing not under seal and the case of Wood v. Leadbitter has decided that, in order to acquire a right such as that which is here claimed by the plaintiff an instrument under seal is necessary; and that, at law, an instrument purporting to grant such a right, though given for a valuable consideration, is revocable at all:- time, and without paying back the money. At law, therefore, the plaintiff has no remedy until the defendant shall have executed a deed containing a proper and legal grant of the exclusive right of sporting in accordance with the terms of the agreement.’ Finding, therefore, that the plaintiff’s interest was incapable of being supported at law upon the footing of Wood v. Leadbitter, he gave him relief in equity, and in so doing so, he says: ‘It appears to me that the plaintiff is clearly- entitled to an injunction in the interval until the defendant shall has-e executed proper legal grant of the right claimed bethe plaintiff.’ What could be plainer ? According to Wood v. Leadbitter the plaintiff would have been dismissed from a Court of Law; he would have had no case. He comes into a Court of Equity and he obtains relief in equity because he would have no remedy at law, and his remedy is given until he has been clothed with such rights under a proper instrument as that he has a remedy at law, and then he is left to his legal rights. I will read a few words from the judgment of Kay J. in McManus v Cooke 35 Ch. D. 681, Kays J. says: ‘Hewlins v Shippam 5 B. and C. 221, Wood v Leadbitter 13 M. and W. 838, and other authorities at common law were cited, and it was argued that the right claimed could only be granted by deed, and that therefore the licence was revocable; but this common law doctrine was not allowed to prevail in equity.” As I have shown in Frogley v. Earl of Lovelace John. p.333 it was not allowed to prevail in equity.
The position of matters now is that the Court is bound under the Judicature Act to give effect to equitable doctrines. The question we have to consider is having regard to equitable considerations, Wood v Leadbitter is now law, meaning that Wood v Leadbitter is a decision which can be applied in its integrity in a Court which is bound to give effect to equitable considerations. In my opinion, it is not. Cozens Hardy J, as he then was, the present Master of the Rolls, in the case of Lowe v Adams [1901] 2 Ch 598, at p. 600, said this: ‘Whether Wood v. Leadbitter is still good Iaw having regard to Walsh v. Lonsdale’ 21 Ch. D. 9 -which is a decision of the Court of Appeal-‘is very doubtful.’ The present Lord Parker, then Parker J., in the case of Jones v. Earl of Tankerville [1909] 2 Ch 440, at p. 443 says this: ‘An injunction restraining the revocation of the licence, when it is revocable at law, may in a sense be called relief by way of specific performance, but it is not specific performance in the sense of compelling the vendor to do anything. It merely prevents him from breaking his contract, and protects a right in equity which but for the absence of a seal would be a right at law, and since the Judicature Act it may well be doubted whether the absence of a seal in such a case can be relied on in any Court.’ What was relied on in Wood v. Leadbitter, and rightly relied on at that date, was that there was not an instrument under seal, and therefore there was not a grant, and therefore the licensee could not say that he was not a mere licensee, but a licensee with a grant. That is now swept away. It cannot be said as against the plaintiff that he is a licensee with no grant merely because there is not an instrument under seal which gives him a right at law.
There is another way in which the matter may be put. If there be a licence with an agreement not to revoke the licence, that, if given for value, is an enforceable right. If the facts here are, as I think they are, that the licence was a licence to enter the building and see the spectacle from its commencement until its termination, then there was included in that contract a contract not to revoke the licence until the play had run to its termination. It was then a breach of contract to revoke the obligation not to revoke the licence, and for that the decision in Kerrison v. Smith [1897] 2 QB 445 is an authority. So far I have dealt with the law.
‘I will say a few words as to what were the facts in this case. The plaintiff entered this picture theatre and paid 6d. for his admission. The defendants denied that he had paid, and that was the question for the jury in the case. The jury have given the plaintiff a verdict; they have found that he did pay his 6d., and that fact is not now in contest before us. Alleging that the plaintiff had not paid, the attendant at the theatre, and then the manager, called upon him to go out of the theatre, treating him as a fraudulent person, a person who had come in without payment. There was some conversation with, I think, one attendant and a second attendant, and then the manager came, and the manager called upon him to go out. A police constable was then called in, and in the presence of the audience the man was again called upon to come out. The police constable was asked to take him out, but declined and said the doorkeeper could take him out if he were so minded. Thereupon the doorkeeper laid hands upon him to remove him by force, and the plaintiff, as a reasonable man, yielded at once to the man and went out. There was in law an assault, and an assault of a grievous kind. He was exposed to indignity, and it is for that indignity, I suppose, that the jury have given him a verdict for 150l.’
‘The defendants had for value contracted that the plaintiff should see a certain spectacle from its commencement to its termination. They broke that contract and it was a tort on their part to remove him. They committed an assault upon him in law. It was not of a violent kind, because, like a wise man, the plaintiff gave way to superior force and left the theatre. They sought to justify the assault- by saying, that they were entitled to remove him because he had not paid. He had paid, the jury have so found. Failing on that question of fact, they say: that they were entitled to remove him because his licence was revocable. In my opinion it was not. There was, I think, no justification for the assault here committed. Under the circumstances it was for the jury to give him such a sum as was right for the assault which was committed upon him, and for the serious indignity to a gentleman of being seized and treated in this way in a place of public resort. The jury have found that he was originally in the theatre as a spectator, that the assault was committed upon him, and that it was a wrongful act.
I think that the appeal which has been brought before us, and which is founded simply upon the question of law which I have discussed at the beginning of this judgment, fails and must be dismissed with costs.’
Kennedy LJ said: ‘I am of the same opinion. The facts as well as the law have been very fully dealt with, and I do not propose to add much. We have heard a very careful and interesting argument chiefly affecting the character of Wood v. Leadbitter. Personally, I am indifferent as to whether that case has or has not been subjected to some slight imputations upon its character. It was decision of a great Court, and I desire to treat it myself with the utmost respect, but I do not think it governs this case. The plaintiff was in this picture theatre and was assaulted and subjected to indignities which were entirely unjustifiable by those who handled him and compelled him to go out. What is his position? He says ‘I was there by right; I was occupying a sent for which I had paid in a place of public entertainment,’ he says that if you pay a certain price you must be entitled to the possession of the seat. The seat, I understand, is one which he may choose; it is not a reserve seat, but a seat which he entered. He did enter that seat, and they took him out again practically, in the eyes of the law, by force. Now the defendants have to justify that, and they justify it by saying that there is a point of law apart from the defence in fact which failed, namely that he was not there by right because he had not fulfilled the condition of payment. The defendants say through their counsel, ‘In point of law, even if you did pay, we had a right to turn you out, although you were behaving in the way in which those who go into places of public entertainment are bound (by implied contract at any rate) to behave.’ They say, ‘In law we are justified because all that you had was a revocable licence. When we use the words ‘revocable licence,’ ‘ say the defendants, ‘we mean that we can at will require you to leave this building, and you are bound to obey. Therefore, as we can legally require you to do so, you must go quietly, and if you do not go quietly we are right, using no more force than is necessary, in putting you out.’ For the reasons I ventured to refer to in the course of the argument by way of illustration (which have been still better illustrated by Buckley L.J. in his judgment) such an astounding conclusion is one which one would require as a matter of law, I think, and as a matter of common sense, to be strictly justified. The justification is hung entirely on the peg of the doctrine which is said to be the doctrine established by the considered decision of the Court of Exchequer in the year 1845. With regard to that decision, I am not going myself to say, and I should feel I was presumptuous in saying, that it was not at the time a perfectly good decision. It has been quoted frequently with respect, and I am not going to say a word in dimiution of that respect. But what was the decision ? It is stated, and I think with perfect correctness, at the bottom of p. 838: ‘A right to come and remain for acertain time on the land of another can be granted only by- deed; and a parole licence to do so, though money be paid for it is revocable at any time, and without paying back the money.’
‘Now I hold that this case, as Buckley LJ has intimated, the contract would not be correctly expressed by saying that it was a right to come and remain for a certain time on the land of another. In this case I think there was, if you were to put the contract into terms, a contract that there should be an irrevocable right to remain until the conclusion of the performance. I do not lay stress upon that point, and for this reason, that in the case of Wood v. Leadbitter, the plaintiff, who ho was in a particular part of the racecourse, might have said that he had the same sort of contract, but he did not say it, and therefore I will leave the matter alone. What was decided by the case was that the grant, to be effectual and irrevocable, must be a grant valid in law, and such a grant could only he made by deed. Passages have already been quoted from that judgment, and I am not going to take up time by quoting them again, but I think that it is important to remember that at the very commencement of the judgment of Alderson B. he points out that the question arose upon the plea and its replication, and the replication, he points out, is that: ‘At the time of such removal, the plaintiff was in the said close by the leave and licence of Lord Eglintoun.’ It was not there suggested by the plaintiff, ‘My right to remain is not merely by leave and licence of Lord Eglintoun; I have an implied contract that I should be there and that contract is not subject to revocation.’ Therefore, as I say, one must deal with that case upon the pleading, and upon that pleading the judgment of the Court cannot be put more specifically or more correctly than in the passage I have quoted from the headnote. There must be a grant by deed; if you show only a parol licence, you have no case. There are several passages which show that. When the learned Alderson B. is commenting on the case, from the decision in which the Court differed, of Talyer v. Waters (1817) 7 Taunt. 374, he says at p. 854: ‘It was taken for granted that, if the statute of Frauds did not apply, a parol licence was sufficient, and the necessity of an instrument under seal, by reason of the interest in question being a right in nature of an easement, was by some inadvertence kept entirely out of sight.’ There is language used in the passage on p. 845 which has been already cited by Buckley L.J. to the same effect, and which states this in one sentence: ‘But where there is a licence by parol, coupled with a parol grant, or pretended grant, of something which is incapable of being granted otherwise than by deed, there the licence is a mere licence; it is not an incident to a valid grant, and it is therefore revocable.’ Does that apply now? Since the Judicature Act there is no doubt we have to apply the principles of equity, and according to those principles there was in this case that which was not granted by a deed, and which need not be granted by deed, and therefore there was that which is valid now in equity as a good title upon which this gentleman, the plaintiff, being in possession of a seat, had a right to stay and say ‘It is no use your saying to me I am obliged to go because I have not got in the language of Wood v. Leadbitter (l) a grant by deed; this is an interest which, whether you call it an easement or not, is an interest which I can now acquire in equity by parol, and I have that interest.’
‘The passage which has been quoted from Parker J.’s judgment in Jones v. Earl of Tankerville states that which I believe to be right, namely, that an injunction restraining the revocation of the licence, when it is revocable at law, may in a sense be called relief by way of specific performance, but it is not specific performance in the sense of compelling the Vendor to do anything. It merely prevents him from breaking his contract, and protects a right in equity which, but for the absence of a seal, would be a right at law. There is also the judgment of Kay .J. in McManus v. Cooke 35 Ch. at p. 697. The learned judge sets out number of propositions established by the authorities in regard to these questions, and amongst other things he says that the equity applies ‘wherever the defendant has obtained and is in possession of some substantial advantage under a parol agreement which, if in writing, should be such as the Court would direct to be specifically performed. The doctrine applies to a parol agreement for an easement, though no interest in land is intended to be acquired.’
‘I have come to the conclusion, therefore, putting,’ aside altogether the question what the contract was in this case, that in fact to treat it upon the basis of Wood v. Leadbitter, being good law is wrong because of more modern legislation. It is no longer good law to do such act as the defendants have done here.
I think I ought to add that that which we are now asserting in this Court has been recognised in the passage to which I referred in the course of the argument from Sir Frederick Pollock’s work upon Torts. He points out carefully at p. 390, referring to Wood v. Leadbitter and Tayler v Waters, which was there overruled, that even in such a case, where there had been part performance, specific performance is sometimes decreed, and equitable rights are now enforced by all the Courts. (See also Roscoe’s Nisi Prius, vol. ii., p. 930.) It seems to me that there was here a good equitable right which rendered the act of the defendants in the present case bad in law.’

Judges:

Buckley LJ, Kennedy LJ, Phillimore LJ

Citations:

[1915] 1 KB 1

Citing:

CitedWood v Leadbitter ExcC 22-Feb-1845
The plaintiff complained of being assaulted. He had been on Doncaster Race Course with a ticket. The owner’s servant requested him to leave, and when he refused gently laid his hands on the plaintiff to remove him. The plaintiff said that his . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity, Land

Updated: 15 May 2022; Ref: scu.377908

Brown v Gregson: HL 1920

Viscount Haldane explained the doctrine of election: ‘The doctrine of election . . is a principle which the Courts apply in the exercise of an equitable jurisdiction enabling them to secure a just distribution in substantial accordance with the general scheme of the instrument. It is not merely the language used to which the Court looks. A testator may, for instance, have obviously failed to realise that any question could arise. But the Court will none the less hold that a beneficiary who is given a share under the will in assets, the total amount of which depends on the inclusion of property belonging to the beneficiary himself which the testator has ineffectively sought to include, ought not to be allowed to have a share in the assets effectively disposed of, excepting on terms. He must co-operate to the extent requisite to provide the amount necessary for the division prescribed by the will, either by bringing in his own property, erroneously contemplated by the testator as forming part of the assets, or by submitting to a diminution of the share to which he is prima facie entitled, to an extent equivalent to the value of his own property if withheld by him from the common stock.’

Judges:

Viscount Haldane

Citations:

[1920] AC 860

Jurisdiction:

England and Wales

Cited by:

CitedFrear v Frear and Another CA 2-Dec-2008
Claim for interest in land
The claimant asserted an interest in the house in his mother’s estate and claimed against the personal representatives. He had lived in the house with his mother. He had previously assisted in the purchase of an earlier family home after being . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 15 May 2022; Ref: scu.278398

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 suffering no inconvenience, on discovering his ownership, the plaintiff requested the removal of the sewer and its manhole, and an associated injunction. The judge at trial found a trespass, but gave only nominal damages and refused an injunction.
Held: The plaintiff was not debarred from objecting when his acquiescence arose through ignorance. However the trespass was trivial, and no injunction was granted.
As to the cross appeal, though the trespass was forgiven by the consent, that could not answer the claim as to the continuing discharge since that would amount to an easement which would require a formal grant.
Lord Evershed MR said: ‘it is true to say that if a man, having a proprietary right, proves an infringement of that right, prima facie he is entitled to an injunction: but that needs some qualification. It is not a matter of unqualified right; and one ground for denying an injunction would be that the wrong done is, in the circumstances, trivial. That proposition is founded on the well-known case of Imperial Gas Light and Coke Co. (Directors) v. Broadbent . . The judge was here dealing with the claim as I have formulated it: and he came to the conclusion that the circumstances of this case were special, and, as his judgment shows, that the damage was trivial . . But there were other good grounds, and formidable grounds (as I think) for refusing the plaintiff an injunction. That he misled the defendants is beyond a peradventure. It is no less clear that he attempted to mislead the court. He asserted – contrary to the fact – that he had never had any conversation with the defendants about the matter at all; and in his evidence in chief he so swore, untruly. It is not, therefore, surprising that the judge came to the conclusion that he should grant no equitable relief; and in my judgment, on the facts of this case, he was well entitled to take that view.’

Judges:

Lord Evershed MR

Citations:

[1959] 2 QB 384, [1959] 2 All ER 651, [1959] 3 WLR 84, (1959) 123 JP 401, (1959) Sol Jo 508

Citing:

CitedImperial Gas Light and Coke Company v Broadbent HL 4-Aug-1859
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 . .

Cited by:

CitedPelling v Families Need Fathers Ltd CA 1-Aug-2001
The claimant, a member of the company, a charitable company limited by guarantee, sought a list of the company’s members. This was refused, and the court used a discretion not to order the list to be produced. The applicant sought to lead a group . .
CitedSt Pancras and Humanist Housing Association Ltd v Leonard CA 17-Dec-2008
The claimant sought possession of a garage. The defendant claimed adverse possession.
Held: The defendant’s appeal against an order for possession failed. The defendant had attended a meeting where his behaviour had allowed other parties to . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Equity, Nuisance, Torts – Other, Land

Updated: 15 May 2022; Ref: scu.278877

William Brandt’s Sons and Co v Dunlop Rubber Co: HL 1905

The court was asked whether instructions given by the bank’s customer to purchasers of rubber to make payment to its bank directly, amounted to an equitable assignment of debts, so that the bank could sue for their recovery. The bank sued the purchasers directly without joining its customer, the assignor.
Held: Though the assignor was not a party, there had been an equitable assignment. An equitable assignment of a chose in action requires no more than an expression of intention to assign, coupled with notice to the debtor, to impose on the latter an obligation to pay the assignee.
Lord Macnaghten said that an equitable assignment need not take any particular form and continued: ‘It may be addressed to the debtor. It may be couched in the language of command. It may be a courteous request. It may assume the form of mere permission. The language is immaterial if the meaning is plain. All that is necessary is that the debtor should be given to understand that the debt has been made over by the creditor to some third person. If the debtor ignores such a notice, he does so at his peril. If the assignment be for valuable consideration and communicated to the third person, it cannot be revoked by the creditor or safely disregarded by the debtor.’
No action should be dismissed for want of parties: ‘Strictly speaking, [the sellers], or their trustee in bankruptcy, should have been brought before the Court. But no action is now dismissed for want of parties, and the trustee in bankruptcy had really no interest in the matter. At your Lordships’ bar the Dunlops disclaimed any wish to have him present, and in both Courts below they claimed to retain for their own use any balance that might remain after satisfying Brandts.’

Judges:

Lord Lindley, Lord Macnaghten

Citations:

[1905] AC 454

Jurisdiction:

England and Wales

Cited by:

CitedScribes West Ltd v Relsa Anstalt and others CA 20-Dec-2004
The claimant challenged the forfeiture of its lease by a freeholder which had acquired the registered freehold title but had not yet registered its ownership. The second defendant had forfeited the lease by peacable re-entry for arrears of rent, and . .
CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Equity, Litigation Practice

Updated: 15 May 2022; Ref: scu.276786

Equity and Law Home Loans Ltd v Prestridge and Another: CA 15 Jan 1992

The Building Society chargee was entitled to possession because the charge was signed, but only to extent of the knowledge of the person signing charge. A woman partner had charged the house originally, but her partner had then unlawfully re-mortgaged it without her knowledge. Her interests did not have precedence up to the value of the original loan.

Citations:

Gazette 15-Jan-1992

Equity

Updated: 15 May 2022; Ref: scu.80359

Collins v Jones and Others: ChD 3 Feb 2000

A unilateral document could not be rectified to make it into something which it was not intended to be at the time it was executed, even if the alteration would give better effect to the general intention of the parties. The choice of different means to achieve the same object was not to be allowed by rectification.

Citations:

Times 03-Feb-2000

Equity

Updated: 15 May 2022; Ref: scu.79281

Challoner v Robinson: 1908

A landlord entitled to distrain for rent, could seize all goods and chattels found on the tenant’s premises whether they were the property of the tenant or a stranger.

Citations:

[1908] 1 Ch 49

Cited by:

CitedRhodes v Allied Dunbar Pension Services Ltd CA 1989
The intermediate tenant had charged the lease to the bank, which appointed receivers. Both the sub rent and the head rent fell into arrears. The head landlord then served a notice direct on the subtenant requiring him to pay the rent direct to the . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 15 May 2022; Ref: scu.264577

R E Jones Ltd v Waring and Gillow Ltd: HL 1926

In the case of a confidence man whose plan might have been frustrated by an unexpected contact between the two innocent parties; the House of Lords were divided as to whether that equivocal contact amounted to a representation. Viscount Cave LC thought that the court should find a way of preventing a party so using estoppel as to make a profit.

Judges:

Lord Shaw, Viscount Cave LC, Lord Carson, Lord Sumner

Citations:

[1926] AC 670

Statutes:

Bills of Exchange Act 1882 29(1)

Jurisdiction:

England and Wales

Cited by:

CitedLipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Lists of cited by and citing cases may be incomplete.

Equity, Estoppel, Banking

Updated: 14 May 2022; Ref: scu.259531

In Re Carne’s Settled Estates: 1899

A right to occupy for life, arising by settlement gives to the occupier an equitable interest in the land.

Judges:

North J

Citations:

(1899) 1 Ch 324

Cited by:

CitedCrancour Ltd v Da Silvaesa and Another CA 26-Feb-1986
The plaintiff sought possession of two rooms in a house occupied by the defendants separately. The agreements stated that they were licences. The agreements excluded the occupiers between 10:30am and noon on each day. The occupiers claimed to be . .
CitedBerrisford v Mexfield Housing Co-Operative Ltd SC 9-Nov-2011
The tenant appealed against an order granting possession. The tenancy, being held of a mutual housing co-operative did not have security but was in a form restricting the landlord’s right to recover possession, and the tenant resisted saying that it . .
CitedBinions v Evans CA 27-Jan-1972
The plaintiffs had bought a cottage subjecty to a tenancy to the defendant. They sought possession saying that she held under a tenancy at will. It was a renancy for her life but described as a tenancy at will. The judge had held that the other . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity

Updated: 14 May 2022; Ref: scu.259542

Marsh v Keating: HL 1834

Keating owned 12,000 pounds interest or share in joint stock reduced 3 per cent annuities, standing to her with the Bank of England, where the accounts were entered in the form of debtor and creditor accounts in the ledgers of the bank. Under what claimed to be a power of attorney given by Mrs. Keating to the law firm of Marsh, Sibbard and Co., on which her signature was in fact forged by Henry Fauntleroy, a partner in Marsh, Sibbard and Co., an entry was made in the books of the Bank of England to transfer andpound;9,000 of the interest or share in the stock to William Tarbutt, to whom, on the instructions of Henry Fauntleroy, the stock had been sold for the sum of 6,018 l 15s. In due course, the broker who conducted the sale accounted for 6,013l 2s.6d. (being the sale price less commission) by a cheque payable to Marsh and Co. Upon the discovery of the forgery, Mrs. Keating made a claim upon the Bank of England; and the bank requested Mrs. Keating to prove in the bankruptcy of the partners in Marsh and Co. in respect of the sum so received by them. Mrs. Keating then commenced an action, pursuant to an order of the Lord Chancellor, to try the question whether the partners in Marsh and Co. were indebted to her, in which she claimed the sum so received by Marsh and Co. as money had and received to her use. The opinion of the judges was taken, and their opinion was to the effect that Mrs. Keating was entitled to succeed in her claim.
Held: Her claim succeeded.

Citations:

[1834] EngR 879, (1834) 1 Bing NC 198, (1834) 131 ER 1094

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See alsoWilliam Marsh, Josias Henry Stracey, And George Edward Graham v Ann Keating 1833
. .

Cited by:

CitedLipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 14 May 2022; Ref: scu.259439

Ministry of Health v Simpson; In re Diplock dec: HL 1950

The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an estate.
Lord Simonds was clear that the principles with which he was dealing related to the administration of assets of a deceased person, and: ‘The broad fact remains that the Court of Chancery in order to mitigate the rigour of the common law or to supply its deficiencies established the rule of equity which I have described and this rule did not excuse the wrongly paid legatee from repayment because he had spent what he had been wrongly paid.’
Lord Simonds did not accept that a claim should not lie against a person who had received a legacy in good faith and then spent it, without knowledge of any flaw in his title: ‘My Lords, I find little help in such generalities. Upon the propriety of a legatee refusing to repay to the true owner the money that he has wrongly received I do not think it necessary to express any judgment. It is a matter on which opinions may well differ. The broad fact remains that the Court of Chancery, in order to mitigate the rigour of the common law or to supply its deficiencies, established the rule of equity which I have described and this rule did not excuse the wrongly paid legatee from repayment because he had spent what he had been wrongly paid. No doubt the plaintiff might by his conduct and particularly by laches have raised some equity against himself; but if he had not done so, he was entitled to be repaid. In the present case the respondents have done nothing to bar them in equity from asserting their rights. They can only be defeated if they are barred at law by some Statute of Limitations.’

Judges:

Simonds L

Citations:

[1951] AC 251, (1950) 2 All ER 1137

Jurisdiction:

England and Wales

Citing:

Appeal fromIn re Diplock’s estate CA 1948
After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were . .

Cited by:

CitedLipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
MentionedGomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .
CitedGreen and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 14 May 2022; Ref: scu.259533

United Motor Service v Tropic-aire: 1932

(Court of Appeals for the 8th Circuit USA) The defendant said that he had suffered greater damage than the amount set down in a bond provided for security when the plaintiff requested an interim injunction. The action had failed.
Held: Judge Kenyon said: ‘Restitution of the amount received under a decree, afterwards reversed, will be ordered in equity, and will sustain an action at law. But the condition of the restoration is always that the party against whom restitution is sought shall have received, by virtue of the decree, what he is asked to restore. There is no support in reason or authority for an extension of the doctrine of restitution to cover an award of damages, which the restorer never received, and so in no true sense could restore.’
‘There is nothing certain as to the amount of damages suffered by defendant by reason of the improvident granting of the preliminary injunction. Nothing was taken from it by the injunction and given to the plaintiff. We see no room for the application of the doctrine of restitution here.’

Judges:

Judge Kenyon

Citations:

(1932) 57 F 2d 479

Jurisdiction:

United States

Cited by:

CitedSmithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Equity

Updated: 14 May 2022; Ref: scu.242621

In re Condon, Ex parte James: 1874

The Trustee in bankruptcy has relevant duties as the Trustee as an officer of the Court. Such a Trustee would not engage in conduct which could be seen to involve an unfair use of that position, and ‘where it would be unfair’ for a trustee in bankruptcy ‘to take full advantage of his legal rights as such, the court will order him not to do so’. The court will permit a mistake of law rule to be invoked to prevent repayment of sums paid under an error of law to or by a trustee in bankruptcy as an officer of the court.

Citations:

(1874) LR 9 Ch App 609, [1874-80] All ER 388

Jurisdiction:

England and Wales

Cited by:

CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
CitedIn re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .
CitedIn re Multi Guarantee Ltd CA 1987
Nourse LJ said of the Condon Case: ‘The principle of cases such as those is that the court will direct a trustee in bankruptcy not to insist on his full legal rights if it would be unacceptable for him to do so. The principle is subject to . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency

Updated: 14 May 2022; Ref: scu.236545

Henderson v Folkestone Waterworks Co: 1885

The plaintiff had paid water rates to the defendant calculated in accordance with the law as it was held to be by the Court of Appeal. After payment, the House of Lords in the Dobbs case changed the law, and if calculated under the changed law the plaintiff had overpaid, and he sought to recover the overpayments on the ground that he had paid under compulsion and under a mistake of law.
Held: The Court accepted that if both compulsion and mistake of law were present, the overpayment could be recovered. Counsel having submitted that the payments had been made in ignorance of the law, Lord Coleridge CJ said: ‘Of what law? I was ignorant of it before the decision of the House of Lords. I had held to the contrary, and two eminent judges agreed with me. Can that be put as ignorance of law? Just see what consequences would follow–that wherever there has been a reversal of judgment all the money that has been paid under the previous notion of the law can be recovered back! Has that ever been held? Can it be that every reversal of a decision may give rise to hundreds of actions to recover back money previously paid?’ Lord Coleridge dismissed the plaintiff’s claim on the grounds both that there was no element of compulsion in the payment and that there was no relevant mistake of law, saying: ‘But here at the time the money was paid, which was before Dobbs case, the law was in favour of the company, and there was no authority to show that it could be recovered back on account of a judicial decision reversing the former understanding of the law.’

Judges:

Lord Coleridge CJ

Citations:

(1885) 1 TLR 329

Cited by:

CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 14 May 2022; Ref: scu.236526

In re Roberts: 1905

A compromise made under a mistake of law can be set aside.

Citations:

[1905] 1 Ch 704

Cited by:

CitedDerrick v Williams CA 1939
The plaintiff had accepted a payment into court on a basis that a Court of Appeal decision declared the law in a form which precluded the recovery of certain types of damages. Subsequently the House of Lords reversed the Court of Appeal decision and . .
CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 14 May 2022; Ref: scu.236528

Cantor v Cox: 1975

An unmarried couple had lived together, and now disputed its ownership. It had been purchased in the sole name of the woman. The executrix of the will of the woman claimed possession of the house, in which the man was still living. He counterclaimed for a declaration that he was beneficially entitled to it.
Held: The presumption of advancement does not apply as between an unmarried couple living together as husband and wife, where the claimant cannot be heard or allowed to assert his claim to an equitable interest. ‘Here the legal estate was in the testatrix, and the defendant came to the court seeking equitable relief. The equitable presumption of a resulting trust which arose where the purchase-money was provided by someone other than the person taking the legal estate was always rebuttable by evidence of actual intention. The evidence in this case was perfectly plain. The defendant put the house into the name of the testatrix in order to be out of reach of his creditors.’

Judges:

Plowman V-C

Citations:

(1975) 239 EG 121

Jurisdiction:

England and Wales

Citing:

CitedMuckleston v Brown 8-May-1801
‘Let the estate lie where it falls.’ . .

Cited by:

CitedLowson v Coombes CA 26-Nov-1998
A house was purchased by an unmarried couple to live together, but conveyed into the female partner’s sole name. Her partner was still married, and she feared that on his death his wife would inherit.
Held: ‘the case being one of illegality, I . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 13 May 2022; Ref: scu.236575

Lowson v Coombes: CA 26 Nov 1998

A house was purchased by an unmarried couple to live together, but conveyed into the female partner’s sole name. Her partner was still married, and she feared that on his death his wife would inherit.
Held: ‘the case being one of illegality, I am of the opinion that the defendant holds one half of the beneficial interest in 1 Queenswood Road on a resulting trust for the plaintiff. ‘

Judges:

Nourse LJ, Henry LJ, Walker LJ

Citations:

Times 02-Dec-1998, Gazette 03-Jun-1999, [1998] EWCA Civ 1849, [1999] 2 WLR 720, [1999] 1 FLR 799, [1999] Fam Law 91, [1999] Ch 373, [1999] 2 FCR 731

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedCantor v Cox 1975
An unmarried couple had lived together, and now disputed its ownership. It had been purchased in the sole name of the woman. The executrix of the will of the woman claimed possession of the house, in which the man was still living. He counterclaimed . .
CitedTinker v Tinker CA 1970
The husband bought a business in Cornwall and a house for his family. At first he intended to buy the house in his own name, but was advised that if the venture failed, the house could be taken by his creditors as part of his business assets. It was . .
CitedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
CitedMuckleston v Brown 8-May-1801
‘Let the estate lie where it falls.’ . .

Cited by:

CitedCollier v Collier CA 30-Jul-2002
Fraudulent Intent Negated Trust
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
CitedSQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
CitedJones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts, Equity

Updated: 13 May 2022; Ref: scu.145328

Collier v Collier: CA 30 Jul 2002

Fraudulent Intent Negated Trust

The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been fearful of a potential substantial liability and it had been done to protect the property against those creditors.
Held: Equity will not permit a transferor of property by way of gift in order to perpetrate a fraud to pray in aid the existence of that illegal purpose in order to rebut a presumption of advancement. ‘the leases ‘were shams as between father and daughter’. The daughter ‘should at most be his nominee and effectively the lease should be available to be used only if required in order to deceive’. He made the grants to the daughter ‘with the intention that if it served his interest he should treat the grants as gifts, but if it did not he would claim that the grant was subject to his beneficial interest.’ The transfers were carried out ‘with the object of defrauding the respective mortgagees of their security’. There had been no voluntary withdrawal from the transaction. To recover the property the father needed to rely upon the agreement which set up the trust. That agreement provided that the trust should be concealed from creditors and the Inland Revenue. The result is that the father cannot dispute the effect of the transfers of the property without relying upon his illegality. The property must lie where it rests. ‘

Judges:

Lord Justice Aldous, Mance LJ

Citations:

[2002] EWCA Civ 1095, [2002] BPIR 1057, [2002] 6 ITELR 270

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoCollier v Kramer CA 1-Apr-2004
Appeal from a refusal to allow an amendment to join further parties to an action by Mr Michael Collier against solicitors . .
CitedSnell v Unity Finance Company Ltd CA 1964
The court must not permit itself to be the instrument by which an illegal contract is enforced. Points such as to illegality should be taken by the court irrespective of the wishes of the parties; and if not taken by the judge at trial, should be . .
CitedTinker v Tinker CA 1970
The husband bought a business in Cornwall and a house for his family. At first he intended to buy the house in his own name, but was advised that if the venture failed, the house could be taken by his creditors as part of his business assets. It was . .
CitedMuckleston v Brown 8-May-1801
‘Let the estate lie where it falls.’ . .
CitedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
CitedTribe 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 . .
CitedSnook 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 . .
CitedA G Securities v Vaughan; Antoniades v Villiers and Bridger HL 10-Nov-1988
In Antoniades, the two tenants occupied an attic, living together. Each had at the same time signed identical agreements purporting to create licences. The landlord had reserved to himself the right to occupy the property and to allow others to . .
MentionedHolman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
CitedChettiar v Chettiar PC 14-Feb-1962
(Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .
CitedGissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
CitedLowson v Coombes CA 26-Nov-1998
A house was purchased by an unmarried couple to live together, but conveyed into the female partner’s sole name. Her partner was still married, and she feared that on his death his wife would inherit.
Held: ‘the case being one of illegality, I . .

Cited by:

CitedLavelle v Lavelle and others CA 11-Feb-2004
Property had been purchased in the name of of the appellant by her father. She appealed a finding that the presumption of advancement had been rebutted.
Held: The appeal failed. The presumption against advancement had been rebutted on the . .
CitedLavelle v Lavelle and others CA 11-Feb-2004
Property had been purchased in the name of of the appellant by her father. She appealed a finding that the presumption of advancement had been rebutted.
Held: The appeal failed. The presumption against advancement had been rebutted on the . .
See AlsoCollier v Kramer CA 1-Apr-2004
Appeal from a refusal to allow an amendment to join further parties to an action by Mr Michael Collier against solicitors . .
CitedSQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
CitedPatel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Leading Case

Updated: 13 May 2022; Ref: scu.175225

Shearer and Others v Spring Capital Ltd and Others: ChD 4 Nov 2013

The court considered various applications for interim orders and directions in the cause.

Judges:

Danel Alexander QC

Citations:

[2013] EWHC 3373 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedThe Earl of Oxford’s Case In Chancery ChD 1615
Chancellor may relieve common law oppression
The claim was made under a lease. judgement have been entered in default at common law in favour of the plaintiff. the defendant began a suit in the Chancery Court. a common-law injunction was then issued against the original plaintiff, and he was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Equity

Updated: 13 May 2022; Ref: scu.517374

Meinhard v Salmon: 1928

(New York Court of Appeals) Cardozo J said: ‘Equity refuses to confine within the bounds of classified transactions its precept of a loyalty that is undivided and unselfish’ and ‘[a] constructive trust is, then, the remedial device through which preference of self is made subordinate to loyalty to others.’

Judges:

Cardozo J

Citations:

(1928) 164 NE 545

Cited by:

CitedFassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 13 May 2022; Ref: scu.215871

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 service. He nailed the writ on a post and on the courthouse door. Thus, as Johnston had intended all along, Lord Cranstown received no actual notice of the proceedings. Judgment was given by default, the estate was put up for auction to satisfy the judgment, and Johnston, who was the only bidder, acquired the property for the amount of the debt, which was far less than the value of the estate. From beginning to end Johnston uttered no false representation to anyone, nor did he violate any law of the island, nor did he owe any contractual obligation to Lord Cranstown; but he did know that he was going behind Lord Cranstown’s back in getting the estate for a pittance. Lord Cranstown brought suit in England to recover the estate.
Held: Although he would not question the jurisdiction of the foreign court, or the regularity of its proceedings, and although he would not presume that the local laws would set aside the transaction, it was a fraud all the same according to English rules of equity, and that the defendant Johnston must restore the estate upon being repaid the original debt and expenses.

Judges:

Arden MR

Citations:

(1796) 3 Ves 170

Jurisdiction:

England and Wales

Cited by:

CitedR Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
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 . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 13 May 2022; Ref: scu.199521

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 beneficiary: ‘Their Lordships are led to this conclusion by the ordinary rules of justice as between man and man, and the ordinary expectations of mankind in transacting their affairs.’

Judges:

Lord Halsbury LC

Citations:

(1887) 12 App Cas 617

Jurisdiction:

Canada

Cited by:

CitedR Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
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 . .
Lists of cited by and citing cases may be incomplete.

Equity, Banking

Updated: 13 May 2022; Ref: scu.199516

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.

Citations:

[1905] 1 Ch 632

Cited by:

CitedR Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
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 . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 13 May 2022; Ref: scu.199510

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 that, upon the authority of Penn v. Lord Baltimore, which has often been acted upon, the Plaintiff would have been entitled to succeed if he could have proved that the claim for a declaration of the proposed charge or lien on the Maria Anna mine was founded on any contract or privity between him or the deceased [director] and the Defendants, the purchasers of the mine, and if there had not been a suit in the Prussian Courts, in which the same question was raised and had been decided in the Plaintiff’s favour. But I agree in thinking with the Master of the Rolls that the Plaintiff has failed to shew any such contract or privity. Upon the evidence adduced the purchasers of the mine, whom he sues, are to be considered as mere strangers, and any notice which they may have had of the transactions between [the deceased director] and [the old company] (which has now ceased to exist) cannot give this Court jurisdiction to declare the proposed lien or charge on lands in a foreign country. An English Court ought not to pronounce a decree, even in personam, which can have no specific operation without the intervention of a foreign Court, and which in the country where the lands to be charged by it lie would probably be treated as a brutum fulmen. I do not think that the Court of Chancery would give effect to a charge on land in the county of Middlesex so created by a Prussian Court sitting as Dusseldorf or Cologne. But another objection is lis alibi pendens, a suit pending before the proper tribunal in Prussia, and that by this tribunal, a decree has actually been pronounced in favour of the Plaintiff, giving him what he seeks . . We must suppose that the Court at Dusseldorf has ample means to enforce the whole of its decree, and that the Plaintiff will have the full benefit of that decree, which may be considered as creating a debt for which the opposite parties are personally liable and a charge upon the property sold.’

Judges:

Lord Campbell LC

Citations:

(1862) 3 De G.F. and J. 583

Jurisdiction:

England and Wales

Citing:

Appeal fromNorris 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 . .
CitedPenn 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 by:

CitedR Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
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 . .
CitedDeschamps 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 . .
ExplainedMacmillan 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 . .
Lists of cited by and citing cases may be incomplete.

Equity, Jurisdiction

Updated: 13 May 2022; Ref: scu.199520

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 title-deeds, including the mortgages to himself. There are undoubtedly cases (as, for example, Waldron v Sloper (1852)1 Drew. 193 and Farrand v Yorkshire Banking Co 40 Ch D 182), where an equitable mortgagee who has allowed his mortgagor to retain or regain possession of the title-deeds has been postponed to a subsequent equitable incumbrancer who has obtained possession of the deeds. But where the relation between the equitable incumbrancer and the person in possession of the title-deeds is not merely that of mortgagee and mortgagor, but is of a fiduciary nature (as, for example, that of cestui que trust and trustee, or client and solicitor), there is a great body of authority to show that the equitable incumbrancer is not to be deprived of his priority by reason of the improper acts of the person entrusted with the deeds, so long, at all events, as the incumbrancer has no ground to suppose that there has been any want of good faith on the part of the custodian of the deeds.
The leading authorities on this point appear to be Cory v Eyre (1863)1 DJ and s149, Shropshire Union Railways and Canal Co. v Reg. (1875) LR 7 HL 496, and In re Vemon, Ewens and Co (1886) 33 Ch D 402, before the Court of Appeal.’
Fry LJ said: ‘A distinction is to be drawn between two sets of circumstances, which at first sight look very similar. One class is where a mortgagee knows that the mortgagor has not fulfilled his obligations, and yet does nothing. The other is where the mortgagee does not know that the mortgagor has failed to fulfil his obligations, but knows only that there are obligations which he may in the future fail to fulfil, and yet takes no precautions against the consequences of his doing so. Instances of the first class are cases where the mortgagee, knowing that the mortgagor has the title deeds, neither receives them nor demands them from the mortgagor, or where the mortgagor has received them from the mortgagee for a particular purpose and does not return them when he ought to do. Layard v Maud Law Rep 4 Eq 397 is a case of this class. There was an agreement which bound the mortgagor to execute a mortgage and hand over the deeds in six months, and the mortgagee allowed eighteen months to elapse after the expiration of that period without making any inquiry. There was, therefore, to the knowledge of the mortgagee a default by the mortgagor in fulfilling his obligations.
The other class of cases is where the mortgagee has taken no precautions against future default by the mortgagor, no default having yet to the knowledge of the mortgagee taken place. I know of no decided case in which the mortgagee has been postponed on the ground that he did not take precautions against a future fraud by the mortgagor; and I do not know of any general rule whi

Judges:

Stirling LJ, Fry LJ

Citations:

[1901] 2 Ch 231

Cited by:

CitedR Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
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 . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 13 May 2022; Ref: scu.199511

Pallant v Morgan: ChD 1952

The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed formula, the details of which were to be agreed later. The defendant’s agent was successful, but when the parties failed to agree on the details of division the defendant retained the whole of the land for himself.
Held: Although the agreement was incomplete in its detail and too uncertain to be specifically enforceable, the defendant held the land on trust for himself and the plaintiff jointly, since his agent had made the bid on behalf of himself and the plaintiff’s agent on the basis of an agreement for division and it would amount to sanctioning a fraud on the defendant’s part to allow him to retain it.
Harman J said: ‘The plaintiff and the defendant have failed to agree on a division, and the court cannot compel them to agree. The best it can do is to decree that the property is held by the defendant for himself and the plaintiff jointly, and if they still fail to agree on a division the property must be resold, either party being at liberty to bid, and the proceeds of sale divided equally after repaying to the defendant the andpound;1,000 which he paid.’

Judges:

Harman J

Citations:

[1953] Ch 43, [1952] 2 All ER 951

Jurisdiction:

England and Wales

Cited by:

ExaminedBanner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
CitedThames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited ChD 16-Dec-2003
The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .
CitedLondon and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .
CitedKilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
CitedParagon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
CitedSainsbury’s Supermarkets Ltd v Olympia Homes Limited, Hughes etc ChD 17-Jun-2005
The claimant sought rectification of the land register. In a development deal, an option agreement had not been registered, and the land sold on. The land was required to allow the building of a roundabout necessary for the intended store. An . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
CitedKilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd and Another CA 16-Nov-2005
The defendant had brought in the claimant in order to assist in satisfying its own obligations under a lease. The joint venture was not recorded in a formal agreement. The appellant asserted that a constructive trust had been created. The judge had . .
CitedClarke and Another v Corless and Another ChD 8-Jul-2009
The parties disputed whether one could retain for his own benefit land on an estate reserved for an estate road. A trust was claimed under Pallant saying that the parties had made an informal agreement before the property was purchased.
Held: . .
CitedClarke and Another v Corless and Another CA 31-Mar-2010
The claimants appealed against refusal of a declaration that a neighbouring access road and land was held on a constructive trust. They said that an agreement bewteeen the parties should have been effective to impose a trust on the defendants. The . .
CitedBenedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
CitedBenedetti and Another v Sawiris and Others ChD 15-Jun-2009
The claimant sought payment for his services to the defendants for his work in facilitating a substantial buy out of an Italian energy company.
Held: The claim succeeded on a quantum meruit basis to the extent of 75m euros but not otherwise. . .
CitedGenerator Developments Ltd v Lidl UK Gmbh CA 8-Mar-2018
Generator appealed from a refusal of an equitable interest in land acquired by the responent . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 13 May 2022; Ref: scu.195993

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 invalidated by a previous attachment of the property by a creditor.
Held: The Ghana Bank was entitled to be subrogated to the equitable mortgage which had been paid off. ‘It is not open to doubt that where a third party pays off a mortgage he is presumed, unless the contrary appears, to intend that the mortgage shall be kept alive for his own benefit.’

Judges:

Lord Jenkins

Citations:

[1960] AC 732

Jurisdiction:

Commonwealth

Citing:

CitedButler 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 by:

CitedUCB 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 . .
CitedBoscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 13 May 2022; Ref: scu.190508

National Provincial and Union Bank of England v Charnley: 1924

The court considered the general principles of equitable charges: ‘The first question that arises is whether or not this document does create a mortgage or charge, and to determine that it is necessary to form an idea of what is meant by ‘charge’. It is not necessary to give a formal definition of a charge, but I think there can be no doubt that where in a transaction for value both parties evince an intention that property, existing or future, shall be made available as security for the payment of a debt, and that the creditor shall have a present right to have it made available, there is a charge, even though the present legal right which is contemplated can only be enforced at some future date, and though the creditor gets no legal right of property, either absolute or special, or any legal right to possession, but only gets a right to have the security made available by an order of the Court. If those conditions exist I think there is a charge. If, on the other hand, the parties do not intend that there should be a present right to have the security made available, but only that there should be a right in the future by agreement, such as a licence, to seize the goods, there will be no charge.’

Judges:

Atkin LJ

Citations:

[1924] 1 KB 431

Jurisdiction:

England and Wales

Cited by:

CitedOldham and others v Georgina Kyrris and Another CA 4-Nov-2003
The claimant sought to bring a claim against the administrators of a partnership alleging a duty of care to creditors.
Held: Such an administrator owed no greater duty to creditors than would a director. That duty was no different whether the . .
Lists of cited by and citing cases may be incomplete.

Equity, Land

Updated: 12 May 2022; Ref: scu.190143

Kingsnorth Finance Co Ltd v Tizard: ChD 1986

The marriage between the defendants had broken down, but the wife still visited the house regularly, staying and caring for the children when the husband was away. The house was held in his sole name. He charged it to the plaintiffs, who now sought possession. The wife asserted an equitable interest, as a person in possession.
Held: The husband had concealed her presence from the lender at the time of the charge. Nevertheless, occupation under the section did not have to be exclusive or continuous. It was not negatived by repeated or even regular absences. The wife was in the house almost every day. The presence of the children should have put the surveyor on inquiry, and knowledge of her presence was to be imputed to the lender who therefore took their charge subject to her rights. Once the surveyor came to be aware that the husband was married, he was under a duty to make appropriate enquiries. The husband’s attempts to hide her could not be used by the bank to defeat her claim. What would be reasonable enquiries will depend on the circumstances. The court attempted to equate inquiry in unregistered conveyancing with that expected in registered conveyancing as a result of the decision in Boland.

Judges:

Finlay QC

Citations:

[1986] 2 All ER 559, [1986] 1 WLR 783

Statutes:

Law of Property Act 1925 199(1)(ii)(a)

Jurisdiction:

England and Wales

Citing:

AppliedWilliams and Glyn’s Bank Ltd v Boland HL 19-Jun-1980
Wife in Occupation had Overriding Interest
The wife had made a substantial financial contribution to the purchase price of the house which was registered only in her husband’s name, and charged to the bank. The bank sought possession. The wife resisted saying that she had an overriding . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 12 May 2022; Ref: scu.189988

Coulter v Chief Constable of Dorset Police: ChD 12 Dec 2003

The claimant had failed in an action for damages against the respondent, and had failed to pay the costs award. The respondent issued a statutory demand. He claimed that it was invalid because the chief constable had changed in the interim, and there had been no assignment of the benefit of the order.
Held: The office of chief constable was not a corporation, but an office. Some assignment was required. There was no statutory assignment, but there had been an equitable one. An equitable assignment need take no particular form: ‘All that is needed is a sufficient expression of an intention to assign’. Equity would treat as done that which ought to have been done.

Citations:

Times 24-Dec-2003, [2003] EWHC 3391, [2004] 1 WLR 1425

Statutes:

Insolvency Rules 1986 (1986 No 1925) 6.1

Jurisdiction:

England and Wales

Citing:

CitedAttorney-General for New South Wales v Perpetual Trustee Co Ltd PC 14-Mar-1955
(Australia) The Crown could not recover damages for the loss of the services of a police constable as the result of injuries caused by the negligence of a third person. A chief constable was an office held under the Crown, and the usual relationship . .

Cited by:

Appeal fromCoulter 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.
See AlsoCoulter v Chief Constable of Dorset Police CA 13-Jul-2005
An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
Lists of cited by and citing cases may be incomplete.

Police, Insolvency, Equity

Updated: 12 May 2022; Ref: scu.189946

Sutton v Sutton: 1984

The husband and his wife agreed that in consideration, inter alia, of the wife consenting to the husband divorcing her on the ground of two years’ separation and consent, he would transfer the matrimonial home to her, and she would take over responsibility for the mortgage. A decree absolute was made on the husband’s petition but he then refused to carry out his part of the bargain.
Held: If the agreement was enforceable as a contract, it would leave nothing for the court to do under sections 23 and 24 of the 1973 Act which give the court power to order maintenance and make property adjustments because the agreement pre-judged and foreclosed all financial questions. The wife’s consent to the divorce as agreed was an act of part performance, being an act referable to the contract. ‘her consent to the petition was in itself, in the circumstances, tied to the contract about the house’. The husband ‘stood by and let her perform that part of her bargain irretrievably, and that raised an equity’ in her favour.

Judges:

John Mowbray QC

Citations:

[1984] Ch 184

Statutes:

Matrimonial Causes Act 1973 1(2)(d) 23 24

Jurisdiction:

England and Wales

Citing:

CitedEdgar v Edgar CA 23-Jul-1980
H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, . .
CitedHyman v Hyman 1929
The husband had left the wife for another woman. Adultery by the husband was not a ground for divorce absent aggravating circumstances, such as incest. The parties had entered into a deed of separation under which the husband had paid two lump sums . .

Cited by:

CitedCommerzbank Ag v Price-Jones CA 21-Nov-2003
The respondent had received a bonus of andpound;250,000. His employers wrote to him in error increasing it. He later chose to stay rather than take redundancy because he now expected the full amount. He resisted an order for restitution. The . .
CitedSoulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Lists of cited by and citing cases may be incomplete.

Family, Equity

Updated: 12 May 2022; Ref: scu.188271

Meftah v Lloyd’s TSB Bank Plc: 2001

A short delay in the sale of a property by a mortgagee was appropriate to allow proper advertising of a property.

Citations:

[2001] 2 All ER (Comm) 741

Jurisdiction:

England and Wales

Cited by:

CitedDen Norske Bank Asa v Acemex Management Company Ltd CA 7-Nov-2003
Money had been loaned for the purchase of three ships,and mortgages over the ships had been given given. The borrowers were in default, and the lender sought to arrest the vessels. The defendant argued that the way the arrest had been undertaken . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 12 May 2022; Ref: scu.187672

Boustany v Piggott: PC 1995

In discussing what was said to be unconscionable contract, the Board accepted that ‘It is not sufficient to attract the jurisdiction of equity to prove that a bargain is hard, unreasonable or foolish; it must be proved to be unconscionable, in the sense that ‘one of the parties to it has imposed the objectionable terms in a morally reprehensible manner, that is to say in a way which affects his conscience’

Judges:

Lord Templeman

Citations:

[1995] 69 PandCR 298

Citing:

CitedAlec Lobb (Garages) Ltd v Total Oil Ltd QBD 1983
To establish that a contract was unconscionable, a party had to have made an unconscientious use of its superior position or superior bargaining power to the detriment of someone suffering from some special disability or disadvantage. This weakness . .
CitedAlec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .

Cited by:

CitedChagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
CitedPortman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 12 May 2022; Ref: scu.186677

Lady Hood of Avalon v Mackinnon: 1909

Lady Hood made an appointment in favour of her elder daughter, in order to place her in the same position as her younger daughter to whom she had already made large appointments. But in doing so she (and her solicitor) had forgotten that she had, several years before, made a large appointment to the elder daughter on her marriage.
Held: the appointment to the elder daughter would be rescinded because Lady Hood, intending only to bring about equality between her daughters, was labouring under a mistake, since the effect of the appointment ‘was to bring about that which Lady Hood never intended and never contemplated.’

Judges:

Eve J

Citations:

[1909] 1 Ch 476

Cited by:

CitedAMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
CitedFender (Administrator of FG Collier and Sons Ltd) v National Westminster Bank Plc ChD 26-Sep-2008
The administrator sought declarations as to whether to treat the bank as a secured or unsecured creditor.
Held: The court directed the Administrator to recognise the Bank as a secured creditor, as if the Deed of Release had never been . .
CitedPitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 12 May 2022; Ref: scu.184587

Grand Metropolitan plc v Wm Hill Group Ltd: 1997

The court considered the standard of evidence required to allow rectification of a document.

Citations:

[1997] 1 BCLC 390

Jurisdiction:

England and Wales

Cited by:

CitedAMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 12 May 2022; Ref: scu.184573

Whiteside v Whiteside: CA 1950

The husband had executed a deed in favour of his former wife after dissolution of their marriage covenanting to pay a specified sum per annum free of income tax up to but not exceeding a stated amount. This provision was in substitution for one drafted by the wife’s solicitors that provided for the payment of such an amount that after the deduction of income tax not exceeding the stated amount would represent the specified sum. The husband sought rectification to restore the deed to the terms of the draft. After the proceedings had been commenced but before the matter came before the Court, the parties executed a supplemental deed rectifying the error so that as between themselves the deed then took the form, and was thereafter to be treated as having always taken the form, that the obligation was to pay such an amount as, after deduction of tax, would leave the specified sum per annum.
Held: Without a dispute between the parties, rectification was refused. Rectification may be available where a document contains the very wording that it was intended to contain, but where it has in law or as a matter of true construction an effect or meaning different from that which was intended. The jurisdiction to rectify documents is one which is ‘cautiously watched and jealously guarded’.
Evershed MR commented on a passage from Kerr on Fraud and Mistake, 6th ed, at 620: ‘The passage is this: ‘Though the court will rectify an instrument which fails through some mistake of the draftsman in point of law to carry out the real agreement between the parties, it is not sufficient in order to create an equity for rectification that there has been a mistake as to the legal construction or the legal consequences of an instrument.’ I do not read that passage as meaning that if the mistake made is in using language to perfect an agreement which in law has some result different from the common intention, that is not a case in which there can be rectification. I do not read the passage as so stating, and I think, as at present advised, that if it did it would be too wide. I think it may well be that if the mistake has arisen from the legal effect of the language used that may provide a ground for the exercise of the court’s reforming power. Subject however to that qualification, I think that the passage cited is correct’

Judges:

Lord Evereshed MR

Citations:

[1950] Ch 65

Jurisdiction:

England and Wales

Cited by:

CitedAMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
CitedOun 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 . .
CitedAshcroft 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 . .
CitedGibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 12 May 2022; Ref: scu.184585

Macedo v Stroud: PC 1922

(Trinidad) The donor purported to give real property (in part) by memorandum which was not registered. Under the law of Trinidad the transfer did not pass any estate or interest in the land. The donor delivered the instrument to his solicitor telling him to keep the document and not to register it. The document accordingly remained in the solicitor’s custody unregistered until the death of the donor, who during his life continued to receive the rents. The judge found that the instrument was intended to operate as an immediate and unconditional gift to the donee.
Held: The memorandum not having been registered nor delivered to the donee for that purpose there was an imperfect gift of the properties with which it dealt to which equity could not give effect: ‘The memorandum of transfer was never made the subject of registration, nor did the donor present it, or hand it to the transferee, for that purpose. It therefore, having regard to the terms of the ordinance, transferred no estate or interest either at law or in equity. At the most it amounted to an incomplete instrument which was not binding for want of consideration. Had it been in terms a declaration of trust, a Court of equity might have compelled the trustee to carry out the trust, which would have been binding on him, even if voluntary. But it does not purport to be a declaration of trust, or anything else than in inchoate transfer. As such, and as it is voluntary, it is no more than an imperfect gift of which a Court of equity will not compel perfection.’

Citations:

[1922] 2 AC 330

Citing:

CitedMilroy v Lord CA 26-Jul-1862
The donor executed a transfer of 50 shares. The shares were only transferable by entry in the books of the bank. No such transfer was ever made. The defendant had a power of attorney authorising him to transfer the donor’s shares and after the deed . .

Cited by:

CitedPennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land, Equity, Registered Land

Updated: 12 May 2022; Ref: scu.183418

Bank of Victoria Ltd v Mueller: 1925

Cussen J opined that a wife was entitled to relief from a guarantee granted to the bank undertaken under pressure from her husband where amongst other matters it could be shown: ‘that the husband in procuring and pressing for such consent misrepresents in a material respect what is proposed to be the nature of her liability as guarantor, and that, by reason of such misrepresentation, the wife in respect of such matter does not understand the true nature of her liability as expressed in a form of guarantee signed by her.’
Cusen J drew a comparison with equity’s treatment of gifts made by a mistaken donor’ and the ‘long established principles which would preclude enforcement of a guarantee in some cases where the creditor has not disclosed to the intending surety some features of the transaction’.
Cussen J said: ‘In the first place, it is obvious that a large benefit is conferred both on the creditor and the debtor, which, so far as any advantage to the guarantor is concerned, is voluntary, though no doubt ‘consideration’ exists so far as the creditor is concerned, so soon as forebearance is in fact given or advances are in fact made. It is, I think, to some extent by reference to the rule or to an extension of the rule that, in the case of a large voluntary donation, a gift may be set aside in equity if it appears that the donor did not really understand the transaction, that such a guarantee may be treated as voidable as between the husband and wife.’

Judges:

Cussen J

Citations:

[1925] VLR 642

Jurisdiction:

England and Wales

Cited by:

CitedBarclays 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.
Lists of cited by and citing cases may be incomplete.

Banking, Equity, Undue Influence

Updated: 12 May 2022; Ref: scu.180572

Westdeutsche Landesbank Girozentrale v Islington London Borough Council: CA 30 Dec 1993

A bank paid money to a local authority under an interest rate swap agreement, which was held later to be outside the local authority’s powers.
Held: The local authority was to repay the money paid to it for an ultra vires purpose (a swap transaction) with compound interest. It was repayable under the equitable principle of restitution.

Citations:

Gazette 23-Feb-1994, Independent 05-Jan-1994, Times 30-Dec-1993, [1994] 4 All ER 890, [1994] 1 WLR 938

Jurisdiction:

England and Wales

Citing:

Appeal fromWestdeutsche Landesbank Girozentrale v Islington London Borough Council; Kleinwort Benson Ltd v Sandwell Borough Council ChD 23-Feb-1993
A bank, having made payment under an void interest rate swap agreement to a local authority, was entitled to recover the payments made under the equitable doctrine of restitution. It would be wrong to allow the local authorities to enjoy an unjust . .

Cited by:

Appeal fromWestdeutsche Landesbank Girozentrale v Islington London Borough Council HL 22-May-1996
Simple interest only on rate swap damages
The bank had paid money to the local authority under a contract which turned out to be ultra vires and void. The question was whether, in addition to ordering the repayment of the money to the bank on unjust enrichment principles, the court could . .
CitedStretch v West Dorset District Council CA 10-Nov-1997
A local authority has no ability to grant an option to renew a lease, even though it has the power to grant a lease and would benefit from the wrongful grant. The land was held for an express statutory purpose and was not ‘corporate land’ within the . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Lists of cited by and citing cases may be incomplete.

Local Government, Equity

Updated: 11 May 2022; Ref: scu.90408

Akai Holdings Ltd v Kasikornbank PCL: 8 Nov 2010

Court of Final Appeal – Hong Kong – Lord Neuberger of Abbotsbury NPJ said: ‘the notion that equitable compensation is assessed on a somewhat different basis from common law damages is clearly right (albeit that the difference can be overstated)’ and ‘the losses made good are only those which, on a common sense view of causation, were caused by the breach’

Judges:

Chief Justice Ma, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and, Lord Neuberger of Abbotsbury NPJ

Citations:

[2011] 1 HKC 357

Links:

Hklii

Cited by:

CitedAIB 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.

Equity, Damages

Updated: 11 May 2022; Ref: scu.554210

Maguire v Makaronis: 25 Jun 1997

High Court of Australia – Equity – Fiduciary duties – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Ascertainment of particular fiduciary duties.
Equity – Equitable remedies – Rescission – Relevance of causal connection between breach of fiduciary duty and execution of mortgage – Scope of equity for rescission – Whether clients required to ‘do equity’ by honouring contractual obligation to pay principal and interest secured by mortgage – Rate of interest payable on principal sum outstanding under mortgage.
Legal practitioners – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Fiduciary duties – Equitable remedies.
‘In Australia, the measure of compensation in respect of losses sustained by reason of breach of duty by a trustee or other fiduciary is determined by equitable principles and . . these do not necessarily reflect the rules for assessment of damages in tort or contract.’

Judges:

Brennan CJ, Gaudron, McHugh, Gummow, Kirby JJ

Citations:

(1997) 188 CLR 449, [1997] HCA 23, (1997) 144 ALR 729, (1997) 71 ALJR 781

Links:

Austlii

Cited by:

CitedAIB 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.

Commonwealth, Equity, Legal Professions, Damages

Updated: 11 May 2022; Ref: scu.554208

Layard v Maud: 1867

Wood borrowed money from Austen to complete the purchase of an advowson, covenanting that he would within six months complete the purchase and give a legal mortgage to secure the loan. Two years later, Austen not having required the delivery of the title deeds or taken any other steps to perfect his security, Wood completed the purchase and obtained the deeds, and after another four months had passed he deposited the deeds with the defendants as security for a loan. The defendants had no notice of the prior equitable mortgage. Austen had taken no steps to possess himself of the deeds over a long period of time.
Held: Though Malins VC did not found himself on this delay, saying, at 406: ‘I have not a shadow of doubt that where there is merely an equitable mortgage . . ., in every case where the equitable mortgagee either omits to get, or having got, gives up possession of the deeds, he must always be postponed.’
Where two equities are equal, possession of the title deeds gives priority.

Judges:

Malins VC

Citations:

(1867) LR 4 Eq 397

Equity, Land

Updated: 11 May 2022; Ref: scu.554687

KM v HM: 29 Oct 1992

Supreme Court of Canada – Limitation of actions – Torts – Assault and battery – Incest – Woman bringing action against father for damages for incest – Whether or not action limited by Limitations Act – Application of the reasonable discoverability principle – Whether or not incest a separate and distinct tort – Limitations Act, R.S.O. 1980, c. 240, s. 45(1)(j), 47.
Limitation of actions – Equity – Fiduciary relationship – Parent/child – Woman bringing action against father for incest – Whether incest constitutes a breach of fiduciary duty by a parent – Whether limitation period applicable and whether the defence of laches applies.
Limitation of actions – Fraudulent concealment – Incest – Whether a limitation period in an incest action is postponed by defendant’s fraudulent concealment.

Judges:

La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ

Citations:

(1992) 96 DLR (4th) 289, [1992] 3 SCR 6, 14 CCLT (2d) 1, AZ-92111111, EYB 1992-67549, JE 92-1644, [1992] SCJ No 85 (QL), 36 ACWS (3d) 466, 57 OAC 321

Links:

Canlii

Cited by:

CitedAIB 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.

Commonwealth, Limitation, Equity, Trusts

Updated: 11 May 2022; Ref: scu.554205

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

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

Judges:

Edelman J

Citations:

[2014] WASC 102

Links:

Austlii

Cited by:

CitedAIB 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.

Commonwealth, Equity

Updated: 11 May 2022; Ref: scu.553780

Fraser v Thames Television Ltd: QBD 1984

Three actresses, an all girl group called ‘Rock Bottom’ and their composer and manager developed an idea for a television series based on the group and their lives. The television company’s head of drama said she would commission a pilot script. Thames and the claimants would then decide whether to make six episodes. The plaintffs were paid to maintain the idea’s confidentiality until a decision had been made and that they would not until then appear in any competing television programme. The plaintiffs agreed that any eventual series might use different actors.This was all confirmed in a letter by Thames, providing: ‘We write to confirm the understanding between us whereby in consideration of the payment by us to you of the agreed sum of [andpound;500] we shall acquire an option on your services in connection with a possible new series of programmes . . during the period commencing from the date hereof until 31 December 1974. It is understood and agreed that . . Should Thames decide to proceed with the series you will have first refusal in connection therewith but in the event of your deciding against such a project your decision shall in no way jeopardise Thames’ right to undertake the series with three other artistes . . ‘ The time was extended, and Thames decided to make the series under the nake ‘Rock Follies’, the plaintiffs agreeing to take part under the terms of the agreement, but no firm offer of parts was ever made to them. Two series came to be made derived from the idea. The plaintiffs sued in breach of confidence and of contract.
Held: The court rejected the plaintiffs’ argument that, they having exercised their right of first refusal, Thames was not entitled to impose any additional terms in relation to other work by the claimants during the making of the series. Details of the working arrangements clearly remained to be negotiated. However, he did accept their alternative argument ‘that Thames were at this stage obliged to make the girls a contractual offer of parts, in terms not inconsistent with what had been agreed on October 4 and not less favourable than they were prepared to accept . . Mr Strauss is also right in submitting that they would have been obliged to keep such offer open for as long as was reasonable in the circumstances prevailing at the time. Inevitably time would be needed to try to agree the detailed terms of the engagements (involving no doubt some give and take on both sides if any agreement was to be reached). It was at this juncture, after the making of the contractual offer, that I think it was appropriate to settle these details, including any arrangements as to other work.’
A right of first refusal constitutes a right to receive a contractual offer on terms which the party who has granted the right of first refusal is prepared to accept, even though the detailed terms of any contract may require further negotiation and might ultimately not eventuate in a contract at all, and that the grantor of the right of first refusal is obliged to make a contractual offer, even though there is no express covenant to that effect in the term containing the right of first refusal.
As to the extent to which the making of a contractual offer requires the detailed spelling out of the terms of the offer: ‘Mr Harman contended that Thames did in fact make a contractual offer of parts to the three girls by Miss Sadler’s approach to the agents in March and by letters. He argued that a contractual offer did not require any detailed spelling out of the terms. I do not accept these contentions. In my judgment a contractual offer must contain at least the salient terms proposed, including most importantly terms as to remuneration.’

Judges:

Hirst J

Citations:

[1984] QB 44

Jurisdiction:

England and Wales

Citing:

CitedSmith v Morgan ChD 1971
The plaintiff sold property to the defendant, covenanting not to sell a piece of adjoining land without giving the defendant: ‘the first option of purchasing . . at a price to be agreed upon provided that any such offer for sale shall only remain . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Equity

Updated: 11 May 2022; Ref: scu.540358

Metropolitan Bank v Heiron: CA 1880

A claim brought by a company against a director was time-barred: the claim was to recover a bribe paid by a third party to induce the director to influence the company to negotiate a favourable settlement with the third party. The bank failed in its argument that the claim was proprietary.
Brett LJ said that: ‘[n]either at law nor in equity could this sum . . be treated as the money of the company’. However he did consider that, once the company had obtained judgment for the money there could be a trust.
James LJ thought that there was an equitable debt and applied the Limitation Acts by analogy.

Judges:

Brett LJ, Cotton LJ, James LJ

Citations:

(1880) 5 Ex D 319

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
DisapprovedThe Attorney General of Hong Kong v Reid and Reid And Marc Molloy Co PC 1-Nov-1993
(New Zealand) The Board considered the power to recover property owned by a public official found to have taken bribes.
Held: The bribes received by the policeman were held on trust for his principal, and so they could be traced into . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 11 May 2022; Ref: scu.551508

Heynes v Dixon: 1900

Citations:

[1900] 2 Ch 561

Jurisdiction:

England and Wales

Citing:

Dicta appliedSoar v Ashwell CA 1893
Trustees under a will had entrusted the trust fund to a solicitor for investment. The solicitor exercised all of their administrative and investment powers for them and distributed part of the fund invested to the beneficiaries under the will but . .

Cited by:

CitedWilliams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 11 May 2022; Ref: scu.537349

Re Schebsman: CA 1944

The import into commercial law of equitable principles would be inconsistent with the certainty and speed which are the essential requirements for the orderly conduct of business affairs.
Lord Greene MR said: ‘The first question which arises is whether or not the debtor was a trustee for his wife and daughter of the benefit of the undertaking given by the English company in their favour. An examination of the decided cases does, it is true, show that the courts have on occasions adopted what may be called a liberal view on questions of this character, but in the present case I cannot find in the contract anything to justify the conclusion that a trust was intended. It is not legitimate to import into the contract the idea of a trust when the parties have given no indication that such was their intention. To interpret this contract as creating a trust would, in my judgment, be to disregard the dividing line between the case of a trust and the simple case of a contract made between two persons for the benefit of a third.’
du Parcq LJ said: ‘It now remains to consider the question whether, and if so to what extent, the principles of equity affect the position of the parties. It was argued by Mr. Denning that one effect of the agreement of September 20, 1940, was that a trust was thereby created, and that the debtor constituted himself trustee for Mrs. Schebsman of the benefit of the covenant under which payments were to be made to her. Uthwatt J. rejected this contention, and the argument has not satisfied me that he was wrong. It is true that, by the use possibly of unguarded language, a person may create a trust, as Monsieur Jourdain talked prose, without knowing it, but unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case, I think that the court ought not to be astute to discover indications of such an intention.’

Judges:

Lord Greene MR, du Parcq LJ

Citations:

[1944] Ch 83

Cited by:

CitedWilliams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
Lists of cited by and citing cases may be incomplete.

Equity, Commercial

Updated: 11 May 2022; Ref: scu.537034

Wollaston v King: 1869

Rectification for mistake

Citations:

(1869) LR 8 Eq 165

Jurisdiction:

England and Wales

Cited by:

MentionedFutter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 11 May 2022; Ref: scu.509243

Barclays Bank Ltd v TOSG Trust Fund Ltd: CA 1984

Oliver LJ acceded to a submission that the rule better be called the rule against double dividends, for its object was to absolve the liquidator from paying out two dividends on what was essentially the same debt. Because overlapping liabilities resulted from separate and independent contracts with the debtor, the basis of the liability by itself was not determinative of whether the rule applied. Oliver LJ said: ‘The test is in my judgment a much broader one which transcends a close jurisprudential analysis of the persons by and to whom the duties are owed. It is simply whether the two competing claims are, in substance, claims for payment of the same debt twice over . . for the moment I accept [the] broad general proposition that the rule against double proofs in respect of two liabilities of an insolvent debtor is going to apply wherever the existence of one liability is dependant upon and referable only to the liability to the other and where to allow both liabilities to rank independently for dividend would produce injustice to the other unsecured creditors.’
Slade LJ said that the payment of more than one dividend in respect of what was in substance the same debt would give the relevant proving creditors a share of the available assets larger than the share properly attributable to the debt in question.

Judges:

Oliver LJ, Slade LJ

Citations:

[1984] AC 626, [1984] 1 All ER 628, [1984] BCLC 1, [1984] 2 WLR 49

Jurisdiction:

England and Wales

Cited by:

CitedIn re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Equity

Updated: 11 May 2022; Ref: scu.449847

Caffrey v Darby: 1789

As a general rule, executors must get in the property of the testator by all possible remedies.

Citations:

[1789] EngR 325, (1789-1817) 1 Ves Jun Supp 619, (1789) 34 ER 948 (C)

Links:

Commonlii

Cited by:

See AlsoCaffrey v Darby 1801
A fiduciary has a strict duty to account; equity imposes stringent liability on a fiduciary as a deterrent – pour encourager les autres. Lord Eldon LC said: ‘It would be very dangerous, though no fraud could be imputed to the trustees, and no kind . .
Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 11 May 2022; Ref: scu.365956

Don Nuno Alvares Pereira De Mello, Duke Of Cadaval, v Thomas Collins: 27 Apr 1836

Piaintiff being a foreigner, ignorant of the English language, was arrested at Falmouth soon after his first arrival there from abroad, by defendant, for 10,0001. Defendant and plaintiff then signed an agreement, by which, in consideration of 5001. paid by plaintiff to defendant, plaintiff was to be discharged, and not to be again arrested ; and, plaintiff was to put in bail in twelve days; the 5001. was to be ‘as a payment in part of the writ;’ arid both parties were to abide the event of the action ; the agreement contairiing no provision for refunding the money if the action ahould fail. Plaintiff paid the 500l and was released. No bail was put in ; and the writ was afterwards set aside for irregularity. Plaintiff then sued defendant for the 5001. as money had and received ; and the jury found that defendant knew that he had no claim upori plaintiff: Held, that the action lay, the payment having beeri made under the compulsioti of colourable legal process.

Citations:

[1836] EngR 632, (1836) 4 Ad and E 858, (1836) 111 ER 1006

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedJohn Ruskin College v Harley QBD 26-Nov-2013
A sum had been paid into court in 1997. Other sums were paid out, but this sum was left against costs liability. It was discovered much laterand paid out to the claimant. The former defendant now said that it had been paid out twice, and alleged . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 11 May 2022; Ref: scu.314964

Tasker v Small: 3 Jun 1836

The words in a Settlement to raise Money by ‘Mortgage, Annuity or otherwise,’ authorises a Sale of a reversionary Estate.
Lord Cottenham LC said that the rule by which a purchaser becomes in equity the owner of the property sold ‘applies only as between the parties to the contract, and cannot be extended so as to affect the interests of others.’

Judges:

Lord Cottenham LC

Citations:

[1836] EngR 780, (1836) Donn Eq 82, (1836) 47 ER 241 (B)

Links:

Commonlii

Cited by:

Appeal fromTasker v Small And Matilda, His Wife, Charles S Ashford, B R Baker, Thomas Mann, Thomas Phillips, Joseph Wakeford, Thomas Hawkins, And Sarah Baker 18-Nov-1837
One Defendant appeals. Order made thereupon dismissing bll upon grounds equally applicable to other Defendants who did not join in the appeal. Such other defendants can have no benefit of such order, although it renders the decree useless. . .
CitedScott 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 . .
CitedInland Revenue Commissioners v G Angus and Co CA 1889
Lord Esher MR rejected an argument that a specifically enforceable contract or agreement for the sale of land is in truth a conveyance: ‘And it is said that, when an agreement is such that equity will grant specific performance of it, it is to be . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 11 May 2022; Ref: scu.315112

The Bank of London v Tyrrell: CA 30 Jun 1859

A solicitor is accountable to his clients for the benefits which he may have derived clandestinely in transactions in which he was professionally engaged.
A solicitor was active in founding a banking company. Before its establishment he entered into a secret arrangement with a stranger, that the, latter should purchase some property eligible for the banking house on a joint speculation. After its establishment the company purchased part of the premises for their banking house, not knowing that their solicitor was interested in it. Held, that the solicitor must
account to the company for all the profit made by him by the whole transaction ; but that the stranger was under no such liability.
Sir John Romilly MR said that the solicitor had held on trust for the client both (i) his interest in (and therefore his subsequent share of the proceeds of sale of) the Hall, and (ii) with ‘very considerable hesitation’, his interest in the adjoining land

Judges:

Sir John Romilly MR

Citations:

[1859] EngR 789, (1859) 27 Beav 273, (1859) 54 ER 107

Links:

Commonlii

Cited by:

Appeal fromTyrrell v The Bank Of London And Sir J v Shelley And Others HL 27-Feb-1862
A solicitor retained to act for a company in the course of formation secretly arranged to benefit from his prospective client’s anticipated acquisition of a building called the ‘Hall of Commerce’ by obtaining from the owner a 50% beneficial interest . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Equity

Updated: 11 May 2022; Ref: scu.288141

William Lacey (Hounslow) Ltd v Davis: 1957

The builder tendered for work, apparently not on the basis that the tender might or might not be accepted but so that the owner could use the tender for what was described as ‘some extraneous or collateral purpose’, for negotiating a claim for compensation for war damage.
Held: The builder had done work at the request and for the benefit for the owner. That work was outside the ambit of the contract which they thought might be made. The builder had not charged for that work only because it thought that it would be recompensed when it got the contract. The accepted juridical basis of a work and labour done claim is the existence of an obligation implied by or arising at law to pay reasonable remuneration for work done which is freely accepted: ‘In its early history (quantum meruit) was no doubt, a genuine action in contract, based on a real promise to pay, although that promise had not been expressed in words and the amount of the payment had not been agreed. Subsequent developments have however, considerably widened the scope of this form of action and in many cases the action is now founded on what is known as ‘quasi-contract’, similar in some ways to the action for money had and received. In these quasi-contractual cases the court will look at the true facts and ascertain from them whether or not a promise to pay should be implied irrespective of the actual views or intentions of the parties at the time when the work was done or the services rendered’.

Judges:

Barry J

Citations:

[1957] 1 WLR 932, [1957] 2 All ER 712

Jurisdiction:

England and Wales

Cited by:

CitedCountrywide Communications Limited v ICL Pathway Ltd 1996
The court considered the authorities bearing on the question of whether or not a claim under a quantum meruit can successfully be made for work done in anticipation of a contract which does not materialise. Strauss J concluded: ‘I have found it . .
MentionedMSM Consulting Ltd v United Republic of Tanzania QBD 30-Jan-2009
The claimants sought commission or a quantum meruit for the part they had taken in finding a suitable site for the defendant’s High Commission in London.
Held: The works undertaken were consistent with the claimant seeking work from the . .
CitedD and K Drost Consult Gmbh and Another v Foremost Leisure (Holdings) Ltd CA 12-Feb-2015
The parties had embarked on works despite having failed to take negotiations to a conclused contract. The claimant sought payment under a quantum meruit for services provided. . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 11 May 2022; Ref: scu.280269

Norwich Union Life Insurance Society v Qureshi and Another; Aldrich and Others v Norwich Union Life Insurance Co Ltd: CA 13 Aug 1999

The provider of endowment insurance, has a duty of utmost good faith to an insured, but need disclose only matters which are material to the risk. Such facts need not include every fact which might affect the decision to enter into any contract collateral to the insurance contract. Duties under the Financial Services Act did not extend this duty.

Citations:

Times 13-Aug-1999

Statutes:

Financial Services Act 1986 47

Jurisdiction:

England and Wales

Financial Services, Equity, Insurance

Updated: 11 May 2022; Ref: scu.84363

Morgan Guaranty Trust Co of New York v Lothian Regional Council: IHCS 19 Jan 1995

Money paid under error in law is repayable according to equity, and without statutory authority on the ground of unjustified enrichment.

Judges:

Lord Hope of Craighead

Citations:

Times 19-Jan-1995, 1995 SLT 299, 1995 SC 151

Jurisdiction:

Scotland

Cited by:

CitedMcDowall v Inland Revenue SCIT 26-Jun-2003
Gifts had been made from an estate, purportedly under a power of attorney. During his lifetime, the deceased had made various gifts to his children. As he begand to suffer Alzheimers, he gave a power of attorney. He had substantial assets, well . .
CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 11 May 2022; Ref: scu.83831

Heinl and Others v Jyske Bank (Gibraltar) Ltd: CA 8 Sep 1999

Where a party had in fact assisted another in a fraudulent act in breach of trust, that party was not to be held liable in equity on the basis that objectively he should have known that the acts assisted were fraudulent, but the test is rather subjective. It must be established that he acted with the actual knowledge that a fraudulent act was being perpetrated.

Judges:

Nourse LJ, Sedley LJ, Colman J

Citations:

Gazette 08-Sep-1999, Times 28-Sep-1999, [1999] 1 Lloyds Rep Banking 511

Jurisdiction:

England and Wales

Cited by:

CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 10 May 2022; Ref: scu.81307

Filross Securities Ltd v Midgley: CA 29 Jul 1998

After landlord’s claim for service charge struck out for want of prosecution, and tenant continued with amended counterclaim, Landlord’s revival of his claim by way of set off was an equitable claim and was outside the rules of the Limitation Acts.

Citations:

Gazette 29-Jul-1998

Statutes:

Limitation Act 1980 36(2)

Jurisdiction:

England and Wales

Equity

Updated: 10 May 2022; Ref: scu.80523

Fisher v Wychavon District Council: CA 30 Nov 2000

A planning permission was given, with several references to it being temporary. Nevertheless no reference was made to the extent in time of the permission. Despite this, an application to remove the references to temporary status and to upgrade it to permanent was refused. There appears to be no power in equity to rectify a unilateral transaction consisting of a notification of a planning consent, even if it might be available for other unilateral acts. The notice was clearly intended to be temporary.

Citations:

Times 22-Nov-2000, Gazette 30-Nov-2000, Gazette 23-Nov-2000

Jurisdiction:

England and Wales

Planning, Equity

Updated: 10 May 2022; Ref: scu.80576

Collinge v Lee and Another: CA 26 Oct 2000

Where land had been registered in the name of a transferee as a result of a fraud and where there had been no consideration and it had been in breach of a fiduciary duty, the owners retained an overriding interest under the act, and the transferee held the land as trustee for the defrauded party. The fraudulent transfer did transfer the legal title, but not any equitable title. The legal title was at all times capable of being set aside, but that was not the limit of the applicants’ rights.

Citations:

Times 26-Oct-2000, Gazette 02-Nov-2000, Gazette 09-Nov-2000

Statutes:

Land Registration Act 1925 70

Jurisdiction:

England and Wales

Registered Land, Equity

Updated: 10 May 2022; Ref: scu.79276

Maxwell v Maxwell: 1852

The court rejected a request to apply the doctine of election despite evidence that the testator might have disapproved of the result.

Citations:

(1852) 2 De G M and G 705

Jurisdiction:

England and Wales

Cited by:

CitedFrear v Frear and Another CA 2-Dec-2008
Claim for interest in land
The claimant asserted an interest in the house in his mother’s estate and claimed against the personal representatives. He had lived in the house with his mother. He had previously assisted in the purchase of an earlier family home after being . .
Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 10 May 2022; Ref: scu.278401

Caffrey v Darby: 1801

A fiduciary has a strict duty to account; equity imposes stringent liability on a fiduciary as a deterrent – pour encourager les autres. Lord Eldon LC said: ‘It would be very dangerous, though no fraud could be imputed to the trustees, and no kind of interest or benefit to themselves was looked to, to lay down this principle; that trustees might without any responsibility act, as these did: in eight years, within which time the whole money ought to have been paid, receiving only andpound;250; and taking no step as to the remainder. It would be an encouragement to bad motives; and it may be impossible to detect undue motives. If we get the length of neglect in not recovering this money by taking possession of the property, will they be relieved from that by the circumstance, that the loss has ultimately happened by something, that is not a direct and immediate consequence of their negligence: viz. the decision of a doubtful question of law? Even supposing they are right in saying, this was a very doubtful question, and they could not look to the possibility of its being so decided, yet, if they have been already guilty of negligence, they must be responsible for any loss in any way to that property: for whatever may be the immediate cause, the property would not have been in a situation to sustain that loss, if it had not been for their negligence. If they had taken possession of the property, it would not have been in his possession. If the loss had happened by fire, lightning, or any other accident, that would not be an excuse for them, if guilty of previous negligence. That was their fault.’

Judges:

Lord Eldon LC

Citations:

31 ER 1159, (1801) 6 Ves 488, [1775-1802] All ER Rep 507, [1801] EngR 484, (1801) 6 Ves Jun 488, (1801) 31 ER 1159

Links:

Commonlii

Citing:

See AlsoCaffrey v Darby 1789
As a general rule, executors must get in the property of the testator by all possible remedies. . .

Cited by:

CitedDevenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
CitedAIB 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.

Trusts, Equity

Updated: 10 May 2022; Ref: scu.276921