Category: Equity

National Provincial and Union Bank of England v Charnley: 1924

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

Judges:

Atkin LJ

Citations:

[1924] 1 KB 431

Jurisdiction:

England and Wales

Cited by:

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

Equity, Land

Updated: 12 May 2022; Ref: scu.190143

Kingsnorth Finance Co Ltd v Tizard: ChD 1986

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

Judges:

Finlay QC

Citations:

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

Statutes:

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

Jurisdiction:

England and Wales

Citing:

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

Land, Equity

Updated: 12 May 2022; Ref: scu.189988

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

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

Citations:

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

Statutes:

Insolvency Rules 1986 (1986 No 1925) 6.1

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Appeal from – Coulter v Chief Constable of Dorset Police CA 8-Oct-2004
The appellant had failed in his action against the police and been ordered to pay the costs. A statutory demand was issued in the name of the respondent, but as the new chief constable had no deed of assignment, he was only equitable assignee.
See Also – Coulter v Chief Constable of Dorset Police CA 13-Jul-2005
An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
Lists of cited by and citing cases may be incomplete.

Police, Insolvency, Equity

Updated: 12 May 2022; Ref: scu.189946

Sutton v Sutton: 1984

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

Judges:

John Mowbray QC

Citations:

[1984] Ch 184

Statutes:

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

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Family, Equity

Updated: 12 May 2022; Ref: scu.188271

Meftah v Lloyd’s TSB Bank Plc: 2001

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

Citations:

[2001] 2 All ER (Comm) 741

Jurisdiction:

England and Wales

Cited by:

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

Land, Equity

Updated: 12 May 2022; Ref: scu.187672

Boustany v Piggott: PC 1995

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

Judges:

Lord Templeman

Citations:

[1995] 69 PandCR 298

Citing:

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

Cited by:

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

Contract, Equity

Updated: 12 May 2022; Ref: scu.186677

Lady Hood of Avalon v Mackinnon: 1909

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

Judges:

Eve J

Citations:

[1909] 1 Ch 476

Cited by:

Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Cited – Fender (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 . .
Cited – Pitt and Another v Holt and Another ChD 18-Jan-2010
The claimant sought to unravel a settlement she had made as receiver for her late husband, saying that it had been made without consideration of its Inheritance Tax implications. The Revenue said that there was no operative mistake so as to allow . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 12 May 2022; Ref: scu.184587

Grand Metropolitan plc v Wm Hill Group Ltd: 1997

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

Citations:

[1997] 1 BCLC 390

Jurisdiction:

England and Wales

Cited by:

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

Equity

Updated: 12 May 2022; Ref: scu.184573

Whiteside v Whiteside: CA 1950

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

Judges:

Lord Evereshed MR

Citations:

[1950] Ch 65

Jurisdiction:

England and Wales

Cited by:

Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Cited – Oun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
Cited – Ashcroft v Barnsdale and Others ChD 30-Jul-2010
The parties sought to rectify a deed of family arrangement varying a will. The variation deed had had several mistakes which in fact increased the sum of Inheritance Tax owed. HMRC refused to accept the rectification deed unless approved by the . .
Cited – Gibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 12 May 2022; Ref: scu.184585

Macedo v Stroud: PC 1922

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

Citations:

[1922] 2 AC 330

Citing:

Cited – 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 . .

Cited by:

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

Commonwealth, Land, Equity, Registered Land

Updated: 12 May 2022; Ref: scu.183418

Bank of Victoria Ltd v Mueller: 1925

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

Judges:

Cussen J

Citations:

[1925] VLR 642

Jurisdiction:

England and Wales

Cited by:

Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Lists of cited by and citing cases may be incomplete.

Banking, Equity, Undue Influence

Updated: 12 May 2022; Ref: scu.180572

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

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

Citations:

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

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Local Government, Equity

Updated: 11 May 2022; Ref: scu.90408

Maguire v Makaronis: 25 Jun 1997

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

Judges:

Brennan CJ, Gaudron, McHugh, Gummow, Kirby JJ

Citations:

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

Links:

Austlii

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity, Legal Professions, Damages

Updated: 11 May 2022; Ref: scu.554208

Layard v Maud: 1867

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

Judges:

Malins VC

Citations:

(1867) LR 4 Eq 397

Equity, Land

Updated: 11 May 2022; Ref: scu.554687

Akai Holdings Ltd v Kasikornbank PCL: 8 Nov 2010

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

Judges:

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

Citations:

[2011] 1 HKC 357

Links:

Hklii

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Equity, Damages

Updated: 11 May 2022; Ref: scu.554210

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

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

Judges:

Edelman J

Citations:

[2014] WASC 102

Links:

Austlii

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity

Updated: 11 May 2022; Ref: scu.553780

KM v HM: 29 Oct 1992

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

Judges:

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

Citations:

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

Links:

Canlii

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Limitation, Equity, Trusts

Updated: 11 May 2022; Ref: scu.554205

Fraser v Thames Television Ltd: QBD 1984

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

Judges:

Hirst J

Citations:

[1984] QB 44

Jurisdiction:

England and Wales

Citing:

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

Intellectual Property, Equity

Updated: 11 May 2022; Ref: scu.540358

Metropolitan Bank v Heiron: CA 1880

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

Judges:

Brett LJ, Cotton LJ, James LJ

Citations:

(1880) 5 Ex D 319

Cited by:

Cited – 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 . .
Disapproved – The Attorney General of Hong Kong v Reid and Reid And Marc Molloy Co PC 1-Nov-1993
(New Zealand) The Board considered the power to recover property owned by a public official found to have taken bribes.
Held: The bribes received by the policeman were held on trust for his principal, and so they could be traced into . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 11 May 2022; Ref: scu.551508

Re Schebsman: CA 1944

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

Judges:

Lord Greene MR, du Parcq LJ

Citations:

[1944] Ch 83

Cited by:

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

Equity, Commercial

Updated: 11 May 2022; Ref: scu.537034

Heynes v Dixon: 1900

Citations:

[1900] 2 Ch 561

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Equity

Updated: 11 May 2022; Ref: scu.537349

Wollaston v King: 1869

Rectification for mistake

Citations:

(1869) LR 8 Eq 165

Jurisdiction:

England and Wales

Cited by:

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

Equity

Updated: 11 May 2022; Ref: scu.509243

Barclays Bank Ltd v TOSG Trust Fund Ltd: CA 1984

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

Judges:

Oliver LJ, Slade LJ

Citations:

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

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Equity

Updated: 11 May 2022; Ref: scu.449847

Caffrey v Darby: 1789

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

Citations:

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

Links:

Commonlii

Cited by:

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

Equity, Wills and Probate

Updated: 11 May 2022; Ref: scu.365956

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

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

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

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

Equity

Updated: 11 May 2022; Ref: scu.314964

Tasker v Small: 3 Jun 1836

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

Judges:

Lord Cottenham LC

Citations:

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

Links:

Commonlii

Cited by:

Appeal from – Tasker v Small And Matilda, His Wife, Charles S Ashford, B R Baker, Thomas Mann, Thomas Phillips, Joseph Wakeford, Thomas Hawkins, And Sarah Baker 18-Nov-1837
One Defendant appeals. Order made thereupon dismissing bll upon grounds equally applicable to other Defendants who did not join in the appeal. Such other defendants can have no benefit of such order, although it renders the decree useless. . .
Cited – Scott v Southern Pacific Mortgages Ltd and Others SC 22-Oct-2014
The appellant challenged a sale and rent back transaction. He said that the proposed purchaser had misrepresented the transaction to them. The Court was asked s whether the home owners had interests whose priority was protected by virtue of section . .
Cited – Inland Revenue Commissioners v G Angus and Co CA 1889
Lord Esher MR rejected an argument that a specifically enforceable contract or agreement for the sale of land is in truth a conveyance: ‘And it is said that, when an agreement is such that equity will grant specific performance of it, it is to be . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 11 May 2022; Ref: scu.315112

William Lacey (Hounslow) Ltd v Davis: 1957

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

Judges:

Barry J

Citations:

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

Jurisdiction:

England and Wales

Cited by:

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

Contract, Equity

Updated: 11 May 2022; Ref: scu.280269

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

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

Citations:

Times 13-Aug-1999

Statutes:

Financial Services Act 1986 47

Jurisdiction:

England and Wales

Financial Services, Equity, Insurance

Updated: 11 May 2022; Ref: scu.84363

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

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

Judges:

Lord Hope of Craighead

Citations:

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

Jurisdiction:

Scotland

Cited by:

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

Equity

Updated: 11 May 2022; Ref: scu.83831

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

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

Judges:

Nourse LJ, Sedley LJ, Colman J

Citations:

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

Jurisdiction:

England and Wales

Cited by:

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

Equity

Updated: 10 May 2022; Ref: scu.81307

Filross Securities Ltd v Midgley: CA 29 Jul 1998

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

Citations:

Gazette 29-Jul-1998

Statutes:

Limitation Act 1980 36(2)

Jurisdiction:

England and Wales

Equity

Updated: 10 May 2022; Ref: scu.80523

Fisher v Wychavon District Council: CA 30 Nov 2000

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

Citations:

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

Jurisdiction:

England and Wales

Planning, Equity

Updated: 10 May 2022; Ref: scu.80576

Collinge v Lee and Another: CA 26 Oct 2000

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

Citations:

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

Statutes:

Land Registration Act 1925 70

Jurisdiction:

England and Wales

Registered Land, Equity

Updated: 10 May 2022; Ref: scu.79276

Maxwell v Maxwell: 1852

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

Citations:

(1852) 2 De G M and G 705

Jurisdiction:

England and Wales

Cited by:

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

Equity, Wills and Probate

Updated: 10 May 2022; Ref: scu.278401

Caffrey v Darby: 1801

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

Judges:

Lord Eldon LC

Citations:

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

Links:

Commonlii

Citing:

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

Cited by:

Cited – Devenish 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.
Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 10 May 2022; Ref: scu.276921

Bookmakers’ Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd: 1994

The bookmaker defendant received a broadcast information service for which he was prepared to pay. That service carried another information service (‘BAGS’) for which the second provider also sought payment. The bookmaker was not prepared to pay for that, and said so. However the two services were not severable – one could not receive the first without the second. BAGS sought to claim from the bookmaker inter alia on the footing that he had received a service, benefited from it and knew that BAGS wanted payment for it in the sense that it was not free.
Held: Aldous J asked and answered the question as follows: ‘Does the law impose a duty upon a person to pay, when he receives and uses a service knowing that it is not being offered free; when he makes it clear to the provider of the service that he does not want the service and that he will not pay for it? The answer is, I believe, no . . When a party makes it clear to the provider of a service that he will not pay for it or does not want it, then it cannot be against the conscience of that man that he should refuse to pay for the service.’ and ‘If the provider of the service knows that the recipient does not intend to pay, he cannot complain if the recipient does not ultimately pay. In such circumstances, the law will not help him to obtain recompense unless he has some proprietary or contractual right.’

Judges:

Aldous J

Citations:

[1994] FSR 723

Cited by:

Distinguished on the facts – Greater Manchester Police v Wigan Athletic AFC Ltd ChD 21-Dec-2007
The claimant sought payment under section 25 from the defendant football club for the costs of policing football matches. The defendant said that the sums were not due since the events had been over-policed, and had not been agreed or requested.
Cited – Greater Manchester Police v Wigan Athletic AFC Ltd CA 19-Dec-2008
The parties disputed the amounts payable by a football club to the police for the attendance of police officers at matches. The defendant appealed against a finding that it had requested the services for which charges had been made under section 25 . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 10 May 2022; Ref: scu.262973

Golightly v Reynolds: 1774

The identity of funds was traced through different hands and shops.

Citations:

(1772) Lofft. 88

Cited by:

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

Equity

Updated: 10 May 2022; Ref: scu.259433

Clarke 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 the stolen money. The defendants unsuccessfully argued that there was no contract between the master and the defendants and that the defendants had given consideration for the receipt of the money. It was argued that though the defendants were fortunate in that the lottery tickets issued for the stolen money were not winning tickets, the defendants ran the risk ‘and therefore performed their part of the agreement: consequently, there is no foundation for an action to recover back the money paid.’
Held: The plaintiff was entitled to recover the sum of andpound;460 from the defendant as money had and received by him for the use of the plaintiff.
Lord Mansfield said: ‘This is a liberal action in the nature of a bill in equity; and if, under the circumstances of the case, it appears that the defendant cannot in conscience retain what is the subject matter of it, the plaintiff may well support this action . . . the plaintiff does not sue as standing in the place of Wood his clerk: for the money and notes which Wood paid to the defendants, are the identical notes and money of the plaintiff. Where money or notes are paid bona fide, and upon a valuable consideration, they never shall be brought back by the true owner; but where they come mala fide into a person’s hands, they are in the nature of specific property; and if their identity can be traced and ascertained, the party has a right to recover. It is of public benefit and example that it should; but otherwise, if they cannot be followed and identified, because there it might be inconvenient and open a door to fraud. Miller v. Race, 1 Burr. 452: and in Golightly v. Reynolds (1772) Lofft. 88 the identity was traced through different hands and shops. Here the plaintiff sues for his identified property, which has come to the hands of the defendant iniquitously and illegally, in breach of the Act of Parliament, therefore they have no right to retain it: and consequently the plaintiff is well entitled to recover.’

Judges:

Lord Mansfield

Citations:

(1774) Lofft 756, (1774) 1 Cowp 197

Statutes:

Lottery Act 1772

Cited by:

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

Torts – Other, Equity

Updated: 10 May 2022; Ref: scu.259405

Bourne v Swan and Edgar Ltd: 1903

One circumstance relevant to a consideration whether it would be reasonable to require a party to rebut a claim that had not previously been asserted through laches is whether evidence by which he might have rebutted the claim has been lost or destroyed.

Citations:

[1903] 1 Ch 211

Equity

Updated: 10 May 2022; Ref: scu.251657

Spence v Crawford: HL 1939

The vendor of shares sought rescission of a contract for their sale.
Held: He succeeded. Express orders for their return were made.
Lord Wright said: ‘Restoration, however, is essential to the idea of restitution. To take the simplest case, if a plaintiff who has been defrauded seeks to have the contract annulled and his money or property restored to him it would be inequitable if he did not also restore what he had got under the contract from the defendant. Though the defendant has been fraudulent, he must not be robbed, nor must the plaintiff be unjustly enriched, as he would be if he both got back what he had parted with and kept what he had received in return. The purpose of the relief is not punishment, but compensation. The rule is stated as requiring the restoration of both parties to the status quo ante . .’

Judges:

Lord Wright, Lord Thankerton

Citations:

[1939] 3 All ER 271, [1939] SC (HL) 52

Jurisdiction:

Scotland

Cited by:

Cited – Halpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 10 May 2022; Ref: scu.244662

Lazard Brothers and Co Ltd v Fairfield Properties Co (Mayfair) Ltd: 1977

The court considered the law of laches in its modern context, saying that If between the plaintiff and the defendant it was just that the plaintiff should obtain the remedy the court ought not to withhold it merely because the plaintiff had been guilty of delay. The current state of the law requires a balancing exercise in relation to the justice of the case.

Judges:

Megarry VC

Citations:

(1977) Sol Jo 793

Cited by:

Cited – Mcivor v The Northern Bank Executor and Trustee Company Ltd ChNI 24-Oct-2002
. .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 10 May 2022; Ref: scu.235772

Wilson and M’Lellan v Sinclair: 1830

Lord Brougham LC said that since Brisbane v. Dacres it had been considered an established point that a mistake must be ‘in the fact’ to allow recovery of money paid in error.

Judges:

Lord Brougham LC

Citations:

(1830) 3 Wilson and Shaw 398

Citing:

Cited – Brisbane v Dacres 1813
The commander of a naval vessel, HMS Arethusa, had paid to the Admiral in command a proportion of freight received for the carriage of publicly owned bullion on board the Arethusa in the belief that this was due to the Admiral as a matter of usage. . .

Cited by:

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

Contract, Equity

Updated: 10 May 2022; Ref: scu.236535

Williams 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 result that the purchaser was forced in 1956 to start proceedings for specific performance to require conveyance of plots 3 and 4. The defendant contended that the time for purchase of those plots had passed and that any case for specific performance was barred by delay or laches.
Denning LJ said: ‘The second point is on delay or laches. Counsel for the vendor said that there had been too much delay to enable the purchaser to get specific performance. On this point it is necessary to remember that when the deposit was paid there was a binding contract – binding on the vendor – whereby he let the purchaser into the land for the purpose of erecting the buildings. It was binding even though the vendor kept the cheque in his pocket. It was a contractual licence which the vendor could not repudiate at will. It created an equity. The purported repudiation by the vendor in April, 1947, was entirely inoperative. He could not renounce a binding contract in that way. The purchaser did not accept the repudiation as a rescission of the contract. He stopped building, but he did not take down his fence. He still remained in possession of the land, and, being in possession under a contractual licence, he had an equity to remain there. . . . But then it is said: When the vendor repudiated this contract, surely the purchaser ought to have taken him to court; he ought to have brought an action for specific performance then and there to compel him to perform his contract. I confess that argument did appeal to me at one time in the course of the case. … But I think the answer to it is this: once the purchaser went into possession of the land, having the contractual right to be there, he had not only an equity to be there. He had more. He had the benefit of a contract to sell him these two plots. That was not only an equity: it was an equitable interest in the land. He was in a sense the equitable owner of the land. So long as he was in possession of the land, he did not lose his rights simply by not proceeding at once for specific performance. . . . [reference to Crofton -v- Ormsbty ] Likewise we have here possession which is taken under a contract of purchase with an equitable right to be there. All that needs to be done is for the legal title to be perfected. In such a case, laches or delay is not a bar.’ Lord Justce Hodson: ‘I myself attach great importance to the putting round these plots 3 and 4 of a fence. What more can a man do ordinarily, if he buys or agrees to buy a piece of freehold land, in order to show that it is his land and mark it off from the neighbouring land than put a fence round it in that way. This is not the case of a man who had taken a lease and had to pay rent. He has nothing further to do. Land is not capable in the ordinary way of being reduced into possession except in such manner by the inclusion of it in a boundary fence. That is the first thing one is likely to do in any event and perhaps in many cases it may be the only thing one does. In this case the purchaser did a bit more: he started some building; he put up some sheds and did some road works. But the fence, to my mind, was sufficient intimation that he was claiming possession of that land. . . What is the position if the purchaser was in possession? In Fry LJ’s book on SPECIFIC PERFORMANCE (6th Edn)… para. 1110 reads: ‘Where the contract is substantially executed, and the plaintiff is in possession of the property, and has got the equitable estate, so that the object of his action is only to clothe himself with the legal estate, time either will not run at all as laches to debar the plaintiff from his right, or it will be looked at less narrowly by the court…”

Judges:

Denning and Hodson LJJ

Citations:

[1956] 3 All ER 705, [1957] 1 WLR 31

Jurisdiction:

England and Wales

Citing:

Cited – Crofton v Ormsby 1804
When the purpose of one party to a contract causing delay was to defeat the other party, if the other party then fails to complete, the delaying party cannot insist on performance of the contract: ‘The whole laches here consists in the not clothing . .

Cited by:

Cited – Frawley v Neill CA 1-Mar-1999
The modern approach to a laches claim, was not to test the facts against numbers of earlier cases, but to look at the situation as a whole, and to ask whether the delay made it unconscionable to permit the party to assert those rights. Aldous LJ . .
Cited – Patel and others v Shah and others CA 15-Feb-2005
The parties entered into a commercial agreement for the sale and purchase of properties.
Held: The claimants had failed to meet their part of the bargain, and had failed to make mortgage payments, leaving the defendants to do so. The . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 09 May 2022; Ref: scu.223433

Osborne v Bradley: ChD 1903

The plaintiff had sold land to the purchaser, subject to covenants restricting the development on the land to private dwellings and prohibiting manufacture, trade or business on the land. The purchaser built two houses and subsequently sold the land and houses to the defendant, subject to the covenants. The defendant lodged plans with the local council to convert the houses into shops.The plaintiff brought an action on a covenant against the purchaser of land subject to a negative covenant. The question arose as to whether the purchaser was liable to the owner of the land who had the benefit of the covenant. This depended on whether or not the covenant was entered into as part of a building scheme. The covenant contained a provision under which the original vendor reserved the right to vary or waive the conditions with regard to unsold lots.
Held: The evidence did not establish that the land was part of a building scheme when sold. As to the provision relating to waiver, Farwell J said: ‘The mere fact that the vendor has reserved to himself the right to vary the conditions as regards unsold property might not by itself be sufficient to prevent the existence of a scheme in respect of the plots sold before that period.’ Farwell J did not hold that such a provision was invalid.
A failure by the convenantee to pursue breaches of covenant which were minor or insignificant would not be considered by the court as amounting to acquiescence in ordinary circumstances.

Judges:

Farwell J

Citations:

[1903] 2 Ch 446

Jurisdiction:

England and Wales

Cited by:

Cited – Marquess of Zetland v Driver CA 1939
The vendor was tenant for life of settled land at Redcar. By a 1926 conveyance part was conveyed to a purchaser who covenanted ‘to the intent and so as to bind as far as practicable the said property hereby conveyed into whosesoever hands the same . .
Cited – Elliston v Reacher ChD 1908
The court was asked whether a building scheme had been established.
Held: It had. The court set out the factors which must be shown to establish a building scheme on an estate; Both plaintiff and defendant’s titles must derive from the same . .
Cited – Elliston v Reacher CA 2-Jan-1908
Lord Cozens Hardy MR said: ‘It is laid down in Co. Litt. 230b, that a man who takes the benefit of a deed, is bound by a condition contained in it, though he does not execute it.’
Farwell J referred to Osborne v Bradley, and said: ‘With . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 09 May 2022; Ref: scu.196684

In re TR Technology Investment Trust Plc: ChD 1988

The court was asked whether the limition on the circumstances in which the court could remove restrictions imposed under section 794, applied to a merely interim order.
Held: It did not. Hoffmann J said of the powers t demand information given under the 1985 Act: ‘the company, through its existing board, is given the unqualified right to insist that contests for the hearts and minds of shareholders are conducted with cards on the table.’ and ‘A company is therefore able, by notices under s212, to track down all persons who, within a very extended definition, have interests in its shares. The reason why the definition is so extensive is to counter the limitless ingenuity of persons who prefer to conceal their interests behind trusts and corporate entities.’

Judges:

Hoffmann J

Citations:

[1988] BCLC 256

Statutes:

Companies Act 1985 212

Jurisdiction:

England and Wales

Citing:

Cited – Re Geers Gross plc CA 1988
Nourse LJ said: ‘the clear purpose of [Pt VI of the 1985 Act] is to give a public company, and ultimately the public at large, a prima facie unqualified right to know who are the real owners of its voting shares.’ . .

Cited by:

Cited – Eclairs Group Ltd and Another v JKX Oil and Gas Plc and Others ChD 30-Aug-2013
Challenge was made to restrictions on voting imposed on the directors under the company’s articles.
Held: The purpose of article 42 is to provide a ‘sanction or incentive’ to remedy a failure to comply with the disclosure notice. . .
Cited – JKX Oil and Gas Plc and Others v Eclairs Group Ltd CA 13-May-2014
The court was asked as to important issues on the validity and constitutionality of restrictions imposed by the directors pursuant to Part 22 of the 2006 Act and the company’s Articles of Association, including the purported disenfranchisement of . .
Cited – Eclairs 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.

Company, Equity

Updated: 09 May 2022; Ref: scu.595475

Re Turner’s Settled Estates: 1884

In the case of mixed motives the Court will apply a ‘but for’ test, namely whether the power to transfer would have been exercised but for the intent to achieve the ulterior purpose or whether the power would have been exercised in any event

Citations:

(1884) 28 Ch D 205

Jurisdiction:

England and Wales

Cited by:

Cited – Eclairs 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

Updated: 09 May 2022; Ref: scu.595478

Lewis v Cotton: 18 Dec 2000

(Court of Appeal of New Zealand) The Court considered the equitable doctrine of mutual wills. The doctrine recognised that the executors and trustees of a will may be required to hold affected assets upon a constructive trust in terms of a revoked will.
Held: The imposition of a constructive trust based on mutual wills has two fundamental requirements:
(a) There was an underlying consultation and coordination between two testators which resulted in an agreement or an arrangement as to how they would make their respective wills (which were then made).2 I will refer to this as the requirement for ‘corresponding wills’. Reference is sometimes made to ‘mirror wills’ and, more ambiguously and confusingly, to ‘mutual wills’.
(b) There must have been a contract or mutual understanding (intended to bind each testator to a future cause of action) that neither testator

Judges:

Richardson P, Blanchard J,Tipping J

Citations:

[2000] NZCA 39, [2001] 2 NZLR 21, (2000) 20 FRNZ 86

Links:

NZLII

Jurisdiction:

England and Wales

Cited by:

Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Updated: 09 May 2022; Ref: scu.593131

Andrews v Australia and New Zealand Banking Group Ltd: 6 Sep 2012

Austlii High Court of Australia – Banker and customer – Penalty doctrine – Consumer and commercial credit card accounts – Honour fee – Dishonour fee – Late payment fee – Non-payment fee – Over limit fee – Whether those fees penalties – Whether penalty doctrine limited to circumstances where there is breach of contract – Significance of law respecting penal bonds – Grounds for equitable intervention – Whether penalty doctrine now wholly a rule of common law.
Equity – Doctrines and remedies – Relief against penalties – Significance of law respecting penal bonds – Whether relief available only in cases of breach of contract – Whether penalty doctrine now wholly a rule of common law.
Words and phrases – ‘bond’, ‘condition’, ‘dishonour fee’, ‘exception fees’, ‘honour fee’, ‘penalty’.

Judges:

French CJ, Gummow, Crennan, Kiefel, Bell JJ

Citations:

[2012] HCA 30, (2012) 247 CLR 205, (2012) 290 ALR 595, [2012] ASC 155, (2012) 86 ALJR 1002

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity, Banking

Updated: 09 May 2022; Ref: scu.593106

In re Dagenham (Thames) Dock Co; Ex parte Hulse: CA 1873

The Court of Appeal in chancery heard an appeal from the Master of the Rolls from his refusal of the Master of the Rolls to make a declaration in the winding up of the purchaser company. The purchaser had sought a direction that if the balance of the purchase monies were paid with interest it should be relieved from termination of the contract brought about by its not paying the purchase money by the due date. The Lord Justices held that the forfeiture was in the nature of penalty from which the court would relieve. Relief was to be granted, not against the forfeiture of the instalments, but against the forfeiture of the estate under a contract which involved the retention of the purchase money. The Court granted the purchaser, who had been in possession for five years and carried out improvements, further time to pay the second and final instalment of a purchase price on the ground that the clause requiring him to vacate and to forfeit the first instalment for not having paid the second instalment on time, was a ‘penalty’.

Citations:

(1873) LR 8 Ch App 1022

Jurisdiction:

England and Wales

Cited by:

Approved – Kilmer v The British Columbia Orchard Lands Limited PC 26-Feb-1913
British Columbia . .
Cited – Legione v Hateley 1982
(High Court of Australia) Purchasers of land were put on notice that unless they paid the price by 10th August the contract of sale would be rescinded. On 9th August the purchasers’ solicitor telephoned the vendor’s solicitors and spoke to the . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 09 May 2022; Ref: scu.593110

Marriott v Hampton: KBD 1775

The plaintiff paid for goods bought from the defendant. The defendant then brought an action for payment of the price alleging that he had not been paid. The claimant could not find his receipt for the first payment, and was ordered by the court to pay again. He then found the receipt and brought an action for money had and received to recover the second payment.
Held: Where money has been wrongly paid under the compulsion of legal process it cannot be recovered back in action for money had and received to the payer’s use.
Lord Kenyon said: ‘I am afraid of such a precedent. If this action could be maintained I know now that cause of action could ever be at rest. After a recovery by process of law there must be an end to litigation, otherwise there would be no security for any person.’

Judges:

Lord Kenyon CJ

Citations:

[1775-1802] All ER Rep 631

Jurisdiction:

England and Wales

Cited by:

Applied – Wilson v Ray 1-May-1839
Lord Denman CJ descirbed the pronciple establishedin Marriott: .that what a party recovers from another by legal process, without fraud, the loser shall never recover back by virtue of any facts which could have availed him in the former proceeding. . .
Cited – John Ruskin College v Harley QBD 26-Nov-2013
A sum had been paid into court in 1997. Other sums were paid out, but this sum was left against costs liability. It was discovered much laterand paid out to the claimant. The former defendant now said that it had been paid out twice, and alleged . .
Lists of cited by and citing cases may be incomplete.

Equity, Litigation Practice

Updated: 09 May 2022; Ref: scu.593141

Borkan General Trading Ltd v Monsoon Trading Ltd: CA 8 Jul 2003

A contract for a tug expressly provided a benefit for a third party. He now sought to claim benefit under it.
Held: If, in the absence of a trust in his favour a third party for whose benefit a contract had expressly been made, could not take that benefit, then a trust would be implied. In this case it had been correct to imply actual authority to contract on behalf of the claimant.

Judges:

Peter Gibson, Clarke LJJ, Dyson J

Citations:

Times 28-Jul-2003

Jurisdiction:

England and Wales

Citing:

Cited – Midland Silicones Ltd v Scruttons Ltd HL 6-Dec-1961
The defendant stevedores, engaged by the carrier, negligently damaged a drum containing chemicals. When the cargo-owners sued in tort, the stevedores unsuccessfully attempted to rely on a limitation clause contained in the bill of lading between the . .
Cited – The Mahkutai PC 24-Apr-1996
(Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 08 May 2022; Ref: scu.185203

Clark v Chandler: CA 28 Jun 2002

The respondent had purchased a property in her sole name, but held the property with her husband. On a breakdown of the marriage, he signed a transfer of the property but the consideration was not settled. After his death, it was argued that the document was ineffective under the 1989 Act because it had not been signed by both parties.
Held: The property was actually held under a joint tenancy. The failure to settle the consideration was enough to defeat its interpretation even as a conditional disposition. Accordingly the joint tenancy had not been severed, and the widow took the entire property by survivorship.

Judges:

Lords Justice Thorpe and Chadwick and Mr Justice Wall

Citations:

Gazette 11-Jul-2002

Statutes:

Law of Property (Miscellaneous Provisions) Act 1989 2, Law of Property Act 1925 53(1)(c)

Jurisdiction:

England and Wales

Land, Contract, Equity, Wills and Probate

Updated: 08 May 2022; Ref: scu.174322

Inntrepreneur Pub Company (CPC) and Another v Sweeney: ChD 27 May 2002

The landlord sought an injunction against the defendant. The defendant countered, relying upon sec 2(1).
Held: The remedy provided by the section was limited to the award of damages. It could not, therefore, be used to defend an action for an injunction. Whilst he might be entitled in equity to repudiate the lease, he could not repudiate only part of the lease. The landlord might e criticised for its earlier conduct of the case, but rule 44 was concerned with the behaviour of the parties in conducting the litigation itself, and the rule could not be used to overturn the costs consequences because of misbehaviour outside the litigation.

Judges:

Mr Justice Park

Citations:

Times 26-Jun-2002, Gazette 27-Jun-2002

Statutes:

Misrepresentation Act 1967 2(1), Civil Procedure Rules 44.3(4)(a)

Jurisdiction:

England and Wales

Damages, Torts – Other, Equity, Costs

Updated: 08 May 2022; Ref: scu.174083

Longstaff and Another v Birtles and Others: CA 26 Jul 2001

The claimants were clients of a firm of solicitors. At the suggestion of the solicitors, they entered into a partnership with the solicitors to run a hotel. No suggestion was made that they should seek independent advice. The business failed, and they claimed damages for professional negligence.
Held: The duty to the client was paramount, including the duty to cause the client to receive independent legal advice. The defendant’s solicitors’ fiduciary duty extended beyond the termination of the retainer. The proceedings being amended to add a claim for breach of fiduciary duty, they were entitled to equitable compensation for losses occasioned.

Judges:

Lord Justice Laws, Lord Justice Mummery, Sir Anthony Evans

Citations:

Gazette 06-Sep-2001, Times 18-Sep-2001, [2001] EWCA Civ 1219, [2002] 1 WLR 470

Jurisdiction:

England and Wales

Cited by:

Cited – Ratiu, 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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Equity

Updated: 08 May 2022; Ref: scu.159910

Casio Computer Co Ltd v Sayo and Others: CA 8 Feb 2001

In a case alleging knowing assistance in the fraudulent transfer of funds through the banking system, acts forming part of the events had occurred within the jurisdiction. It was proper to join a defendant to the action here, even though he was resident in Spain. Under the Convention the defendants could be sued either in the jurisdiction of their residence or where any of the events giving rise to the tort occurred.

Citations:

Times 06-Feb-2001, Gazette 08-Feb-2001

Statutes:

Brussels Convention on Enforcement of Judgments in Civil and Commercial Matters 1968

Jurisdiction:

England and Wales

Cited by:

See Also – Casio Computer Co Ltd v Sayo and others CA 11-Apr-2001
The court was asked whether a constructive trust claim based on dishonest assistance is a matter ‘relating to tort, delict or quasi delict’ for the purpose of Article 5(3) of the Brussels Convention?
Held: A constructive trust claim based upon . .
See Also – Casio Computer Company Ltd v Sayo and others CA 13-Dec-2001
Applications for leave to appeal. . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Equity, Banking

Updated: 08 May 2022; Ref: scu.78936

Protector Endowment Loan and Annuity Company v Grice: 1880

Baggallay LJ considered the equitable doctrine of relief: ‘where the intent is not simply to secure a sum of money, or the enjoyment of a collateral object, equity does not relieve’.

Judges:

Baggallay LJ

Citations:

(1880) 5 QBD 592

Jurisdiction:

England and Wales

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 08 May 2022; Ref: scu.572401

Sir Harry Peachy v Duke of Somerset: 1720

Lord Macclesfield said: ‘The true ground of relief against penalties is from the original intent of the case, where the penalty is designed only to secure money, and the court gives him all that he expected or desired: but it is quite otherwise in the present case. These penalties or forfeitures were never intended by way of compensation, for there can be none.’

Judges:

Lord Macclesfield

Citations:

(1720) 1 Strange 447

Jurisdiction:

England and Wales

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
See Also – Sir Harry Peachy v Duke of Somerset 16-Jun-1721
A court of equity will not assist a copyholder against a forfeiture, which is found such at law, unless in cases where compensation can be made. . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 08 May 2022; Ref: scu.572400

Edwards v Walters: CA 1896

The holder of the promissory note gave a parol renunciation of all his rights. Further he delivered the promissory note back to a devisee of its maker, on whose real estate the obligations under the note were charged, and who had kept up the payments of interest.
Held: This did not work to discharge the promissory note. Section 62(1) of the 1882 Act would probably operate to include the ‘maker’ and his executors and or dministrators, but could not be extended to include a devisee of his estate. At law, an exoneration before any breach need not be made under seal, but a release of the note has to be under seal to be effective unless it could be brought within one of the exceptions provided by the 1882 Act.
Lindley LJ said, ‘A release in equity is often spoken of as something easy to establish. But I am not aware of any circumstances which amount to a release in equity and not at law except an agreement for valuable consideration to give a release or not to sue. Such an agreement, unless there is some reason for not enforcing it, has in equity the effect of a release.’

Judges:

Lindley LJ

Citations:

[1896] 2 Ch 157, 65 LJ Ch 557, 74 LT 396, 44 WR 547, 12 TLR 359, 40 Sol Jo 477

Statutes:

Bills of Exchange Act 1882 62(1)

Jurisdiction:

England and Wales

Equity, Contract

Updated: 08 May 2022; Ref: scu.565102

Eden 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.

Judges:

Lord Esher MR and Lindley and Lopes LJJ

Citations:

(1889) 23 QBD 368

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Company, Agency, Equity

Updated: 08 May 2022; Ref: scu.551505

Bank of Credit and Commerce International SA (No 8): CA 1997

A security was granted to secure a debt owed by a third party.

Citations:

[1997] 4 All ER 568

Jurisdiction:

England and Wales

Citing:

Cited – China and South Sea Bank Limited v Tan Soon Gin PC 1990
A mortgagee’s decision on sale is not constrained by reason of the fact that the exercise or non-exercise of the power will occasion loss or damage to the mortgagor. He can sit back and do nothing. He is not obliged to take steps to realise his . .

Cited by:

Cited – Serious Organised Crime Agency v Szepietowski and Others ChD 15-Oct-2010
The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 08 May 2022; Ref: scu.425367

Lane v Page: 15 Jun 1754

Fraudulent execution of a power to jointure. A power to jointure having been executed under an agreement that the creditor of the husband should have part of the jointure, the appointment was set aside as far as the creditors were to benefit. The fraud being on the remainder man confirmation by the wife after husband’s death of no effect.

Citations:

[1754] EngR 106, (1754) Amb 233, (1754) 27 ER 155

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Eclairs 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

Updated: 07 May 2022; Ref: scu.378085

Roles v Rosewell: 12 Feb 1794

The stat, 8 and 9 W. 3, e. 11, s. 8, which enacts ‘That in actions on any penal sum for non-performance of covenants, and co. the plaintiff may assign as many breaches, and co. and if judgment shall be given for the plaintiff on nihil dicit the plaintiff may suggest on the roll as many breaches, and co. as he shall think fit, upon which shall issue a writ to the sheriff to summon a jury before the Justice of Assize, and co. to enquire, and co and to assess the damages,’ etc. is compulsory on the plaintiff; and he cannot enter up judgment for the whole penalty on a judgment by default, as he might have done at common law.

Citations:

[1794] EngR 2173, (1794) 5 TR 538, (1794) 101 ER 302 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 07 May 2022; Ref: scu.371105

Sloman v Walter: 14 Nov 1783

Common law enforced the bonds according to their letter. But equity regarded the real intention of the parties as being that the bond should stand as security only, and restrained its enforcement at common law on terms that the debtor paid damages, interest and costs.
Lord Thurlow LC said: ‘where a penalty is inserted merely to secure the enjoyment of a collateral object, the enjoyment of the object is considered as the principal intent of the deed, and the penalty only as accessional, and, therefore, only to secure the damage really incurred . .’

Judges:

Lord Thurlow LC

Citations:

[1783] EngR 158, (1783) 1 Bro CC 418, (1783) 28 ER 1213

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 07 May 2022; Ref: scu.372287

Diplock 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 such premiums to their own use.

Citations:

[1811] EngR 468, (1811) 3 Camp 43, (1811) 170 ER 1300 (A)

Links:

Commonlii

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Transport, Equity

Updated: 07 May 2022; Ref: scu.339552

Lord Walpole v Lord Orford: 1789

The court was asked, where there were two inconsistent wills, to which of them a later codicil must be held to refer.
The equitable maxim, voluntas testatoris ambulatotia est usque ad mortem, operates so that an instrument which appears to be and is in the form of a testamentary disposition, yet, if it claims to be irrevocable, can only operate as a deed and not as a will.

Citations:

[1789] EngR 1464, (1789-1817) 1 Ves Jun Supp 393, (1789) 34 ER 842 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

See Also – Lord Walpole v Lord Orford HL 1797
The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’. . .
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 07 May 2022; Ref: scu.367095

Aleyn v Belchier: 5 Jul 1758

Power of jointuring executed in favour of a wife, but with an agreement that the wife should only receive a part as an annuity for her own benefit, and that the residue should be applied to the payment of the husband’s debts : held, a fraud upon the power and the execution set aside, except so far as related to the annuity, the bill containing a submission to pay it, and only seeking relief against the other objects of the appointment

Citations:

[1758] EngR 208, (1758) 1 Eden 132, (1758) 28 ER 634

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Eclairs 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

Updated: 07 May 2022; Ref: scu.342509

Barker 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.

Judges:

Sir James Knight-Bruce V-C

Citations:

[1846] EngR 533, (1846) 2 Coll 546, (1846) 63 ER 854

Links:

Commonlii

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 07 May 2022; Ref: scu.302428

Birley v Birley: CA 12 Mar 1858

An absolute appointment was made to an object of a power, under a prior ‘understanding’ between the appointor and appointee, to hold in ‘In trust ‘ for persons, some of whom were objects and some not.
Held: The whole was void.

Judges:

Sir John Romilly MR

Citations:

[1858] EngR 441, (1858) 25 Beav 299, (1858) 53 ER 651

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

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

Trusts, Equity

Updated: 07 May 2022; Ref: scu.288912

Knill v Prowse: 1884

An assignee of land may sue the tenant for the rent.

Citations:

[1884] 33 WR 163

Cited by:

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

Equity, Landlord and Tenant

Updated: 07 May 2022; Ref: scu.264579

Wallrock v Equity and Law Life Assurance Society: 1942

Citations:

[1942] 2 KB 82

Cited by:

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

Equity

Updated: 07 May 2022; Ref: scu.264578

Hydro Electric Commission of Nepean v Ontario Hydro: 1982

(Supreme Court of Canada) There is a head of public policy which recognises the need to preserve the validity of compromises freely entered into with advice. The court advocated the application of equitable principles for both mistake of fact and mistake of law: ‘It would be best to abolish the mistake of law rule, place mistakes of law and of fact on an equal footing, and recognise that with mistakes of law the principle of conscious ignorance or conscious assumption of risk will often prevent relief . . ‘ (Dixon J dissenting)

Judges:

Dickson J

Citations:

(1982) 132 DLR (3d) 193

Jurisdiction:

Canada

Contract, Equity

Updated: 07 May 2022; Ref: scu.241335

Grahame v Magistrates of Kirkcaldy: HL 1882

Lord Watson said: ‘It appears to me that a superior Court, having equitable jurisdiction, must also have a discretion, in certain exceptional cases, to withhold from parties applying for it that remedy to which, in ordinary circumstances, they would be entitled as a matter of course. In order to justify the exercise of such a discretionary power there must be some very cogent reason for depriving litigants of the ordinary means of enforcing their legal rights.’

Citations:

(1882) 9 R (HL) 91

Jurisdiction:

Scotland

Cited by:

Adopted – White and Carter (Councils) Ltd v McGregor HL 6-Dec-1961
Contractor not bound to accept Renunciation
Mr McGregor contracted with the appellants for them to display advertisements for three years on litter bins. The contract was made on his behalf by an employee, without specific authority. On the day it was made, he sought to cancel the contract. . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 07 May 2022; Ref: scu.238538

Whiteley v Delaney: HL 1914

A farm in Yorkshire had been charged by O first to A and then to the plaintiff, and the charges registered under the Yorkshire Registry Acts. An attempt was made to sell of part of the land by o to his daughter to repay some of the money. She sought, through her solicitor W, a contributor to repay the first loan. Parties were unaware of the first charge. Completion and registration took place. A was repaid by the contributor who now said that instead of the charge being discharged, he now stood in A’s stead with a first mortgage.
Held: He was not entitled to priority. There had been a common mistake, induced by O, and the deeds as framed, and with his involvement, did not represent the intentions of the parties. The question of merger must, therefore, be decided according to the doctrines of equity, and the principle by which the Court of Equity is guided is the intention.
A purchaser from a mortgagor and a first mortgagee can always, if he chooses, keep the first mortgage alive and so protect himself against subsequent incumbrances and whether or not he had notice.

Judges:

Viscount Haldane LC

Citations:

[1914] AC 132, 83 LJ Ch 349, 110 LT 434, 58 Sol Jo 218

Jurisdiction:

England and Wales

Cited by:

Cited – Paragon Finance Plc v Pender and Another CA 27-Jun-2005
The defendants had purchased their property from the local authority with the support of a loan from the claimants. The defendants fell into arrears but now sought to resist possession on the basis that the claimant, in securitising their portfolio . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 07 May 2022; Ref: scu.229647

D’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 assured. The sum assured belongs to the person or persons who were beneficial owners of the policy immediately before the death.
A charge upon the subject must be imposed by clear and unambiguous language.

Citations:

[1953] AC 347

Jurisdiction:

England and Wales

Cited by:

Cited – Foskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
Lists of cited by and citing cases may be incomplete.

Equity, Insurance

Updated: 06 May 2022; Ref: scu.220689

Edinburgh 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 part of the general funds of the hospital. The Court of Session had been directed by an earlier decision of the House of Lords to settle how much of the funds which had been managed in this way belonged to the hospital. The Court of Session held that the benefactor’s funds had been immixed with the funds of the hospital from an early period down to that date, and that they must therefore be held to have participated proportionately with the hospital’s funds and property in the increase of value of the aggregate funds and property of the hospital during that period. Steps were then taken to ascertain and fix the amount of the whole of the aggregate funds and what the amount of the benefactor’s funds was in proportion to the present value of the aggregate. The case was again appealed on the question whether it was right to treat the two funds as having been inextricably mixed up.
Held: The decision was upheld Lord Blackburn The Court of Session solved the difficulty ‘in a way perfectly consistent with justice and good sense, and not inconsistent with any technical rule of law, and no other solution has been suggested which would be so satisfactory.’ and ‘No other way was suggested at the bar in which the fund, if the two were inextricably mixed up, could be apportioned except that of taking the proportion which the two funds bore to each other, and dividing the mixed fund in that proportion; and I cannot myself see any other way.’

Judges:

Lord Blackburn

Citations:

(1879) 4 AC 823

Jurisdiction:

Scotland

Cited by:

Cited – Magistrates of Edinburgh v McLaren HL 1881
. .
Cited – Foskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 06 May 2022; Ref: scu.220691

Sandeman 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 B, A can claim the goods.’ but ‘the whole matter is far from being within the domain of settled law’.

Judges:

Lord Moulton

Citations:

[1913] AC 680

Jurisdiction:

England and Wales

Cited by:

Cited – Foskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 06 May 2022; Ref: scu.220690

Marquis of Cholmondeley v Lord Clinton: HL 15 Jun 1821

Equity follows the law

Citations:

[1821] EngR 422, (1821) 4 Bligh PC 1, (1821) 4 ER 721

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Earl Cholmondeley v Lord Clinton 1789
A solicitor even though he may not be continuing to act for a particular client, must never be permitted to disclose, to the injury of that client, matters of which he had learned whilst so employed. . .
See Also – The Earl of Cholmondeley v Lord Clinton 17-Jul-1813
. .
See Also – Earl Cholmondeley And Ann Seymour Damer v Lord Clinton And Others 16-Jan-1815
A solicitor for one of the parties in a suit cannot become the solicitor for the opposite party, though he is separated from the partnership which jointly were so employed on the other side, and the remaining partner still continues so employed, and . .
See Also – Earl Cholmondeley v Lord Clinton 3-Feb-1815
An Attorney or solicitor cannot give up his client, and act for the opposite party, in any suit between them. . .
See Also – Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton 18-Dec-1816
. .
See Also – Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton, Sir Lawrence Palk, And Others 24-Dec-1816
. .
See Also – Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton, Francis Drake, Ambrose St John, John Inglett Fortescue, Sir Lawrence Palk (Deceased), William Seymour, And Others 28-Jun-1817
. .
See Also – The Marquis of Cholmondeley v Lord Clinton 1819
Where A, in a conveyance to uses, settled an estate for life on himself, remainder in tail to his issue, with an ultimate limitation to the heirs of SR in fee; and at the time of the settlement A was himself the right heir of SR.
Held: that . .
See Also – Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton etc 8-Aug-1820
. .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 06 May 2022; Ref: scu.200680

Stubbs 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 discussed whether an agreement was collateral: ‘The concealed remuneration obtained by the agents in the present case is in the precise matter in which they were instructed to act as agents for their principal. Consequently it cannot be said, as in Hippisley v. Knee Brothers , that what they did was something which was collateral to, and not directly within, their duty as agents. That determines this matter so far as the question of commission is concerned.’

Judges:

Neville J

Citations:

[1910] 1 Ch 632

Jurisdiction:

England and Wales

Citing:

Cited – Hippisley 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 . .

Cited by:

Cited – Archer and Watkins v Registrar General and Another PC 24-Jun-2004
(The Bahamas) The claimants challenged the way the respondent had allowed a company to alter its register of shareholders to their detriment.
Held: The responsibility for maintaining the share register rested on the company and its officers, . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 06 May 2022; Ref: scu.198486

AMEV-UDC Finance Ltd v Austin: 1986

High Court of Australia – Contract – Damages – Penalty – Agreement for hire of chattel – Failure to pay instalments of hire – Termination by owner pursuant to contractual power – Damages – Instalments due but unpaid – Damages for loss of contract.
The court discussed the doctrine against penalties in contracts: ‘But equity and the common law have long maintained a supervisory jurisdiction, not to rewrite contracts imprudently made, but to relieve against provisions which are so unconscionable or oppressive that their nature is penal rather than compensatory. The test to be applied in drawing that distinction is one of degree and will depend on a number of circumstances, including (1) the degree of disproportion between the stipulated sum and the loss likely to be suffered by the plaintiff, a factor relevant to the oppressiveness of the term to the defendant, and (2) the nature of the relationship between the contracting parties, a factor relevant to the unconscionability of the plaintiff’s conduct in seeking to enforce the term. The courts should not, however, be too ready to find the requisite degree of disproportion lest they impinge on the parties’ freedom to settle for themselves the rights and liabilities following a breach of contract. The doctrine of penalties answers, in situations of the present kind, an important aspect of the criticism often levelled against unqualified freedom of contract, namely the possible inequality of bargaining power. In this way the courts strike a balance between the competing interests of freedom of contract and protection of weak contracting parties: see generally Atiya, The rise and Fall of Freedom of Contract (1979), especially Chapter 22.’
‘the equitable jurisdiction to relieve against penalties withered on the vine’.

Judges:

Gibbs CJ(1), Mason(2), Wilson(2), Deane(3) and Dawson(4) JJ.

Citations:

[1986] 162 CLR 1770, (1986) 162 CLR 170, [1986] HCA 63

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Philips (Hong Kong) Ltd v The Attorney General of Hong Kong PC 9-Feb-1993
After referring to two Australian cases on penalty clauses in contracts: ‘These statements assist by making it clear that the court should not adopt an approach to provisions as to liquidated damages which could, as indicated earlier, defeat their . .
Cited – Jeancharm Ltd (T/A Beaver International) v Barnet Football Club Ltd CA 16-Jan-2002
The claimant contracted to supply football shirts to the defendant, but claimed that clauses in the contract with regards to late delivery and payment operated as penalties and so were void at common law.
Held: The sums set out were immodest . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract, Damages, Equity

Updated: 06 May 2022; Ref: scu.197034

Lloyds Bank plc v Bundy: CA 1974

‘Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy, the defendant, was a farmer there. His home was at Yew Tree Farm. It went back for 300 years. His family had been there for generations. It was his only asset. But he did a very foolish thing. He mortgaged it to the bank.’ The defendant and his son were the banks customers over many years. He had been advised that he could not afford to give greater support to his son, but later did so by extending the guarantee, and charging his property. The Bank sought to rely on the guarantee given to a bank by a father to support his son’s existing borrowing. The lending bank was found to have exercised undue influence over the customer. It was inappropriate for the father to give the guarantee because the bank manager knew the father and that thefather would rely upon him.
Held: The court set out to create a general principle of relief against harsh bargains on the ground of inequality of bargaining power.

Judges:

Lord Justice Denning MR, Sir Erich Sachs, Cairns LJ

Citations:

[1975] QB 326, [1974] 3 All ER 757

Jurisdiction:

England and Wales

Cited by:

Cited – Portman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
Distinguished – Avon Finance Co Ltd v Bridger CA 1985
The son arranged finance for his parents to move near to him. He borrowed money to help finance it, secured by an expensive second loan. He deceived his parents into executing the loan. After the son defaulted, the plaintiff sought possession.
Cited – Eclairs 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.

Banking, Undue Influence, Equity

Updated: 06 May 2022; Ref: scu.193356

Butler v Rice: 1910

The wife owned a Bristol property and a Cardiff property subject to a andpound;450 charge in favour of a bank with whom the title deeds had been deposited. The husband asked the plaintiff to lend him andpound;450 to pay off the mortgage. The plaintiff thought that the Bristol property belonged to the husband and did not know of the Cardiff property. He agreed to advance the money on having a legal mortgage for andpound;300 on the Bristol property and a guarantee of andpound;150 by the husband’s solicitor who was to hold the deeds for the plaintiff. The wife knew nothing of the transaction. The money was paid, the charge to the bank discharged and the deeds of the Bristol property held by the solicitor as stakeholder. The wife refused to execute a mortgage in favour of the plaintiff. He sued the wife and her husband and the solicitor for a declaration that he was entitled to a charge on the Bristol property [for] andpound;450 and interest.
Held: The court referred to ‘ . . the well-known equitable doctrine that if a stranger pays off a mortgage on an estate he presumably does not intend to discharge that mortgage, but to keep it alive for his own benefit.’ It must be presumed that the plaintiff wanted to keep the bank’s charge alive in his own favour, that the fact that the wife had not requested the plaintiff to make the payment and did not know of the transaction was immaterial, that the fact that he intended to take a different security did not affect the question, and that he was entitled to a charge on the Bristol property for andpound;450 and interest.’

Judges:

Warrington J

Citations:

[1910] Ch 277

Jurisdiction:

England and Wales

Cited by:

Cited – Ghana Commercial Bank v Chandiram PC 1960
The bank made an advance to the owner of property in Accra which was used to pay off his indebtedness to Barclays (DC and O) Ltd, secured by an equitable mortgage. The owner executed a legal mortgage in favour of the Ghana Bank, but this was . .
Cited – Castle Phillips Finance v Piddington CA 1995
The wife charged the matrimonial home to Lloyds to secure the husband’s indebtedness. The husband subsequently agreed with Barclays for the indebtedness to be refinanced. The husband and an accomplice forged her signature on a transfer of the . .
Cited – UCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
Cited – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 06 May 2022; Ref: scu.190509

Sinclair 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 mortgages, and the depositors of its ultra vires banking business. The claims of all other creditors had, by agreement, been met. It was accepted that contracts entered into for the purposes of that ultra vires business, which by the time of bankruptcy had become the society’s predominant business, were, so far as the society was concerned, void. The issue was the significance of that fact for the priority of claims of the shareholders and the depositors to the funds held by the Liquidators. In the High Court and the Court of Appeal the unadvanced shareholders prevailed: the depositors’ contracts were held void, and therefore would only be honoured to the extent that all prior valid claims had been met.
Held: The competing claims for priority of both the unadvanced shareholders and the depositors were declined. The available funds were to be shared pro rata, an outcome that had not been considered until raised by Viscount Haldane during argument.
Viscount Haldane approached the question by assuming that specific tracing was not possible and, on that basis, concluding that pro rata sharing was the way to apportion the monies: ‘The depositors can, in my opinion, only claim the depreciated assets which represent their money, and nothing more. It follows that the principle to be adopted in the distribution must be apportionment on the footing that depreciation and loss are to be borne pro rata. I am, of course, assuming in saying this that specific tracing is not now possible.
What is there must be apportioned accordingly among those whose money it represents, and the question of how the apportionment should be made is one of fact. In the present case the working out of a proper apportionment based on the principle of tracing not only would involve immense labour but would be unlikely to end in any reliable result. The records necessary for tracing the dealings with the funds do not exist. We have therefore, treating the question as one of presumption of fact, to give such a direction to the liquidator as is calculated to bring about a result consistent with the principles already laid down.

Judges:

Viscount Haldane

Citations:

[1914] AC 398, [1914-15] All ER 622

Jurisdiction:

England and Wales

Cited by:

Explained – 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 . .
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Lists of cited by and citing cases may be incomplete.

Trusts, Insolvency, Equity

Updated: 06 May 2022; Ref: scu.187413

The Teno: 1977

The court considered the circumstances necessary to establish a right to a set-off in equity: ‘where the cross-claim not only arises out of the same contract as the claim but is so directly connected with it that it would be manifestly unjust to allow the claimant to recover without taking into account the cross-claim there is a right of set off in equity of an unliquidated claim’.

Judges:

Parker J

Citations:

[1977] 2 Lloyds Rep 289

Jurisdiction:

England and Wales

Cited by:

Approved – Federal 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 . .
Cited – Schenkers Limited v Overland Shoes Limited and Schenkers International Deutschland Gmbh v Overland Shoes Limited CA 12-Feb-1998
A clause in a shipping freight contract using the standard British International Freight Association terms disallowing a set-off was not unreasonable. The clause read ‘The customer shall pay to the company in cash or as otherwise agreed all sums . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 06 May 2022; Ref: scu.185989

In re Cleaver dec’d, Cleaver v Insley: ChD 1981

Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
Nourse J said: ‘The principle of all these cases is that a court of equity will not permit a person to whom property is transferred by way of gift, but on the faith of an agreement or clear understanding that it is to be dealt with in a particular way for the benefit of a third person, to deal with that property inconsistently with that agreement or understanding. An enforceable agreement to dispose of property in pursuance of mutual wills can be established only by clear and satisfactory evidence.’
Equity does not protect the beneficiary under mutual wills merely because the wills have been made in identical or almost identical terms. There must be evidence of an agreement to create interests under mutual wills which are intended to be irrevocable after the death of the first person to die. Nourse J said: ‘It is therefore clear that there must be a definite agreement between the makers of the two wills; that that must be established by evidence; that the fact that there are mutual wills to the same effect is a relevant circumstance to be taken into account, although not enough of itself; and that the whole of the evidence must be looked at.’

Judges:

Nourse J

Citations:

[1981] 1 WLR 939, [1981] 2 All ER 1018

Statutes:

Inheritance (Provision for Family and Dependants) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Birmingham v Renfrew 11-Jun-1937
(High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as . .
Cited – Lord Walpole v Lord Orford HL 1797
The court considered the difference between an obligation accepted in law, and what was described as ‘an honourable engagement’. . .

Cited by:

Distinguished – Goodchild and Another v Goodchild CA 2-May-1997
The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
Cited – Walters v Olins CA 4-Jul-2008
The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
Cited – Healey v Brown ChD 25-Apr-2002
The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
Held: . .
Cited – Charles and Others v Fraser ChD 11-Aug-2010
The claimants said that the last will had purported to revoke and earlier but mutual will. They said that the executors should be required to implement the revoked will. The wills had been made by elderly sisters. The wills were in similar terms, . .
Cited – Legg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Updated: 06 May 2022; Ref: scu.183792

Re Earl of Coventry’s Indenture: 1974

Citations:

[1974] Ch 77

Cited by:

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

Equity

Updated: 06 May 2022; Ref: scu.184583

Habib 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 the availability of damages in a case of acquiescence to the breach of a contract: ‘that the test requires a much broader approach which is directed 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.’ The court approved a statement in the court below: ‘Of course, estoppel by conduct has been a field of the law in which there has been considerable expansion over the years and it appears to me that it is essentially the application of a rule by which justice is done where the circumstances of the conduct and behaviour of the party to an action are such that it would be wholly inequitable that he should be entitled to succeed in the proceeding.’ The court favoured a broad approach to the problem of inequitable or unconscionable conduct by long delay, rather than one turning on historical distinctions between the assertion of equitable rights and the enforcement rights by equitable means

Judges:

Oliver LJ

Citations:

[1981] 1 WLR 1265, [1981] 2 All ER 650

Jurisdiction:

England and Wales

Citing:

Endorsed – 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 . .

Cited by:

per incuriam – Jones v Stones CA 11-May-1999
No defence of acquiescence or estoppel arose from a failure by a land owner to pursue a complaint. Such a defence could only be established by some positive act of encouragement or allowance by him. The heart of the action lay in the allowance of a . .
Cited – Harris v Williams-Wynne ChD 11-Feb-2005
The parties agreed in sale agreement for a plot of land that the buyer would not erect any additional building. He did so, and when he came to try to sell it the original vendor objected. The purchaser’s solicitors registered the agreement for sale. . .
Cited – Brooker 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 . .
Cited – St 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 . .
Cited – Budejovicky 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 . .
Lists of cited by and citing cases may be incomplete.

Banking, Damages, Equity

Updated: 06 May 2022; Ref: scu.182879

Bagnall 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

Judges:

James, Baggallay and Cotton LJJ

Citations:

(1877) 6 Ch D 371

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Company, Equity, Agency

Updated: 06 May 2022; Ref: scu.551500

Cadbury Schweppes v FBI Foods: 28 Jan 1999

Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction appropriate remedy for breach of confidence in this case – Whether ‘head start’ concept applies — Whether calculation of equitable compensation differs from common law damages.

Judges:

L’Heureux-Dube, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ

Citations:

[1999] 1 SCR 142, 1999 CanLII 705 (SCC), 85 ACWS (3d) 166, 191 WAC 161, [1999] SCJ No 6 (QL), JE 99-317, AZ-99111005, 83 CPR (3d) 289, 235 NR 30, 117 BCAC 161, 42 BLR (2d) 159, 59 BCLR (3d) 1, 167 DLR (4th) 577

Links:

Canlii

Jurisdiction:

Canada

Citing:

Cited – Hodgkinson v Simms 30-Sep-1994
Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by . .

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Equity, Intellectual Property

Updated: 06 May 2022; Ref: scu.554203

George Cohen Sons and Co Ltd v Docks and Inland Waterways Executive: CA 1950

The landlord negotiating a new lease proposed to the tenant that ‘the terms and conditions contained in the present lease to be embodied in the new lease where applicable.’ The tenant accepted this offer, but the new lease as executed made the tenant liable for repairs which under the old lease had been the responsibility of the landlord. In answer to a claim for rectification, the landlord said that the new lease was in accordance with what he had understood to be the effect of his offer.
Held: This was irrelevant. What mattered was the objective meaning of what the landlord had written.
Sir Raymond Evershed MR said: ‘If the defendants . . did misconstrue [the letter] that is unfortunate for them, but at least they cannot be heard to say that their letter was intended to mean anything other than that which the words convey to the reader as a piece of ordinary English.’

Judges:

Sir Raymond Evershed MR

Citations:

(1950) 84 Lloyds Rep 97

Jurisdiction:

England and Wales

Cited by:

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

Equity, Contract

Updated: 06 May 2022; Ref: scu.472862

Frederick E Rose (London) Ltd v William H Pim Jnr and Co Ld: CA 1953

Denning LJ said: ‘Rectification is concerned with contracts and documents, not with intentions. In order to get rectification it is necessary to show that the parties were in complete agreement on the terms of their contract, but by an error wrote them down wrongly; and in this regard, in order to ascertain the terms of their contract, you do not look into the inner minds of the parties – into their intentions – any more than you do in the formation of any other contract. You look at their outward acts, that is, at what they said or wrote to one another in coming to their agreement, and then compare it with the document which they have signed. If you can predicate with certainty what their contract was, and that it is, by a common mistake, wrongly expressed in the document, then you rectify the document; but nothing less will suffice.’

Judges:

Denning LJ

Citations:

[1953] 2 QB 450

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 06 May 2022; Ref: scu.472860

In 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 debt.
Held: Scott J said that where payments had been made for the joint benefit of the household, they must be paid from the net proceeds before division. However an equity of exoneration applied to payments made purely for business purposes and for H’s sole benefit, and these were to be deducted only from H’s share.
Exoneration depended on the presumed intention of the parties. To apply, it would be necessary to demonstrate that (a) the spouse joined in a charge over jointly owned property; (b) the spouse did so for the purposes of the bankrupt; and (c) the money must have been borrowed and used for the bankrupt’s sole benefit.
The joint owner who is effectively in the position of a surety for the other joint owner is not only entitled to be indemnified by the other joint owner in relation to the relevant debt but the right to an indemnity carries with it a proprietary right over the indemnifying party’s share in the property. Thus, the party with the benefit of an equity of exoneration has not only a personal claim but is also a secured creditor in relation to that claim.
The court set out a definition of an equity of exoneration: ‘if the property of a married woman is mortgaged or charged in order to raise money for the payment of her husband’s debts, or otherwise for his benefit, it is presumed, in the absence of showing an intention to the contrary, that she meant to charge her property merely by way of security, and in such case, she is in the position of a surety, and is entitled to be indemnified by the husband, and to throw the debt primarily on his estate to the exoneration of her own.’
‘It is, I think, clear that the effect of the equity of exoneration in a case such as this is indeed to enhance the proprietary interest of the surety/joint mortgagor and not simply to give the surety a personal right to an indemnity from the debtor who is the other joint mortgagor.’

Judges:

Scott J

Citations:

[1985] All ER 285

Jurisdiction:

England and Wales

Citing:

Cited – Re 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 . .
Cited – 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 . .
Cited – Re 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 . .
Cited – Paget 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 – Re Woodstock (a bankrupt) ChD 19-Nov-1979
Walton J drew attention in his judgment to the need for the courts, in considering how the equity of exoneration should work as between a husband and a wife, to take into account the relationship which husbands and wives bear, or ought to bear, to . .

Cited by:

Cited – 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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Equity, Land, Insolvency

Updated: 06 May 2022; Ref: scu.420747

Nurcombe v Nurcombe: CA 1985

The court discussed a minority shareholder’s action to enforce the company’s claim as a derivative claim. Browne-Wilkinson LJ said that such an action, where a courts in equity permitted a person interested to bring an action to enforce the company’s claim, was analogous to that in which equity permitted a beneficiary under a trust to sue as plaintiff to enforce a legal right vested in trustees, which right the trustees will not themselves enforce, the trustees being joined as defendants.
He continued: ‘Since the wrong complained of is a wrong to the company, not to the shareholder, in the ordinary way the only competent plaintiff in an action to redress the wrong would be the company itself. But, where such a technicality would lead to manifest injustice, the courts of equity permitted a person interested to bring an action to enforce the company’s claim. The case is analogous to that in which equity permits a beneficiary under a trust to sue as plaintiff to enforce a legal right vested in trustees (which right the trustees themselves will not enforce), the trustees being joined as defendants. Since the bringing of such an action requires the exercise of the equitable jurisdiction of the court on the grounds that the interests of justice require it, the court will not allow such an action to be used in an inequitable manner so as to produce an injustice.’
. . And ‘It is pertinent to remember, however, that a minority shareholder’s action in form is nothing more than a procedural device for enabling the court to do justice to a company controlled by miscreant directors or shareholders. Since the procedural device has evolved so that justice can be done for the benefit of the company, whoever comes forward to start the proceedings must be doing so for the benefit of the company and not for some other purpose. It follows that the court has to satisfy itself that the person coming forward is a proper person to do so.’
Lawton LJ distinguished between actions brought for the benefit of the company on the one hand, and those brought for some other purpose on the other. He went on to say: ‘It is pertinent to remember, however, that a minority shareholder’s action in form is nothing more than a procedural device for enabling the court to do justice to a company controlled by miscreant directors or shareholders. Since the procedural device has evolved so that justice can be done for the benefit of the company, whoever comes forward to start the proceedings must be doing so for the benefit of the company and not for some other purpose. It follows that the court has to satisfy itself that the person coming forward is a proper person to do so. In Gower, Modern Company Law, 4th ed (1979), the law is stated, in my opinion correctly, in these terms. . : ‘The right to bring a derivative action is afforded the individual member as a matter of grace. Hence the conduct of a shareholder may be regarded by a court of equity as disqualifying him from appearing as plaintiff on the company’s behalf. This will be the case, for example, if he participated in the wrong of which he complains.”

Judges:

Browne-Wilkinson LJ, Lawton LJ

Citations:

[1985] 1 WLR 370

Cited by:

Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Cited – Iesini and Others v Westrip Holdings Ltd and Others ChD 16-Oct-2009
The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .
Lists of cited by and citing cases may be incomplete.

Company, Litigation Practice, Equity

Updated: 06 May 2022; Ref: scu.416011

Legg v Goldwire: 10 Nov 1736

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

Judges:

Talbot LC

Citations:

[1736] EngR 81, (1736) Cas T Talbot 20, (1736) 25 ER 637

Links:

Commonlii

Equity, Trusts, Family

Updated: 05 May 2022; Ref: scu.386774

Lord Glenorchy v Bosville: 1733

A. devises lands to his sister B. and C. and their heirs and assigns, upon trust, that until his grand-daughter D. should marry or die, to receive the profits, and thereout to pay her andpound;100 a year for her maintenance : the residue to pay debts and legacies.
After payment thereof, in trust for the said D. and upon further trust, that if she lived to marry a protestant of the church of England, and at the time of such marriage be of the age of twenty-one or upwards, or if under that age, such marriage be with the consent of the said B. then to convey, with all convenient speed, after such marriage, to the use of the said D. for life, sans waste voluntary waste in houses excepted ; remainder to her husband for life ; remainder to the issue of her body, with remainders over ; and upon further trust, that if the said D. die unmarried, then to the use of B. for life ; remainder to the son of his other granddaughter E. in tail ; remainder to the defendant C. remainder to his first and other sons ; remainder to A’s right heirs ; and upon further trust, that if D. marry not according to the will, then upon such marriage to convey to trustees, as to one moiety to the use of D. for life, then to trustees to preserve contingent remainders : remainder to her first and every other son, being a protestant with remainders over ; and as to the other moiety, to the son of his daughter E. in like manner. A. dies, D. attains her full age ; and upon a treaty of marriage with F. applies to B. and C. for a conveyance to herself for life ; remainder to her intended husband for life ; remainder to the issue of her body : B. executes such conveyance, but G. refuses ; D. suffers a recovery of the whole to the use of herself in fee, and then marries P. who made a considerable settlement upon her ; she covenants to settle her estate upon husband and wife ; remainder to the first, andc., sons in tail : remainder to survivor of husband and wife in fee. They bring a bill to compel C. to convey, andc, decreed (not an estate tail to D) but an estate for life sans waste, ut supra, as being the intent of A upon the will with remainders over in strict settlement.

Citations:

[1733] EngR 60, (1733) Cas T Talbot 3, (1733) 25 ER 628

Links:

Commonlii

Equity

Updated: 05 May 2022; Ref: scu.387009

Smith v Brooksbank: 25 Jun 1834

A bequeathed a reversionary interest, expectant on his wife’s death, in a sum of stock to B. B. bequeathed it to C., and C. bequeathed it to D, who, on the death of A’s wife, filed a bill against the trustees to have the stock transferred to him, alleging that the executors of A. and B, and C. had successively assented to the bequests.
Held: that the executors were not necessary parties.

Citations:

[1834] EngR 880, (1834) 7 Sim 18, (1834) 58 ER 743 (B)

Links:

Commonlii

Cited by:

See Also – Brooksbank v Smith 24-Feb-1836
In this case, trustees under a will, who were solicitors, had by mistake transferred stock to a person not entitled. Baron Alderson said, this being under circumstances of mistake, it appeared clear to him that the Plaintiffs were entitled to . .
See Also – Brooksbank And Another v Smith 24-Feb-1836
The testatrix died in 1818 leaving a fund in trust, subject to a life interest, for her children in equal shares, with substitutional gifts if any child predeceased her leaving issue. Her daughter Elizabeth did predecease her by two months, but on . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice, Equity

Updated: 05 May 2022; Ref: scu.317556

M’Mohon v Burchell: 5 Jun 1846

Citations:

[1846] EngR 760, (1846) 5 Hare 322, (1846) 67 ER 936

Links:

Commonlii

Citing:

See Also – MacMahon v Burchell 20-Apr-1843
A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .
See Also – M’Mohan v Burchell 30-Apr-1845
. .
See Also – M’Mahon v Burchell CA 1846
Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .

Cited by:

See Also – William M’Mahon And Wife v Burchell And Another 4-Dec-1846
. .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Landlord and Tenant, Equity

Updated: 05 May 2022; Ref: scu.302655

Stone v Godfrey: 10 Dec 1853

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

Citations:

[1853] EngR 1085, (1853) 1 Sm and G 590, (1853) 65 ER 258

Links:

Commonlii

Cited by:

Cited – Gibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 05 May 2022; Ref: scu.295071