Lee-Parker v Izzett (1): ChD 1971

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

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

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

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity

Updated: 05 December 2021; Ref: scu.185861

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

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

The Honourable Mr Justice Mann
[2005] EWHC 1235 (Ch)
Bailii
Law of Property Act 1925 90, Land Registration Act 1925, Land Registration Act 2002 65 Sch 4
Citing:
CitedLondon and Blenheim Estates v Ladbroke Retail Parks Ltd CA 1-Jun-1993
The land-owner sold part of his land, granting easements over the retained land, and an agreement that, if further plots were purchased, similar easements would be granted. The agreement stated that the purchaser should have the right to give notice . .
CitedPearce v Watts CA 9-Jun-1875
An agreement for the sale included the reservation: ‘[The Vendor] reserves the necessary land for making a railway through the estate to Prince Town.’ Specific performance was sought by the purchaser, and the vendor objected that it was void for . .
CitedLondon and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
CitedMidland Bank Trust Co Ltd v Green (No 1) HL 11-Dec-1980
A father had granted an option over land to his son, but it had not been registered. The father later tried to frustrate the option by conveying the land to his wife for 500 pounds. The land was worth 40,000 pounds. When the son found out about it, . .
CitedJames Hay Pension Trustees Ltd v Cooper Estates Ltd ChD 20-Jan-2005
The court ordered rectification of the land register where not to do so would give the then registered proprietor an unattractive and uncovenanted ransom position. . .
CitedHorrill v Cooper CA 1999
(Year?) The appelant had bought unregistered land knowing of restrictive covenants and paying accordingly, but the covenants had not been registered and his title was free of them. He now appealed an order for rectification of the register which had . .
CitedHorrill v Cooper QBD 1998
Restrictive covenants were registered against unregistered land, but were not revealed by a subsequent formal search with the result (as found) that as matter of technicality the purchaser took free from them. However, that purchaser knew of the . .
CitedPallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .
CitedBanner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
CitedGreasley v Cooke 1980
For a proprietary estoppel to arise the plaintiff must have incurred expenditure or otherwise have prejudiced himself or acted to his detriment. However, once it has been established that promises were made, and that there has been conduct by the . .
CitedGillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .

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

Lists of cited by and citing cases may be incomplete.

Registered Land, Contract, Equity

Updated: 05 December 2021; Ref: scu.226740

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

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

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

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 29 November 2021; Ref: scu.521156

Day v Shaw and Another: ChD 17 Jan 2014

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

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

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

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 29 November 2021; Ref: scu.520821

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

Challenge to share transfer.

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

Lists of cited by and citing cases may be incomplete.

Equity, Company

Updated: 29 November 2021; Ref: scu.520825

Transvaal and Delagoa Bay Investment Co Ltd v Atkinson: 1944

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

[1944] 1 All ER 579
England and Wales
Cited by:
CitedLipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .

Lists of cited by and citing cases may be incomplete.

Equity

Updated: 29 November 2021; Ref: scu.259420

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Insolvency, Agriculture, Equity

Updated: 28 November 2021; Ref: scu.147419

Deverges v Sandeman Clark and Co: 1 Mar 1902

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

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

Lists of cited by and citing cases may be incomplete.

Equity

Updated: 28 November 2021; Ref: scu.182800

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

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

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

Commonwealth, Land, Equity

Updated: 22 November 2021; Ref: scu.423780

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

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

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

Lists of cited by and citing cases may be incomplete.

Contract, Intellectual Property, Equity

Updated: 21 November 2021; Ref: scu.516497

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

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

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

Lists of cited by and citing cases may be incomplete.

Company, Wills and Probate, Equity

Updated: 17 November 2021; Ref: scu.183412

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

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

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

Company, Equity

Updated: 17 November 2021; Ref: scu.653372

Prime Sight Ltd v Lavarello: PC 9 Jul 2013

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

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

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

Lists of cited by and citing cases may be incomplete.

Estoppel, Equity

Updated: 17 November 2021; Ref: scu.513390

Benedetti v Sawiris and Others: SC 17 Jul 2013

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

Lord Neuberger P, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed
149 Con LR 1, [2013] 2 All ER (Comm) 801, [2013] 4 All ER 253, [2013] WLR(D) 286, [2013] UKSC 50, [2013] 3 WLR 351, UKSC 2011/0087
Bailii, WLRD, Bailii Summary, SC summary, SC
England and Wales
Citing:
At first instanceBenedetti and Another v Sawiris and Others ChD 15-Jun-2009
The claimant sought payment for his services to the defendants for his work in facilitating a substantial buy out of an Italian energy company.
Held: The claim succeeded on a quantum meruit basis to the extent of 75m euros but not otherwise. . .
First instance consequential judgmentBenedetti and Another v Sawiris and Others ChD 21-Jul-2009
Orders consequential on the main judgement to apportion liability as between the various defendants. . .
Appeal fromBenedetti v Sawiris and Others CA 16-Dec-2010
The claimant had claimed a reward for his role in securing a very substantial business deal for the defendants. The judge had rejected claims in contract but had awarded a sum of 67m Euros on a quantum meruit basis. He appealed saying that the award . .
CitedPallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .
CitedBanque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
CitedInvestment Trust Companies v HM Revenue and Customs ChD 2-Mar-2012
The claimant had properly accounted for VAT on its transactions for many years, but a decision of the European court had latterly ruled that the services were exempt. The claimant sought restitution from HMRC, who responded by arguing that . .
CitedBP Exploration Co (Libya) Ltd v Hunt (No 2) 1979
The contract between the parties relating to an oil concession in Libya had been frustrated by the nationalisation of the field.
Held: The court considered the setting of damages where the plaintiff had delayed in notifying the defendant of . .
CitedBoake Allen Ltd and others v HM Revenue and Customs CA 31-Jan-2006
The claimant companies had paid corporation tax under rules which had later been found to be discriminatory. They now sought repayment by virtue of double taxation agreements with the countries in which the parent companies were based.
Held: . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
CitedR McDonald v Coys of Kensington Ltd CA 5-Feb-2004
The claimants were car auctioneers. They had been instructed to sell a car, but to withhold the cherished number plate. By mistake it was transferred with the car. Before the plate could be returned, the defendant had transferred it to his partner. . .
CitedSempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .

Cited by:
CitedLittlewoods Retail Ltd and Others v HM Revenue and Customs (No 2) ChD 28-Mar-2014
The claimants had recovered very substantial overpayments made of VAT. They sought recovery of compound interest. The ECJ, on reference, said that this was a matter for national law.
Held: The claim succeeded. The sections of the 1994 Act were . .
CitedHarrison v Madejski and Another CA 28-Mar-2014
. .
CitedTallington Lakes Ltd and Others v Larking Gowen CA 9-Jul-2014
The defendant appealed rejection of its defence that a contract with the claimant, its accountant, was on a fixed fee contract. . .
CitedBank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Equity

Updated: 15 November 2021; Ref: scu.512424

Menelaou v Bank of Cyprus Plc: ChD 19 Jul 2012

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

David Donaldson QC
[2012] EWHC 1991 (Ch)
Bailii
England and Wales
Citing:
CitedBanque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
CitedBuhr v Barclays Bank plc CA 26-Jan-2001
The bank took a second charge over property, but failed to get it registered. The chargors fell into debt and bankruptcy, and the property was sold. The proceeds were used to discharge the first charge, and then repay unsecured creditors. The bank . .

Cited by:
Appeal fromMenelaou v Bank of Cyprus UK Ltd CA 19-Jun-2013
The Court was asked questions about the law of unjust enrichment, and one of the remedies which may be granted to reverse the effect of unjust enrichment, namely subrogation to an unpaid vendor’s lien. The bank had released its charges over property . .
At ChDMenelaou v Bank of Cyprus UK Ltd CA 4-Jul-2013
The court set out answers to consequential questions raised by their judgment, and the form of declaration required. . .
At First InstanceBank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 15 November 2021; Ref: scu.512281

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

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

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Contract, Equity

Updated: 14 November 2021; Ref: scu.510811

Hall v Hall: ChD 1911

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

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

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

Lists of cited by and citing cases may be incomplete.

Equity

Updated: 12 November 2021; Ref: scu.567248

Barton v Morris: 1985

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Equity, Company

Updated: 12 November 2021; Ref: scu.238853

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

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

Lord Denning MR, Brandon LJ
[1982] QB 84, [1981] 1 All ER 923, [1981] 2 WLR 554, [1982] 1 Lloyds Rep 27
England and Wales
Cited by:
CitedParry v Edwards Geldard (A Firm) ChD 1-May-2001
The court had to decide the measure of damages. The claimant had lost the opportunity to acquire without charge a milk quota. The claimant asserted an estoppel by convention. This failed. Also the judge had not properly allowed for the marriage . .
CitedWilson v Truelove ChD 25-Mar-2003
The claimants requested a declaration that an option to repurchase land was void under the 1964 Act.
Held: The option to repurchase land was prima facie void. The right arose on the coming into existence of the agreement, or at the latest on . .
CitedValentine v Allen and others CA 4-Jul-2003
There was a claim in trespass arising from mistakes arising on the setting up of a small residential development. An easement necessary to the enjoyment of the plots sold off, was required over land no longer owned by the grantor at the time of the . .
CitedDun and Bradstreet Software Services (England) Ltd; Dun and Bradstreet Software Services Ltd v Provident Mutual Life Assurance Association and General Accident Linked Life Assurance CA 9-Jun-1997
Break clauses had been exercised on behalf of the plaintiffs. The defendant landlords appealed a decision upholding the notices. A penalty rent had been sought.
Held: There had been no sufficient agency established to validate the notice. The . .
CitedGodden v Merthyr Tydfil Housing Association CA 15-Jan-1997
The Plaintiff was a building contractor; the Defendant a housing association engaged in developing suitable sites for residential accommodation for letting to tenants. Before the contract the parties had successfully completed what was been called . .
CitedWayling v Jones CA 2-Aug-1993
The plaintiff and defendant were in a homosexual relationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold . .
CitedStrover and Another v Strover and Another ChD 10-May-2005
Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership . .
CitedNorwegian American Cruises A/S (formerly Norwegian American Lines A/S) v Paul Munday Ltd (The ‘Vistafjord’) 1988
A party may be precluded by an estoppel by convention from raising a contention contrary to a common assumption of fact or law (which could include the validity of a notice) upon which they have acted. . .
CitedStancliffe Stone Company Ltd v Peak District National Park Authority QBD 22-Jun-2004
The claimants sought a declaration. Planning permission had been confirmed for four mineral extraction sites by letter in 1952. In 1996, two were listed as now being dormant. The claimant said the letter of 1952 created on single planning permision . .
CitedTrustee Solutions Ltd and others v Dubery and Another ChD 21-Jun-2006
The rules of a pensions scheme were altered. It was required that any such alteration be in writing, but the trustees had not signed the document creating the amendment.
Held: The words ‘writing under hand’ clearly required a signature, and . .
CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedScottish and Newcastle Plc v Lancashire Mortgage Corporation Ltd CA 5-Jul-2007
The parties each had a charge over a property, and now disputed which had priority. The brewery appealed an order for rectification of the registers to reverse priority on the basis of an estoppel. The charge in their favour had been registered . .
CitedCity Connect Management Ltd v Telia International Carrier UK and Another TCC 30-Jul-2004
The parties sought the expenses incurred in negotiating a development contract which failed before the documents were signed. . .
CitedAJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .

Lists of cited by and citing cases may be incomplete.

Equity, Estoppel, Land, Estoppel

Leading Case

Updated: 11 November 2021; Ref: scu.180371

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

Unfair Prejudice to Minority Shareholder

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

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

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

Lists of cited by and citing cases may be incomplete.

Equity, Company

Leading Case

Updated: 11 November 2021; Ref: scu.174274

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

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

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

Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.79287

In re Diplock’s estate: CA 1948

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

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

Cited by:
CitedAluminium Industrie Vaassen B V v Romalpa Aluminium Ltd ChD 11-Feb-1975
The plaintiffs sold aluminium to the defendant and by a clause in the contract retained their title in the materials sold until payment was received. The purchaser went into insolvent receivership, and the seller sought recovery of the equipment and . .
CitedFoskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
CitedFoskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
CitedGreen and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Appeal fromMinistry of Health v Simpson; In re Diplock dec HL 1950
The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an . .
CitedGomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .

Lists of cited by and citing cases may be incomplete.

Equity, Limitation

Leading Case

Updated: 11 November 2021; Ref: scu.182265

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

Trustees Investing using Wider Considerations

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

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

Trusts, Equity, Charity

Leading Case

Updated: 11 November 2021; Ref: scu.81250

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Contract, Undue influence, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.244663

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

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

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

Lists of cited by and citing cases may be incomplete.

Land, Equity, Company

Leading Case

Updated: 11 November 2021; Ref: scu.219903

McCormick v Grogan: HL 23 Apr 1869

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

Lord Hatherley LC, Westbury L
(1869) LR 4 HL 82, [1869] UKHL 1, (1869-70) LR 4 HL 82, 17 WR 961
Bailii
England and Wales
Cited by:
CitedParagon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
CitedOttaway v Norman ChD 1971
Proof required for mutual wills claim
The testator devised his house to a Miss Hodges intending that she should dispose of the property in her will to specific individuals. He communicated his intention to her and she agreed to it. After the testator’s death, Miss Hodges changed her . .

Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.223733

Banner Homes Group Plc v Luff Developments and Another: CA 10 Feb 2000

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

Chadwick LJ
Gazette 10-Feb-2000, Times 17-Feb-2000, [2000] EWCA Civ 18, [2002] 2 All ER 117, [2000] EWCA Civ 3016, [2000] 2 WLR 772, [2000] Ch 372
Bailii, Bailii
England and Wales
Citing:
CitedIsland Holdings Ltd v Birchington Engineering Co Ltd 7-Jul-1981
Two prospectively separate purchasers in a later ‘subject to contract’ arrangement between them had replaced their earlier concluded agreement as to how a property, if acquired, would be dealt with.
Held: Effect was to be given to the . .
ExaminedPallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .
CitedGrant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
CitedYaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
CitedParagon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
CitedTime Products Ltd v Combined English Stores 2-Dec-1974
The plaintiff and the defendant were each interested in buying a property and had agreed that one of them would make an offer, the other refraining from doing so, and that if the offer were to be accepted the purchaser would deal with the property . .

Cited by:
CitedGonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
CitedThames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited ChD 16-Dec-2003
The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .
LimitedLondon and Regional Investments Ltd v TBI Plc and Others CA 22-Mar-2002
TBI was a property investor and developer with several subsidiaries. It agreed to sell some to London and Regional. The agreement provided for the vendor and the purchaser to use reasonable endeavours to agree the terms of a joint venture agreement . .
FollowedKilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd, Targetfollow Group Ltd ChD 9-Nov-2004
The defendant entered into an agreement for lease, incurring substantial obligations. When it could not meet them it sought assistance from the claimant, who now claimed to have an interest in a joint venture. The draft documentation originally . .
CitedCobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
CitedVan Laethem v Brooker and Another ChD 12-Jul-2005
The claimant asserted an interest in several properties by virtue of a common intention constructive trust or by proprietary estoppel. The parties had been engaged to be married.
Held: ‘A [constructive] trust arises in connection with the . .
CitedSainsbury’s Supermarkets Ltd v Olympia Homes Limited, Hughes etc ChD 17-Jun-2005
The claimant sought rectification of the land register. In a development deal, an option agreement had not been registered, and the land sold on. The land was required to allow the building of a roundabout necessary for the intended store. An . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
CitedKilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd and Another CA 16-Nov-2005
The defendant had brought in the claimant in order to assist in satisfying its own obligations under a lease. The joint venture was not recorded in a formal agreement. The appellant asserted that a constructive trust had been created. The judge had . .
CitedClarke and Another v Corless and Another ChD 8-Jul-2009
The parties disputed whether one could retain for his own benefit land on an estate reserved for an estate road. A trust was claimed under Pallant saying that the parties had made an informal agreement before the property was purchased.
Held: . .
CitedNational Trust for Places of Historic Interest v Birden ChD 31-Jul-2009
The parties had entered into an old-form share farm agreement in 1994. The tenant later became a farm business tenant on other land. The claimant sought a share of the Single Payment Scheme calculated with reference to the period in which the . .
CitedClarke and Another v Corless and Another CA 31-Mar-2010
The claimants appealed against refusal of a declaration that a neighbouring access road and land was held on a constructive trust. They said that an agreement bewteeen the parties should have been effective to impose a trust on the defendants. The . .

Lists of cited by and citing cases may be incomplete.

Trusts, Equity, Company

Leading Case

Updated: 11 November 2021; Ref: scu.78169

Swaine v The Great Northern Railway Company: 25 Jan 1864

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

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

Nuisance, Equity, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.281887

Vadim Schmidt v Rosewood Trust Limited: PC 27 Mar 2003

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

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

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

Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.180352

Re Maddever: 1884

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

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

Lists of cited by and citing cases may be incomplete.

Equity, Land

Leading Case

Updated: 11 November 2021; Ref: scu.244181

Knight v Bowyer: 7 May 1858

knight_bowyer1858

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

(1858) 2 De G and J 421, [1858] EngR 673, (1858) 2 De G and J 421, (1858) 44 ER 1053
Commonlii
Cited by:
CitedPatel and others v Shah and others CA 15-Feb-2005
The parties entered into a commercial agreement for the sale and purchase of properties.
Held: The claimants had failed to meet their part of the bargain, and had failed to make mortgage payments, leaving the defendants to do so. The . .
See AlsoKnight v Bowyer 1-Aug-1859
. .

Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Leading Case

Updated: 11 November 2021; Ref: scu.223436

Heath v Kelly and Another: ChD 24 Jul 2009

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

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

Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Updated: 11 November 2021; Ref: scu.361469

Hopper and Another v Hopper: CA 12 Dec 2008

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

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

Lists of cited by and citing cases may be incomplete.

Company, Limitation, Equity

Updated: 11 November 2021; Ref: scu.278673

Ogden and Another v Trustees of the RHS Griffiths 2003 Settlement and others; In Re Griffiths deceased: ChD 25 Jan 2008

A life-time transfer which had been made under a mistake as to the donor’s chances of surviving long enough for the transfer to be exempt from Inheritance Tax was set aside. Unbeknown to the donor, he had lung cancer at the time.
Held: Lewison J said: ‘It is plain in my judgment that a mistake of fact is capable of bringing the equitable jurisdiction into play. All that is required is a mistake of a sufficiently serious nature. In my judgment a mistake about an existing or pre-existing fact if sufficiently serious is enough to bring the jurisdiction into play. If and to the extent that Millett J intended to restrict the scope of the equitable jurisdiction to a mistake about the effect of a transaction, I respectfully disagree.’

Lewison J
[2008] EWHC 118 (Ch), [2008] STC 776, [2008] 2 All ER 654, [2009] 2 WLR 394, [2009] Ch 162, [2008] WTLR 685, [2008] STI 250, [2009] BTC 8027
Bailii
England and Wales
Cited by:
ApprovedFender (Administrator of FG Collier and Sons Ltd) v National Westminster Bank Plc ChD 26-Sep-2008
The administrator sought declarations as to whether to treat the bank as a secured or unsecured creditor.
Held: The court directed the Administrator to recognise the Bank as a secured creditor, as if the Deed of Release had never been . .
CitedPitt and Another v Holt and Others ChD 18-Jan-2010
The deceased had created a settlement in favour of his wife. He suffered serious injury and placed the damages in trust, but in a form which created an unnecessary liability to Inheritance Tax on his death. The wife’s mental health act receiver now . .
CitedPitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .
CitedFutter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .
CitedBrazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .
CitedFutter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .

Lists of cited by and citing cases may be incomplete.

Contract, Equity, Trusts

Updated: 11 November 2021; Ref: scu.264025

Ketteringham and Another v Hardy: ChD 3 Feb 2011

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

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

Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 11 November 2021; Ref: scu.428427

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

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

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

Cited by:
CitedJennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
CitedIn re Basham dec’d; Basham v Basham 1986
The claimant and her husband had helped her mother and her stepfather throughout the claimant’s adult life. She received no remuneration but understood that she would inherit her stepfather’s property when he died. After her mother’s death and until . .
CitedParker v Parker ChD 24-Jul-2003
Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
Held: The applicant was entitled to reasonable . .
CitedDun and Bradstreet Software Services (England) Ltd; Dun and Bradstreet Software Services Ltd v Provident Mutual Life Assurance Association and General Accident Linked Life Assurance CA 9-Jun-1997
Break clauses had been exercised on behalf of the plaintiffs. The defendant landlords appealed a decision upholding the notices. A penalty rent had been sought.
Held: There had been no sufficient agency established to validate the notice. The . .
CitedGonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
CitedKing v Jackson (T/a Jackson Flower Company) CA 16-Jul-1997
The defendant appealed an award of pounds 11,000 damages for unlawful eviction of his tenant. The tenant had found herself unable to pay the rent and had given notice to quit. She was then told to leave immediately. The judge awarded statutory . .
CitedGeoffrey Allan Chadwick, Sylvia Joyce Chadwick, Edward James Chadwick v Abbotswood Properties Ltd, Gordon Leonard Hauser, Pamela Ann Hauser, Rectory Pump Ltd ChD 18-May-2004
Between to new houses was a steep bank. Who owned it? Before the transfer there had been different plans and much correspondence.
Held: Where there was doubt as to the extent of land transferred, the court could look to the physical boundaries . .
CitedActionstrength Limited v International Glass Engineering In Gl En SpA and others HL 3-Apr-2003
Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim . .
RestatedHodgens v Beckingham CA 19-Feb-2003
The defendant appealed a finding of infringement in a music copyright work, ‘Young at Heart’, based on a claim of joint authorship. The claimant had delayed his claim for many years, but now sought only rights to future royalties.
Held: The . .
CitedFisher v Brooker and Another ChD 20-Dec-2006
The claimant said that he had contributed to the copyright in the song ‘A Whiter Shade of Pale’ but had been denied royalties. He had played the organ and particularly the organ solo which had contrbuted significantly to the fame of the record.
ApprovedBlue Haven Enterprises Ltd v Tully and Another PC 21-Feb-2006
(Jamaica ) . .
CitedBarrett v Universal-Island Records Ltd and others ChD 15-May-2006
The claimant was entitled to share in the copyright royalties of Bob Marley and the Wailers, and claimed payment from the defendants. The defendants said that the matters had already been settled and that the claim was an abuse of process, and also . .
CitedA and M Records Ltd v VCI 1995
Sir Mervyn Davies said: ‘However that may be, I am satisfied that Mr Ross was at all material times quite unaware of any activities of the plaintiffs being activities of a kind that he as owner of the copyright in the sound recordings could object . .
CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedScottish and Newcastle Plc v Lancashire Mortgage Corporation Ltd CA 5-Jul-2007
The parties each had a charge over a property, and now disputed which had priority. The brewery appealed an order for rectification of the registers to reverse priority on the basis of an estoppel. The charge in their favour had been registered . .
ApprovedGillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
ApprovedBrooker and Another v Fisher CA 4-Apr-2008
The claimant had asserted a joint authorship of the song ‘A Whiter Shade of Pale’ written in the sixties. The defendant appealed saying that the claim had been brought too late, and that the finding ignored practice in the music industry. The . .
CitedLondon Borough of Bexley v Maison Maurice Ltd ChD 15-Dec-2006
The council had taken land by compulsory purchase in order to construct a dual carriageway. It then claimed that it had left undedicated a strip .5 metre wide as a ransom strip to prevent the defendant restoring access to the road.
Held: The . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
CitedSQ v RQ and Another FD 31-Jul-2008
The home in which the family had lived was held in the name of a brother. Each party claimed that it was held in trust for them. Chancery proceedings had been consolidated into these ancillary relief applications. The home had been in the husband’s . .
CitedSt Pancras and Humanist Housing Association Ltd v Leonard CA 17-Dec-2008
The claimant sought possession of a garage. The defendant claimed adverse possession.
Held: The defendant’s appeal against an order for possession failed. The defendant had attended a meeting where his behaviour had allowed other parties to . .
CitedThorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
CitedFisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
EndorsedHabib Bank Ltd v Habib Bank AG Zurich CA 1981
A combination of defences based on delay was pleaded in a passing off action objecting to the use of a name which the defendants had been using without objection for many years. A permanent injunction was claimed.
Held: Oliver LJ said as to . .
CitedBudejovicky Budvar Narodni Podnik v Anheuser-Busch Inc CA 20-Oct-2009
The parties had long disputed the use of the trade marks ‘Bud’ and ‘Budweiser’ for their beers. The claimant now said that the defendants had made an abusive registration under the 1994 Act, by requesting a declaration that the registration by the . .
CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
CitedBrightlingsea Haven Ltd and Another v Morris and others QBD 30-Oct-2008
The caravan park operated under planning consents requiring the caravans to be occupied only during certain months. The defendants had bought their mobile homes from the claimants to occupy full time, and said that the claimants knew of this. The . .
CitedBabbage v North Norfolk District Council CA 1990
The court considered the extent of its ability to insert conditions into caravan site agreements under the 1960 Act. The site licence contained two relevant conditions. One required that no caravan should be occupied between November 1 and March 19. . .

Lists of cited by and citing cases may be incomplete.

Estoppel, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.188170

Ex Parte Lacey: 5 Feb 1802

Trustee Not To purchase Property of Trust

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

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

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

Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Leading Case

Updated: 11 November 2021; Ref: scu.344892

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Corporation Tax, Limitation, Equity, Taxes Management

Leading Case

Updated: 11 November 2021; Ref: scu.245608

Keech v Sandford: ChD 1726

Trustee’s Renewed Lease also Within Trust

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

Lord Harcourt LC, King L
[1726] Sel Cas 1 King 61, [1726] EWHC Ch J31, [1726] EngR 954, (1726) 25 ER 223 (C), [1726] EWHC Ch J76
Bailii, Commonlii, Bailii
England and Wales
Cited by:
CitedCrown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedWarman International Ltd v Dwyer 1995
(High Court of Australia) A fiduciary diverted a business in breach of his fiduciary duty.
Held: ‘The outcome in cases of this kind will depend upon a number of factors. They include the nature of the property, the relevant powers and . .
CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
CitedHalton International Inc Another v Guernroy Ltd CA 27-Jun-2006
The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that . .

Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Leading Case

Updated: 10 November 2021; Ref: scu.192209

Santley v Wilde: CA 1899

Classic Definition of a Mortgage

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

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

Lists of cited by and citing cases may be incomplete.

Equity, Land

Leading Case

Updated: 10 November 2021; Ref: scu.276435

Shiloh Spinners Ltd v Harding: HL 13 Dec 1972

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

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

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity

Leading Case

Updated: 10 November 2021; Ref: scu.183780

Futter and Another v Revenue and Customs; Pitt v Same: SC 9 May 2013

Application of Hastings-Bass Rule

F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary trust. Unfortunately it was done in such a way as to create an immediate liability to Inheritance Tax. In each case the trustees applied to have the ineffective deeds declared void to correct the mistakes. They were set aside, but the Court of Appeal allowed the Revenue’s appeals on the basis that the rule in Hastings-Bass (the Rule) applied at first instance.
Held: As to the appeals under the Rule, the taxpayers’ appeals failed. However P’s appeal on the basis of mistake was allowed.
The Rule applied to a failure of trustees to perform a decision making function. In such situations there had to such a serious failure as to amount to a breach of the trustees’ fiduciary duties. In each of these cases, they had acted on professional advice, but the failures of such advisers could not be transferred to the trustees so as to allow the application of the Rule. Nevertheless the Rule had to be applied respecting each different factual situation, and other results might be reache din future in settling the balance between the need to protect beneficiaries, and for legal certainty without imposing too rigid a test on trustees.
As to the rescision for mistake in P’s case, there had to be a mistake which was both of sufficient gravity and causative of the failing. Such a mistake may well be as to the legal character of the transaction, and tax consequences go as to the gravity of the error. Mere ignorance would be insufficient. The court would have to conclude that it would be unconscionable or injust to leave the situation uncorrected.
Lord Walker said: ‘Rectification is a closely guarded remedy, strictly limited to some clearly established disparity between the words of a legal document, and the intentions of the parties to it. It is not concerned with consequences.’

Lord Neuberger, President, Lord Walker, Lady Hale, Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath
[2013] 3 All ER 429, [2013] UKSC 26, [2013] WLR (D) 172, [2013] STC 1148, 15 ITELR 976, 81 TC 912, [2013] 2 WLR 1200, [2013] STI 1805, [2013] WTLR 977, [2013] Pens LR 195, [2013] BTC 126, [2013] 2 AC 108
Bailii, Bailii Summary, SC Summary, SC, WLRD
Taxation of Chargeable Gains Act 1992 2(4)
England and Wales
Citing:
At First InstanceFutter and Another v Futter and Others ChD 11-Mar-2010
Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .
CitedAbacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
CitedGibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
CitedRe Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .
CitedMettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
CitedStannard v Fisons Ltd; Stannard v Fisons Pensions Trust CA 2-Jan-1990
The purchaser of a business said that the company had made insufficient contributions to its pensions fund before the transfer, and sought payment of the sums underpaid. The defendants argued that, applying Hastings-Bass, unless that principle were . .
Appeal fromPitt and Another v Holt and Another CA 9-Mar-2011
. .
At First InstancePitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .
CitedScott v The National Trust CA 1998
Trustees, in the exercise of their fiduciary discretions, are under constraints which do not apply to adult individuals disposing of their own property. Walker LJ said: ‘Certain points are clear beyond argument. Trustees must act in good faith, . .
CitedEdge and others v Pensions Ombudsman and Another CA 29-Jul-1999
The Pensions Ombudsman was wrong to set aside the decision of pensions trustees where that decision was properly made within the scope of a discretion given to the Trustees. He should not carry out an investigation where no particular benefit could . .
CitedOgilvie v Littleboy CA 1897
Lindley LJ discussed the variation of a gift for mistake: ‘Gifts cannot be revoked, nor can deeds be set aside, simply because the donors wish they had not made them and would like to have back the property given. Where there is no fraud, no undue . .
CitedOgilvie v Allen HL 1899
The plaintiff, a widow, had executed deeds founding two charities and devoting to them a considerable part of the large fortune which she had inherited from her husband, but later brought proceedings to set the deeds aside asserting that she had not . .
CitedDirector of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith HL 12-Jul-1990
Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when . .
CitedMarshall v NM Financial Management Ltd ChD 10-Jul-1995
A post-termination restriction on an employment was in restraint of trade and ineffective despite a payment having been made for the restriction. The agent was not entitled to any commission after termination under the relevant clause.
Mr . .
CitedNM Financial Management Limited v Marshall CA 13-Mar-1997
The court considered a provision that a commission agent would be paid commission following the termination of his agency provided that he did not within a year become an independent intermediary or work for a competitor. Here the suspension of . .
CitedEquitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
MentionedWollaston v King 1869
Rectification for mistake . .
CitedIn Re Vestey’s Settlement ChD 1950
The income of a fund was to be held on trust for the support or benefit of the members of a class as the trustees might decide in their discretion. The trustees resolved in each of three successive periods to distribute part of the income to certain . .
CitedIn Re Vestey’s Settlement CA 2-Jan-1951
The trustees of a large settlement made by Lord Vestey and his brother Sir Edmund Vestey exercised their discretion over the allocation of income with the apparent intention of income being accumulated during the minorities of a number of . .
CitedIn Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners HL 8-Oct-1962
The trustees proposed establishing a new trust in respect of the share of an estate to which an infant beneficiary had a contingent entitlement. A portion of the trust fund would be allocated to the new trust.
Held: This was a lawful exercise . .
CitedSieff v Fox ChD 23-Jun-2005
The advisers to trustees wrongly advised the trustees about the tax consequences of exercising a power of appointment in a certain way. As a result a large unforeseen Capital Gains Tax liability arose. The trustees sought to set aside the . .
CitedAbacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr ChD 6-Feb-2003
The court considered the Rule in Hastings-Bass, and specifically (1) whether the trustee’s decision is open to challenge when the failure to take a consideration into account is not attributable to a breach of fiduciary duty on the part of the . .
CitedIn re Hubbard’s Will Trusts 1962
The rule that a gift may fail on the failure of a prior interest upon which it is dependent and which is void for remoteness is a ‘rule of invalidity by contagion with another and invalid limitation’. . .
CitedIn re Buckton’s Settlement Trusts 1964
. .
CitedIn re Abrahams’ Will Trusts 1969
The trustees sought to mitigate estate duty by terminating a life interest, and accelerating the interest fo the next generation.
Held: There had been no valid exercise of the power of advancement. Cross J rejected an argument approximating an . .
CitedVestey v Inland Revenue Commissioners (No 2) ChD 1979
The Commissioners of Inland Revenue do not have, any more than does any other emanation of the Crown, any power to suspend or dispense with laws. ‘It is at this point that there arises what Mr Potter, for the taxpayers, has denominated as a serious . .
CitedOgden and Another v Trustees of the RHS Griffiths 2003 Settlement and others; In Re Griffiths deceased ChD 25-Jan-2008
A life-time transfer which had been made under a mistake as to the donor’s chances of surviving long enough for the transfer to be exempt from Inheritance Tax was set aside. Unbeknown to the donor, he had lung cancer at the time.
Held: Lewison . .

Cited by:
CitedBainbridge and Another v Bainbridge ChD 22-Apr-2016
. .
CitedFSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
CitedBank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .

Lists of cited by and citing cases may be incomplete.

Trusts, Taxes Management, Equity

Leading Case

Updated: 10 November 2021; Ref: scu.503501

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

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

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

Health Professions, Children, Equity

Updated: 10 November 2021; Ref: scu.561546

Alati v Kruger: 29 Nov 1955

(High Court of Australia) The remedy of rescission is only available if the parties can be returned to their respective positions before the contract was made. Dixon CJ said: ‘It is not that equity asserts a power by its decree to avoid a contract which the defrauded party himself has no right to disaffirm, and to revest property the title to which the party cannot affect. Rescission from misrepresentation is always the act of the party himself . . The function of a court in which proceedings for rescission are taken is to adjudicate upon the validity of a purported disaffirmance as an act avoiding the transaction ab inito, and, if it is valid, to give effect to it and make appropriate consequential orders . . The difference between the legal and the equitable rules on the subject simply was that equity, having means which the common law lacked to ascertain and provide for the adjustments necessary to be made between the parties in cases where a simple handing back of property or repayment of money would not put them in as good a position as before they entered into their transaction, was able to see the possibility of restitutio in integrum, and therefore to concede the right of a defrauded party to rescind, in a much wider variety of cases than those which the common law could recognize as admitting of rescission.’ and
‘When a contract is rescinded by reason of a recognised vitiating factor, the contract, as just noted, is set aside from the beginning. In such a case there can be no claim for damages for breach of contract, because in such situations there is no contract. Equally, if a claim is made by the victim for damages for breach of contract, there can be no rescission of the contract as the victim has by suing for breach clearly elected not to rescind.’

Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ
(1955) 94 CLR 216, [1955] HCA 64, [1955] ALR 1047
Austlii
Australia
Cited by:
ApprovedO’Sullivan v Management Agency and Music Limited CA 1985
The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the . .

Lists of cited by and citing cases may be incomplete.

Equity, Contract, Torts – Other

Leading Case

Updated: 10 November 2021; Ref: scu.470685

Hosking v Marathon Asset Management Llp: ChD 5 Oct 2016

Loss of agent’s share for breach within LLP

The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a limited liability partnership.
Held: The profit share of a partner or LLP member can potentially be subject to forfeiture. A partner or LLP member is an agent the mere fact that someone is a partner or LLP member as well as an agent should not preclude the operation of a principle which affects agents more generally.

Newey J
[2016] EWHC 2418 (Ch), [2016] WLR(D) 501, [2017] Ch 157, [2017] 2 WLR 746,
Bailii, WLRD
Arbitration Act 1996, Partnership Act 1890, Limited Liability Partnerships Act 2000, Limited Liability Partnership Regulations 2001
England and Wales
Citing:
CitedAndrews v Ramsay 1903
The plaintiff asked the defendant estate agents to find a purchaser for his property at a price of pounds 2,500 and if one such was found the agents’ fee would be pounds 50. A purchaser, one Clutterbuck, at pounds 2,100 was found. He paid the agents . .
CitedKeppel v Wheeler CA 1927
The plaintiff engaged the defendant estate agents to sell a property, instructing them to market it at 6,500 pounds but that he would accept 6,000 pounds. The plaintiff accepted an offer of 6,150 pounds ‘subject to contract’. Before exchange, . .
CitedImageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
CitedBank of Ireland and Another v Jaffery and Another ChD 23-May-2012
Claim for breach of fiduciary duty brought by the Bank against one of its erstwhile senior executives.
Held: Vos J concluded that forfeiture of agency fees would be disproportionate and inequitable for breach of an employment or agency . .
CitedDunne v English CA 1874
A partner had made a secret profit from the sale of partnership property.
Held: The other partner sought and obtained relief ‘substantially in accordance with the first and second paragraphs of the prayer of the bill’, which had sought ‘a . .
CitedHelmore v Smith 1886
The relationship between partners is of a fiduciary nature.
Bacon V-C said: ‘If fiduciary relation means anything I cannot conceive a stronger case of fiduciary relation than that which exists between partners. Their mutual confidence is the . .
CitedHilton v Barker Booth & Eastwood (a Firm) CA 22-May-2002
The firm of solicitors acted for both parties in a conveyancing transaction, in a situation when they were permitted to do so. The firm had previously acted for one party in a case where he had been convicted of a crime. The other party said the . .
CitedAvrahami and Others v Biran and Others ChD 25-Jun-2013
Management fees were to be forfeited for breach of a fiduciary duty by an agent. . .
CitedPremium Real Estate Ltd v Stevens 6-Mar-2009
Supreme Court of New Zealand – The court was asked as to the forfeiture of remuneration by an agent for breach of fiduciary duty.
Held: In relation to remoteness of damage, it was observed that the question of foreseeability in common law . .
CitedF and C Alternative Investments (Holdings) Ltd v Barthelemy and Another (No 2) ChD 14-Jul-2011
The court was asked as to the fiduciary obligations owed by members of the board of a limited liability company.
Held: Sales J said that: ‘there is nothing in the Act to qualify the usual fiduciary obligations which an agent owes his principal . .
CitedErikson v Carr 1945
New South Wales – an individual was alleged to have disentitled himself to commission as a result of a breach of duty.
Held: Though the legal rights of the parties would depend on the jury’s conclusions as to, among other things, ‘whether it . .
CitedOlson v Gullo 1994
(Court of Appeal for Ontario) A Mr Olson and a Mr Gullo had formed a partnership to develop a tract of land. Mr Gullo nevertheless bought and sold part of the land for his own account at a substantial profit which he planned to pocket. The trial . .
CitedZahid v M Young Legal Associates Ltd and others CA 16-May-2006
Is it possible for a person to be a partner in a firm, and thus liable jointly with the other partners to creditors of the firm, even if his agreement with them is not that he should be entitled to participate in its profits but that he should be . .
CitedZahid v M Young Legal Associates Ltd and others CA 16-May-2006
Is it possible for a person to be a partner in a firm, and thus liable jointly with the other partners to creditors of the firm, even if his agreement with them is not that he should be entitled to participate in its profits but that he should be . .
CitedReinhard v Ondra Llp and Others ChD 14-Jan-2015
The parties disputed whether the claimant had become a member of the defendant limited liability partnership.
Warren J said: ‘the ‘share’ of a member [of an LLP] is the totality of the contractual or statutory rights and obligations of that . .

Lists of cited by and citing cases may be incomplete.

Agency, Equity, Company

Updated: 10 November 2021; Ref: scu.569924

Foskett v McKeown and Others: HL 18 May 2000

A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, vested in trustees for his children. After his death, the life assurance company paid out on the policy. The beneficiaries of the development monies trust made a proprietary claim to a share in the monies paid out by the life assurance company.
Two groups of innocent parties disputed the rights to a death benefit of about 1m pounds paid by insurers pursuant to a whole life policy. A trustee had misappropriated trust funds and used them in part to pay premiums on life insurance policies for the benefit of his own children.
Held: The misappropriated funds could be traced through the insurance policies into the hands of the beneficiaries of the policies. Where part of the premiums had been paid properly, a mixed fund, akin to a bank account, was created, and the interest was according to the proportions. The interest was a property interest in the fund, and the court had no discretion as to its distribution. There is no rule in English law that in the case of a mixed substitution the beneficiary is confined to a lien. ‘Where a trustee wrongfully uses trust money to provide part of the cost of acquiring an asset, the beneficiary is entitled at his option either to claim a proportionate share of the asset or to enforce a lien upon it to secure his personal claim against the trustee for the amount of the misapplied money. It does not matter whether the trustee mixed the trust money with his own in a single fund before using it to acquire the asset, or made separate payments (whether simultaneously or sequentially) out of the differently owned funds to acquire a single asset.’
Lord Millett said: ‘Following is the process of following the same asset as it moves from hand to hand. Tracing is the process of identifying a new asset as the substitute for the old. Where one asset is exchanged for another, a claimant can elect whether to follow the original asset into the hands of the new owner or to trace its value into the new asset in the hands of the same owner . . Tracing is thus neither a claim nor a remedy. It is merely the process by which a claimant demonstrates what has happened to his property, identifies its proceeds and the persons who have handled or received them, and justifies his claim that the proceeds can properly be regarded as representing his property. Tracing is also distinct from claiming. It identifies the traceable proceeds of the claimants’ property. It enables the claimant to substitute the traceable proceeds for the original asset as the subject matter of his claim. But it does not affect or establish his claim.’
Lord Millett set out the distinction between a claim to enforce property right and a case of unjust enrichment: ‘A plaintiff who brings an action in unjust enrichment must show that the defendant has been enriched at the plaintiff’s expense, for he cannot have been unjustly enriched if he has not been enriched at all. But the plaintiff is not concerned to show that the defendant is in receipt of property belonging beneficially to the plaintiff or its traceable proceeds. The fact that the beneficial ownership of the property has passed to the defendant provides no defence; indeed, it is usually the very fact which founds the claim. Conversely, a plaintiff who brings an action like the present must show that the defendant is in receipt of property which belongs beneficially to him or its traceable proceeds, but he need not show that the defendant has been enriched by its receipt. He may, for example, have paid full value for the property, but he is still required to disgorge it if he received it with notice of the plaintiff’s interest.’
Lord Steyn said: ‘In truth tracing is a process of identifying assets: it belongs to the realm of evidence. It tells us nothing about legal or equitable rights to the assets traced.’

Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Millett
Times 24-May-2000, Gazette 08-Jun-2000, [2000] UKHL 29, [2000] 3 All ER 97, [2000] Lloyd’s Rep IR 627, [2001] 1 AC 102, [2000] WTLR 667, (1999-2000) 2 ITELR 711, [2000] 2 WLR 1299
House of Lords, Bailii
England and Wales
Citing:
CitedIn 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 . .
Appeal fromFoskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
CitedIn re Leslie; Leslie v French ChD 1883
The court gave guidance as to the circumstances in which an individual who had paid a premium on a policy belonging to someone else could claim an interest in the policy: ‘In my opinion a lien may be created upon the moneys secured by a policy by . .
CitedIn re Tilley’s Will Trusts ChD 1967
The court considered the rights of a beneficiary to participate in any profit which resulted where a trustee mixed trust money with his own money and then used it to purchase other property. . .
CitedScottish Co-operative Wholesale Society Ltd v Meyer HL 1959
Valuation of Shares on Order for Purchase
The Co-operative Society had formed a 51 per cent-owned subsidiary to manufacture rayon at a time of strict post-war controls. The other shares were owned by two outside directors with skill and experience in the trade. When these directors declined . .
CitedFalcke v Scottish Imperial Insurance Co CA 1886
The owner of a policy of life assurance mortgaged the policy to secure repayment of a loan. Subsequently the owner, now the owner of an equity of redemption in the policy, paid two annual premiums which became due under the policy. The policy was . .
CitedD’Avigdor-Goldsmid v Inland Revenue Commisioners HL 1953
A contingency which makes money payable under a chose cannot affect the proprietary interests in the chose in action and therefore in its proceeds. No fresh beneficial interest in a policy of life assurance accrues or arises on the death of the life . .
CitedSandeman and Sons v Tyzack and Branfoot Steamship Co Ltd HL 1913
The House described the doctrines of English law which are applicable to cases where goods belonging to different owners have become mixed so as to be incapable of either being distinguished or separated: ‘If the mixing has arisen from the fault of . .
CitedEdinburgh Corporation v Lord Advocate HL 1879
Competing claims to a mixed fund were resolved by the application of equitable principles. Funds had been contributed by a benefactor of a hospital for particular trust purposes and had for more than 170 years been held, administered and applied as . .
CitedTrustee of the Property of F C Jones and Sons (A Firm) v Jones CA 13-May-1996
A bankruptcy order was made in 1984. Under the 1914 Act the trustee in bankruptcy got title to all the assets of the bankrupt as of the date of the act of bankruptcy. So, the trustee owned the partnership assets. The wife drew andpound;11,700 out of . .
CitedEl Ajou v Dollar Land Holdings Plc ChD 1995
The tracing of assets into the hands of a third party depends upon a notional charge. There are no inflexible rules. The essential elements of ‘knowing receipt’ are: ‘For this purpose the plaintiff must show, first, a disposal of his assets in . .
CitedMagistrates of Edinburgh v McLaren HL 1881
. .
DisapprovedIn re Hallett’s Estate; Knatchbull v Hallett CA 1880
Where a trustee of a policy used money received from others to make payment of premiums on an insurance policy, they would be entitled to a lien on the policy. Where an asset was acquired exclusively with trust money, the beneficiary could either . .
CitedLupton 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. . .
CitedJones v De Marchant 1916
A husband wrongfully used 18 beaver skins belonging to his wife together with four skins of his own, to have a fur coat made up which he then gave to his mistress. The wife was held entitled to recover the coat. The mistress knew nothing of the true . .
CitedFrith v Cartland 1865
‘. . . If a man mixes trust funds with his own, the whole will be treated as the trust property, except so far as he may be able to distinguish what is his own.’ . .

Cited by:
Appealed toFoskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
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 . .
CitedClark v Cutland CA 18-Jun-2003
One director discovered that his co-director had withdrawn substantial sums from the company. . .
CitedBank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
CitedScott v Bridge and Others ChD 25-Nov-2020
Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two . .

Lists of cited by and citing cases may be incomplete.

Insurance, Equity, Trusts

Leading Case

Updated: 10 November 2021; Ref: scu.80646

Reeve v Lisle and others: HL 1902

In 1896 the plaintiffs agreed to lend andpound;5,000 to the defendant to be secured by a ship mortgage (executed later), requiring that if at any time during the period of two years the plaintiffs should elect to enter into partnership with the defendant, they would relieve the defendant of liability for payment of the mortgage money, and would transfer the ship, free of the mortgage, so that it could form part of the capital of the partnership. The plaintiffs did not go into partnership, but nor was the loan repaid. A further mortgage was executed, as additional security, in June 1898. In July they made a further agreement, which, after referring to the existing mortgages, the fact that the monies were outstanding and a request from the defendant for further time for payment, gave the plaintiffs a right, for five years, to enter into partnership with the defendant, in which case the same consequences would follow as had been agreed in the April 1896 agreement. In February 1900 the plaintiffs sought to exercise the right to enter into partnership with the defendant. The defendant resisted, on the basis that the right granted by the July 1898 agreement was in the nature of a clog on the right to redeem the mortgage made in June of that year. The House was asked whether the mortgage of June 1898 and the agreement of July 1898 were, in reality, one and the same transaction.
Held: It said no. The parties to a mortgage may, by a separate, independent transaction validly agree to give the mortgagee an option over the mortgaged property, and thus may have the effect of depriving the mortgagor of his right to redeem.
Lord Macnaghten said: ‘Notwithstanding the very able and ingenious argument by [counsel for the appellant] to prove that the purpose of this document [the July 1898 agreement] was really consolidation and rearrangement of the mortgages, in my opinion it was nothing of the kind.’
Lord Lindley said: ‘In point of fact, the real transaction was not taking a mortgage security for 5000l. or getting a better security than they had. The real transaction [in July 1898] was that the mortgagees were bargaining for a share in the partnership on certain terms.’

Lord Macnaghten, Lord Lindley
[1902] AC 461
England and Wales
Citing:
Appeal fromReeve v Lisle and others CA 1902
The parties had entered into a series of agreements for loans, and partnerships. The defendants resisted a request by the plaintiff to be allowed, under the agreement, into partnership on a failure to repay the loan.
Held: The appeal . .

Cited by:
CitedJones v Morgan CA 28-Jun-2001
The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly . .

Lists of cited by and citing cases may be incomplete.

Equity

Leading Case

Updated: 10 November 2021; Ref: scu.443247

Imageview Management Ltd v Jack: CA 13 Feb 2009

The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The agent now appealed.
Held: The side deal was and act within the agency and should have been disclosed. This was not an honest breach of contract. This was a secret profit and a breach of fiduciary duty because of the conflict of interest. Not only was the secret payment to be paid across, but no further agency fees were payable.
Jacob LJ said: ‘The law imposes on agents high standards. Footballers’ agents are not exempt from these. An agent’s own personal interests come entirely second to the interest of his client. If you undertake to act for a man you must act 100%, body and soul, for him. You must act as if you were him. You must not allow your own interest to get in the way without telling him. An undisclosed but realistic possibility of a conflict of interest is a breach of your duty of good faith to your client.’ and ‘I accept [counsel for the agent’s] submission that there can be cases of harmless collaterality. And that there can be cases where there is just an honest breach of contract such as Keppel’s case [1927] 1 KB 577. But this is simply not such a case. This is a case of a secret profit obtained because Mr Berry/Imageview was Mr Jack’s agent. And there was a breach of a fiduciary duty because of a real conflict of interest. That in itself would be enough, but there is more: the profit was not only greater than the work done but was related to the very contract which was being negotiated for Mr Jack. Once a conflict of interest is shown, as Atkin LJ said in the last passage quoted, the right to remuneration goes’.
and ‘The policy reason runs as follows. We are here concerned not with merely damages such as those for a tort or breach of contract but with what the remedy should be when the agent has betrayed the trust reposed in him – notions of equity and conscience are brought into play. Necessarily such a betrayal may not come to light. If all the agent has to pay if and when he is found out are damages the temptation to betray the trust reposed in him is all the greater. So the strict rule is there as a real deterrent to betrayal. As Scrutton LJ said in Rhodes’s case 29 Com Cas 19, 28, ‘The more that principle is enforced, the better for the honesty of commercial transactions”.

Mummery LJ, Dyson LJ, Jacob LJ
[2009] EWCA Civ 63, [2009] WLR (D) 56, [2009] 1 All ER (Comm) 921, [2009] 2 All ER 666, [2009] 1 BCLC 724, [2009] 1 Lloyd’s Rep 436, [2009] Bus LR 1034
Bailii, Times, WLRD
England and Wales
Citing:
CitedSalomons v Pender 21-Apr-1865
When a person who purports to act as an agent is not in a position to say to his principal, ‘I have been acting as your agent, and I have done my duty by you,’ he is not entitled to recover any commission from that principal.
Bramwell B said: . .
CitedHippisley v Knee Bros CA 1903
The defendant auctioneers were employed by the plaintiff to sell some goods. The payment was to be percentage commission with a minimum of andpound;20, certain fixed amounts and ‘all out of pocket’ expenses, particularly advertising. The sale . .
CitedBoston Deep Sea Fishing and Ice Co v Ansell CA 1888
An employer having dismissed an employee (its managing director) later learnt of the employee’s fraud.
Held: The employer was allowed to rely upon that fraud to justify the dismissal. Where an agent is in wrongful repudiation of his contract . .
CitedAndrews v Ramsay 1903
The plaintiff asked the defendant estate agents to find a purchaser for his property at a price of pounds 2,500 and if one such was found the agents’ fee would be pounds 50. A purchaser, one Clutterbuck, at pounds 2,100 was found. He paid the agents . .
CitedNitedals Taenstikfabrik v Bruster 1906
Commission was allowed for an agent despite an alleged breach of duty. Neville J discussed Andrews v Ramsay saying its doctrine: ‘does not apply to the case of an agency where the transactions in question are separable’ . .
CitedStubbs v Slater 1910
A deposit by guarantors who had agreed ‘to assign to [the Bank] their certificates of shares in [PPL] by way of deposit’, together with endorsed transfers in blank, would create an equitable mortgage with an implied power of sale. Neville J . .
CitedRhodes v Macalister CA 1923
The plaintiff agent acted to find a seller of mineral rights for the defendant principal. He told his principal that the properties could be purchased for from andpound;8,000 to andpound;10,000. If the agent could find a seller at below . .
CitedKeppel v Wheeler CA 1927
The plaintiff engaged the defendant estate agents to sell a property, instructing them to market it at 6,500 pounds but that he would accept 6,000 pounds. The plaintiff accepted an offer of 6,150 pounds ‘subject to contract’. Before exchange, . .
CitedO’Sullivan v Management Agency and Music Limited CA 1985
The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the . .
CitedDalkia Utilities Services Plc v Celtech International Ltd ComC 27-Jan-2006
The Court was asked to decide (i) which, if either, of the two parties to a 15 year agreement lawfully terminated it; (ii) whether, if one of them did so, it was by giving notice under a contractual termination clause or by way of acceptance of the . .
CitedPhipps v Boardman HL 3-Nov-1966
A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to . .
CitedRobinson Scammel v Ansell 1985
. .
CitedKelly v Cooper and Another PC 25-Nov-1992
There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his . .
CitedWarman International Ltd v Dwyer 1995
(High Court of Australia) A fiduciary diverted a business in breach of his fiduciary duty.
Held: ‘The outcome in cases of this kind will depend upon a number of factors. They include the nature of the property, the relevant powers and . .
CitedMurad and Another v Al Saraj and Another CA 29-Jul-2005
An account of profits is available without proof of loss, and the onus is upon the defaulting party to show that profits are not ones for which he should account . .

Cited by:
CitedAvrahami and Others v Biran and Others ChD 25-Jun-2013
Management fees were to be forfeited for breach of a fiduciary duty by an agent. . .
CitedHosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .

Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 10 November 2021; Ref: scu.282631

In re Morris Deceased: ChD 1970

A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the pecuniary legacy given by cl 7(iv). The error was that of her solicitor in giving effect to her instructions.
Held: Latey J said: ‘The introduction of the words ‘Clause 7’ instead of ‘Clause 7(iv)’ was per incuriam. The solicitor’s mind was never applied to it, and never adverted to the significance and effect. It was a mere clerical error on his part, a slip. He knew what the testatrix’s instructions and intentions were, and what he did was outside the scope of his authority.’ The fact that a will had been read over to a testator was not necessarily presumptive or conclusive proof that the testator approved the contents of the will. The court has a limited power to omit words from the probate on proof that they had been included in the will by fraud or mistake. Rectification as ‘a broad sense’ could only be ordered, through the omission from probate of words of which the Testator did not know and approve.
Where a testator has had the contents of a will brought to his or her attention and has executed it: ‘the inference would be that the testator knew and approved, but the point is that the court is not precluded from considering all the evidence to arrive at the truth, and this is so not only if fraud is suggested but also if mistake is suggested.
In my opinion, the approach of the court today is as stated by Sachs J in Crerar v Crerar. This case was not reported. . Sachs J said that ‘inquiries touching the validity of a testamentary disposition have always been considered matters touching the conscience of the court,’ and he rejected ‘the idea that there is any rule of law applicable to unusual cases which can so put that conscience into a strait-jacket as to preclude it from drawing inferences in the usual way and thus force the court to a decision which would, on the particular facts, be artificial’ sachs said the court had ‘to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption of law.’.’

Latey J
[1970] 1 All ER 1057, [1970] 2 WLR 865, [1971] P 62
England and Wales
Citing:
CitedGuardhouse v Blackburn 1866
. .
CitedAtter v Atkinson 1869
. .
CitedHarter v Harter 1873
. .
ApprovedGregson v Taylor ChD 1917
Hill J said: ‘when it is proved that a will has been read over to or by a capable testator, and he then executes it’, the ‘grave and strong presumption’ of knowledge and approval ‘can be rebutted only by the clearest evidence.’ . .

Cited by:
CitedWalker v Geo H Medlicott and Son (a Firm) CA 19-Nov-1998
The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will . .
CitedWordingham v Royal Exchange Trust Co Ltd and Another ChD 6-May-1992
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical . .
CitedWordingham v Royal Exchange Trust Co Ltd and Another ChD 6-May-1992
A testatrix revoked her earlier will and, by an oversight and contrary to the testatrix’s instructions, her solicitor had failed to repeat in her later will, provisions of the earlier will exercising a testamentary power of appointment. The clerical . .
CitedIn re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
CitedIn re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
CitedSprackling and others v Sprackling and Another ChD 6-Nov-2008
Family members argued that the will did not reflect the wishes of the deceased. The deceased had owned substantial and varied farming businesses, and had made a new will leaving the farm to his seciond wife, and not the sons by his first marriage. . .
CitedLamothe v Lamothe and Others ChD 15-Jun-2006
The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .
CitedMarley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
CitedMarley v Rawlings and Another ChD 3-Feb-2011
A married couple had purported to make mirror wills, but by mistake had each executed the will of the other. Rectification was now sought.
Held: The will did not comply with the 1837 Act and should not be admitted to probate. The testator had . .
CitedGill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
CitedGill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Leading Case

Updated: 10 November 2021; Ref: scu.241678

Curtis v Perry: 10 Mar 1802

Fraudulent Registrations Ineffective

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

Lord Eldon
(1802) 6 Ves 739, [1802] EngR 125, (1802) 6 Ves Jun 739, (1802) 31 ER 1285
Commonlii
England and Wales
Cited by:
CitedBowmakers Ltd v Barnet Instruments Ltd CA 1945
An action was brought for the wrongful conversion of machine tools delivered under hire purchase agreements which contravened wartime statutory orders. The plaintiff established its legal title to the goods at issue without relying upon the illegal . .
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 . .
CitedCostello v Chief Constable of Derbyshire Constabulary CA 22-Mar-2001
The police seized a car from Mr Costello, believing that it was stolen. The seizure was lawful at the time, by virtue of section 19 of PACE. The police never brought any criminal proceedings against Mr Costello, but they refused to return the car to . .

Lists of cited by and citing cases may be incomplete.

Equity

Leading Case

Updated: 10 November 2021; Ref: scu.194099

Brighton and Hove City Council v Audus: ChD 26 Feb 2009

The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in favour of the defendant had been used to purchase the lease. The second charge was intended to secure that the proprietor could continue to live in the property without further payment for their lives, but that it would then revert to the defendant, their nephew. It did so by charging any future increase in value of the property.
Held: The council’s claim failed. The transaction at issue went beyond a security transaction: ‘It was in substance a transaction whereby Mr Audus would buy the flat and have ownership of the flat but his rights were to be postponed to the rights of Mr and Mrs Bull to live in the flat for their lives.’
‘It is inherent in the concept of a mortgage or security interest that the borrower of money should be able to discharge the security interest, that is, to redeem the mortgage by paying the money and in that way performing the obligation performance of which is secured. At common law it was possible to include in a mortgage a contractual term which had the effect that the mortgagor would lose the right to redeem if he failed to repay the monies due by a specified date. Equity regarded such a term as liable to work injustice and hardship and equity granted relief against the operation of such a contractual term by recognising an equitable right to redeem, notwithstanding non-compliance with the contractual term . . The relevant rules are threefold. The first is that a condition which is repugnant to the contractual right to redeem and the equitable right to redeem is void. The second rule is that a condition which imposes a penalty in respect of the exercise of the equitable right to redeem, following a failure to exercise a contractual right to redeem, is void in equity. The third rule is that a provision which regulates or controls the right to redeem is invalid, if it is unconscionable.’

Morgan J
[2009] EWHC 340 (Ch), [2009] 9 EG 192, [2010] 1 All ER (Comm) 343, [2009] NPC 31
Bailii
England and Wales
Citing:
CitedSantley v Wilde CA 1899
Classic Definition of a Mortgage
Lord Lindley considered the nature of a mortgage and said: ‘The principle is this: a mortgage is a conveyance of land or an assignment of chattels as a security for the payment of a debt, or the discharge of some other obligation for which it is . .
CitedG and C Kreglinger v The New Patagonian Meat and Cold Storage Company HL 20-Nov-1913
Mortgagor’s collateral dvantage is not a clog
The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The . .
CitedCityland and Property (Holdings) Ltd v Dabrah 1968
The mortgage secured a debt of pounds 2,900 owing by the mortgagor to the mortgagee. The mortgagor covenanted to pay the mortgagee pounds 4,553 by monthly instalments over a six year period. The return to the mortgagee was in the form of a premium . .
CitedMultiservice Bookbinding Ltd v Marden ChD 1978
To have a transaction set aside as a harsh and unconscionable bargain, a party would have to show not only that the terms of the transaction were harsh or oppressive, but also moral unfairness. Browne-Wilkinson J said: ‘In my judgment a bargain . .
CitedKnightsbridge Estates Trust Ltd v Byrne CA 1939
The company mortgaged properties in London to secure an advance from a Friendly Society. A clause of the mortgage provided for repayment by eighty half-yearly instalments. The mortgage further provided that if the mortgagor paid the instalments on . .
CitedMehrban Khan v Makhna 1930
It is open to a later encumbrancer of land who has a right to redeem a prior charge, to come to court and establish that a term in that prior charge relating to the right to redeem is an unconscionable term and if that is established the term will . .
CitedWelsh Development Agency v Export Finance Co Ltd CA 1992
The court was asked whether a transaction relating to goods between an exporter and the defendant, as a financier, associated with sales by the exporter to third-party purchasers, amounted to a true sale by the exporter to the defendant or was . .
CitedLavin v Johnson CA 31-Jul-2002
A landowner sought repossession of land from his agricultural tenant for failure to pay his rent. The tenant alleged that a charge was an extortionate credit bargain. The landlord appealed.
Held: The Court must have regard to the evidence and . .
CitedWarnborough Ltd v Garmite Ltd CA 5-Nov-2003
Warnborough (W) sold real property to Garmite (G), leaving the purchase price outstanding but secured by a mortgage in favour of W. G also granted W an option to repurchase the property. The issue was whether the option to repurchase was ‘a clog on . .
CitedDutton and Another v Davis and Another CA 4-May-2006
The appellant had transferred his property with the intention that it should be subject to a right on his part to repurchase it. He now said the sale was in practice merely a charge.
Held: The appeal failed. The legal nature of the transaction . .
CitedNewcomb v Bonham 1681
A mortgage is made reemable during the life of the mortgagor only, yet his heirs shall redeem – And in this case the mortgagor may be foreclosed in his own lifetime. But where his decree was reversed on a hearing de integro and reversal affirmed in . .
CitedHoward v Harris 1861
Proviso in a mortgage that the mortgagor or the heirs male of his body might redeem. Decree: The assignee might redeem. . .
CitedSalt v The Marquess of Northampton 1892
. .
CitedGossip v Wright HL 1869
The House considered the right to redeem a mortgage. Kindersley VC said: ‘There is no doubt that the broad rule is this: that the Court will not allow the right of redemption in any way ‘to be hampered or crippled in that which the parties intended . .
CitedWestminster City Council v Haymarket Publishing Limited CA 1981
The court was asked whether a statutory charge on the property under the General Rate Act wou ld have priority over a legal mortgage on the property existing when the charge came into being. It was argued that the charge would be only on the . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 10 November 2021; Ref: scu.304535

The Child Poverty Action Group v Secretary of State for Work and Pensions: SC 8 Dec 2010

The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not use the law of unjust enrichment. The Department Appealed.
Held: The appeal failed. Section 71 of the 1992 Act is the only route to recovery of social security benefits overpayments to the exclusion of any common law rights. Historically there had been a division between the adjudication and quantification of the benefit award and on the one hand and the payment of the award on the other. Section 71 was not a limit on the appellant’s powers, but rather created one where none had existed. Outside it there was no power of recovery.

Lord Phillips (President), Lord Rodger, Lord Brown, Lord Kerr and Sir John Dyson SC
[2010] UKSC 54, UKSC 2009/0202, [2011] 1 All ER 729, [2011] 2 AC 15, [2011] 2 WLR 1, [2011] PTSR 185
Bailii, SC Summary, SC, Bailii Summary
Social Security Benefits Act 1992 71
England and Wales
Citing:
At First InstanceChild Poverty Action Group, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 27-Feb-2009
Challenge to defendant’s practice in seeking recovery of overpayments.
Held: The court refused to grant a declaration that the respondent could not use common law or equitable powers to recover over-payment of benefits where the payee had . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Appeal fromChild Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions CA 14-Oct-2009
CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court . .
CitedTotal Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
CitedDeutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
CitedMarcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
CitedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
CitedJohnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .

Cited by:
CitedLegal Services Commission v Henthorn QBD 4-Feb-2011
lsc_henthornQBD11
The claimant sought to recover overpayments said to have been made to the defendant barrister in the early 1990s. Interim payments on account had been made, but these were not followed by final accounts. The defendant, now retired, said that the . .
CitedRevenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .

Lists of cited by and citing cases may be incomplete.

Benefits, Equity

Updated: 10 November 2021; Ref: scu.426897

G and C Kreglinger v The New Patagonian Meat and Cold Storage Company: HL 20 Nov 1913

Mortgagor’s collateral dvantage is not a clog

The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The company paid off the loan, but the appellants claimed that they were entitled to continue to exercise their right of first refusal.
Held: The right of first refusal not part of the mortgage transaction; but was a collateral contract entered into as a condition of the company obtaining the loan. The appellants could therefore entitled to enforce it. Whilst courts are loathe to interfere with freedom of contract, they will intervene where evidence showed that terms imposed by a mortgagee are unconscientious. To do so, the courts will consider both the form and substance of the transaction.
Lord Parker of Waddington discussed the survival of the rule against a clog on an equity of redemption, saying that it was not objectionable for a mortgage to confer a collateral advantage upon a mortgagee: ‘The last of the usury laws was repealed in 1854, and thenceforward there was, in my opinion, no intelligent reason why mortgages to secure loans should be on any different footing from other mortgages. In particular, there was no reason why the old rule against a mortgagee being able to stipulate for a collateral advantage should be maintained in any form or with any modification. Borrowers of money were fully protected from oppression by the pains always taken by the Court of Chancery to see that the bargain between borrower and lender was not unconscionable. Unfortunately, at the time when the last of the usury laws was repealed, the origin of the rule appears to have been more or less forgotten, and the cases decided since such repeal exhibit an extraordinary diversity of judicial opinion on the subject. It is little wonder that, with the existence in the authorities of so many contradictory theories, persons desiring to repudiate a fair and reasonable bargain have attempted to obtain the assistance of the Court in that behalf. My Lords, to one who, like myself, has always admired the way in which the Court of Chancery succeeded in supplementing our common law system in accordance with the exigencies of a growing civilization, it is satisfactory to find, as I have found on analysing the cases in question, that no such attempt has yet been successful. In every case in which a stipulation by a mortgagee for a collateral advantage has, since the repeal of the usury laws, been held invalid, the stipulation has been open to objection, either (1) because it was unconscionable, or (2) because it was in the nature of a penal clause clogging the equity arising on failure to exercise a contractual right to redeem, or (3) because it was in the nature of a condition repugnant as well to the contractual as to the equitable right.’ and
‘The nature of the equitable right [to redeem] is so well known that, upon a mortgage in the usual form to secure a money payment on a certain day, it must be taken to be a term of the real bargain between the parties that the property shall remain redeemable in equity after failure to exercise the contractual right. Any fetter or clog imposed by the instrument of mortgage on this equitable right may properly be regarded as a repugnant condition and as such invalid. There are, however, repugnant conditions which cannot be regarded as mere penalties intended to deter the exercise of the equitable right which arises when the time for the exercise of the contractual right has gone by, but which are repugnant to the contractual right itself. A condition to the effect that if the contractual right is not exercised by the time specified the mortgagee shall have the option of purchasing the mortgaged property may properly be regarded as a penal clause. It is repugnant only to the equity and not to the contractual right itself. But a condition that the mortgagee is to have such an option for a period which begins before the time for the exercise of the equitable right has arrived, or which reserves to the mortgagee any interest in the property after the exercise of the contractual right, is inconsistent not only with the equity but with the contractual right itself, and might, I think, be held invalid for repugnancy even in a Court of Law.’
As to the doctrine of precedent: ‘To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect previous decisions of a court of co-ordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a code. When a previous case has not laid down any principle, but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblances in circumstances, and to erect a previous decision into a governing precedent merely on this account. To look for anything except the principle established or recognized by previous decisions is really to weaken and not to strengthen the importance of precedent. The consideration of cases which turn on particular facts may often be useful for edification, but it can rarely yield authoritative guidance.’ The evolving nature of the equitable jurisdiction is ‘to mould the rules which they apply in accordance with the exigencies at the time’.
Lord Parker explained the decision in Bradley v Carritt: ‘The real question, in my opinion, was whether it [the clause in question] was inconsistent with or repugnant to the contractual right of the mortgagee [quaere, mortgagor] to have his property restored unfettered if he paid the money secured with interest as provided in the agreement, and the consequential equitable right to have the property so restored if he paid his money with interest and costs at any time. On this point there was room for a difference of opinion . . There is really no difficulty in the decision itself. It is merely to the effect that the case was within the principles of Noakes v Rice. Lords Macnaghten, Davey, and Robertson all thought that if the stipulations in question were binding after redemption the mortgagor would not get back his property intact; in other words, that the stipulation was repugnant both to the contractual right and the equity.’
Lord Mersey agreeing, said that the equitable doctrine prohibiting the imposition of a clog on the mortgagor’s right to redeem is ‘like an unruly dog, which, if not securely chained to its own kennel, is prone to wander into places where it ought not to be’.
Viscount Haldane, Lord Chancellor, said: ‘the other and wider principle remains unshaken, that it is the essence of a mortgage that in the eye of a Court of Equity it should be a mere security for money, and that no bargain can be validly made which will prevent the mortgagor from redeeming on payment of what is due, including principal, interest and costs. He may stipulate that he will not pay off his debt, and so redeem the mortgage, for a fixed period. But whenever the right to redeem arises out of the doctrine of equity, he is precluded from fettering it. This principle has become an integral part of our system of jurisprudence and must be faithfully adhered to.’
The issue for decision was: ‘What was the true character of the transaction? Did the appellants make a bargain such that the right to redeem was cut down, or did they simply stipulate for a collateral undertaking, outside and clear of the mortgage, which would give them an exclusive option of purchase of the sheepskins of the respondents. The question is in my opinion not whether the two contracts were made at the same moment and evidenced by the same instrument, but whether they were in substance a single and undivided contract or two distinct contracts.’ The agreement for a right to purchase the respondent’s sheepskins was a collateral bargain ‘the entering into which was a preliminary and separable condition of the loan’.

Viscount Haldane, Lord Parker
[1914] AC 25, [1913] UKHL 1
Bailii
England and Wales
Citing:
CitedNoakes and Co Ltd v Rice HL 17-Dec-1901
Rule Against Clog on equity of Redemption
A mortgage of a leasehold public house contained a covenant with the mortgagee, a brewery, that the mortgagor and his successors in title would not, during the continuance of the leasehold term and whether or not any money should be owing on the . .
ExplainedBradley v Carritt HL 11-May-1903
Shares in a tea company had been mortgaged to secure a loan from a broker on terms that the mortgagor would seek to ensure that the mortgagee should thereafter have sale of the company’s teas. The mortgage contained a covenant that, if the company . .

Cited by:
CitedRegina v Naviede CACD 21-Mar-1997
The defendant appealed from his conviction for dishonesty. He said that he should have allowed hi to represent himself as to certain aspect of his case, but to have legal representation for others.
Held: The judge was right to reject such a . .
AppliedCityland and Property (Holdings) Ltd v Dabrah 1968
The mortgage secured a debt of pounds 2,900 owing by the mortgagor to the mortgagee. The mortgagor covenanted to pay the mortgagee pounds 4,553 by monthly instalments over a six year period. The return to the mortgagee was in the form of a premium . .
CitedBrighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
CitedWarnborough Ltd v Garmite Ltd CA 5-Nov-2003
Warnborough (W) sold real property to Garmite (G), leaving the purchase price outstanding but secured by a mortgage in favour of W. G also granted W an option to repurchase the property. The issue was whether the option to repurchase was ‘a clog on . .
CitedWarnborough Ltd v Garmite Ltd ChD 12-Jan-2006
The claimant sought specific performance under a contract for sale of two leasehold properties. The defendant claimed inter alia that the agreement worked as a clog on the equity of the properties. . .
CitedJones v Morgan CA 28-Jun-2001
The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Contract, Equity

Leading Case

Updated: 09 November 2021; Ref: scu.189952

Campbell Discount Company Ltd v Bridge: CA 1961

Agreed compensation is not a penalty

A hirer under a hire purchase agreement could terminate the hiring during the course of the term whereupon the hirer was required to pay a sum by way of agreed compensation.
Held: A sum of money payable under a contract on the occurrence of an event other than a breach of a contractual duty owed by the paying to the receiving party is not a penalty. The system of equity has become a very precise one.
Harman LJ cautioned against applying equitable principles as they used to be in the early Chancery decisions: ‘Equitable principles are, I think, perhaps rather too often bandied about in common law courts as though the Chancellor still had only the length of his own foot to measure when coming to a conclusion. Since the time of Lord Eldon the system of equity for good or evil has been a very precise one, and equitable jurisdiction is exercised only on well-known principles.’

Holroyd Pearce, Harman LJJ
[1961] 1 QB 445
England and Wales
Cited by:
Appeal fromCampbell Discount Company Ltd v Bridge HL 1962
The parties disputed the validity of a clause in a car hire contract relating to the consequences of a breach.
Held: (Majority) The agreement had been terminated by breach rather than by the exercise of an option, so that the stipulated . .
CitedWestern Fish Products Ltd v Penwith District Council and Another CA 22-May-1978
Estoppel Cannot Oust Statutory Discretion
The plaintiff had been refused planning permission for a factory. The refusals were followed by the issue of Enforcement Notices and Stop Notices. The plaintiff said that they had been given re-assurances upon which they had relied.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Contract, Equity

Leading Case

Updated: 09 November 2021; Ref: scu.517567

Lipkin Gorman (a Firm) v Karpnale Ltd: HL 6 Jun 1991

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

Lord Templeman, Lord Bridge, Lord Ackner and Lord Griffiths, Lord Goff
[1991] 2 AC 548, [1988] UKHL 12, [1991] 3 WLR 10
Bailii
Gaming Act 1845 18
England and Wales
Citing:
At CALipkin Gorman v Karpnale Ltd CA 1989
A partner in a firm of solicitors stole money from them, and spent it gambling with the defendants. The firm sued also their banker, who had been held to be aware of the defaulting partner’s weaknesses and activities.
Held: The solicitors . .
CitedMiller v Race 1758
A bank note made out to bearer and payable on demand was to be treated as currency. Conversion did not lie because there is no property in currency. Lord Mansfield said: ‘So, in the case of money stolen, the true owner cannot recover it, after it . .
CitedClarke v Shee and Johnson 1774
A servant diverted money from customers of his employer and bought lottery tickets. Lotteries were illegal and void under the Lottery Act 1772. The master recovered from the defendants who were the holders of the lottery and had innocently received . .
CitedAubert v Walsh 1810
The parties had wagered on 15 September 1808 that the war with France would end before 1 July 1810. One party to the wager withdrew in October 1808, and sought recovery of his stake.
Held: He was entitled to its return. Lord Mansfield said: . .
CitedHudson v Robinson 1816
A partner in a firm fraudulently contracted in the names of the partnership to sell goods to the plaintiff. He received the purchase price from the plaintiff and then did not delivery the goods.
Held: The plaintiff buyer could recover the . .
CitedOrton v Butler 3-May-1822
A count stating that defendant had and received to the use of the plaintiff a certain sum of money, to be paid by the defendant to the plaintiff upon request ; and the non-payment upon request, and that the defendant converted and disposed thereof . .
CitedFoster v Green 1862
Cash may not be subject to a claim for conversion. . .
CitedBainbrigge v Browne ChD 1881
Bainbrigge_BrowneChD1881
An impoverished father had prevailed upon his inexperienced children to charge their reversionary interests under their parents’ marriage settlement to pay his mortgage debts. Undue influence was claimed.
Held: The defendants who were not . .
CitedShoolbred v Roberts 1899
A bankrupt won andpound;100 in a billiards game. The stake was given to stakeholders.
Held: The bankrupt’s trustee could recover the bankrupt’s own stake from the stakeholder but not the stake of the loser. Phillimore J said that: ‘I am bound . .
CitedBlack v S Freeman and Co 1910
(High Court of Australia) A thief stole money from the husband, and gave it to the victim’s wife. The victim sought to recover it from her.
Held: The money was repayable. Once stolen it was subject to a trust in favour of the victim wich could . .
At first instanceLipkin Gorman (a Firm) v Karpnale Ltd 1987
A partner in the plaintiff firm of solicitors stole money from them and spent it gambling in the defendant’s casino. The plaintiff cought to recover the money from the defendant, saying that as a gambling debt, no consideration had been given. They . .
CitedBanque Belge pour L’Etranger v Hambrouck 1921
Money was stolen by a thief. He then paid it by way of a gift into the bank account of the woman with whom he was living. The victim claimed its return from the woman and her bankers. GBP315 of the balance in her account represented part of the . .
CitedTransvaal and Delagoa Bay Investment Co Ltd v Atkinson 1944
Money stolen from a company was paid by the thief into a bank account of his wife. All the money was expended, mostly by being returned to the husband. . .
CitedTaylor and Another v Sir Thomas Plumer KBD 10-Feb-1815
Sir Thomas Plumer gave a bank draft to a stockbroker for the purpose of buying exchequer bills, and the stockbroker instead used the draft for buying American securities and doubloons for his own purposes.
Held: Sir Thomas was able to trace . .
CitedMarsh v Keating HL 1834
Keating owned 12,000 pounds interest or share in joint stock reduced 3 per cent annuities, standing to her with the Bank of England, where the accounts were entered in the form of debtor and creditor accounts in the ledgers of the bank. Under what . .
CitedBolton Partners v Lambert 1889
The equitabe remedy of ratification cannot be relied upon so as to render an innocent recipient a wrongdoer. Cotton LJ said ‘an act lawful at the time of its performance [cannot] be rendered unlawful, by the application of the doctrine of . .
CitedCHT Ltd v Ward 1965
Davies LJ discussed whether a casino gave good consideration when supplying gambling chips to customers: ‘People do not game in order to win chips; they game in order to win money. The chips are not money or money’s worth; they are mere counters or . .
CitedMinistry of Health v Simpson; In re Diplock dec HL 1950
The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an . .
CitedCommercial Banking Co of Sydney Ltd v Mann PC 1961
The respondent Mann practiced as a solicitor in partnership with Richardson. They kept a ‘trust account’ in the partnership name with the Australian and New Zealand Bank in Sydney (‘ANZ’). Under the partnership agreement, all assets belonged to . .
CitedMoses v Macferlan KBD 1760
An action for money had and received will only lie where it is inequitable for the defendant to retain the money. The defendant in an action for money had and received ‘can be liable no further than the money he has received’. . .
CitedLondon and River Plate Bank Ltd v Bank of Liverpool Ltd 1896
Mathew J said: ‘when a bill becomes due and is presented for payment the holder ought to know at once whether the bill is going to be paid or not’. And ‘it is manifest that the position of a man of business may be most seriously compromised, even by . .
CitedDurrant v Ecclesiastical Commissioners for England and Wales 1880
An action would lie against a recipient of money, paid under a mistake if fact, who (without notice of the mistake) had paid on the money in good faith as a principal to a third party from whom the recipient could not recover. The court rejected the . .
CitedPrice v Neal 1762
Money paid under a forged bill may be irrecoverable. . .
CitedGolightly v Reynolds 1774
The identity of funds was traced through different hands and shops. . .
CitedR E Jones Ltd v Waring and Gillow Ltd HL 1926
In the case of a confidence man whose plan might have been frustrated by an unexpected contact between the two innocent parties; the House of Lords were divided as to whether that equivocal contact amounted to a representation. Viscount Cave LC . .
CitedFibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd HL 15-Jun-1942
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated . .
CitedAvon County Council v Howlett CA 1983
The plaintiff, through its computerised system for the payment of wages, had overpaid the defendant to the extent of andpound;1,007. He had suffered an injury and been absent from work. The Council sought to recover the overpayment on the grounds . .
CitedUnion Bank of Australia Ltd v McClintock PC 1922
Where a partner obtains money by drawing on a partnership bank account without authority, he alone and not the partnership obtains legal title to the money so obtained. . .
CitedBute (Marquess) v Barclays Bank Ltd 1955
McGaw was the manager of three farms belonging to the plaintiff. He applied to the Department of Agriculture for Scotland for farm subsidies. After he left, the Department sent him three warrants in respect of the subsidies. The warrants were made . .

Cited by:
CitedRose v AIB Group (UK) plc and Another ChD 9-Jun-2003
The bank had received and paid substantial sums from the company before the petition for insolvency had been presented, and had discharged the director’s charge on his house. The liquidator sought restitution under the Act. The bank replied that it . .
CitedNiru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
CitedCommerzbank Ag v Price-Jones CA 21-Nov-2003
The respondent had received a bonus of andpound;250,000. His employers wrote to him in error increasing it. He later chose to stay rather than take redundancy because he now expected the full amount. He resisted an order for restitution. The . .
CitedDextra Bank and Trust Company Limited v Bank of Jamaica PC 26-Nov-2001
(Jamaica) A cheque was drawn which was used as part a complex financial arrangement intended to purchase foreign currency to work around Jamaica’s foreign exchange control regulations. It was asserted that by presenting the cheque used in the . .
CitedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
CitedAbouRahmah and Another v Abacha and others QBD 28-Nov-2005
Claims were made as to an alleged fraud by some of the respondents. . .
CitedBoscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
CitedSempra Metals Ltd v Inland Revenue Commissioners and Another HL 18-Jul-2007
The parties agreed that damages were payable in an action for restitution, but the sum depended upon to a calculation of interest. They disputed whether such interest should be calculated on a simple or compound basis. The company sought compound . .
CitedGrosvenor Casinos Ltd v National Bank of Abu Dhabi ComC 17-Mar-2008
Banker’s reference no guarantee
An Arab businessman lost pounds 18m at the claimant casino, and wrote scrip cheques against his account with the defendant. The claimant obtained judgment, but being unable to enforce that judgment pursued his bank. The club had used a system where . .
CitedKommune and Another v DEPFA Acs Bank ComC 4-Sep-2009
Local authorities in Denmark sought to recover sums paid to the defendant banks for swap trading, saying that the payments had been outwith their powers. . .
CitedBankers Trust Company v Namdar and Namdar CA 14-Feb-1997
The bank sought repayment of its loan and possession of the defendants’ property. The second defendant said that the charge had only her forged signature.
Held: Non-compliance with section 2 of the 1989 Act does not make a bargain illegal, and . .
CitedJeremy D Stone Consultants Ltd and Another v National Westminster Bank Plc and Another ChD 11-Feb-2013
The claimants asserted an equitable claim against funds held by the defendant bank in the name of a company owned by another defendant who they said defrauded them through a Ponzi investment scheme.
Held: The claim failed. On the evidence, the . .
CitedScottish Equitable v Derby 16-Mar-2001
The claimant company sought repayment of a sum paid in error to the defendant. She replied that she had changed her position as a result of and relying upon the payment.
Held: The court gave as ‘the most obvious example’ of the kind of . .
CitedThe Ritz Hotel Casino Ltd v Al Daher QBD 15-Aug-2014
The claimant sought to recover andpound;1m on unpaid cheques. The cheques represented half of the sum gambled away by the defendant in one evening. She now alleged that the claimant had not complied with its duties under the 2005 Act to act . .
CitedIn re Hampton Capital Ltd ChD 9-Jul-2015
The companyy’s joint administrator requested orders under section 238 as against various payments made by the Company and for payment of the equivalent sums. . .
CitedInvestment Trust Companies v Revenue and Customs CA 12-Feb-2015
The claimants having sought repayment of overpaid VAT, they now complained of sums deducted by the Revenue.
Held: The Court allowed the Lead Claimants’ appeal, to the extent of the notional pounds 75 paid in respect of dead periods, and . .
CitedJohn Ruskin College v Harley QBD 26-Nov-2013
A sum had been paid into court in 1997. Other sums were paid out, but this sum was left against costs liability. It was discovered much laterand paid out to the claimant. The former defendant now said that it had been paid out twice, and alleged . .
CitedRevenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
CitedLowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .

Lists of cited by and citing cases may be incomplete.

Equity, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.184533

Solle v Butcher: CA 1949

Fundamental Mistake Needed to Allow Rescission

The court set out the circumstances in which the equitable remedy of rescission of a contract is available for mutual mistake. The mistake has to be as to some fundamental element of the contract. What is ‘fundamental’ is a wider category of event than would make a contract void at common law. In the case of unilateral mistake, Lord Denning MR said: ‘It is now clear that a contract will be set aside if the mistake of the one party has been induced by a material misrepresentation of the other, even though it was not fraudulent or fundamental; or if one party, knowing that the other is mistaken about the terms of an offer, or the identity of a person by whom it is made, lets him remain under his delusion and concludes a contract on the mistaken terms instead of pointing out the mistake.’
In the case of a common mistake: ‘A contract is also liable in equity to be set aside if the parties were under a common misapprehension either as to the facts or as to their relative rights, provided that the misapprehension was fundamental and that the party seeking to set it aside was not himself at fault.’

Lord Denning MR
[1950] 1 KB 671, [1949] 2 All ER 1107
England and Wales
Citing:
CriticisedSowler v Potter 1939
The defendant had been convicted of an offence of permitting disorderly conduct in a cafe, under her proper name of Ann Robinson. She then assumed the name of Ann Potter. The plaintiff’s evidence was that, if he had known that she was Ann Robinson, . .

Cited by:
CitedJ S Bloor (Measham) Ltd v Eric Myles Calcott ChD 23-Nov-2001
The tenant had claimed a tenancy under the Act. The landlord sought to assert a proprietary estoppel against them. There was nothing in the 1986 Act to stop the claimants relying on a proprietary estoppel and asserting their claims to occupation. . .
OverruledGreat Peace Shipping Ltd v Tsavliris (International) Ltd CA 14-Oct-2002
The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability.
Held: . .
CitedWilliam Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Not followedIslington v Uckac and Another CA 30-Mar-2006
The council’s tenant had unlawfully secured assignment of a secure tenancy to the defendant. The council sought possession.
Held: A secure tenancy granted by an authority pursuant to a misrepresentation by the tenant is nonetheless valid. The . .
CitedHarlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd CA 15-Dec-1989
The defendant auctioneer sold a painting to the plaintiff which turned out to be a forgery. The plaintiff appealed against a finding that it had not relied upon the attribution, saying that there had been a breach of the requirement that the paintig . .
CitedLeaf v International Galleries (a Firm) CA 1-Mar-1950
In 1944, the plaintiff had purchased a picture of Salisbury Cathedral from the defendant. By innocent misrepresentation, he was told that it was by Constable, and only learned of the error when he set out to sell it five years later.
Held: On . .

Lists of cited by and citing cases may be incomplete.

Equity, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.183054

Daventry District Council v Daventry and District Housing Ltd: CA 13 Oct 2011

The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant council sought rectification of a contract by which it transferred its housing stock and the staff employed in its housing department to the defendant company. There was a deficit of pounds 2.4m in the staff pension scheme referable to the transferred employees and the contract provided for the council to fund this deficit. An earlier non-binding document which was agreed in principle and signed during the negotiations, objectively interpreted, provided that the cost of funding the deficit would be shared equally between the parties. This was how the council’s agent understood it (as the company’s negotiator knew) but the company’s negotiator thought that a different interpretation of the document was tenable and told the company’s board of directors that the deal was for the council to fund the deficit.
Held: The appeal succeeded. Though the court accepted Etherton LJ’s analysis of the law, Neuberger and Toulson LJJ disagreed as to the interpretation of the facts.
Toulson LJ followed Chartbrook, but with some reluctance and said: ‘In deciding whether on a fair view there was a renegotiation or a mistake in the drafting of the contract, it is necessary to look at all the circumstances. Have the parties behaved in such a way that they would reasonably understand one another to be involved in a process of seeking to negotiate a different deal from the one originally agreed or as involved in a process of drafting an agreement intended to accord with the deal originally agreed? Where it is suggested that there has been a change in the parties’ position prior to the execution of a written contract, it is necessary to look carefully at all the facts to see whether a reasonable person would have understood himself to be involved in the negotiation of a different deal from the one originally agreed or merely seen himself as involved in a process of drafting an agreement intended to conform with the original deal. If the latter is the case, and if the approval and execution of the written contract are affected by a relevant mistake, rectification should be available. It is, of course, for the party claiming rectification to show that in that process a mistake occurred.’
Etherton LJ, dissenting, said: ‘It is difficult to see how or why, once the conditions for mutual mistake are satisfied, the defendant’s carelessness could justify refusal of rectification. As the facts of the present case show, however, the claimant’s carelessness may preclude relief, not on some general ground of discretion, but because the claimant cannot be allowed to rely on its own carelessness in failing to observe that the defendant objectively no longer, at the date of the instrument to be rectified, continued to adhere to the prior common intention. Agip is, in that very loose sense, a useful analogy. ‘ Nor could it be said that the judge had erred in his conclusions as to the facts.
Toulson LJ pointed out: ‘Notwithstanding the immense respect due to Lord Hoffmann and the other members of the House of Lords, I have difficulty in accepting it as a general principle that a mistake by both the parties as to whether a written contract conformed with a prior non-binding agreement, objectively construed, gives rise to a claim for rectification.’

Lord Neuberger MR, Toulson, Etherton LJJ
[2011] EWCA Civ 1153, [2012] 2 All ER (Comm) 142, [2012] Pens LR 57, [2012] 1 P and CR 5, [2011] 42 EG 120, [2012] 1 WLR 1333, [2012] Bus LR 485
Bailii
England and Wales
Citing:
CitedChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
CitedCrane v Hegeman-Harris Co Inc ChD 1939
A continuing common intention of the parties to a document alone will not suffice to justify rectification. For rectification to be appropriate, there must be convincing proof that the concluded instrument does not represent the common intention of . .
CitedSwainland Builders Ltd v Freehold Properties Ltd CA 2002
Swainland Builders Ltd owned the freehold of a block of flats. It had granted 99-year leases at ground rents of all the flats except numbers 11 and 18. It had intended to sell the block subject to the retention of flats 11 and 18 which it initially . .
CitedLovell and Christmas Ltd v Wall CA 1911
The written contract contained a restrictive covenant limiting the defendant’s freedom to carry on the business of a ‘provision merchant’ other than on behalf of the plaintiff company. On the facts found, the parties in their discussions before the . .
CitedGeorge Cohen Sons and Co Ltd v Docks and Inland Waterways Executive CA 1950
The landlord negotiating a new lease proposed to the tenant that ‘the terms and conditions contained in the present lease to be embodied in the new lease where applicable.’ The tenant accepted this offer, but the new lease as executed made the . .
CitedFrederick E Rose (London) Ltd v William H Pim Jnr and Co Ld CA 1953
Denning LJ said: ‘Rectification is concerned with contracts and documents, not with intentions. In order to get rectification it is necessary to show that the parties were in complete agreement on the terms of their contract, but by an error wrote . .
CitedBritoil plc v Hunt Overseas Oil Inc CA 1994
After the failure of the attempt by the Texan oil tycoon, Nelson Bunker Hunt, in the 1970s to corner the world silver market, his fortune collapsed and his companies were forced to sell off assets. In 1979 two of those companies (the defendants in . .
CitedCarmichael and Another v National Power Plc HL 24-Jun-1999
Tour guides were engaged to act ‘on a casual as required basis’. The guides later claimed to be employees and therefore entitled by statute to a written statement of their terms of employment. Their case was that an exchange of correspondence . .
CitedCambridge Antibody Technology v Abbott Biotechnology Ltd and Another Patc 20-Dec-2004
Rectification of an agreement was sought.
Held: Laddie J rejected a submission that evidence of the subjective state of mind of one of the parties contained in statements which had not been communicated to the other party (‘crossed the line’) . .
CitedThomas Bates and Sons Ltd v Wyndham’s Lingerie Ltd CA 21-Nov-1980
An application was made for rectification of a rent review clause in a lease. When executing the lease, the tenants’ officer, Mr Avon, noticed that the rent review clause in the lease drafted by the landlords was defective in not including a . .
CitedGeorge Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
CitedBritoil plc v Hunt Overseas Oil Inc CA 1994
After the failure of the attempt by the Texan oil tycoon, Nelson Bunker Hunt, in the 1970s to corner the world silver market, his fortune collapsed and his companies were forced to sell off assets. In 1979 two of those companies (the defendants in . .
CitedGeorge Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
CitedCommission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd) CA 4-Mar-1995
The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to . .
Appeal fromDaventry District Council v Daventry and District Housing Ltd ChD 30-Jul-2010
The parties had negotiated for the transfer to the defendant of the claimant’s housing stock, the associated management team, and the pension and other related assets and obligations. The claimant sought rectification of the agreement to reflect . .
CitedSmith v Hughes QBD 1871
Blackburn J said: ‘I apprehend that if one of the parties intends to make a contract on one set of terms, and the other intends to make a contract on another set of terms, or, as it is sometimes expressed, if the parties are not ad idem, there is no . .

Cited by:
CitedFSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .

Lists of cited by and citing cases may be incomplete.

Contract, Equity

Leading Case

Updated: 09 November 2021; Ref: scu.445632

Rhone and Another v Stephens: HL 18 Mar 1994

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

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

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

Lists of cited by and citing cases may be incomplete.

Equity, Land

Leading Case

Updated: 09 November 2021; Ref: scu.88768

Turner v Bladin: 20 Apr 1951

Austlii (High Court of Australia) Contract – Specific performance – Outstanding obligations on either side – Contract of sale completely performed by vendor – Decree of specific performance against purchaser to enforce payment of purchase price.
Statute of Frauds – Action – Debt – Sale of interest in land – Contract not evidenced by writing – Consideration fully executed by vendor – Action by vendor in indebitatus assumpsit to recover purchase price or instalments thereof – Instruments Act 1928-1936 (No. 3706 – No. 4370) (Vict.), s. 128.

Williams, Fullagar, and Kitto JJ
(1951) 82 CLR 463, [1951] HCA 13
Austlii
Australia

Commonwealth, Equity, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.395052

Smith v Clay: 10 May 1767

Long Delay in Application Debarred Remedy

Review was sought of a decree pronounced some thirty or forty years before. The defect was apparent on the face of the record.
Held: The review was barred by the length of time elapsed.
Lord Camden LC applied the doctrine of laches, saying: ‘A Court of Equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting, the Court is passive, and does nothing.’ Equity would not countenance laches beyond the period for which a legal remedy had been limited by statute, and that where the legal right had been barred, the equitable right to the same thing was also barred: ”Expedit reipublicae ut sit finis litium’, is a maxim that has prevailed in this court at all times, without the help of parliament.
But, as the Court has no legislative authority, it could not properly define the time of bar, by a positive rule, to an hour, a minute, or a year; it was governed by circumstances.
But as often as parliament had limited the time of actions and remedies, to a certain period, in legal proceedings, a Court in Chancery adopted that rule, and applied to similar cases in equity.
For when the Legislature had fixed the time at law, it would have been preposterous for equity (which, by its own proper authority, always maintained a limitation), to countenance laches beyond the period, that law had been confined to by parliament.
And therefore in all cases where the legal right has been barred by parliament, the equitable right to the same thing has been concluded by the same bar.’

Lord Camden LC
[1767] EngR 55, (1767) 3 Bro CC 646, (1767) 29 ER 743
Commonlii
England and Wales
Citing:
See AlsoSmith v Clay 10-May-1767
Bill of review for error apparent will not lie after twenty years from the making of the decree. The time runs from the decree, not from the inrolment. . .

Cited by:
CitedAdamson and Others v Paddico (267) Ltd SC 5-Feb-2014
Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
Held: The appeal were solely as to . .

Lists of cited by and citing cases may be incomplete.

Equity, Administrative, Limitation

Leading Case

Updated: 09 November 2021; Ref: scu.374834

Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India (The Kanchenjunga): HL 1990

A ship was caught in harbour when an air raid broke out. The master took the ship to sea where it suffered damage.
Held: The shipowners were protected by a war risks clause in the charterparty agreement. As to waiver by election, Lord Goff of Chieveley said: ‘In the present case, we are concerned with an election which may arise in the context of a binding contract, when a state of affairs comes into existence in which one party becomes entitled, either under the terms of the contract or by the general law, to exercise a right, and he has to decide whether or not to do so. His decision, being a matter of choice for him, is called in law an election. Characteristically, this state of affairs arises where the other party has repudiated the contract or has otherwise committed a breach of the contract which entitles the innocent party to bring it to an end, or has made a tender of performance which does not conform to the terms of the contract. .
In all cases, he has in the end to make his election, not as a matter of obligation, but in the sense that, if he does not do so, the time may come when the law takes the decision out of his hands, either by holding him to have elected not to exercise the right which has become available to him, or sometimes by holding him to have elected to exercise it. Instances of this phenomenon are to be found in s. 35 of the Sale of Goods Act 1979. In particular, where with knowledge of the relevant facts a party has acted in a manner which is consistent only with his having chosen one of the two alternative and inconsistent courses of action then open to him – for example, to determine a contract or alternatively to affirm it – he is held to have made his election accordingly . . perhaps because a party who elects not to exercise a right which has become available to him is abandoning that right, he will only be held to have done so if he has so communicated his election to the other party in clear and unequivocal terms Moreover, it does not require consideration to support it, and so it is to be distinguished from an express or implied agreement, such as a variation of the relevant contract, which traditionally requires consideration to render it binding in English Law.’

Lord Goff of Chieveley
Times 19-Feb-1990, [1990] CLY 4077, [1990] 1 Lloyds Rep 391
Sale of Goods Act 1979 35
England and Wales
Cited by:
CitedOliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
CitedPeregrine Systems Ltd v Steria Ltd CA 14-Mar-2005
The claimant provided computer software to the defendants. The defendants appealed dismissal of their defences arguing that the system had failed.
Held: No repudiatory breach was established, and moreover Steria had elected to affirm the . .
CitedStocznia Gdynia Sa v Gearbulk Holdings Ltd CA 13-Feb-2009
Orders were placed for the construction of ships. They were not delivered. The buyer, the defendant, cancelled the orders. The defendants sought the loss of profit. The claimants said they were entitled only to the repayment of instalments. The . .
CitedWheatley, Smith As Executors of Henry Thomas Cadbury-Brown v King LRA 30-Nov-2011
LRA Estoppel – Exercise of options – whether defect waived – ‘The Kanchenjunga’ [1990] Lloyds Law Reports 391 – Peyman v Lanjani [1985] 1 Ch 457, HIH Casualty and General Insurance Ltd v AXA Corporate Solutions . .
ExplainedTele2 International Card Company Sa and others v Post Office Ltd CA 21-Jan-2009
Appeal against rejection of claim for novation of contract.
Held: Aikens LJ summarised the analysis by Lord Goff of the principles of affirmation by election in Kanchenjunga as follows: ‘i) If a contract gives a party a right to terminate upon . .
CitedForce India Formula One Team Ltd v 1 Malaysia Racing Team Sdn Bhd and Others ChD 21-Mar-2012
The claimants alleged misuse by the defendants of confidential information.
Held: Arnold J said: ‘Confidential information is not property, however, even though businessmen often deal with confidential information as if it were property and . .

Lists of cited by and citing cases may be incomplete.

Insurance, Contract, Equity

Leading Case

Updated: 09 November 2021; Ref: scu.188152

The 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 served with a subpoena to appear in Chancery.
Held: The defendant was entitled to relief in Chancery.
Lord Ellesmere LC said: ‘The Cause why there is a Chancery is, for that Mens Actions are so divers and infinite, That it is impossible to make any general Law which may aptly meet with every particular Act, and not fail in some Circumstances.’ and
‘The office of the Chancellor is to correct man’s consciences for frauds, breach of trust, wrongs and oppressions of whatsoever nature and to soften and mollify the extremity of the law . . when judgement is obtained by oppression, wrong and hard conscience, the Chancellor will frustrate and set it aside, not for any error or defect in the judgment but for the hard conscience of the party.’

Lord Ellesmere LC
[1615] EngR 2, (1615) 1 Rep Ch 1, (1615) 21 ER 485
Commonlii
England and Wales
Cited by:
CitedShearer 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. . .

Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Leading Case

Updated: 09 November 2021; Ref: scu.424216

Serious Organised Crime Agency v Szepietowski and Others: ChD 15 Oct 2010

The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, but leaving the Agency with no effective return. The bank’s same debts had also been secured on other property. The agency wished the bank instead to take its money under the other charge. The defendant argued that a settlement agreement was a full statement of the Agencies rights.
Held: The Court granted the Agency a declaration that it was entitled to have (i) its security over specified properties of the first defendant, and (ii) the securities of the second defendant bank over the same properties and over the first defendant’s family home, marshalled pursuant to the court’s equitable jurisdiction. The words of the agreement were not sufficiently wide to preclude a marshalling claim.
Marshalling is a doctrine with its own peculiar and distinct characteristics, and is not governed by the general principles of other subrogation remedies. The ‘two debts’ condition of marshalling was satisfied and the objection to its apoplication failed. The claimant was therefore subrogated to the bank in that bank’s charge over the remaining property.

Henderson J
[2010] EWHC 2570 (Ch), [2010] NPC 101, [2011] Lloyd’s Rep FC 81
Bailii
England and Wales
Citing:
See AlsoDirector of the Assets Recovery Agency v Szepietowski and others Admn 29-Sep-2006
The respondent had objected that the appointment of an interim receiver had been based upon information obtained in the course of investigations undertaken in connection with different proceedings and allegations.
Held: The enforcement agency . .
See AlsoSzepietowski v Assets Recovery Agency Admn 28-Nov-2006
The first respondent applied for the freezing and receiving orders in relation to two properties and chattels obtained by the first respondent under the 2002 Act to be discharged on the footing that the Agency Director has not shown that she has a . .
See AlsoSerious Organised Crime Agency v Szepietowski and Others (No 2) ChD 1-Jul-2009
The Agency asked to have set aside four orders allowing the defendant to have excluded from his assets subject to an interim receiving order to allow payment of his legal expenses.
Held: There was no rule that assets once excluded from an . .
See AlsoAssets Recovery Agency v Szepietowski and Others ChD 19-Mar-2009
The applicant defendants sought to have excluded from the effect of restrictions on their dealing with property, property which was held under trusts.
Held: The applications were rejected. There were well established rules allowing trustees . .
See AlsoAssets Recovery Agency v Szepietowski and others CA 24-Jul-2007
The defendant had had set aside an interim order for assets recovery. The director appealed against a finding by the court below that he did not have ‘a good arguable case’, justifying an interim recovery order.
Held: The appeal succeeded. On . .
CitedSerious Organised Crime Agency v Szepietowski and others ChD 27-Feb-2009
Several of the defendants applied for assets to be excluded from an interim receiving order in order to enable them to meet legal expenses. . .
CitedAldrich v Cooper, Durham v Lankester, Durham v Armstrong 26-Apr-1803
Lord Eldon LC discussed the equitable principle of marshalling and said: ‘two estates [were] mortgaged to A; and one of them mortgaged to B. He has no claim under the deed upon the other estate. It may be so constructed that he could not affect that . .
CitedCheltenham and Gloucester Plc v Appleyard and Another CA 15-Mar-2004
The owners had purchased their property with a loan from the BBBS. A charge was then given to BCCI, which charge said no further charge could be registered without BCCI ‘s consent. The C and G agreed to lend a sum to refinance the entire borrowings, . .
CitedBank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
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 . .
CitedBanque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedBank of Credit and Commerce International SA (No 8) CA 1997
A security was granted to secure a debt owed by a third party. . .
CitedBanque Financiere De La Cite v Parc (Battersea) Limited Omnicorp Overseas Limited CA 29-Nov-1996
. .

Cited by:
At First InstanceSzepietowski v The National Crime Agency SC 23-Oct-2013
S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .
Appeal fromSzepietowski v The Serious Organised Crime Agency CA 21-Jul-2011
The claimant owned properties subject to charges in favour of a bank. The Agency alleged that the properties represented the proceeds of crime. The agency had settled its claim by taking a second charge over one property. When that was sold, only . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 09 November 2021; Ref: scu.425361

FHR 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 commission.
Held: The appeal failed. An agent receiving a secret commission in breach of his fiduciary duties to his principal, held that commission or bribe in trust for that principal, and a proprietary remedy was available in respect of it.
There had been conflicting decisions and much academic discussion over the years as to the availability of the remedy requested. Where an agent acquires a benefit which came to his notice as a result of his fiduciary position, or pursuant to an opportunity which results from his fiduciary position, the general equitable rule (‘the Rule’) is that he is to be treated as having acquired the benefit on behalf of his principal, so it is beneficially owned by the principal. How did the rule apply where the bribe was taken by an agent in breach of his fiduciary duty.

Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge, Lord Collins
[2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P and CR DG1, UKSC 2013/0049
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video
England and Wales
Citing:
At ChDFHR European Ventures Llp and Others v Mankarious and Others ChD 5-Sep-2011
The claimants sought return of what it said were secret commissions earned by the defendants when working as their agents, and the defendants counterclaimed saying that the commissions had been known to the claimants and that additional sums were . .
Appeal fromFHR European Ventures Llp and Others v Mankarious and Others CA 29-Jan-2013
The defendants had taken a secret commission when acting for the claimant. They had succeeded in their action and had an order in their favour, but had been refused a proprietary remedy for the sum received.
Held: The appeal was allowed, and a . .
CitedKeech v Sandford ChD 1726
Trustee’s Renewed Lease also Within Trust
A landlord refused to renew a lease to a trustee for the benefit of a minor. The trustee then took a new lease for his own benefit. The new lease had not formed part of the original trust property; the minor could not have acquired the new lease . .
CitedCarter, Esq v Sir William Henry Palmer, Bart 17-Mar-1842
The employment of counsel as confidential legal adviser disables him from purchasing for his own benefit charges on his client’s etates, without his permission ; and although the confidential employment ceases, the disability continues as long as . .
CitedBowes v The City Of Toronto PC 15-Feb-1858
The mayor of a city who bought discounted debentures issued by the city was in the same position as an agent vis-a-vis the city, and was to be treated as holding the debentures on trust for the city. . .
CitedDunne v English CA 1874
A partner had made a secret profit from the sale of partnership property.
Held: The other partner sought and obtained relief ‘substantially in accordance with the first and second paragraphs of the prayer of the bill’, which had sought ‘a . .
CitedBagnall v Carlton CA 1877
Agents for a prospective company who made secret profits out of a contract made by the company were held to be ‘trustees for the company’ of those profits . .
CitedCook v Deeks and Hinds PC 23-Feb-1916
Company Directors not free to prefer Own Interests
Deeks and Hinds were the directors of a construction company. They negotiated a lucrative construction contract with the Canadian Pacific Railway. During the negotiations, they decided to enter into the contract personally, on their own behalves, . .
CitedRegal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
CitedPhipps v Boardman ChD 1964
Agents of certain trustees had purchased shares, in circumstances where they only had that opportunity because they were agents.
Held: The shares were held beneficially for the trust. . .
CitedMothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
CitedBhullar and others v Bhullar and Another CA 31-Mar-2003
The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company’s affairs. After a falling out, two directors purchased property adjacent to a company property but in their own . .
CitedBarker v Harrison 16-Apr-1846
A vendor’s agent had secretly negotiated a sub-sale of part of the property from the purchaser at an advantageous price.
Held: that asset was held on trust for the vendor. . .
CitedFawcett v Whitehouse 21-Dec-1829
The defendant, intending to enter into a partnership with the plaintiffs, negotiated for the grant by a landlord of a lease to the partnership. The landlord paid the defendant andpound;12,000 for persuading the partnership to accept the lease.
CitedSugden v Crossland 18-Feb-1856
A sum of money paid to a trustee to persuade him to retire in favour of the payee was to be ‘treated as a part of the trust fund’. . .
CitedIn re Morvah Consols Tin Mining Co, McKay’s Case CA 1875
A company bought a mine, and shares in the vendor were promised to the company’s secretary.
Held: The shares were held by him for the company beneficially. . .
CitedIn re Western of Canada Oil, Lands and Works Co, Carling, Hespeler, and Walsh’s Cases CA 1875
Shares which had been transferred by a person to individuals to induce them to become directors of a company and to agree that the company would buy land from the person, were held by the individuals on trust for the company. . .
CitedIn re Caerphilly Colliery Co, Pearson’s Case CA 1877
A company director, had received shares from the promoters and then acted for the company in its purchase of a colliery from the promoters.
Held: The shares were held on trust for the company. . .
CitedNant-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. . .
CitedEden v Ridsdale Railway Lamp and Lighting Co Ltd CA 1889
The company was held to be entitled as against a director to shares which he had secretly received from a person with whom the company was negotiating. . .
CitedMartin v Lowry (HM Inspector of Taxes) KBD 15-Jun-1925
The taxpayer had other business, but purchased a substantial quantity of cloth and resold it. He said this was not by way of trade. The Revenue said that he had used all the standard trade practices, and it was taxable as such.
Held: The . .
CitedMartin v Lowry (HM Inspector of Taxes) CA 1926
The appellant purchased the entire stock of government surplus aircraft linen. He had another main business and had intended to resell it immediately. When that failed to promise a profit he set out to sell and sold the material over several months . .
CitedWilliams v Barton 1927
A trustee, who recommended that his co-trustees use stockbrokers who gave him a commission, held the commission on trust for the trust. . .
CitedTyrrell 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 . .
CitedMetropolitan 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 . .
CitedLister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .
CitedIn re North Australian Territory Co, Archer’s case CA 1892
A bribe had been paid to an agent. . .
CitedDiplock And Others v Blackburn 19-Jul-1811
If the master of a ship in a foreign port, from the state of the exchange, receives a premum for a bill drawn upon England on account of the ship, this belongs to his owner, although there may have been a usage for masters of shps to apprapriate . .
CitedThe 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 . .
CitedKak Loui Chan v Zacharia 1984
(High Court of Australia) The fundamental rule that obliged fiduciaries to account for personal benefit or gain had two separate themes: ‘The variations between more precise formulations of the principle governing the liability to account are . .
CitedFyffes Group Ltd v Templeman and others ComC 22-May-2000
The claimants alleged that over a five year period from 1992 to 1996 their employee Mr Simon Templeman, the first defendant, took bribes amounting to over US $1.4 million from or with the connivance of the second to seventh defendants. The essential . .
CitedDaraydan Holdings Limited, Cairn Estates Limited and Others v Solland International Limited and Others ChD 26-Mar-2004
The court was asked whether Lister and Co v Stubbs 45 ChD 1, a decision of the Court of Appeal, was binding on him or whether he could apply the Privy Council’s decision in Attorney General for Hong Kong v Reid
Held: On the facts of the case . .
CitedSinclair Investments (UK) Ltd v Versailles Trade Finance Ltd and Others CA 29-Mar-2011
The appellant challenged a decision that it was not entitled to a proprietary interest in the proceeds of sale of some shares which had been acquired with the proceeds of a breach of trust. Specifically, the claims gave rise to (i) an issue as to . .
CitedGrimaldi v Chameleon Mining NL (No 2) 21-Feb-2012
Federal Court of Australia
CORPORATIONS – Corporations Act 2001 (Cth), s 9 – ‘director’ – ‘officer’ – de facto director – no single test for determining whether a person is such – assuming or performing the functions of a director of the . .

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 . .
CitedBailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
CitedCrown Prosecution Service v Aquila Advisory Ltd SC 3-Nov-2021
. .

Lists of cited by and citing cases may be incomplete.

Agency, Equity, Torts – Other

Leading Case

Updated: 09 November 2021; Ref: scu.534405

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Land, Equity, Constitutional, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.183016

Pascoe v Turner: CA 1 Dec 1978

The defendant had been assured by the plaintiff that ‘the house is yours and everything in it.’ In reliance on that assurance she carried out improvements to the house. Although the improvements were modest, their cost represented a large part of the defendant’s savings. She claimed a constructive trust of the entire beneficial interest.
Held: The principle claim failed, but an equity had nevertheless been established in the form of a proprietary estoppel. The court went on to consider the extent of the relief that should be granted. The essential choice was between a licence for life or a conveyance of the freehold. The court came to the conclusion that the plaintiff intended to pursue his purpose of evicting the defendant ‘by any legal means at his disposal with a ruthless disregard of the obligations binding on conscience.’ In the light of that conclusion, the court concluded that the only way of assuring the defendant security in her home was by ordering the transfer of the freehold.

Ore LJ, Lawton LJ, Cumming Brice LJ
[1979] 1 WLR 431, [1978] EWCA Civ 2, [1979] 2 All ER 945
Bailii
England and Wales
Cited by:
CitedJennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
CitedSledmore v Dalby CA 8-Feb-1996
The plaintiff sought possession of a house. She had owned it with her late husband. The defendant lived in and had done much work on the house, but the deceased left it all to the plaintiff and the defendant’s wife who had since also died. She . .
CitedParker v Parker ChD 24-Jul-2003
Lord Macclesfield claimed a right to occupy a castle. The owners claimed that he had only a mere tenancy at will. The exact rooms in the castle which had been occupied had varied over time.
Held: The applicant was entitled to reasonable . .
CitedYaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
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 . .
CitedWilliams v Lawrence and Another ChD 28-Jul-2011
The claimant, as trustee for the deceased’s insolvent estate, sought a declaration that a transfer of the deceased’s share in property made by the executors was void as being at an undervalue. The property was subject to a right of occupation in . .

Lists of cited by and citing cases may be incomplete.

Equity, Land

Leading Case

Updated: 02 November 2021; Ref: scu.182961

Phipps v Boardman: HL 3 Nov 1966

A trustee has a duty to exploit any available opportunity for the trust. ‘Rules of equity have to be applied to such a great diversity of circumstances that they can be stated only in the most general terms and applied with particular attention to the exact circumstances of each case. The relevant rule for the decision of this case is the fundamental rule of equity that a person in a fiduciary capacity must not make a profit out of his trust, which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict.’
‘The whole of the law is laid down in the fundamental principle exemplified in Lord Cranworth’s statement [in Aberdeen Railway Co v. Blaikie]. But it is applicable, like so many equitable principles which may affect a conscience, however innocent, to such a diversity of different cases that the observations of judges and even in your Lordships’ House in cases where this great principle is being applied must be regarded as applicable only to the particular facts of the particular case in question and not regarded as a new and slightly different formulation of the legal principle so well settled.’ and ‘The phrase ‘possibly may conflict’ requires consideration. In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in conflict.’
The court considered the circumstances under which information has been acquired which impose a duty of confidence: ‘The true test is to determine in what circumstances the information has been acquired. If it has been acquired in such circumstances that it would be a breach of confidence to disclose it to another then courts of equity will restrain the recipient from communicating it to another. In such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references: knowledge of secret processes, ‘know-how’, confidential information as to the prospects of a company or of someone’s intention or the expected results of some horse race based on stable or other confidential information. But in the end the real truth is that it is not property in any normal sense but equity will restrain its transmission to another if in breach of some confidential relationship.’
Lord Upjohn said: ‘In general, information is not property at all. It is normally open to all who have eyes to read and ears to hear. The true test is to determine in what circumstances the information has been acquired. If it has been acquired in such circumstances that it would be a breach of confidence to disclose it to another, then courts of equity will restrain the recipient from communicating it to another. In such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references; knowledge of secret processes, ‘know-how’, confidential information as to the prospects of a company or of someone’s intention or the expected results of some horse race based on stable or other confidential information. But in the end the real truth is that it is not property in any normal sense, but equity will restrain its transmission to another if in breach of some confidential relationship’.

Lord Upjohn, Lord Hodson
[1966] 3 All ER 721, [1967] 2 AC 46, [1966] UKHL 2
Bailii
England and Wales
Citing:
CitedBray v Ford HL 1896
An appellate court’s power to order a new trial is conditional on ‘some substantial wrong or miscarriage’ being established.
Lord Hershell said: ‘It is an inflexible rule of the court of equity that a person in a fiduciary position, such as . .
Appeal fromPhipps v Boardman CA 1965
Affirmed . .
At first instancePhipps v Boardman ChD 1964
Agents of certain trustees had purchased shares, in circumstances where they only had that opportunity because they were agents.
Held: The shares were held beneficially for the trust. . .

Cited by:
CitedBhullar and others v Bhullar and Another CA 31-Mar-2003
The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company’s affairs. After a falling out, two directors purchased property adjacent to a company property but in their own . .
CitedNew Zealand Netherlands Society ‘Oranje’ Inc v Laurentuis Cornelis Kuys PC 1963
(New Zealand) The scope of a fiduciary duty may be modified by a course of dealing by the person to whom the duty is owed. ‘The obligation not to profit from a position of trust, or, as it sometimes relevant to put it, not to allow a conflict to . .
CitedCrown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
CitedDouglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
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 . .
CitedRatiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
CitedImageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
CitedO’Donnell v Shanahan and Another CA 22-Jul-2009
The claimant appealed against dismissal of her petition for an order for the defendants to purchase her shares at a fair value, saying that they had acted unfairly toward her. Her co-directors had acquired, for another company of which they were . .
CitedGray v News Group Newspapers Ltd and Another; Coogan v Same ChD 25-Feb-2011
The claimants said that agents of the defendant had unlawfully accessed their mobile phone systems. The court was now asked whether the agent (M) could rely on the privilege against self incrimination, and otherwise as to the progress of the case. . .
CitedPhillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
CitedHalton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .

Lists of cited by and citing cases may be incomplete.

Equity, Trusts, Information

Leading Case

Updated: 02 November 2021; Ref: scu.180410

Geldof Metaalconstructie Nv v Simon Carves Ltd: CA 11 Jun 2010

The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an equitable set off of damages for repudiation. The judge had put the question as that it was for SCL to show that there was an ‘inseparable connection’ between claim and counterclaim, and that it would be manifestly unjust to allow the former to be enforced without regard to the latter. He did not find that connection.
Held: The appeal against summary judgment denying the right of set off succeeded. The court examined in depth the development of the law of equitable set off and concluded: ‘I would underline Lord Denning’s test, freed of any reference to the concept of impeachment, as the best restatement of the test, and the one most frequently referred to and applied, namely: ‘cross-claims . . so closely connected with [the plaintiff’s] demands that it would be manifestly unjust to allow him to enforce payment without taking into account the cross-claim’.’ (‘the Nanfri’)
In this case, two contracts were involved.

Maurice Kay VP CA, Rix, Patten LJJ
[2010] EWCA Civ 667, [2010] CILL 2880, [2010] 4 All ER 847, [2011] Bus LR D61, 130 Con LR 37
Bailii
England and Wales
Citing:
CitedBim Kemi v Blackburn Chemicals Ltd CA 3-Apr-2001
The question was the degree of connection which must be shown between (1) a claim for unliquidated damages for breach of a contract and (2) a cross-claim for unliquidated damages for breach of a different contract between the same parties, in order . .
CitedHanak v Green CA 1958
A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workmen . .
CitedBankes v Jarvis 1903
The plaintiff was his son’s agent. The son purchased a veterinary surgeon’s practice from the defendant, agreeing to pay the rent and indemnify the defendant against liability under a lease of premises from which the practice was carried on. The son . .
CitedAries Tanker Corp v Total Transport Ltd; The Aries HL 1977
Claims for freight charges are an exception to the general rule that all claims between parties must be resolved in one action. A claim for freight cannot be a claim ‘on the same grounds’ as a counter-claim for loss or damage arising out of the . .
FollowedFederal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .
CitedLeon Corporation v Atlantic Lines and Navigation Co Inc (‘The Leon’) 1985
The court discussed the application of the equitable doctrine of set-off. Justice Hobhouse said: ‘Equitable principles derive from a sense of what justice and fairness demand. This does not mean that equitable set-off has been reduced to an exercise . .
CitedFederal Commerce Ltd v Molena Alpha Inc (The Nanfri) HL 1979
The charterers of three ships on time charter had made deductions from time charter hire payments which the shipowners regarded as unjustified. In retaliation the shipowners purported to revoke the authority of the Charterers (to be implied under . .
CitedDole Dried Fruit and Nut Co v Trustin Kerwood Ltd CA 1990
The defendant had an exclusive distributorship agency for the plaintiff in England. Under that agreement, the plaintiff sold its prunes and raisins to the defendant under separate contracts of sale. The plaintiff claimed the price of goods sold . .
CitedGovernment of Newfoundland v Newfoundland Railway PC 7-Feb-1888
A railway company and its assignees brought action the Government. Under the contract the company was to build a railway subsidised by the government. The railway was not completed. The parties disputed whether the contract was ‘entire’ and no part . .
CitedRawson v Samuel 15-Apr-1841
Cottenham LC said: ‘We speak familiarly of equitable set-off as distinguished from set-off at law, but it will be found that this equitable set-off exists in cases where the party seeking the benefit of it can show some equitable ground for being . .
CitedModern Engineering (Bristol) Ltd v Gilbert Ash (Northern) Ltd HL 1974
The court considered how to construe a clause in a contract which excluded a remedy provided by law. Lord Diplock said: ‘It is, of course, open to parties to a contract . . to exclude by express agreement a remedy for its breach which would . .
CitedEsso Petroleum Company Ltd v Milton CA 5-Feb-1997
A direct debit arrangement is tantamount to a payment by cash and so precludes the use of the defence of set-off for non-payment. . .
CitedEsso Petroleum Company Ltd v Mardon CA 6-Feb-1976
Statements had been made by employees of Esso in the course of pre-contractual negotiations with Mr Mardon, the prospective tenant of a petrol station. The statements related to the potential throughput of the station. Mr Mardon was persuaded by the . .
CitedStocznia Gdynia Sa v Gearbulk Holdings Ltd CA 13-Feb-2009
Orders were placed for the construction of ships. They were not delivered. The buyer, the defendant, cancelled the orders. The defendants sought the loss of profit. The claimants said they were entitled only to the repayment of instalments. The . .

Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 02 November 2021; Ref: scu.416737

Kemble v Farren: 6 Jul 1829

Liquidated Damages Clause to Specify Which Loss

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

Tindall CJ
[1829] EngR 590, (1829) 5 Bing 141, (1829) 130 ER 1234
Commonlii
England and Wales
Citing:
See AlsoKemble v Farren CCP 13-Jun-1829
Where it appeared on the record, that an agreement sued on was made by the plaintiff, on behalf of himself and the other proprietors of a theatre, evidence of the declarations of one of such other proprietors was held admissible on the part of the . .

Cited by:
CitedDunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
CitedParkingeye Ltd v Beavis CA 23-Apr-2015
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a . .

Lists of cited by and citing cases may be incomplete.

Contract, Damages, Equity

Leading Case

Updated: 02 November 2021; Ref: scu.322458

Willmott v Barber: ChD 19 Jun 1880

In 1869 Barber granted a 99-year lease of three acres of land in east London, subject to a covenant against assignment or sub-letting without consent. In 1874, in breach of covenant, he sub-let one acre on an annual tenancy to Willmott (who owned a sawmill on adjoining land) and gave him an option to acquire the whole of the three acres. Willmott spent money in levelling the land and laying it out as a timber-yard. In 1877 Barber purported to surrender his term to his landlord, Bowyer, and take an immediate re-grant (it is not clear whether Barber was dishonest or simply disorganised). Then Willmott exercised his option and sued Barber for specific performance, joining Bowyer as a party and seeking a declaration that he had unreasonably refused consent. The real issue was whether Bowyer had disabled himself, by acquiescence, from objecting to the breach of covenant. The court described five elements which were required to be shown if a person’s legal rights were to be overborne by a proprietary estoppel. ‘It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant’s land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly,’- if I may digress, this is the important element as far as this appeal is concerned – ‘the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right.’ The court rejected a rigid approach, concluding:- ‘… principle requires a very much broader approach which is directed at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment’. and ‘The inquiry which I have to make therefore, as it seems to me, is simply whether, in all the circumstances of this case, it was unconscionable for the defendants to seek to take advantage of the mistake which, at the material time, everybody shared …’.

Fry J
(1880) 15 ChD 96, [1880] UKLawRpCh 183, (1880) 43 LT 95
England and Wales
Citing:
CitedRamsden v Dyson HL 1866
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their . .

Cited by:
ExplainedTaylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .
CitedGonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
CitedStrover and Another v Strover and Another ChD 10-May-2005
Insurance policies had been taken out by the partners in a firm. The surviving family of one and the remaining partners contested ownership. The policy was held in part for the benefit of the family. The premiums had been paid from partnership . .
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 . .
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 . .
CitedShaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .
Appeal from (ChD)Willmott v Barber CA 24-Jun-1881
The Judge, at the trial of an action in which there was a claim and counterclaim, thinking both parties in the wrong, dismissed the action without costs, and also dismissed the counter-claim with costs, but ordered that if the costs of the . .
CitedHopgood v Brown CA 3-Feb-1955
Two adjoining plots were conveyed to the same purchaser. Buildings were constructed, and the adjusted boundary required an obtuse angle. The plots were sold on separately but with the original straight boundaries. The plans on the conveyances had no . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity, Estoppel

Leading Case

Updated: 02 November 2021; Ref: scu.188218

Swainland Builders Ltd v Freehold Properties Ltd: CA 2002

Swainland Builders Ltd owned the freehold of a block of flats. It had granted 99-year leases at ground rents of all the flats except numbers 11 and 18. It had intended to sell the block subject to the retention of flats 11 and 18 which it initially proposed to let on shorthold tenancies but with a view to granting long leases at premiums in the future.
In October 1998 Freehold Properties Ltd agreed to buy the block for 60,000 pounds. It correctly understood the aggregate ground rents of 4,875 pounds on the assumption that all 39 flats were let on the same long leasehold terms. By September 1999 the vendor’s solicitor had confirmed by letter to the purchaser’s solicitor that the vendor was not intending to sell flats 11 and 18 and in the interim the vendor was to be treated as any other tenant of the block.
Long leases of the two flats were never granted and the transfer of the freehold by the vendor failed to reserve any rights to the two flats for the benefit of the vendor. On becoming aware of that omission the vendor issued proceedings claiming that there had been a mistake which was common to the parties and contrary to their common intention.
At trial Neuberger J concluded that the intention of the parties seemed quite clear from the evidence. He ordered rectification of the transfer so as to provide for the grant to the vendor of leases in respect of the two flats.
Held: The court summarised the requirements for rectification for mutual mistake, namely: ‘The party seeking rectification must show that: (1) the parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified; (2) there was an outward expression of accord; (3) the intention continued at the time of the execution of the instrument sought to be rectified; (4) by mistake, the instrument did not reflect that common intention. The following points derive from the authorities: (1) the standard of proof required if the court is to order rectification is the ordinary standard of the balance of probabilities . . (2) While it must be shown what was the common intention, the exact form of words in which the common intention is to be expressed is immaterial if, in substance and in detail, the common intention can be ascertained . . (3) The fact that a party intends a particular form of words in the mistaken belief that it is achieving its intention does not prevent the court from giving effect to the true common intention . . ‘

Lord Justice Peter Gibson
[2002] EWCA Civ 560, [2002] 2 EGLR 71, [2002] 23 EG 123, [2002] 17 EG 154
Bailii
England and Wales
Cited by:
CitedJIS (1974) Ltd v MCP Investment Nominees I Ltd CA 9-Apr-2003
The parties agreed for a lease to be granted of a new building. Part had been intended to be excluded for shops, but permission was not obtained, the shops area was included and leased back. When the tenants sought to determine the lease, the . .
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 . .
CitedConnolly Ltd v Bellway Homes Ltd ChD 23-Apr-2007
connolly_bellwayChD2007
The claimant sought rectification of a contract for the sale of land, or damages in deceit. They said that it had been agreed that the price would be adjusted to reflect any change in values. The formula inserted made no great sense mathematically, . .
CitedDaventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .
CitedLloyds TSB Bank Plc v Crowborough Properties Ltd and Others CA 12-Feb-2013
The court was asked whether Lloyds TSB Bank Plc was entitled to rectify the terms of a compromise embodied in the schedule to a Tomlin order. . .
CitedRadford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
CitedFSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .

Lists of cited by and citing cases may be incomplete.

Equity, Contract, Registered Land

Leading Case

Updated: 02 November 2021; Ref: scu.184539

The Manchester Ship Canal Company Ltd v Vauxhall Motors Ltd: SC 23 Oct 2019

Limits on relief from forfeiture of land

In the context of land, equitable relief is only available for forfeiture of property rights, as opposed to a right to possession under a contract.

Lord Carnwath, Lady Black, Lord Briggs, Lady Arden, Lord Kitchin
[2019] UKSC 46, [2019] WLR(D) 590, [2019] 3 WLR 852, UKSC 2018/0116
Bailii, WLRD, SC, SC Summary, SCSummary Video, SC 190709 am Video, SC 20190709 pm Video, SC 20191009 am Video, Bailii Summary
England and Wales
Citing:
At First InstanceGeneral Motors UK Ltd v The Manchester Ship Canal Company Ltd ChD 30-Nov-2016
The claimants had had a long standing licence to discharge water in the defendant’s canal. Having failed to pay the license fee, the licence was revoked. The claimants sought relief from forfeiture.
Held: Granted . .
At CAThe Manchester Ship Canal Company Ltd v Vauxhall Motors Ltd CA 17-May-2018
. .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 02 November 2021; Ref: scu.642827

Moriarty and Another v Atkinson and Various Customers of BA Peters Plc: CA 16 Dec 2008

The company, a boat sales agent, made a promise to its customers to hold the funds received from them in a trust account. In breach of that promise, it used the funds to pay its own debt. The customers now appealed against a refusal to allow them to trace the funds paid in breach of trust.
Held: The claim failed. No specific fund had been created in which the claimants had any proprietary right such as would allow tracing to apply. The fact that the customers might have other good claims in equity did not mean that the remedy of tracing would apply to support them in the absence of a proprietary claim. There was a need to restrict any growth in the ambit of proprietary claims to avoid confusion and unfairness to other creditors.

Lord Justice Dyson, Lord Justice Jacob and Lord Neuberger of Abbotsbury
[2008] EWCA Civ 1604, Times 14-Jan-2009
Bailii
England and Wales
Citing:
Appeal fromMoriarty and Another v Various Customers of BA Peters Plc (In Administration) ChD 22-Jul-2008
. .
See alsoMoriarty and others v Various Customers of BA Peters Plc (In Administration) ChD 29-Apr-2008
The company had acted as boat sales and brokerage. Claims were made on its insolvency as to the status of boats sold and unsold, and of deposits paid and held by the company. . .

Cited by:
CitedBrazzill and Others v Willoughby and Others CA 27-May-2010
The regulated bank Kaupthing Singer and Friedlander Ltd (KSF) was in financial difficulties. The Bank of England required KSF to credit to a trust account all future deposits. KSF later went into insolvency. Some deposits had been credited to the . .

Lists of cited by and citing cases may be incomplete.

Equity, Insolvency, Consumer

Updated: 02 November 2021; Ref: scu.291916

Milroy 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 the donor gave him a further power of attorney authorising him to receive dividends on the shares. The donor died and an action was bought to enforce the transfer.
Held: The transaction was imperfect and incomplete and that the donor might have perfected it and completed it by a transfer.
Turner LJ said: ‘in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol; but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift. The cases I think go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust. These are the principles by which, as I conceive, this case must be tried.’

Knight-Bruce LJ and Turner LJ
(1862) 4 De GF and J 264, [1862] EWHC Ch J78, [1862] EngR 951, (1862) 4 De G F and J 264, (1862) 45 ER 1185
Bailii, Commonlii
England and Wales
Cited by:
CitedPennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
CitedMacedo 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 . .
DistinguishedIn re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
CitedMascall v Mascall CA 13-Jun-1984
The question was whether a gift of land was completely constituted by delivery of the land certificate
Held: Equity will not come to the aid of a volunteer. Therefore, if a donee needs to get an order from a court of equity in order to . .

Lists of cited by and citing cases may be incomplete.

Company, Equity, Trusts

Leading Case

Updated: 02 November 2021; Ref: scu.179865

Bowmakers Ltd v Barnet Instruments Ltd: CA 1945

An action was brought for the wrongful conversion of machine tools delivered under hire purchase agreements which contravened wartime statutory orders. The plaintiff established its legal title to the goods at issue without relying upon the illegal contract pursuant to which it had hired the goods to the defendant. A party to an illegality can recover by virtue of a legal or equitable property interest if, but only if, he can establish his title without relying on his own illegality. The court stated the general rule that a man’s right to possession of an article will be enforced notwithstanding the fact that the article came into his possession by reason of an illegal contract. ‘a man’s right to possess his own chattels will as a general rule be enforced against one who, without any claim of right, . . has converted them to his own use, even though it may appear from the pleadings, or in the course of the trial, that the chattels in question came into the defendant’s possession by reason of an illegal contract between himself and the plaintiff, provided that the plaintiff does not seek, and is not forced, either to found his claim on the illegal contract or to plead its illegality in order to support his claim.’ and ‘It must not be supposed that the general rule which we have stated is subject to no exception. Indeed there is one obvious exception, namely that class of cases in which goods claimed are of such a kind that it is unlawful to deal in them at all, as for example, obscene books. No doubt there are others, but it is unnecessary, and would we think be unwise, to seek to name them all or to forecast the decisions which would be given in a variety of circumstances which may hereafter arise’.

du Parq LJ
[1945] KB 65
England and Wales
Citing:
CitedCurtis v Perry 10-Mar-1802
Fraudulent Registrations Ineffective
Ships had been purchased by a partnership, but were then held separately in the name of one of them. Only later were they included within the partnership accounts, but the separate registrations were maintained, and unlawfully so as to avoid them . .

Cited by:
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 . .
CitedCostello v Chief Constable of Derbyshire Constabulary CA 22-Mar-2001
The police seized a car from Mr Costello, believing that it was stolen. The seizure was lawful at the time, by virtue of section 19 of PACE. The police never brought any criminal proceedings against Mr Costello, but they refused to return the car to . .
CitedGray v Thames Trains Ltd and Another CA 25-Jun-2008
The claimant was a victim of the Ladbroke Grove rail crash. He later committed and was convicted of a manslaughter and detained under the 1983 Act. He said that the accident had caused a major personality change. The defendant relied on the defence . .
CitedLes Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .

Lists of cited by and citing cases may be incomplete.

Equity, Contract, Torts – Other

Leading Case

Updated: 02 November 2021; Ref: scu.194100

Jeremy D Stone Consultants Ltd and Another v National Westminster Bank Plc and Another: ChD 11 Feb 2013

The claimants asserted an equitable claim against funds held by the defendant bank in the name of a company owned by another defendant who they said defrauded them through a Ponzi investment scheme.
Held: The claim failed. On the evidence, the defendant’s manager had not been dishonest, had made no misrepresentation, and had not been part of any conspiracy, and the bank had enjoyed no unjust enrichment.

Sales J
[2013] EWHC 208 (Ch)
Bailii
England and Wales
Citing:
CitedTournier v National Provincial and Union Bank of England CA 1924
The court considered the duty of confidentiality owed by a banker to his client. Bankes LJ said: ‘At the present day I think it may be asserted with confidence that the duty is a legal one arising out of contract, and that the duty is not absolute . .
CitedTwinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
CitedNiru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 28-Apr-2004
Niru contracted to buy lead from Milestone, to be paid for in a letter of credit, against certifying documents produced for the purpose. Mr Mahdavi, the individual behind Milestone, procured CAI to finance the acquisition of warrants to be retained . .
CitedCompangnie Commerciale Andre S A v Artibell Shipping Co Ltd and the Governor and Company of the Bank of Scotland SCS 21-Feb-2001
. .
CitedAerostar Maintenance International Ltd and Another v Wilson and Others ChD 30-Jul-2010
The claimant sought damages alleging the defendant’s failures breach of fiduciary duty as director.
Held: In a claim of dishonest assistance in a breach of duty some dishonesty on the part f the defendant is a part of the claim. . .
CitedPortman Building Society v Hamlyn Taylor Neck (a Firm) CA 22-Apr-1998
The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had . .
CitedBox and Others v Barclays Bank Plc ChD 30-Apr-1998
A depositor who had placed sums with an illegal deposit taking business was not entitled to claim that sum held in trust because he still had a statutory claim under contract with the deposit taker. . .
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 . .
CitedWilliams and Another v Natural Life Health Foods Ltd and Another HL 30-Apr-1998
A company director was not personally reliable in negligence for bad advice given by him as director unless it could clearly be shown that he had willingly accepted such personal responsibility. A special relationship involving an assumption of . .
CitedNiru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
CitedJames McNaughton Paper Group Ltd v Hicks Anderson and Co CA 31-Jul-1990
When considering the liability of an auditor in negligence, the fact and nature of any communications direct between the auditor and the potential investor must be allowed for. The court set out a non-exhaustive list of factors to be taken into . .
CitedAbouRahmah and Another v Abacha and others QBD 28-Nov-2005
Claims were made as to an alleged fraud by some of the respondents. . .

Lists of cited by and citing cases may be incomplete.

Equity, Banking

Updated: 02 November 2021; Ref: scu.470887

Legal Services Commission v Henthorn: QBD 4 Feb 2011

lsc_henthornQBD11

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

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

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

Lists of cited by and citing cases may be incomplete.

Legal Professions, Equity, Limitation, Legal Aid

Updated: 02 November 2021; Ref: scu.428706

Duncan Fox and Co v North and South Wales Bank: HL 1880

The case concerned a claim by an indorser of a bill of exchange that he was subrogated to securities provided by the acceptor to the holder of the bill. The court identified three kinds of cases in which rights of subrogation had been recognised and where suretyship principles apply: (1) where there is an agreement creating the relationship of principal and surety to which the creditor is a party; (2) where there is an agreement creating the relationship of principal and surety to which the creditor is not a party; and (3) where there is no agreement but that there is nevertheless a primary and secondary liability of two persons, the debt being ‘as between the two, that of one of those persons only, and not equally of both, so that the other, if he should be compelled to pay it, would be entitled to reimbursement from the person by whom (as between the two) it ought to have been paid’.
Lord Selborne LC did not however restrict the categories of cases in which the remedy of subrogation might be available so much as identify situations that were broadly analogous to those of the case before it.

Lord Selborne LC
(1880) 6 AC 1, [1874-80] All ER Rep Ext 1406
England and Wales

Equity, Banking

Leading Case

Updated: 02 November 2021; Ref: scu.181984

Regal (Hastings) Ltd v Gulliver: HL 20 Feb 1942

Directors Liability for Actions Ouside the Company

Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There were six directors on its board, who included the five directors of Regal. Regal was only prepared to subscribe 2,000 pounds. It was agreed that each of the directors of Amalgamated would themselves subscribe for 500 shares each, with the exception of Mr Gulliver. He said that he would find investors. He did so, and as a result 200 shares in Amalgamated were allotted to a Swiss company called Seguliva; 200 to a company called South Downs Land Co Ltd and 100 to a Miss Geering. Mr Gulliver himself held 85 out of 500 shares in Seguliva and 100 out of 1,000 shares in South Downs Land Co. He was a director of Seguliva and the managing director of South Downs Land Co, and signed the subscription cheques on their behalf. Miss Geering was a friend of his. The shares in Amalgamated were subsequently sold at a profit; and the court was asked whether the directors were liable to account to Regal for their profit.
Held: Directors are liable to account for activities outside the company if (i) what the directors did was so related to the affairs of the company that it can properly be said to have been done in the course of their management and in utilisation of their opportunities and special knowledge as directors and (ii) what they did resulted in profit for themselves.
Viscount Sankey said: ‘In my view, the respondents were in a fiduciary position and their liability to account does not depend upon proof of mala fides. The general rule of equity is that no one who has duties of a fiduciary nature to perform is allowed to enter into engagements in which he has or can have a personal interest conflicting with the interests of those whom he is bound to protect. If he holds any property so acquired as trustee, he is bound to account for it his cestui que trust.’
Lord Russel of the Killowen said: ‘The rule of equity which insists on those, who by use of a fiduciary position make profit, being liable to account for the profit, in no way depends on fraud, or absence of bona fides; or upon such questions or considerations as whether profit would or would otherwise have gone to the plaintiff, or whether the profiteer was under a duty to obtain the source of the profit for the plaintiff, or whether he took a risk or acted as he did for the benefit of the plaintiff, or whether the plaintiff has in fact been damaged or benefited by his action. The liability arises from the mere fact of a profit having, in the stated circumstances, been made. The profiteer, however honest and well-intentioned, cannot escape the risk of being called upon to account.’
Lord Wright said: ‘That question can be briefly stated to be whether an agent, a director, a trustee or other person in an analogous fiduciary position, when a demand is made upon him by the person to whom he stands in the fiduciary relationship to account for profits acquired by him by reason of his fiduciary position, and by reason of the opportunity and the knowledge, or either, resulting from it, is entitled to defeat the claim upon any ground save that he made profits with the knowledge and assent of the other person. The most usual and typical case of this nature is that of principal and agent. The rule in such cases is compendiously expressed to be that an agent must account for net profits secretly (that is, without the knowledge of his principal) acquired by him in the course of his agency. The authorities show how manifold and various are the applications of the rule. It does not depend on fraud or corruption.’

Lord MacMillan, Lord Russell of Killowen, Viscount Sankey Lord Wright, Lord Porter
[1967] 2 AC 134, [1942] UKHL 1, [1942] 1 All ER 378
Bailii
England and Wales
Cited by:
CitedCMS Dolphin Ltd v Paul M Simonet and Another ChD 23-May-2001
The claimant asserted that the defendant had, having at one point been a creative director of the claimant, left to set up an alternate competing business, and diverted business from the first company to the new one. There had been disagreements . .
CitedBhullar and others v Bhullar and Another CA 31-Mar-2003
The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company’s affairs. After a falling out, two directors purchased property adjacent to a company property but in their own . .
CitedDEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
CitedHorcal Ltd v Gatland ChD 1983
Directors have a positive duty to disclose breaches of fiduciary duty. A failure by a director of a company, as opposed to an employee, to disclose an earlier breach of fiduciary duty would render an agreement terminating his contract of service (on . .
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 . .
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 . .
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.
CitedJones and others v Firkin-Flood ChD 17-Oct-2008
The trustees had contracted to sell shares in a private company held within the estate. A family member now claimed that they were held in trust after a settlement of a possible challenge to the will based in lack of testamentary capacity and undue . .
CitedO’Donnell v Shanahan and Another CA 22-Jul-2009
The claimant appealed against dismissal of her petition for an order for the defendants to purchase her shares at a fair value, saying that they had acted unfairly toward her. Her co-directors had acquired, for another company of which they were . .
CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
CitedHalton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .
CitedHalton International Inc Another v Guernroy Ltd CA 27-Jun-2006
The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that . .

Lists of cited by and citing cases may be incomplete.

Company, Equity

Leading Case

Updated: 02 November 2021; Ref: scu.180409

Armstrong v Onyearu and Another: CA 11 Apr 2017

Exoneration of partner’s equity on insolvency

The court considered the equity of exoneration, where property jointly owned by A and B is charged to secure the debts of B only, A is or may be entitled to a charge over B’s share of the property to the extent that B’s debts are paid out of A’s share.
Held: The trustee’s appeal failed. The equity of exoneration was part of the relief generally made available to sureties against a principal debtor, subject to exceptions supported by evidence that a contrary intention existed or where it could be inferred from the circumstances that the equity should not apply. It had in the past been applied to family units outside marriage.

Vos Ch, David Richards LJJ, Sir Patrick Elias
[2017] EWCA Civ 268, [2017] WLR(D) 271,
Bailii, WLRD
Married Women’s Property Act 1882
England and Wales
Citing:
CitedPaget v Paget CA 1898
The plaintiff wife was ‘a lady of fortune’, with the bulk of her property settled on her for life for her separate use without power of anticipation. They ‘moved in good society and, large as their income was, they lived far beyond it.’ They were . .
CitedGee v Liddell ChD 1913
A co-mortgagor has an ‘interest in [and] a charge upon the estate of the principal debtor’. An equity of exoneration was applied as between brothers.
An equity of exoneration operates in the nature of ‘a charge upon the estate of the principal . .
CitedRe a debtor (No 24 of 1971), ex parte Marley (J) v Trustee of the property of the debtor ChD 1976
The court will look to the realities of the relationship between the mortgagors and will not be governed by the terms of the mortgage instrument if they do not accord with the actual facts.
Held: the court accepted that an equity of . .
Citedin Re Berry (a bankrupt) 1978
A married couple opened a joint bank account. H’s business fell into difficulties and overdraft facilities were arranged, secured by a mortgage over their jointly-owned house. The account was used both for the husband’s business and for household . .
CitedParsons v McBain 5-Apr-2001
Federal Court of Australia – BANKRUPTCY – constructive trust – transfer of property to beneficiary – whether void as against trustee in bankruptcy
EQUITY – equity of exoneration – how defeated
TRUSTS – ‘common intention constructive . .
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 . .
ApprovedHall 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 . .
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 . .
CitedCadlock v Dunn and Another ChD 13-May-2015
The equity of exoneration could be applied for a wife who had charged her beneficial half share of the matrimonial property to secure a loan to her husband to enable him to re-acquire his half share from his trustee in bankruptcy. The wife obtained . .
CitedGraham-York v York and Others CA 10-Feb-2015
The claimant challenged a possession order made in respect of the house she occupied, alleging a constructive trust in her favour. The house had been occupied by the unmarried co-habiting couple for nearly 25 years before the death of one of them. . .
CitedRe Chawda (in bankruptcy) 2014
Mr Chawda and his wife jointly owned a residential property which they charged to secure a loan, part of which refinanced the original purchase loan. The case concerned the balance of about 78,000 pounds. Mr Chawda and his brother carried on . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Equity

Updated: 02 November 2021; Ref: scu.581738

Celador Radio Ltd v Rancho Steak House Ltd (Equitable Interpleader – Enforcement): QBD 16 Feb 2018

Equitable Interpleader

Equitable Interpleader – Enforcement – controlled goods – interpleader – equity – common law – Civil Procedure – Rules of Supreme Court – title to goods – third party – Writ – High Court Enforcement Officers

Victoria McCloud M
[2018] EWHC 219 (QB)
Bailii
Civil Procedure Rules 85.4 85.5, Tribunals, Courts and Enforcement Act 2007
England and Wales
Citing:
CitedReading v The London School Board 1886
Wills J said: ‘All the common law statutes as to interpleader are now repealed and the right to that class of relief is regulated by Order LVII, by which the old practice of the Court of Chancery is modified’. . .
CitedEx parte Mersey Docks and Harbour Board 1899
AL Smith LJ said: ‘The matter [ie, of interpleader] now depends upon the provisions of Order LVII, r.1’ . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Equity

Updated: 02 November 2021; Ref: scu.605165

Astley v Frances Weldon: CCP 27 Jan 1801

Clause was a Penalty – Not Estimate of Loss

By articles of agreement between the Plaintiff arid Defendant it was agreed on the part of the former that he should pay the latter so much per week to perform at his theatres, with her travelling expences of removing from one theatre to another except extra baggage ; and on the part of the defendant, that she should perform at the theatres such things as she should be required by the Plaintiff, and attend at the theatre beyond the usual hours on any emergency and at rehearsals or be subject to such fines as are established at the theatres, and be at the theatre half an hour before the performances begin, and abide by the regulations of the theatres and pay all fines ; and it was agreed by both parties ‘either of tbem neglecting to perform that agreemeut should pay to the other 200l. Assumpsit upon this agreement stating several breaches, and concluding to the Plaintiff’s damage of 200l. Held that the sum mentioned in the agreement was in the nature of a penalty, not of liquidated damages.
Lord Eldon confessed himself, not for the first time, ‘much embarrassed in ascertaining the principle on which [the rule was] founded’.

Lord Eldon
[1801] EngR 108, (1801) 2 Bos and Pul 346, (1801) 126 ER 1318
Commonlii
England and Wales
Cited by:
CitedParkingeye Ltd v Beavis CA 23-Apr-2015
The appellant had overstayed the permitted period of free parking in a retail park by nearly an hour. The parking was managed by the respondent who had imposed a charge of 85.00 pounds. The judge had found that the appellant was in breach of a . .
CitedCavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .

Lists of cited by and citing cases may be incomplete.

Contract, Equity

Leading Case

Updated: 02 November 2021; Ref: scu.345354

In re Morvah Consols Tin Mining Co, McKay’s Case: CA 1875

A company bought a mine, and shares in the vendor were promised to the company’s secretary.
Held: The shares were held by him for the company beneficially.

Mellish and James LJJ and Brett J
(1875) 2 Ch D 1
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.

Agency, Equity

Leading Case

Updated: 02 November 2021; Ref: scu.551503

Pyrke v Waddingham: ChD 1852

The seller sought specific performance of the contract for the sale of his land. The buyer said that the title shown was defective.
Held: Though the court found favour with the title, this had not been on any general rule of law, but on the construction of a particular will, and the court refused specific performance.
The court was asked what extent of title defect would allow a purchaser to reject it: ‘The rule rests upon this, that every purchaser is entitled to require a marketable title, by which I understand to be meant a title which, so far as its antecedents are concerned, may at all times and in all circumstances be forced on an unwilling purchaser . . and that this is the true rule to be applied in such cases is I think the more apparent from the repeated decisions that the Court will not compel a purchaser to take a title which will expose him to litigation or hazard.’

Turner V-C
(1853) 10 Hare 1, [1852] EngR 792, (1852) 10 Hare 1, (1852) 68 ER 813
Commonlii
England and Wales
Cited by:
CitedBarclays Bank Plc v Weeks Legg and Dean (a Firm); Barclays Bank Plc v Lougher and Others; Barclays Bank Plc v Hopkin John and Co CA 21-May-1998
The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Leading Case

Updated: 02 November 2021; Ref: scu.229219

In re Rose, Rose v Inland Revenue Commissioners: CA 1952

The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all advantages attached to the shares as from the date on which the transfers were executed and delivered subject, as regards the legal title, to the provisions of the articles as to registration and the directors’ discretionary power to refuse registration. A transfer under seal in the form appropriate under the company’s regulations, coupled with delivery of the transfer and certificate to the transferee, does suffice, as between transferor and transferee, to constitute the transferee the beneficial owner of the share, and the circumstance that the transferee must do a further act in the form of applying for and obtaining registration in order to get in and perfect his legal title, having been equipped by the transferor with all that is necessary to enable him to do so, does not prevent the transfer from operating, in accordance with its terms as between the transferor and transferee, and making the transferee the beneficial owner. Milroy v Lord did not prevent the imposition of a trust as a matter of law if the gift was complete but the donor retained the subject-matter.

Evershed MR L, Jenkins LJ
[1952] 1 Ch 499, [1952] EWCA Civ 4, [1952] 1 All ER 1217, [1952] 1 TLR 1577, (1952) 31 ATC 138, [1952] TR 175
Bailii
England and Wales
Citing:
DistinguishedMilroy 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 . .
ApprovedIn re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose ChD 1949
The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
Held: Equity will not compel an imperfect gift to be . .
Appeal fromIn re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose ChD 1949
The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
Held: Equity will not compel an imperfect gift to be . .

Cited by:
DistinguishedThe Trustee of the Property of Jan Yngve Pehrsson, a bankrupt v Madeleine von Greyerz PC 16-Jun-1999
PC (Gibraltar) The mere appointment of trustees of shares without the delivery to the trustees of forms of transfer did not give rise to a trust.
Held: A gift was intended to take effect by a transfer of . .
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 . .
MentionedZeital and Another v Kaye and Others CA 5-Mar-2010
The deceased had held an apartment through beneficial interests in shares in a limited company. He died intestate. The parties disputed the ownership of the two shares. The company had been put into a members’ liquidation, and the company liquidator . .

Lists of cited by and citing cases may be incomplete.

Company, Equity

Leading Case

Updated: 02 November 2021; Ref: scu.183420

Ramsden v Dyson: HL 1866

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

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

Lists of cited by and citing cases may be incomplete.

Estoppel, Landlord and Tenant, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.188171

York Buildings Co v Mackenzie: SCS 8 Mar 1793

Purchase by Common Agent at Auction Voidable

The defendant was the ‘common agent’ for the sale of the assets of an insolvent partnership and purchased some of the assets at a judicial auction.
Held: The purchase was voidable, even though it was made at a sale by auction.
Who bears the Expense of a Ranking and Sale? – Election of the Common Agent. – Can the Common Agent be a Purchaser? – Expense of an interim Warrant. The Common agent in a ranking is disqualified from purchasing at the judicial sale carried on under his direction.

Lord Cranworth
3 Paton 378, (1795) 3 ER 432
Commonlii
Scotland
Cited by:
CitedNewgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
At Court of SessionThe Governor And Company of Undertakers For Raising Thames Water In York Buildings v Alexander Mackenzie, Writer, To The Signet PC 15-May-1795
Who bears the Expense of a Ranking and Sale? – Election of the Common Agent. – Can the Common Agent be a Purchaser? – Expense of an interim Warrant. . .

Lists of cited by and citing cases may be incomplete.

Equity, Insolvency

Leading Case

Updated: 01 November 2021; Ref: scu.220725

Re I (Human Fertilisation and Embryology Act 2008): FD 12 Apr 2016

The court considered questions arising on applications for use of the equitable doctrine of rectification in cases of mistake at IVF Clinics.

Sir James Munby
[2016] EWHC 791 (Fam), [2016] Fam Law 678, [2017] 1 FLR 998
Bailii, Judiciary
Human Fertilisation and Embryology Act 2008
England and Wales

Health Professions, Children, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.562140

RB Policies at Lloyd’s v Butler: 1949

A car insured by the plaintiffs had been stolen by an unknown person in June 1940. In January 1947 the car was found in the possession of the defendant who it seems had ‘given good consideration for it without knowledge that it was a stolen car’. It had passed to him ‘an innocent purchaser, through a line of intermediate purchasers’ during the previous seven years.
Held: Time begins to run against the owner of a stolen chattel from the date of the theft, even though the owner does not know the identity of the thief or the whereabouts of the chattel.
Streatfeild J discussed the 1939 Act, saying: ‘The section was inserted to protect a plaintiff who was ignorant of his right of action in the special case of fraudulent concealment, and to overcome the difficulty that time would otherwise have been running against him, unknown to himself. But for the section, time would have run against him from the accrual of his right of action, for it is to be noted that the section, even in the case of fraudulent concealment, does not say that the cause of action shall not accrue until the fraud is discovered, but simply that ‘time shall not begin to run’ until that event.
It is to be noted that s 26 is the only provision in the Limitation Act 1939, in which a special exception of that nature is made. Nowhere is it to be found that where a person, who otherwise has a perfect cause of action, cannot pursue it because the defendant is unknown, time does not run. And it seems to me, therefore, that prima facie as soon as there is a cause of action (as there clearly was in the present case the moment the motor car was stolen) time begins to run notwithstanding the fact that the plaintiff is ignorant of the identity of the defendant. . . It was, no doubt, a misfortune to the plaintiffs that they could not find a defendant whose name they could insert in a writ; but every other ingredient of the cause of action was present. The motor car had, in fact, been converted. A statement of claim could have been drawn without any difficulty; the only item missing being the name of the defendant.’
. . And ‘Can it be said, therefore, that the cause of action being otherwise complete, the ignorance of the owner of the car of the identity of the person against whom he could bring an action was of itself sufficient to prevent the accrual of that cause of action? I think not, and I agree with the argument of Mr Jackson. If that were so it would lead to appalling results. As Mr Jackson suggested to me, if his watch were stolen, and he discovered it years later, in the pocket of a wholly innocent person who had bought it many years before, it would follow that, if the plaintiffs are right, he could bring an action for the recovery of his watch merely because he had not known who was the original thief. I cannot think that that is the policy of the Act, or that to construe its words in favour of the plaintiffs’ argument would harmonize with the intention of the legislature’

Streatfeild J
[1950] 1 KB 76, [1949] 2 All ER 226
Limitation Act 1939 26
England and Wales
Cited by:
CitedAdamson and Others v Paddico (267) Ltd SC 5-Feb-2014
Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
Held: The appeal were solely as to . .

Lists of cited by and citing cases may be incomplete.

Equity, Limitation

Leading Case

Updated: 02 November 2021; Ref: scu.539583

Derrick 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 held that such damages were recoverable. The plaintiff in Derrick v. Williams was trying to re-open the matter on the grounds that the subsequent decision of the House of Lords showed that he had been proceeding under a mistake of law when he accepted the money paid in.
Held: The claim failed as a res judicata.
Sir Wilfred Greene MR said: ‘It was a mistake of law, and consisted of the fact that the plaintiff was under the belief that the law as laid down by this court in Rose -v- Ford was correctly laid down. In that he was wrong, and he is asking the court to say that, having acted upon the basis of a mistaken view of the law, now that the law has been enunciated by the highest tribunal, he is entitled to make another attempt. That is the thing which, it seems to me, cannot be permitted on principle. It appears to me to be completely indefensible. No shadow of authority was cited to us which would justify the proposition that, where, pursuant to the rules of court, a claim has been satisfied by money paid into court by the defendant, the plaintiff can afterwards come and say: ‘I was wrongly advised as to the law when I did this, because the law was not as then laid down by the Court of Appeal, but as subsequently enunciated by the House of Lords.’ It would be an intolerable hardship on successful litigants if, in circumstances such as these, their opponents were entitled to harass them with further litigation because their view of the law had turned out to be wrong, and, unless I were constrained by binding authority, I should be quite unable, on principle, to accept any such proposition.’

Sir Wilfrid Greene MR
[1939] 2 All ER 559
England and Wales
Citing:
CitedIn re Roberts 1905
A compromise made under a mistake of law can be set aside. . .
CitedRose v Ford HL 1937
Damages might be recovered for a loss of expectation of life. A claim for loss of expectation of life survived under the Act of 1934, and was not a claim for damages based on the death of a person and so barred at common law.
Lord Wright . .

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

Leading Case

Updated: 01 November 2021; Ref: scu.236527

Kelly v Solari: CEC 18 Nov 1841

Recovery was sought of money (pounds 200) paid an error of fact. There had been a life policy, but it had lapsed before the death of the life assured. The policy had been marked ‘lapsed’ but the marking had been overlooked.
Held: Where money is paid to another under the influence of a mistake in circumstances where if the true facts had been known the money would not have been paid, an action lies to recover the money and it is against the conscience of the recipient to retain it. Parke B said of Bilbie v Lumley that ‘All that that case decides is, that money paid with full knowledge of all the facts cannot be recovered back by reason of its having been paid in ignorance of the law’
A payment made in the knowledge that there was a ground to contest liability will be irrecoverable (Lord Abinger CB).
Lord Abinger CB accepted that Baron CB had put the matter too broadly at trial by using the expression ‘means of knowledge’. This was a very vague expression, and: ‘The safest rule however is, that if the party makes the payment with full knowledge of the facts, although under ignorance of the law, there being no fraud on the other side, he cannot recover it back again. There may also be cases in which, although he might by investigation learn the state of facts more accurately, he declines to do so, and chooses to pay the money notwithstanding; in that case there can be no doubt that he is equally bound. Then there is a third case, and the most difficult one, – where the party had once a full knowledge of the facts, but has since forgotten them. I certainly laid down the rule too widely to the jury, when I told them that if the directors once knew the facts they must be taken still to know them, and could not recover by saying that they had since forgotten them. I think the knowledge of the facts which disentitles the party from recovering, must mean a knowledge existing in the mind at the time of payment.’
Parke B agreed and said: ‘If, indeed, the money is intentionally paid, without reference to the truth or falsehood of the fact, the plaintiff meaning to waive all inquiry into it, and that the person receiving shall have the money at all events, whether the fact be true or false, the latter is certainly entitled to retain it; but if it is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however careless the party paying may have been, in omitting to use due diligence to inquire into the fact. In such a case the receiver was not entitled to it, nor intended to have it.’
Rolfe B mentioned two interpretations of the facts available to the jury: ‘first, that the jury may possibly find that the directors had not in truth forgotten the fact; and secondly, they may also come to the conclusion, that they had determined that they would not expose the office to unpopularity, and would therefore pay the money at all events.’

Parke B, Lord Abinger CB, Gurney B, Rolfe B
(1841) 9 M and W 54, [1841] EngR 1087, (1841) 152 ER 24
Commonlii
England and Wales
Citing:
CitedBilbie v Lumley and Others 28-Jun-1802
Contract Not Set Aside for Mistake as to Law
An underwriter paid a claim under a policy which he was entitled in law to repudiate for non-disclosure. Although he knew the relevant facts, he was not aware of their legal significance. He claimed back the money he had paid.
Held: A contract . .

Cited 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 . .
CitedFisher v Brooker and Another ChD 20-Dec-2006
The claimant said that he had contributed to the copyright in the song ‘A Whiter Shade of Pale’ but had been denied royalties. He had played the organ and particularly the organ solo which had contrbuted significantly to the fame of the record.
Contract, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.236536

Dillwyn v Llewelyn: ChD 12 Jul 1862

The father thought he had given his younger son land in Wales, in signing a memorandum and presenting it to him ‘for the purpose of furnishing himself with a dwelling-house’. The memorandum was not by deed. The son built his home on the land. When the father died, the elder son disputed his brother’s title.
Held: The Master of the Rolls said younger son was entitled to a life interest. Lord Westbury LC allowed the younger son’s appeal, saying: ‘About the rules of the Court there can be no controversy. A voluntary agreement will not be completed or assisted by a Court of Equity, in cases of mere gift. If anything be wanting to complete the title of the donee, a Court of Equity will not assist him in obtaining it; for a mere donee can have no right to claim more than he has received. But the subsequent acts of the donor may give the donee that right or ground of claim which he did not acquire from the original gift . . so if A puts B in possession of a piece of land, and tells him, ‘I give it to you that you may build a house on it,’ and B on the strength of that promise, with the knowledge of A, expends a large sum of money in building a house accordingly, I cannot doubt that the donee acquires a right from the subsequent transaction to call on the donor to perform that contract and complete the imperfect donation which was made. The case is somewhat analogous to that of verbal agreement not binding originally for the want of the memorandum in writing signed by the party to be charged, but which becomes binding by virtue of the subsequent part performance.’ The Lord Chancellor awarded the younger son the fee simple since ‘no one builds a house for his own life only.’

The Lord Chancellor Lord Westbury
[1862] EWHC Ch J67, [1862] 45 ER 1284, (1862) 4 De GF and J 517, [1862] EngR 908, (1862) 4 De G F and J 517, (1862) 45 ER 1285
Bailii, Commonlii
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Land, Equity, Estoppel

Leading Case

Updated: 01 November 2021; Ref: scu.245427

In 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 applies in situations involving guarantees and other sureties.
Held: The appeal was allowed. The rule in Cherry was excluded in this instance by the rule against double proof. The Trustee was to be paid in full before there could be any proof against Funding as the principle debtor by KSF as guarantor. The rule against double proof was intended to prevent a multiple of claims against the same insolvent estate, which might lead to the payment of a double dividend. The equitable rule in Cherry v Boultbee fills a gap left by the disapplication of set-off, but it should not work in opposition to it. It creates a similar netting-off effect except where some cogent principle of law requires one claim to be given strict priority to another. The rule against double proof is one such principle.

Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Clarke , Lord Collins
[2011] UKSC 48, UKSC 2010/0018
Bailii, Bailii Summary, SC Summary, SC
Insolvency Act 1986
England and Wales
Citing:
CitedStein v Blake HL 18-May-1995
Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while . .
CitedBelmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
CitedIn re Glen Express Ltd ChD 2000
The rule against double proof is implicit in the Insolvency Act 1986, and ‘remains good law. It is an overarching principle which still applies to insolvency, and nothing in Stein v Blake [1996] AC 243 calls it into question.’ . .
Appeal fromIn re Kaupthing Singer and Friedlander Ltd ChD 18-Dec-2009
The bank went into adminstration under special arrangements. The administrators of KSF applied to the Chancery Division for directions as to the applicability of the rule in Cherry v Boultbee.
Held: The rule was not excluded. The . .
CitedCherry v Boultbee CA 6-Apr-1838
TB was indebted to CB, his sister, in the sum of andpound;1878. He became bankrupt, and shortly after his bankruptcy C B made her will, giving legacies of andpound;500 and andpound;2,000 to her executors, in trust to pay the interest thereof (as to . .
CitedIn re SSSL Realisations (2002) Ltd and Another; Squires and others v AIG Europe (UK) Ltd and Another CA 18-Jan-2006
A creditor claiming an equity in a debt but who himself owed money to the debtor, could not pursue his claim without first contributing the sum due. A person could not take an aliquot share out of a fund without first contributing what he owed to . .
See AlsoIn re Kaupthing Singer and Friedlander Ltd CA 11-May-2010
The court was asked as to the set-off, in a company administration, of future debts owed by the company to its creditors and by those creditors to the company, and whether the effect of those provisions was that, after the future debts were . .
See AlsoIn re Kaupthing Singer and Friedlander Ltd ChD 2-Oct-2009
. .
CitedIn re Melton, Milk v Towers CA 1918
In 1901 Richard Melton and another guaranteed to a Bank his son Arthur’s debts up to andpound;500. Richard died survived by his widow, Arthur and three daughters, giving his real estate to his widow for her life, with remainder to his four children . .
CitedSecretary of State for Trade and Industry v Frid HL 13-May-2004
The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
CitedIn re Oriental Commercial Bank 1871
The court considered the rule against double proof. Mellish LJ said: ‘This rule against double proof applies in the Court of Chancery as well as in the Court of Bankruptcy, and therefore would apply equally where companies are being wound up.’
CitedJeffs v Wood and others CA 1723
Jeffs senior had made a will appointing his son Jeffs junior as his executor and leaving a legacy of pounds 500 to his nephew Wood, who was indebted to the testator in a smaller sum. Wood was made bankrupt after the testator’s death, but before the . .
CitedWilles v Greenhill CA 16-Nov-1860
The testator had in 1830 backed a bill for his son Henry. It was dishonoured, and after the testator’s death in 1832 his executors met the liability. Henry had a one-sixth interest, subject to his mother’s life interest, in the residuary trust fund. . .
CitedIn re Akerman ChD 2-Jul-1891
The court was asked whether in the division of the testator’s residuary estate three of the testator’s seven children had to bring into account statute-barred debts due to the estate.
Held: They were bound to bring them into account. Kekewich . .
CitedBarclays 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 . .
CitedIn re Fenton CA 1931
A surety under a pre-insolvency guarantee, had not actually paid, and could not pay, being bankrupt with his assets vested in the trustee. The creditor was still owed the money and entitled to prove in the liquidation.
Held: One could not have . .
CitedIn re Overend Gurney and Co (Grissell’s case) 1866
On the insolvency of a company, no cross claim may be set off against the company member’s liability for unpaid capital, for debt. Lord Cheldmsford LC said: ‘If the amount of an unpaid call cannot be satisfied by a set-off of an equivalent portion . .
CitedIn Re Peruvian Railway Construction Co Ltd 1915
William Alt died insolvent in 1908. His estate included shares in the company, which went into voluntary liquidation in 1914. Alt owed the company andpound;2,633.
Held: In the distribution of the company’s surplus assets the liquidator could . .
CitedIn re Auriferous Properties Ltd (No 2) 1898
A claim was made in the liquidations by a creditor, but the creditor also held shares in the company which were not fully paid up.
Held: The creditor plaintiff could recover nothing as a creditor until all his liability as a contributory had . .
CitedIn Re Rhodesia Goldfields Ltd ChD 1910
Partridge, a director of the company who held some of its debenture stock, was facing a serious misfeasance claim which had not yet been resolved. Set-off was therefore not available.
Held: Payment of what was due to Partridge and his . .
CitedIn re Binns 1896
Two sons were made bankrupt after the death of their father who was surety under a loan. . .
CitedIn re West Coast Gold Fields Ltd 1905
The shareholder was bankrupt, but the company, in which he owned shares on which the capital remined unpaid, was solvent and in voluntary liquidation.
Held: The payment-up of the shares in full was a condition precedent to any participation in . .
CitedIn re Melton, Milk v Towers CA 1918
In 1901 Richard Melton and another guaranteed to a Bank his son Arthur’s debts up to andpound;500. Richard died survived by his widow, Arthur and three daughters, giving his real estate to his widow for her life, with remainder to his four children . .
CitedIn re Polly Peck International plc ChD 1996
It was argued, unsuccessfully, that a special purpose company incorporated in the Cayman Islands should be regarded as a single economic unit with the holding company, so as to eliminate ‘double dip’ as well as double dividend.
Held: There . .

Cited by:
CitedLB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Equity

Updated: 01 November 2021; Ref: scu.447487

Lissenden v CAV Bosch Ltd: HL 1940

The defendant attempted to bar the workman plaintiff from appealing a compensation award on the ground that he had already accepted payment under it.
Held: The House considered the principle that a party may not blow hot and cold on an issue in the same pleadings. However, the doctrine did not prevent a party from receiving benefits under an award and seeking to appeal the award to obtain greater benefits.
Lord Atkin said: ‘In this country, I do not think it expresses any formal legal concept. I regard it as a descriptive phrase equivalent to, ‘Blowing hot and cold’. I find great difficulty in placing such phrases in any legal category, though they may be applied correctly in defining what is meant by election, whether at common law or in equity. In cases where the doctrine does apply, the person concerned has the choice of two rights, either of which he is at liberty to adopt but not both. Where the doctrine does apply, if the person to whom the choice belongs irrecoverably and with knowledge adopts the one, he cannot afterwards assert the other. Election between the liability of principal and agent is perhaps the most usual instance in common law.’
He discussed legal maxims: ‘Indeed these general formulae are found in experience often to distract the Court’s mind from the actual exigencies of the case, and to induce the Court to quote them as offering a ready made solution. But it is not safe to act upon them unless and to the extent that they have received definition and limitation from judicial determination.’
Viscount Maugham explained the term ‘approbation and reprobation’ as a Scottish equivalent of the English equitable doctrine of election, though it had nothing to do with the common law principle of election as it applies for example to the pursuit of alternative remedies in a court of justice.
Lord Wright approved the dictum of Lord Escher MR and continued: ‘Indeed these general formulae are found in experience often to distract the Court’s mind from the actual exigencies of the case, and to induce the Court to quote them as offering a ready made solution. But it is not safe to act upon them unless and to the extent that they have received definition and limitation from judicial determination.’

Viscount Maugham, Lord Atkin, Lord Wright
[1940] AC 412, [1940] 1 All ER 405
England and Wales
Citing:
CitedYarmouth v France CA 11-Aug-1887
The plaintiff was employed by the defendant to drive carts. He objected that the horse had a vicious nature, but was obliged to drive it in any event. The horse kicked him.
Held: For the purposes of the 1880 Act, the plaintiff was an employee, . .

Cited by:
CitedOliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
CitedMcLaughlin and Others v Newall QBD 31-Jul-2009
The claimant asked the court to strike out the defence that the claimant had compromised his claim by agreement. The defendant had written letters critical of the claimants who were governors of a school which had disciplined his daughter a teacher . .

Lists of cited by and citing cases may be incomplete.

Estoppel, Scotland, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.188158

Tulk v Moxhay: 22 Dec 1848

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

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

Cited by:
CriticisedLondon County Council v Allen 1914
A landowner applied to the plaintiffs for their sanction to a new street scheme. It was given but subject to his covenant to keep certain land unbuilt upon. He gave the covenant. The plaintiffs themselves had no land in the area capable of . .
ConsideredPatching v Dubbins 1853
The purchase-deed of a house in a terrace contained a covenant on the part of the vendor, unexplained by any recital, that no building should be erected on any part of the land of the vendor lying on the east side of the said terrace and opposite to . .
ConsideredChild v Douglas 5-May-1854
. .
CitedCrest Nicholson Residential (South) Ltd v McAllister CA 1-Apr-2004
Land had been purchased which was subject to a restrictive covenant. The papers did not disclose the precise extent of the dominant land, the land which benefitted from the restriction.
Held: The land having the benefit of a covenant had to be . .
AppliedHemingway Securities Ltd v Dunraven Ltd and another ChD 16-Aug-1994
The lease contained a covenant against sub-letting. The tenant created a sub-lease in breach of that covenant and without the consent of the landlord.
Held: The head landlord was entitled to an injunction requiring the sub-tenant to surrender . .
CitedAbbey Homesteads (Developments) Limited v Northamptonshire County Council CA 1986
Clause 1 of an agreement between a company and the District Council required that the land should be sold subject to the conditions restricting and regulating the development. A clause provided ‘An area of 1.3 hectares adjacent to the playing field . .
CitedUniversity of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
CitedRhone and Another v Stephens HL 18-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
CitedLondon and South Western Railway Co v Gomm CA 1882
A grant was given to repurchase property, but was void at common law for the uncertainty of the triggering event.
Held: The ‘right’ to ‘take away’ the claimants’ estate or interest in the farm was immediately vested in the grantee of the right . .
CitedNoakes and Co Ltd v Rice HL 17-Dec-2001
A charge on a public house provided that even after repayment of the principal, the owner continued to be obliged to purchase his beer from the brewery, and that any non-payment would be charged on the property.
Held: The clauses operated as a . .
CitedColes v Sims 16-Jan-1854
. .
CitedTaylor v Gilbertson 3-Jul-1854
. .
CitedJohnstone v Hall 11-Mar-1856
. .
CitedHodson v Coppard 6-Nov-1860
. .
CitedHeywood v Heywood 19-Nov-1860
. .
CitedEarl of Zetland v Hislop HL 12-Jun-1882
. .

Lists of cited by and citing cases may be incomplete.

Land, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.181987