Category: Equity

Holland v Russell: 9 May 1863

Citations:

[1863] EngR 546, (1863) 4 B and S 14, (1863) 122 ER 365

Links:

Commonlii

Citing:

See Also – Holland v Russell 13-Jun-1861
holland_russell1861
Insurance. Suppression of material fact. Principal and agent. Money had and received. A, as agent for a foreign owner, entered into a policy of insurance on a ship in the usual form. At the time of effecting the insurance, A was in possession of a . .
Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 05 May 2022; Ref: scu.283201

Browne v Ryan: 1901

(Ireland – Court of Appeal) A farmer mortgaged his holding to secure andpound;200 and interest; and, as part of the mortgage transaction, it was stipulated that the mortgagor should sell his holding within twelve months, employ the mortgagee as the auctioneer at a certain commission, and pay him the like commission if the conduct of the sale was given to any one else.
Held: The stipulation had no effect after redemption.

Citations:

[1901] 2 IR 653

Cited by:

Cited – Noakes and Co Ltd v Rice HL 17-Dec-2001
A charge on a public house provided that even after repayment of the principal, the owner continued to be obliged to purchase his beer from the brewery, and that any non-payment would be charged on the property.
Held: The clauses operated as a . .
Lists of cited by and citing cases may be incomplete.

International, Equity

Updated: 05 May 2022; Ref: scu.276436

Leake (formerly Bruzzi) v Bruzzi: CA 1974

The house was purchased in the husband’s sole name with a declaration of trust in favour of the husband and wife, holding the property as joint tenants. The wife had left the matrimonial home, and the husband had paid all the mortgage instalments including interest.
Held: The declaration of trust was overriding, and subject to adjustments for matters after severance, the property was to be held in equal shares. He was given credit for the capital payments but not for interest because he had had the sole use of the home and the interest payments could be regarded as ‘something equivalent to rent or payment for use and occupation.

Judges:

Ormrod LJ

Citations:

[1974] 1 WLR 1528

Statutes:

Married Women’s Property Act 1882 17

Jurisdiction:

England and Wales

Cited by:

Cited – Goodman v Gallant CA 30-Oct-1985
The court reviewed the conflicting authorities with regard to the creation of trusts and held that the overwhelming preponderance of authority was that, in the absence of any claim for rectification or rescission, provisions in a conveyance . .
Cited – Byford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
Cited – Clarke v Harlowe ChD 12-Aug-2005
The parties lived together. They acquired between them several properties of which the last was declared to be held as joint tenants. The relationship broke down. The parties now sought a declaration as to the destination of the proceeds of sale, . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 05 May 2022; Ref: scu.181826

Banque Financiere De La Cite v Parc (Battersea) Limited Omnicorp Overseas Limited: CA 29 Nov 1996

Citations:

[1996] EWCA Civ 1065

Jurisdiction:

England and Wales

Cited by:

Appeal from – Banque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
Cited – 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: 05 May 2022; Ref: scu.140932

Re Maxwell Communications Corporation Plc: Bishopsgate Investment Management Ltd v Homan: CA 26 Sep 1994

The remedy of tracing is not available through a bank account which was subsequently overdrawn. Nor does the doctrine of tracing extend to following value into a previously acquired asset: ‘there can be no equitable remedy against an asset acquired before the misappropriation of money takes place, since ex hypothesi it cannot be followed into something which existed and so had been acquired before the money was received and therefore without its aid.’

Judges:

Leggatt LJ

Citations:

Gazette 07-Oct-1994, Ind Summary 26-Sep-1994, [1995] 1 All ER 347

Jurisdiction:

England and Wales

Citing:

Appeal from – Bishopsgate Investment Management Ltd v Homan and Others ChD 14-Jul-1994
A tracing remedy is defeated when the account into which the money is paid is overdrawn. . .

Cited by:

Appealed to – Bishopsgate Investment Management Ltd v Homan and Others ChD 14-Jul-1994
A tracing remedy is defeated when the account into which the money is paid is overdrawn. . .
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.

Equity, Financial Services

Updated: 05 May 2022; Ref: scu.85834

Bishopsgate Investment Management Ltd v Homan and Others: ChD 14 Jul 1994

A tracing remedy is defeated when the account into which the money is paid is overdrawn.

Citations:

Times 14-Jul-1994

Jurisdiction:

England and Wales

Citing:

Appealed to – Re Maxwell Communications Corporation Plc: Bishopsgate Investment Management Ltd v Homan CA 26-Sep-1994
The remedy of tracing is not available through a bank account which was subsequently overdrawn. Nor does the doctrine of tracing extend to following value into a previously acquired asset: ‘there can be no equitable remedy against an asset acquired . .

Cited by:

Appeal from – Re Maxwell Communications Corporation Plc: Bishopsgate Investment Management Ltd v Homan CA 26-Sep-1994
The remedy of tracing is not available through a bank account which was subsequently overdrawn. Nor does the doctrine of tracing extend to following value into a previously acquired asset: ‘there can be no equitable remedy against an asset acquired . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 05 May 2022; Ref: scu.78425

Bland v Ingrams Estates Ltd and Others (1): CA 18 Jan 2001

An equitable charge of a lease has standing to apply to court for relief from forfeiture for non-payment of rent, where the tenant did not himself seek relief, but only indirectly on the basis that the lessee and chargor has a duty to take reasonable steps to preserve the charge’s security. The tenant stands in a similar position to a trustee unwilling to defend trust assets, and the chargee can act joining in the tenant as defendant and claim relief in the tenant’s shoes.

Citations:

Times 18-Jan-2001

Statutes:

Law of Property Act 1925 146(4)

Jurisdiction:

England and Wales

Cited by:

See Also – Bland v Ingrams Estates Ltd and Others (No 2) CA 11-Jul-2001
The tenant had allowed an equitable charge over his lease in favour of a creditor. The lease was forfeited by peaceable re-entry for non-payment of rent, and the chargee sought relief from forfeiture. A new tenancy had been granted in the mean-time. . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Land, Equity

Updated: 05 May 2022; Ref: scu.78444

London and River Plate Bank Ltd v Bank of Liverpool Ltd: 1896

Mathew J said: ‘when a bill becomes due and is presented for payment the holder ought to know at once whether the bill is going to be paid or not’. And ‘it is manifest that the position of a man of business may be most seriously compromised, even by the delay of a day.’ and ‘It seems to me the principle underlying the decision is this: that if the plaintiff in that case so conducted himself as to lead the holder of the bill to believe that he considered the signature genuine, he could not afterwards withdraw from that position; and no single case has been produced in which, where payment has been made on a forged indorsement to the holder of it in good faith, the money has been recovered back. This case was followed by another case, Smith v. Mercer 6 Taunt 76, where it was said in the course of some of the judgments that, where a banker had paid a forged draft believing that it had been accepted by his customer, he ought to know his customer’s signature. The same observations that I have made apply to that case. He may not be able by any amount of care to ascertain whether or not the acceptance was a forgery. That case, therefore, does not establish the principle for which Mr. Bigham contended. The true principle is developed in the clearest possible form in the case of Cocks v. Masterman. 9 B. and C. 902. There was an intermediate case of Wilkinson v. Johnson 3 B. and C. 428, which stands by itself, and which we need not discuss. In Cocks v. Masterman the simple rule was laid down in clear language for the first time that when a bill becomes due and is presented for payment the holder ought to know at once whether the bill is going to be paid or not. If the mistake is discovered at once, it may be the money can be recovered back; but if it be not, and the money is paid in good faith, and is received in good faith, and there is an interval of time in which the position of the holder may be altered, the principle seems to apply that money once paid cannot be recovered back. That rule is obviously, as it seems to me, indispensable for the conduct of business. A holder of a bill cannot possibly fail to have his position affected if there be any interval of time during which he holds the money as his own, or spends it as his own, and if he is subsequently sought to be made responsible to hand it back. It may be that no legal right may be compromised by reason of the payment. For instance, the acceptor may pay the bill and discover on the same day that the bill is a forgery, and so inform the holder of it, so that the holder would have time to give notice of dishonour to the other parties to the bill; but even in such a case it is manifest that the position of a man of business may be most seriously compromised, even by the delay of a day. Now that clear rule is one that ought not to be tampered with.’

Judges:

Mathew, J

Citations:

[1896] 1 QB 7

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, Banking

Updated: 04 May 2022; Ref: scu.259529

Famous Army Stores v Meehan: 1993

Judges:

Steyn J

Citations:

[1993] 1 EGLR 73

Cited by:

Disapproved – Connaught Restaurants Ltd v Indoor Leisure Ltd CA 17-Sep-1993
The lease provided the tenant would pay the rent ‘without any deduction’.
Held: The words ‘without any deductions’ in a lease were ambiguous and were insufficient to exclude the tenant’s right to claim a set off. Clear words are needed before . .
Cited – Edlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity

Updated: 04 May 2022; Ref: scu.242650

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.
Held: The parents had signed the charge without exercising reasonable care, and their plea of non est factum failed. However the charge was voidable in equity. The plaintiff lender had appointed the son to act as their agents to secure the signatures of the parents and to their disadvantage. The finance company should not be allowed to take advantage of their agent’s deceit.

Judges:

Brandon LJ

Citations:

[1985] 2 All ER 281, [1985] CLY 1289

Jurisdiction:

England and Wales

Citing:

Applied – Chaplin and Co Ltd v Brammall CA 1908
The plaintiffs, having agreed to supply goods to the defendant’s husband on credit if his wife would guarantee payment by him of their price, sent to the husband a form of guarantee, in order that he might obtain his wife’s signature to it, leaving . .
Cited – Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Distinguished – 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 . .

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.
Cited – Forsdike v Forsdike CA 21-Feb-1997
The claimant appealed dismissal of his claim to set aside a transfer by way of gift by his father on the basis of an alleged undue influence.
Held: The judges was entitled to make the findings he had done, and to be impressed by the spacing of . .
Lists of cited by and citing cases may be incomplete.

Banking, Undue Influence, Equity

Updated: 04 May 2022; Ref: scu.180569

Dewar v Dewar: ChD 1975

The court was asked whether a payment of pounds 500 by their mother to one of two brothers who were the litigants was to be treated as a gift or as a loan. The evidence showed that the mother always intended it to be a gift, that the son wanted to receive it as a loan, but that he did not refuse to take it at all. The judge considered submissions about the need for the recipient to accept the thing as a gift, and therefore as to the relevance of the intention of the recipient as well as that of the payer or deliverer. He concluded that acceptance by the recipient of the thing given was necessary, but no more than that.
Held: The recipient can refuse to take it, or if it arrives without prior arrangement he can reject it or send it back when he becomes aware of it. For a transaction to have effect as a gift the donor must actually intend to immediately give legal or beneficial ownership of the property to the donee.
The question has to be determined with reference to the intention of the payer.
Goff J said: ‘where a person intends to make a gift and the donee receives the thing given, knows that he has got it and takes it, the fact that he says: ‘well, I will only accept it as a loan, and you can have it back when you want it’ does not prevented from being an effective gift. Of course, it does not turn it into a loan unless the donor says: ‘very well, let it be a loan.’ He could not force the donor to take it back, but the donor, having transferred it to him effectively and completely, intending to make a gift, and he – so far from repudiating it – having kept it, it seems to me that that is an effective gift . . ‘

Judges:

Goff J

Citations:

[1975] 1 WLR 1532, [1975] 2 All ER 728;

Jurisdiction:

England and Wales

Cited by:

Cited – Meisels v Lichtman and Another QBD 9-Apr-2008
The court considered gifts to charity: ‘Where there is a dispute it seems to me that it is the intentions of the donor nor that will be crucial, rather than the more familiar exercise of ascertaining the intentions of both parties in construing the . .
Cited – Scott v Bridge and Others ChD 25-Nov-2020
Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 04 May 2022; Ref: scu.656368

Re Chawda (in bankruptcy): 2014

Mr Chawda and his wife jointly owned a residential property which they charged to secure a loan, part of which refinanced the original purchase loan. The case concerned the balance of about 78,000 pounds. Mr Chawda and his brother carried on business together. The sum of 78,000 pounds had been used to refinance the purchase of a property which had been jointly purchased by Mr Chawda and his brother and in which Mrs Chawda had no interest. The brothers converted it into flats and business premises which they let. They received the rental income. It was re-mortgaged to raise andpound;285,000 which was used to make payments to businesses run by one or both of the brothers and to make a personal payment to Mr Chawda’s brother and his wife. The property was later sold for 690,000 pounds, resulting in a very substantial capital profit. After paying off the secured loan, the proceeds were applied in making a variety of payments. 10,000 pounds was paid to a company run by Mr Chawda, of which Mrs Chawda was the sole director. Its business was subsequently sold. A total of some 68,000 pounds out of the proceeds of sale was paid to the joint account of Mr and Mrs Chawda and spent for the benefit of themselves and their family.
Held: The circumstances of the case negated any inference that the equity of exoneration should apply in favour of Mrs Chawda. The transactions had to be seen ‘in the context of the Chawdas functioning as a family unit as many, perhaps even most, modern families do’. In her evidence, Mrs Chawda more than once referred to ‘us’ and ‘we’ when discussing their affairs. Other factors also established that they ‘operated as one’: Mrs Chawda worked in her husband’s business, initially without pay for seven days a week; they did not have separate bank accounts but operated and had joint control over joint bank accounts, into which they paid all their income from all sources; they both took the benefits of the ups and the burdens of the downs of Mr Chawda’s businesses. The benefits included a half-share in a house bought for 925,000 pounds, the monies totalling 68,000 pounds received from the sale of a business, and family holidays, leading the Chief Registrar to comment that ‘the parallels between the circumstances of the Chawda and the Pittortou families are clear’ He concluded: ‘It seems to me that in the circumstances in which a husband and wife operate as the Chawdas have, pooling their earnings and profits, administering their financial affairs jointly and enjoying together a prosperous life, if not an extravagance one such as that of the Pagets. It is as unattractive as it is artificial for one of them to take the benefits while at the same time seeking to enforce an individual right in one respect only to the disadvantage of the other spouse (or in this case his creditors).’

Judges:

Chief Registrar Baister

Citations:

[2014] BPIR 49

Jurisdiction:

England and Wales

Cited by:

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

Updated: 04 May 2022; Ref: scu.581748

Parsons v McBain: 5 Apr 2001

Federal Court of Australia – BANKRUPTCY – constructive trust – transfer of property to beneficiary – whether void as against trustee in bankruptcy
EQUITY – equity of exoneration – how defeated
TRUSTS – ‘common intention constructive trust’ – whether trustee in bankruptcy takes subject to trust – time at which trust ari
A surety, or a person in the position of a surety, has a right of exoneration whereby he or she is entitled to be indemnified by the principal debtor against any liability incurred as a consequence of being called on to pay the debt, describing it as an incident of the relationship between surety and principal debtor.
‘Where co-owners mortgage their property so that money can be borrowed for the benefit of one mortgagor, the other co-owner will be treated as if he or she was a surety and the equity of exoneration will also arise. In those circumstances that other has an interest in the property of the co-mortgagor whose property is to be regarded as primarily liable to pay the debt: Parsons at [21], Duncan, Fox and Co v North and South Wales Bank (1880) 6 App Cas 1 at 10.
However, the right to exoneration is lost where the surety receives a benefit from the loan or the funds raised in respect of which the charge has been given. ‘So, if the borrowed funds are applied to discharge the surety’s debts, the surety could not claim exoneration, at least in respect of the benefit received.’
Here, the giving of the [Brighton Westpac mortgage] might have created a relationship whereby Mr Mogilevsky would be treated as a surety and Mrs Mogilevsky would be treated as principal debtor if:
the mortgage was for the purpose of raising money to benefit the co-owner, in this case Mrs Mogilevsky;
the money borrowed was used for that purpose; and
Mr Mogilevsky derived no benefit from the money so raised.’

Judges:

Black CJ, Kiefel, Finkelstein JJ

Citations:

[2001] FCA 376, (2001) 109 FCR 120, 192 ALR 772

Links:

Austlii

Jurisdiction:

Australia

Cited by:

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, Insolvency, Trusts

Updated: 04 May 2022; Ref: scu.581747

in Re Berry (a bankrupt): 1978

A married couple opened a joint bank account. H’s business fell into difficulties and overdraft facilities were arranged, secured by a mortgage over their jointly-owned house. The account was used both for the husband’s business and for household purposes. The overdraft appears to have resulted purely from business drawings and the account in due course became used largely for business purposes only. H was made bankrupt.
Held: W was not entitled to exoneration out of the husband’s share of the house. The account was a joint account and the wife as well as the husband was liable to the bank as a primary debtor. There was no evidence of any agreement between them that the husband should be the principal debtor, and they were at all times co-debtors of the bank. If A and B are jointly liable as principal debtors, A can have no entitlement to exoneration against B in the absence of agreement between them to that effect, nor can there be any evidential presumption of such entitlement.
Richardson J said: ‘I can state my conclusions in this case quite shortly. Here, husband and wife were at all times co-debtors to the bank and later to the nominee company. There is nothing in that relationship of co-debtor to warrant the implication that as between themselves, one is principal debtor and the other is secondary debtor. It is not a case where a wife charged her property or pledged her credit and the husband received the loan moneys. They entered into the transactions jointly. They were jointly liable and they incurred liability in consideration of advances made an accommodation given to them jointly. And there is no evidence of any agreement between husband and wife that one should be principal debtor. In my opinion the mortgage transactions, whether taken on their own or in conjunction with the operation of the joint account, did not give rise to any obligations by the husband to the wife. In these circumstances I consider there is no room for the application of the principle of exoneration.’ He considered the equity of exoneration as applicable to sureties and referred to Paget v Paget and Hall v Hall, as well as Halsbury’s Laws of England (3rd ed.). By contrast, in the case before him, the husband and wife mortgaged jointly-owned property to secure ‘advances or accommodations made or given to them jointly and received by them jointly’. They were two-way transactions involving the lender and borrowers and they ‘did not involve three distinct parties (the lender, the principal debtor, and the surety) which is the essence of the surety situation.’
Richardson J considered: ‘the rights of husband and wife in relation to a joint bank account’, identifying the circumstances in which as a matter of law one of them will, as between themselves, have primary responsibility for any liability on the joint account and whether such circumstances existed in the case before the court. He said that the concern is ‘to ascertain the intentions of the parties in their particular circumstances and in relation to the events that have arisen.’ He identified as the starting point ‘what inferences may properly be drawn as to common intention of this husband and this wife in relation to the opening and operation of the joint account’ (emphasis added). He proceeded to consider the facts of the particular case and concluded from them that the family home was a joint asset and the joint account and mortgage were ‘joint responsibilities’. In this context, he referred to English cases concerned with joint accounts, such as Jones v Maynard [1951] Ch 572, Gage v King [1961] 1 QB 188, Re Bishop [1965] Ch 450.
Somers J delivered a concurring judgment to similar effect, with the proposition that the ‘equity of exoneration is an incident of the relation between surety and principal’ (page 382). He referred in some detail to the speech of Lord Selborne LC in Duncan, Fox and Co v North and South Wales Bank (1880) 6 App Cas 1, where he identified the three classes of case ‘in which the relations between co-debtors may be such as to entitle one to cast the liability, as between them, on the other or others’ (emphasis added).
‘The statements of principle contained in those cases and the suggestions as to the proper inferences to be drawn reflect both the position of a wife in relation to property before the Married Women’s Property Act 1882 and a social climate wholly different from the present. While as between strangers the simple question, who got the money, may afford a ready and just solution, its potency as a solvent in the case of a joint account of a housewife and mother in New Zealand in the 1970’s is not so apparent. It necessarily involves the proposition that husband and wife intended to enter into legal relations, such intent being an actual intention or – denied by Paget v Paget [1898] 1 Ch 470 – a presumed intent.’
Somers J continued that where there was no expressed intention by the parties and no facts warranting any other inference, the starting point was that adopted by Diplock J in Gage v King that ‘arrangements involving a joint account between husband and wife are not meant to be attended by legal consequences during the subsistence of the marriage’
Somers J said: ‘The same type of consideration is involved in a determination, if such be necessary, of whether the withdrawals were for the sole benefit of the husband. On that point, however, there is evidence. The account appears to me to have been opened as a matter of convenience to both parties each of whom, for a time, paid in moneys and made withdrawals. It then became for practical purposes an account into which the husband paid the profits of his business and withdrew moneys to support it. The evidence does not suggest it was a general business account. It became in fact an account concerned with a vital feature of the family life – the earnings of the husband – and a buttress of that business from which such earnings were derived. To assert that the wife had no benefit from the withdrawals is to take too narrow a view.’

Judges:

Richardson, Somers JJ

Citations:

[1978] 2 NZLR 373

Jurisdiction:

England and Wales

Cited by:

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

Updated: 04 May 2022; Ref: scu.581746

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 ‘recklessly extravagant’ and within five years were in desperate need of funds to meet the husband’s debts incurred in maintaining their lifestyle. In 1882 the wife applied to court for an order under the 1881 Act to enable her to mortgage her life interest to secure a loan of 23,000 pounds to be applied in meeting her husband’s debts. In her evidence in support of the application she referred to these debts as ‘our debts’ and said that she had known of the growing financial problems since 1880 at the latest. Another application was made in 1887 to enable the wife to mortgage her life interest for a further loan of 22,000 pounds, to be applied in paying further debts incurred by her husband. Once again she referred to these as ‘our debts’. The parties separated in 1893 and the wife brought an action against the husband for a declaration that he was liable to indemnify her against the two mortgages.
Held: The equity of exoneration is a principle of equity which depends on the presumed intention of the parties. If the circumstances of a particular case do not justify the inference, or indeed if the circumstances negate the inference, that it was the joint intention of the joint mortgagors that the burden of the secured indebtedness should fall primarily on the share of that of them who was the debtor, then that consequence will not follow.
‘If a married woman charges her property with money for the purpose of paying her husband’s debts and the money is so applied, she is prima facie regarded in equity, and as between herself and him, as lending him and not giving him the money raised on her property, and as entitled to have her property exonerated by him from the charge she has created. This doctrine is purely equitable, and the authorities which establish it shew that it is based on an inference to be drawn from the circumstances of each particular case; the prima facie inference being in such a case as that supposed that both parties intended that the wife’s assistance should be limited to the necessity of the case and should not go beyond such necessity.’

Judges:

Lindley MR, Rigby and Vaughan Williams LJJ

Citations:

[1898] 1 Ch 470, [1895-9] All ER Rep 1150

Statutes:

Conveyancing Act 1881

Jurisdiction:

England and Wales

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

Equity

Updated: 04 May 2022; Ref: scu.567252

Gee v Liddell: ChD 1913

A co-mortgagor has an ‘interest in [and] a charge upon the estate of the principal debtor’. An equity of exoneration was applied as between brothers.
An equity of exoneration operates in the nature of ‘a charge upon the estate of the principal debtor by way of indemnity for the purpose of enforcing against that estate the right which [the beneficiary] has, as between [the beneficiary] and the principal debtor, to have that estate resorted to first for the payment of the debt’

Judges:

Warrington J

Citations:

[1913] 2 Ch 62

Jurisdiction:

England and Wales

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.

Land, Equity

Updated: 04 May 2022; Ref: scu.567251

Harlow Development Corporation v Kingsgate (Clothing Productions) Ltd: 1973

The parties to a lease discussed the terms upon which the landlord would carry out substantial improvement works on the demised property in turn for an increase in rent. The parties had forgotten than the tenant had an option to acquire a long lease at a fixed price, the effect of which would be to remove the landlord’s entitlement to future rent.
The landlord sought to rectify.
Held: The claim failed because the parties had no intention as regards the option. He also pointed out that there would have been several possibilities if the question had been drawn to the parties’ attention at the time of the contract. The objectively ascertainable intention of the parties was that the Bank would retain such rights as it had.

Judges:

Walton J

Citations:

(1973) 226 EG 1960.

Jurisdiction:

England and Wales

Cited by:

Cited – Lloyds TSB Bank Plc v Crowborough Properties Ltd and Others CA 12-Feb-2013
The court was asked whether Lloyds TSB Bank Plc was entitled to rectify the terms of a compromise embodied in the schedule to a Tomlin order. . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity

Updated: 04 May 2022; Ref: scu.558191

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 exoneration could apply after transactions between a father and his son.
Foster J said: ”As between the bankrupt’s father and the bankrupt, and bearing in mind that the father is admittedly only a surety, it should be implied that their intention was that the bankrupt’s beneficial interest should bear the burden. If that is so, it seems to me that the bankrupt’s interest vested in his trustee in bankruptcy, subject to an inchoate right of indemnity, if the surety were called on to pay, or the debt fell to be discharged, as it would have to be, out of the proceeds of sale of the property. Alternatively, I think that the father could be regarded as having an actual charge on the bankrupt’s interest within the principle discussed by Warrington J’

Judges:

Foster J and Fox J

Citations:

[1976] 1 WLR 952, [1976] 2 All ER 1010

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
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

Updated: 04 May 2022; Ref: scu.567250

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 to give the bank a charge, and the bank obtained a remedy through the law of unjust enrichment. The customers appealed.
Held: The appeal failed. The issue ws whether the landowner had been enriched at the expense of the bank, and the answer was plainly that she had. There had been only one overall schem, eand the causal connection between the loss suffered by the bank, and the benefit accruing to the original claimant was clear. Subrogation is a restitutionary remedy which reverses unjust enrichment, and to establish unjust enrichment four questions must be asked. Has the defendant been enriched? Was the enrichment at the claimant’s expense? Was the enrichment unjust? Are there any defences available to the defendant? The bank was to be subrogated to he unpaid seller’s lien which would have the effect of reinstating the charge. Subrogation is a broad and flexible remedy, and in this particular case, no more appropriate way forward was available.

Judges:

Lord Neuberger, President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Carnwath

Citations:

[2015] UKSC 66, [2015] 3 WLR 1334, [2016] AC 176, [2015] WLR(D) 438, UKSC 2013/0171

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary

Jurisdiction:

England and Wales

Citing:

Cited – Banque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
At First Instance – Menelaou v Bank of Cyprus Plc ChD 19-Jul-2012
On the sale of the claimant’s property, the solicitors received agreement by the defendant bank to the release of their charge over the property for a certainsum, being less than the loan outstanding. In the course of discharging the loan, a bank . .
Cited – Investment Trust Companies v HM Revenue and Customs ChD 2-Mar-2012
The claimant had properly accounted for VAT on its transactions for many years, but a decision of the European court had latterly ruled that the services were exempt. The claimant sought restitution from HMRC, who responded by arguing that . .
See Also – Menelaou v Bank of Cyprus UK Ltd CA 4-Jul-2013
The court set out answers to consequential questions raised by their judgment, and the form of declaration required. . .
Cited – Benedetti v Sawiris and Others SC 17-Jul-2013
The claimant appealed against reduction of the sum awarded on his claim for a quantum meruit after helping to facilitate a very substantial business deal for the defendants.
Held: The correct approach to the amount to be paid by way of a . .
Cited – Buhr v Barclays Bank plc CA 26-Jan-2001
The bank took a second charge over property, but failed to get it registered. The chargors fell into debt and bankruptcy, and the property was sold. The proceeds were used to discharge the first charge, and then repay unsecured creditors. The bank . .
Cited – Filby v Mortgage Express (No 2) Limited CA 22-Jun-2004
Mr and Mrs Filby’s matrimonial home was charged to the Halifax. They also had an unsecured loan with the Midland Bank. Mr Filby sought to remortgage the matrimonial home with Mortgage Express. The mortgage advance was paid to solicitors who used . .
Cited – Chetwynd v Allen 1899
A lender M advanced pounds 1,200 to pay off an existing mortgage held by T over a property owned by the plaintiff. M made the advance on the basis of certain misleading representations and non-disclosures by the plaintiff’s husband. M was told that . .
Cited – Butler v Rice 1910
The wife owned a Bristol property and a Cardiff property subject to a andpound;450 charge in favour of a bank with whom the title deeds had been deposited. The husband asked the plaintiff to lend him andpound;450 to pay off the mortgage. The . .
Cited – Filby v Mortgage Express (No 2) Limited CA 22-Jun-2004
Mr and Mrs Filby’s matrimonial home was charged to the Halifax. They also had an unsecured loan with the Midland Bank. Mr Filby sought to remortgage the matrimonial home with Mortgage Express. The mortgage advance was paid to solicitors who used . .
Cited – Burston Finance Ltd v Spierway Ltd ChD 1974
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: . .
Cited – Orakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .
Cited – Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Appeal from – Menelaou v Bank of Cyprus UK Ltd CA 19-Jun-2013
The Court was asked questions about the law of unjust enrichment, and one of the remedies which may be granted to reverse the effect of unjust enrichment, namely subrogation to an unpaid vendor’s lien. The bank had released its charges over property . .
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, . .
Cited – Barclays Bank Plc v Estates and Commercial Limited CA 20-Feb-1996
Millett LJ discussed the assertion of a vendor’s lien where a third party would be adversely affected: ‘A party with an equitable charge can be taken to agree to the postponement of his property against any party who was allowed to his knowledge to . .
Cited – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Cited – Scott v Bridge and Others ChD 25-Nov-2020
Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 04 May 2022; Ref: scu.554249

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 wife, whose property has been charged to secure her husband’s debts, to prove in his bankruptcy in respect of the indemnity which he owes her, provided that she had entrusted the property to her husband in the sense of ‘handing it over to him to deal with it as he might think fit’.’
Rigby LJ said that ‘there was no question of a loan by the wife to the husband, or of intrusting her property to him – that is, handing it over to him to deal with it as he might think fit’.

Judges:

Rigby LJ

Citations:

[1901] 1 KB 480

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

Equity

Updated: 04 May 2022; Ref: scu.567249

Dunne v English: CA 1874

A partner had made a secret profit from the sale of partnership property.
Held: The other partner sought and obtained relief ‘substantially in accordance with the first and second paragraphs of the prayer of the bill’, which had sought ‘a declaration . . that the Plaintiff was entitled to share equally with the Defendant in the profits . . and that the Defendant was bound to make over to the Plaintiff one half of the profits . .’ Because of the importance which equity attaches to fiduciary duties, ‘informed consent’ to a fiduciary acting for two parties is only effective if it is given after ‘full disclosure’.
Sir George Jessel MR said of a partner: ‘The Defendant was not only in law the agent of the partnership to sell (being himself a partner, and every partner being an agent of the partnership), but he was in fact the agent who had been engaged in negotiating the sale.’

Judges:

Sir George Jessel MR

Citations:

(1874) LR 18 Eq 524

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 . .
Cited – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
Lists of cited by and citing cases may be incomplete.

Equity, Agency, Company

Updated: 04 May 2022; Ref: scu.551499

Wallis v Woodyear: 1855

Wood V-C said that a first mortgagee has the right to have recourse to ‘any of his securities which first come to hand’ and to ‘realise his securities in such manner and order as he thinks fit’.

Judges:

Wood V-C

Citations:

(1855) 2 Jur (NS) 179

Jurisdiction:

England and Wales

Cited by:

Cited – Szepietowski v The National Crime Agency SC 23-Oct-2013
S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 04 May 2022; Ref: scu.540469

Manks v Whiteley: 1911

Judges:

Parker J

Citations:

[1911] 2 Ch 448

Jurisdiction:

England and Wales

Cited by:

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

Equity

Updated: 04 May 2022; Ref: scu.540470

Burroughs v Abbott: 1922

The court granted rectification of an instrument after a delay of twelve years.

Citations:

[1922] Ch 86, [1922] 1 Ch 86

Jurisdiction:

England and Wales

Cited by:

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

Equity

Updated: 04 May 2022; Ref: scu.539581

Weld v Petre: 1929

Delay simpliciter is immaterial in the case of equitable remedies. A mortgagor’s redemption suit was held not time-barred under laches despite his delay of twenty-six years.

Citations:

[1929] 1 Ch 33

Jurisdiction:

England and Wales

Cited by:

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

Equity, Land

Updated: 04 May 2022; Ref: scu.539582

In re Eyre-Williams: 1923

Citations:

[1923] 2 Ch 533

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: 04 May 2022; Ref: scu.537350

In re Gallard: 1897

Citations:

[1897] 2 QB 8

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: 04 May 2022; Ref: scu.537348

Hovenden v Lord Annesley: 1806

Referring to a judgment of Lord Macclesfield on the application of statutory limitation by analogy to claims against trustees for breach of trust, he continued: ‘Now I take it that the position which has been laid down, ‘that trust and fraud are not within the statute,’ is qualified just as he qualifies it here: that is, if a trustee is in possession and does not execute his trust, the possession of the trustees is the possession of the cestui que trust; and if the only circumstance is, that he does not perform his trust, his possession operates nothing as a bar, because his possession is according to his title . . But the question of fraud is of a very different description: that is a case where a person who is in possession by virtue of that fraud, is not, in the ordinary sense of the word, a trustee, but is to be constituted a trustee by a decree of a court of equity, founded on the fraud; and his possession in the meantime is adverse to the title of the person who impeaches the transaction on the ground of fraud.’

Judges:

Lord Redesdale, Lord Chancellor of Ireland

Citations:

(1806) 2 Sch and Lef 607

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: 04 May 2022; Ref: scu.537347

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

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

Judges:

Gleeson CJ, Gaudron, Gummow, Kirby, Haynes, Callinan JJ

Citations:

(2001) 208 CLR 516

Cited by:

Cited – Barnes (As Former Court Appointed Receiver) v The Eastenders Group and Another SC 8-May-2014
Costs of Wrongly Appointed Receiver
‘The contest in this case is about who should bear the costs and expenses of a receiver appointed under an order which ought not to have been made. The appellant, who is a former partner in a well known firm of accountants, was appointed to act as . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity

Updated: 04 May 2022; Ref: scu.526732

D O Ferguson and Associates v M Sohl: CA 1992

A building contract was repudiated by the builders at a time when the works had been partly completed. The contract price was approximately andpound;32,000. At the time when the builders abandoned the site they had been paid over andpound;26,000 and the value of work done by them was about andpound;22,000.
Held: The owner was entitled to claim in restitution for the sum of andpound;4,673, representing the amount by which the sums paid to the builders exceeded the value of the work done. The builders had objected that there had not been a total failure of consideration under the contract, since most of the building work had been done, but the court held that there had been a total failure of consideration for the amount by which the builders had been overpaid.

Citations:

(1992) 62 BLR 199

Jurisdiction:

England and Wales

Cited by:

Cited – Eastenders Cash and Carry Plc and Others, Regina (on The Application of) v Revenue and Customs SC 11-Jun-2014
Alcoholic drinks had been seized by the respondents pending further enquiries with a view to a possible forfeiture, then held and returned but only under court order. The company had complained that the detention of the goods was unlawful. The . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 04 May 2022; Ref: scu.526733

Brooke v Haynes: CA 1868

Lord Romilly MR said: ‘A party to a deed is not estopped in equity from averring against or offering evidence to controvert a recital therein contrary to the fact, which has been introduced into the deed by mistake of fact, and not through fraud or deception on his part.’

Judges:

Lord Romilly MR

Citations:

[1868] 6 LR Eq 25

Cited by:

Approved – Greer v Kettle HL 1938
A corporate borrower agreed to repay andpound;250,000 with interest and to charge certain specified shares in another company as security. A guarantee was procured from another company, Parent Trust. The deed of guarantee recited that the lender had . .
Cited – Prime Sight Ltd v Lavarello PC 9-Jul-2013
(Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.
Lists of cited by and citing cases may be incomplete.

Equity, Estoppel

Updated: 04 May 2022; Ref: scu.519653

Attorney-General v Guardian Newspapers Ltd: CA 2 Jan 1988

A former employee of the Secret Service had written a book (‘Spycatcher’). The AG sought several remedies including damages against a newspaper for serialising it. Dillon LJ said: ‘It has seemed to me throughout the hearing of this appeal that there could have been strong arguments for saying that, as Mr. Wright wrote and published Spycatcher in breach of his duty of secrecy to the Crown and was only able to do so by the misuse of secret information which had come to him in the course of his employment as an officer in the Security Service of the Crown, the copyright in Spycatcher belongs in equity to the Crown and is held on a constructive trust for the Crown with whatever consequences may follow from that. Since, however, the Crown has in the most explicit terms disclaimed any reliance on equitable copyright, I put such thoughts out of mind’.

Judges:

Dillon LJ

Citations:

[1988] 2 WLR 805

Jurisdiction:

England and Wales

Citing:

Appeal from – Attorney-General v Guardian Newspapers Ltd QBD 1988
A Mr Peter Wright had written a book about his service in MI5. The Crown sought to restrain publication of the book by newspapers and also, as against The Sunday Times, an account of profits.
Held: As to this latter Scott J, said: ‘I had . .
See Also – Attorney General v Guardian Newspapers Ltd (No.1) HL 13-Aug-1987
A retired secret service officer intended to publish his memoirs through the defendant. The house heard an appeal against a temporary injunction restraining publication.
Held: Lord Bridge delivered his dissenting speech in the case of . .

Cited by:

Appeal From – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – Twentieth Century Fox Film Corp and Others v Harris and Others ChD 5-Feb-2013
The court was asked whether a copyright owner has a proprietary claim to money derived from infringement of the copyright.
Held: He did not. No such argument could be shown to have suceeded before. . .
Lists of cited by and citing cases may be incomplete.

Damages, Equity, Intellectual Property

Updated: 04 May 2022; Ref: scu.473040

Anonymous [1482] EngR 2: 1482

Payment without acquittal.-A mm payeth debt upon a single obligation without taking acquittance, therefore this will not discharge him at the common law, but he shall be relieved therein in chancery (quare 22 E. 4. 6 [1482]) by the party’s oath,
but not by witness.

Citations:

[1482] EngR 2, (1482) Cary 2, (1482) 21 ER 1 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Equity

Updated: 04 May 2022; Ref: scu.470385

Corporation of Burford v Lenthall: 1743

The court considered how the Courts of Equity had dealt with orders for costs: ‘Courts of Equity have in all cases done it not from any authority but from conscience and arbitrio boni viri, as to the satisfaction on one side or other on account of vexation.’

Judges:

Lord Hardwicke

Citations:

(1743) 2 Atk 551

Jurisdiction:

England and Wales

Cited by:

Cited – Andrews v Barnes CA 12-Jun-1888
The parish vicar and his churchwardens brought an action to recover a small sum paid to the members of a local committee for charitable purposes, saying the gift had been made subject to a condition which it proved impossible to fulfil.
Held: . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Lists of cited by and citing cases may be incomplete.

Costs, Equity

Updated: 04 May 2022; Ref: scu.223267

Jones v Coxeter: 1742

Lord Hardwicke said: ‘The giving of costs in equity is entirely discretionary and is not at all conformable to the rule at law.’

Judges:

Lord Hardwicke

Citations:

(1742) Atk 400

Jurisdiction:

England and Wales

Cited by:

Cited – Andrews v Barnes CA 12-Jun-1888
The parish vicar and his churchwardens brought an action to recover a small sum paid to the members of a local committee for charitable purposes, saying the gift had been made subject to a condition which it proved impossible to fulfil.
Held: . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Lists of cited by and citing cases may be incomplete.

Costs, Equity

Updated: 04 May 2022; Ref: scu.223266

Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd and Others: CA 29 Mar 2011

The appellant challenged a decision that it was not entitled to a proprietary interest in the proceeds of sale of some shares which had been acquired with the proceeds of a breach of trust. Specifically, the claims gave rise to (i) an issue as to the circumstances in which a proprietary interest arises, (ii) an issue as to what constitutes sufficient notice to defeat a person’s claim that he is a purchaser for value without notice in good faith, and (iii) a number of other issues relating to tracing claims.
Held: The Court analysed the conflicting decisions on these issues and decided that it should follow Heiron and Lister, and Tyrrell, for a number of reasons.
The court decided not to follow a decision of the Privy Council. Lord Neuberger MR said: ‘We should not follow the Privy Council decision in Reid [1994] 1 AC 324 in preference to decisions of this court, unless there are domestic authorities which show that the decisions of this court were per incuriam, or at least of doubtful reliability. Save where there are powerful reasons to the contrary, the Court of Appeal should follow its own previous decisions, and in this instance there are five such previous decisions. It is true that there is a powerful subsequent decision of the Privy Council which goes the other way, but that of itself is not enough to justify departing from the earlier decisions of this court . . I do not suggest that it would always be wrong for this court to refuse to follow a decision of the Privy Council in preference to one of its own previous decisions, but it the general rule is that we follow our previous decisions, leaving it to the Supreme Court to overrule those decisions if it is appropriate to do so.’

Judges:

Lord Neuberger MR, Richards, Hughes LJJ

Citations:

[2011] EWCA Civ 347, [2011] Bus LR 1126, [2011] 3 WLR 1153, [2011] WTLR 1043, [2012] Ch 453

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Sinclair Investment Holdings Sa v Versailles Trade Finance Ltd and Another CA 12-May-2005
. .
See Also – Sinclair Investment Holdings Sa v Versailles Trade Finance Ltd and others CA 25-Jan-2005
leave . .
Appeal from – Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd and Others ChD 30-Jun-2010
Lord Neuberger MR said that Carl Zeiss ‘supports the proposition that notice of a claim is not the same as notice of a right’. . .

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 . .
Cited – Michael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
Cited – Willers v Gubay ChD 15-May-2015
The court was asked whether the tort of malicious prosecution of civil proceedings is known to English law.
Held: The Crawfod Adjusters case should not be followed: ‘If I am not bound by Gregory, then I see no reason for departing from the . .
Mentiuoned – Scott v Bridge and Others ChD 25-Nov-2020
Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two . .
Lists of cited by and citing cases may be incomplete.

Equity, Company

Updated: 02 May 2022; Ref: scu.431559

Opinion: 1581

The Lord Bromley was of opinion in Caudge and Lawyer’s case, 24 Eliz. [1581-821], that the land should go as the law had settled it and conscience should be supplied with money.

Citations:

[1581] EngR 37, (1581-82) Toth 141, (1581) 21 ER 148 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Equity

Updated: 02 May 2022; Ref: scu.429415

Sir Ralph Bovey v Skipwith: 25 May 1671

Citations:

[1671] EngR 28, (1671) 1 Chan Cas 201, (1671) 22 ER 762 (A)

Links:

Commonlii

Citing:

See Also – Sir Ralph Bovey v Skipwith 1671
Mortgage Priorities
In 1651, Sir Francis Drake made the Plaintiff a Security out of the Manor and Rectory of Waltham upon Thames. Afterwards in 1656, Drake made the Defendant a Security for Money out of the Rectory only (the Defendant having no Notice then of the . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 02 May 2022; Ref: scu.406442

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

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

Judges:

Lord Hardwicke LC

Citations:

[1742] EngR 130, (1742) 2 Atk 444, (1742) 26 ER 668

Links:

Commonlii

Cited by:

Cited – Szepietowski v The National Crime Agency SC 23-Oct-2013
S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 02 May 2022; Ref: scu.384303

William Belchier And Others v John Renforth: PC 9 Feb 1764

It is an established rule of equity, that a third mortgagee having lent his money, without knowing there was a second mortgage upon the same estate, may, by paying off the first incumbrancer, and taking an assignment of his interest to himself, hold the estate against the second mortgagee, till he shall be paid what is due to him upon both mortgages. The principle upon which this doctrine was first established, and has ever since prevailed, is that the third mortgagee having innocently lent his money, without knowing that the second had any claim upon the estate, has in conscience as good a right to be paid the whole money he has lent, as the second mortgagee has to the payment of what he advanced ; and having by the assignment of the first mortgage got a right to hold the estate absolutely at law, and having possession of the title deeds, without which the estate cannot be sold, a Court of Conscience ought not to take from him his legal protection of an honest debt.

Citations:

[1764] EngR 26, (1764) 5 Bro PC 292, (1764) 2 ER 686

Links:

Commonlii

Land, Equity

Updated: 02 May 2022; Ref: scu.375235

Smith v Clay: 10 May 1767

Bill of review for error apparent will not lie after twenty years from the making of the decree. The time runs from the decree, not from the inrolment.

Citations:

[1767] EngR 54, (1767) Amb 645, (1767) 27 ER 419

Links:

Commonlii

Cited by:

See Also – Smith v Clay 10-May-1767
Long Delay in Application Debarred Remedy
Review was sought of a decree pronounced some thirty or forty years before. The defect was apparent on the face of the record.
Held: The review was barred by the length of time elapsed.
Lord Camden LC applied the doctrine of laches, . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 02 May 2022; Ref: scu.374833

Bonney v Ridgard: 3 Dec 1784

A purchaser of leasehold premises from an executor need not (in general) see to the application of the purchase money, nor need there be any recital in such an assignment of the purpose for which it is sold ; but if on the face of the assignment it appears to have been made in satisfaction of the private debt of the executor, such a sale is fraudulent against the persons interested in the premises under the will, and a court of equity will relieve against it. But such a claim will be barred by a great length of time having run against the parties seeking relief.

Citations:

[1784] EngR 230, (1784) 1 Cox 145, (1784) 29 ER 1101 (B), (1784) 1 Cox Eq Cas 145

Links:

Commonlii

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: 02 May 2022; Ref: scu.372123

Kendall, Ex Parte: 25 May 1813

Citations:

[1813] EngR 348, (1813) 1 Ves and Bea 543, (1813) 35 ER 211 (B)

Links:

Commonlii

Citing:

See Also – Kendall, Ex Parte 7-May-1811
Lord Eldon LC said: ‘The equity is clear upon the authorities, that, if two funds of the debtor are liable to one creditor, and only one fund to another, the former shall be thrown upon that fund, to which the other cannot resort; in order that he . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 02 May 2022; Ref: scu.338113

Wilson v Moore: 22 Mar 1834

Merchants who, by the direction of an executor, their commercial correspondent, applied a fund, which they knew to be part of the testator’s assets, in satisfaction of advances made by them, in the course of trade, to relieve the embarrasments of their correspondent, were held to be responsible for the fund so applied, to general pecuniary legatees under the will of the tesator.
Affirmed upon appeal.

Citations:

[1834] EngR 607, (1834) 1 My and K 337, (1834) 39 ER 709

Links:

Commonlii

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, Wills and Probate

Updated: 02 May 2022; Ref: scu.317283

Horton v The Westminster Improvement Commissioners: 12 Jun 1852

Citations:

[1852] EngR 729, (1853) 7 Exch 911, (1852) 155 ER 1220

Links:

Commonlii

Citing:

See Also – Horton v The Westminster Improvement Commissioners 2-Jun-1852
The plaintiff was assignee of the defendants’ bond to A to pay andpound;10,000. It recited that the defendants had borrowed andpound;5,000 from A for the purposes of carrying out works under the Westminster Improvement Acts 1845 and 1847. The . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Equity

Updated: 02 May 2022; Ref: scu.295852

Parkin v Thorold: 2 Jun 1851

A purchase was to be completed on the 25th October. Before that, day arrived the purchaser, at the vendor’s request, extended the time to the 5th of November. The title, however was not completed on that day. Held, that the purchaser was at liberty to abandon the contract.

Citations:

[1851] EngR 542, (1851) 2 Sim NS 1, (1851) 61 ER 239

Links:

Commonlii

Cited by:

Appeal from – Parkin v Thorold CA 1-May-1852
Time Not of Essence in Standard Land Contract
The parties had exchanged contracts to complete on a day. The vendor requested a postponment and the buyer agreed. On the new day fixed, the title was still complete. The vendor now appealed against refusal of his request for an order for specific . .
Lists of cited by and citing cases may be incomplete.

Equity, Land, Contract

Updated: 02 May 2022; Ref: scu.296858

Wright v Vanderplank: 20 Jul 1855

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

Citations:

[1855] EngR 696, (1855) 2 K and J 1, (1855) 69 ER 669

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Wright v Vanderplank 8-Mar-1856
A daughter executed a deed of gift of a life-interest to her fathr, soon after she attained twenty-one, having no advice except that of her father’s solicitor who however stated that he had on that occasion acted as the solicitor of the daughter, . .
Cited – Adamson and Others v Paddico (267) Ltd SC 5-Feb-2014
Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
Held: The appeal were solely as to . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 02 May 2022; Ref: scu.292618

Boyse v Rossborough: 11 Feb 1854

A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the direction or decree of a court of Equity.

Judges:

Lord Carnworth LC

Citations:

[1854] EngR 252, (1854) 3 De G M and G 817, (1854) 43 ER 321

Links:

Commonlii

Citing:

See Also – Boyse v Rossborough 5-Dec-1853
A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee. . .

Cited by:

See Also – Boyse v Rossborough 7-Nov-1854
A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .
See Also – Boyse v Rossborough HL 1857
In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Updated: 02 May 2022; Ref: scu.293109

Boyse v Rossborough: 5 Dec 1853

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

Citations:

[1853] EngR 1056, (1853) Kay 71, (1853) 69 ER 31

Links:

Commonlii

Cited by:

See Also – Boyse v Rossborough 11-Feb-1854
A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the . .
See Also – Boyse v Rossborough 7-Nov-1854
A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .
See Also – Boyse v Rossborough HL 1857
In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Updated: 02 May 2022; Ref: scu.295042

Wright v Vanderplank: 8 Mar 1856

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

Citations:

[1856] EngR 331, (1856) 8 De G M and G 133, (1856) 44 ER 340

Links:

Commonlii

Citing:

Appeal from – Wright v Vanderplank 20-Jul-1855
In every case of a gift to a parent by a child, shortly after the child attains majority, the Court looks with jealousy upon the transaction, more especially when the parent has, during the minority, been guardian of the child’s property, and in . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 02 May 2022; Ref: scu.291086

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

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

Citations:

[1857] EngR 716 (C), (1857) 23 Beav 609

Links:

Commonlii

Legal Professions, Equity

Updated: 02 May 2022; Ref: scu.290462

Knight v Bowyer: 1 Aug 1859

Citations:

[1859] EngR 908, (1859) 4 De G and J 619, (1859) 45 ER 241

Links:

Commonlii

Citing:

See Also – Knight v Bowyer 7-May-1858
knight_bowyer1858
The doctrine of laches and delay did not apply to an express trust, save possibly where there was a release or abandonment by the beneficiary and that was capable of being presumed from the facts of the case. . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Updated: 02 May 2022; Ref: scu.288260

Long v Lord Bishop of Cape Town: PC 13 Feb 1863

After constitutional government had been granted to a colony, the Crown, by letters patent appointing a bishop, could no longer grant any coercive ecclesiastical jurisdiction to him. The church could be nothing more than a voluntary association.
The Church of England when not established in the colonies, is in the same position there as any other religious body and rules of discipline adopted by members will be binding on all who expressly or by implication have assented to them. If the religious body constitute a tribunal to determine disputes as to such rules, the decision of such tribunal will be binding when it has acted within the scope of its authority, has observed such forms as the rules require, if any forms be prescribed and, if not has proceeded in a manner consonant with the principles of justice. But such tribunal is not in any sense a court and the civil courts will give effect to its decisions as they give effect to the decisions of arbitrators whose jurisdiction rests entirely upon the agreement of the parties.
Sentences of suspension and deprivation pronounced by the Bishop of Cape Town against an Incumbent within his Diocese for refusing to give notice in his Church for the election of lay Delegates to a Synod of the Diocese, in conformity with the provisions of certain printed regulations purporting to be Acts and Constitutions passed at a previous Synod, and transmitted to the Incumbent in a letter from the Bishop, reversed; such refusal on the part of the Incumbent not being an offence, for which by the laws of the Church of England his suspension and deprivation would have been warranted

Citations:

[1863] EngR 277, (1863) 1 Moo PC NS 411, (1863) 15 ER 756

Links:

Commonlii

Cited by:

Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Ecclesiastical, Equity, Constitutional

Updated: 02 May 2022; Ref: scu.282932

Re Hewitt’s Contract: 1963

The interpretation and effect of standard conditions governing the sale of land are informed by the background rules of equity governing the operation of contracts for the sale of land.

Judges:

Wilberforce J

Citations:

[1963] 1 WLR 1298

Cited by:

Cited – Alchemy Estates Ltd v Astor and Another ChD 5-Nov-2008
The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed . .
Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Updated: 02 May 2022; Ref: scu.277557

Tribe v Tribe: CA 26 Jul 1995

Illegal intent alone rebutted presumption

The plaintiff held 499 of the 500 issued shares of a company. In 1986 he wished to retire and transferred 30 shares to his son, one of four children, who was to take over the business. In 1988 he was worried about a bill for dilapidations, and, to safeguard his position and with the intention of defrauding his creditors, he transferred the remaining shares. The judge found that the father and the son had agreed that the shares would be held on trust for the father pending the settlement of the dilapidation claims.
Held: The illegal (but unused) purpose of a gift was admitted as evidence to rebut the presumption of advancement.
Millett LJ ‘But it does not follow that subsequent conduct is necessarily irrelevant. Where the existence of an equitable interest depends upon a rebuttable presumption or inference of the transferor’s intention, evidence may be given of the subsequent conduct in order to rebut the presumption or inference which would otherwise be drawn.’ and
‘In my opinion the following propositions represent the present state of the law. (1) Title of property passes both at law and in equity even if the transfer is made for an illegal purpose. The fact that title has passed to the transferee does not preclude the transferor from bringing an action for restitution. (2) The transferor’s action will fail if it would be illegal for him to retain any interest in the property. (3) Subject to (2) the transferor can recover the property if he can do so without relying on the illegal purpose. This will normally be the case where the property was transferred without consideration in circumstances where the transferor can rely on an express declaration of trust or a resulting trust in his favour. (4) It will almost invariably be so where the illegal purpose has not been carried out. It may be otherwise where the illegal purpose has been carried out and the transferee can rely on the transferor’s conduct as inconsistent with his retention of a beneficial interest. (5) The transferor can lead evidence of the illegal purpose whenever it is necessary for him to do so provided that he has withdrawn from the transaction before the illegal purpose has been wholly or partly carried into effect. It will be necessary for him to do so (i) if he brings an action at law or (ii) if he brings proceedings in equity and needs to rebut the presumption of advancement. (6) The only way in which a man can protect his property from his creditors is by divesting himself of all beneficial interest in it. Evidence that he transferred the property in order to protect it from his creditors, therefore, does nothing by itself to rebut the presumption of advancement; it reinforces it. To rebut the presumption it is necessary to show that he intended to retain a beneficial interest and conceal it from his creditors. (7) The court should not conclude that this was his intention without compelling circumstantial evidence to this effect. The identity of the transferee and the circumstances in which the transfer was made would be highly relevant. It is unlikely that the court would reach such a conclusion where the transfer was made in the absence of an imminent and perceived threat from known creditors.’
Nourse LJ observed that: ‘the presumption of advancement has . . fallen into disfavour’.

Judges:

Millett LJ, Nourse LJ

Citations:

Gazette 15-Sep-1995, Times 14-Aug-1995, [1996] Ch 107, [1995] 3 WLR 913, [1995] EWCA Civ 20, [1995] 4 All ER 236, [1995] 2 FLR 966

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Lavelle v Lavelle and others CA 11-Feb-2004
Property had been purchased in the name of of the appellant by her father. She appealed a finding that the presumption of advancement had been rebutted.
Held: The appeal failed. The presumption against advancement had been rebutted on the . .
Cited – Collier v Collier CA 30-Jul-2002
Fraudulent Intent Negated Trust
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Equity, Company

Leading Case

Updated: 02 May 2022; Ref: scu.89990

Bowmakers Ltd v Barnet Instruments Ltd: CA 1945

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

Judges:

du Parq LJ

Citations:

[1945] KB 65

Jurisdiction:

England and Wales

Citing:

Cited – Curtis v Perry 10-Mar-1802
Fraudulent Registrations Ineffective
Ships had been purchased by a partnership, but were then held separately in the name of one of them. Only later were they included within the partnership accounts, but the separate registrations were maintained, and unlawfully so as to avoid them . .

Cited by:

Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Cited – Costello v Chief Constable of Derbyshire Constabulary CA 22-Mar-2001
The police seized a car from Mr Costello, believing that it was stolen. The seizure was lawful at the time, by virtue of section 19 of PACE. The police never brought any criminal proceedings against Mr Costello, but they refused to return the car to . .
Cited – Gray v Thames Trains Ltd and Another CA 25-Jun-2008
The claimant was a victim of the Ladbroke Grove rail crash. He later committed and was convicted of a manslaughter and detained under the 1983 Act. He said that the accident had caused a major personality change. The defendant relied on the defence . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract, Torts – Other

Leading Case

Updated: 02 May 2022; Ref: scu.194100

Coatsworth v Johnson: 1886

coatsworth1886

The tenant sought specific performance of his landlord’s agreement to grant him a lease.
Held: The tenant was in breach of a covenant in the intended lease. Specific performance is discretionary, and a court under equity will require a party seeking an equitable remedy to come with clean hands.

Citations:

(1886) 55 LSQB 22

Landlord and Tenant, Equity

Updated: 01 May 2022; Ref: scu.259692

Durrant v Ecclesiastical Commissioners for England and Wales: 1880

An action would lie against a recipient of money, paid under a mistake if fact, who (without notice of the mistake) had paid on the money in good faith as a principal to a third party from whom the recipient could not recover. The court rejected the existence of any general defence of change of position either at law or in equity.
Baron Pollock said: ‘Calm v. Manterman and other similar cases proceed upon the ground of some mutual relations between the parties creating a duty on the part of the plaintiff, breach of which disentitles him from recovering.’

Judges:

Baron Pollock

Citations:

[1880] 6 QBD 234

Jurisdiction:

England and Wales

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: 01 May 2022; Ref: scu.259530

Lipkin Gorman (a Firm) v Karpnale Ltd: 1987

A partner in the plaintiff firm of solicitors stole money from them and spent it gambling in the defendant’s casino. The plaintiff cought to recover the money from the defendant, saying that as a gambling debt, no consideration had been given. They sought recovery also from their bankers, who had paid out on firm’s cheques drawn for Cash. At other times, cheques were made payable to a building society from whose account the partner withdrew the proceeds, and at other times, the cheques were made payable to the bank itself. The bank’s branch manager had knowledge of the partner’s gambling activities and was aware that the method used for the drawing of the cheques was unusual, but he had failed to inform the other partners in the solicitors’ firm.
Held: The court declined to extend the categories of quasi contract so as to enable the firm to recover the stolen money from the person to whom the thief has lost it gambling, but the contracts under which the club received the stolen money were void under section 18 of the Act of 1845 and the club was in no better position than a donee. On principle and on authority a donee is bound to reimburse the victim for stolen money received and retained by the donee and, in the circumstances, the club was unjustly enriched to the extent that the solicitors’ money was retained by the club.
Alliott J set out the principles underlying whether a bank can rely upon the authority of an authorised signatory: ‘(1) the bank is entitled to treat the customer’s mandate at its face value, save in extreme cases;
(2) the bank is not obliged to question any transaction which is in accordance with the mandate, unless a reasonable banker would have grounds for believing that the authorised signatories are misusing their authority for the purpose of defrauding their principals or otherwise defeating his true intention;
(3) it follows that, if a bank does not have reasonable grounds for believing that there is fraud, it must pay;
(4) mere suspicion or unease do not constitute reasonable grounds and are not enough to justify a bank in failing to act in accordance with a mandate; and
(5) a bank is not required to act as an amateur detective.’
The Bank, knowing that the partner, because of his gambling, was in financial difficulty, had reasonable grounds for believing that he was fraudulently withdrawing sums from the partnership account. Quite independently of contract, the Bank was also held in breach of duty to the other partners, in honouring cheques drawn by the gambling partner. The Bank was liable as constructive trustee for rendering knowing assistance to the gambling partner.

Judges:

Alliott J

Citations:

[1987] 1 WLR 987, [1992] 4 All ER 313

Jurisdiction:

England and Wales

Cited by:

At first instance – 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 . .
At first Instance – Lipkin Gorman v Karpnale Ltd CA 1989
A partner in a firm of solicitors stole money from them, and spent it gambling with the defendants. The firm sued also their banker, who had been held to be aware of the defaulting partner’s weaknesses and activities.
Held: The solicitors . .
Cited – Barclays Bank plc v Quincecare Ltd QBD 1992
The relationship of banker and customer is that of agent and principal: ‘Primarily, the relationship between a banker and customer is that of debtor and creditor. But quoad the drawing and payment of the customer’s cheques as against the money of . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity, Banking

Updated: 01 May 2022; Ref: scu.259421

Sinclair Investment Holdings Sa v Versailles Trade Finance Ltd and others: ChD 30 Apr 2007

Claim for recovery of a proprietary nature in consequence of alleged breaches of fiduciary duty and dishonest assistance in a breach of trust.

Judges:

Rimer J

Citations:

[2007] EWHC 915 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Sinclair Investment Holdings Sa v Versailles Trade Finance Ltd and others CA 25-Jan-2005
leave . .
See Also – Sinclair Investment Holdings Sa v Versailles Trade Finance Ltd and Another CA 12-May-2005
. .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Equity

Updated: 01 May 2022; Ref: scu.251783

Jones v Maynard: 1951

Former spouses disputed the division of property.
Held: It was appropriate to apply the priciple of equality. The maxim that ‘equality is equity’ provides no more than a fall-back position where no other basis of division is appropriate.

Citations:

[1951] Ch 572

Cited by:

Cited – Stack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 01 May 2022; Ref: scu.251497

Clough v London and North Western Railway Co: 1871

When considering an application for rescission the court must ask whether the representee has elected to affirm the contract, elected to rescind the contract or made no election. Mellor J said: ‘In such cases the question is, has the person on whom the fraud was practised, having notice of the fraud, elected not to avoid the contract? Or has he elected to avoid it? Or has he made no election?
We think that so long as he has made no election he retains the right to determine it either way, subject to this, that if in the interval whilst he is deliberating, an innocent third party has acquired an interest in the property or if in consequence of his delay the position even of the wrongdoer is affected, it will preclude him from exercising his right to rescind.
And lapse of time without rescinding will furnish evidence that he has determined to affirm the contract, and when the lapse of time is great, it probably would in practice be treated as conclusive evidence to shew that he has so determined. But we cannot see any principle, and are not aware of any authority for saying that the mere fact that one who is a party to the fraud has issued a writ and commenced an action before the rescission is such a change of position as would preclude the defrauded party from exercising his election to rescind.’

Judges:

Mellor J

Citations:

[1871] LR 7 Exch 26

Jurisdiction:

England and Wales

Cited by:

Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 01 May 2022; Ref: scu.245564

Senanayake v Cheng: PC 1966

A representee, to whom a fraudulent misrepresentation had been made was ‘entitled to make all inquiries and to endeavour to learn all the facts.’
In a claim for rescission in equity for innocent misrepresentation, the questions are ‘whether restitutio in integrum is substantially possible and whether rescission is timely and just and fair’.

Citations:

[1966] AC 63, [1965] 3 All ER 296

Cited by:

Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 01 May 2022; Ref: scu.245563

Clarke v Dickson: 1858

The plaintiff brought his claim for money had and received by the purchaser of shares in a company. He said that he had been induced to purchase the shares by a fraudulent misrepresentation but he had failed in his action at common law.
Held: Erle J: ‘the plaintiff cannot avoid the contract under which he took the shares, because he cannot restore them in the same state as when he took them.’ Crompton J: ‘when once it is settled that a contract induced by fraud is not void, but voidable at the option of the party defrauded, it seems to me to follow that, when that party exercises his option to rescind the contract, he must be in a state to rescind it; that is, he must be in such a situation as to be able to put the parties into their original state before the contract . . . The plaintiff must rescind in toto or not at all; he cannot both keep the shares and recover the whole price. That is founded on the plainest principles of justice. If he cannot return the article he must keep it, and sue for his real damage in an action on the deceit.’

Judges:

Crompton J, Erle J

Citations:

(1858) EL BL and EL 148

Jurisdiction:

England and Wales

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: 01 May 2022; Ref: scu.244659

Fairbanks v Snow: 1887

In each case where a party’s disposition has been set aside for duress or undue influence: ‘the party has been subjected to an improper motive for action.’

Judges:

Holmes J

Citations:

(1887) 13 NE 596

Jurisdiction:

England and Wales

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.

Contract, Equity

Updated: 01 May 2022; Ref: scu.244661

Re Curtain Dream plc: 1990

The company sought to finance its stock. It first sold it to a finance company, then repurchased it on terms including a retention of title clause.
Held: The whole transaction was, in its nature, a charge on the company’s assets, and as such was registerable as a company charge.

Judges:

Knox J

Citations:

[1990] BCLC 925

Cited by:

Cited – Dutton and Another v Davis and Another CA 4-May-2006
The appellant had transferred his property with the intention that it should be subject to a right on his part to repurchase it. He now said the sale was in practice merely a charge.
Held: The appeal failed. The legal nature of the transaction . .
Lists of cited by and citing cases may be incomplete.

Equity, Land, Company

Updated: 01 May 2022; Ref: scu.242530

Greenwood County v Duke Power: 1939

(United States) A ‘wrongful’ injunction granted at the behest of a power company had stopped the county from receiving or using Federal funds to build a rival power station. Upon reversal of the decision and dissolution of the injunction the county claimed for the profits made by the power company from the injunction and for its losses.
Held: Judge Parker: ‘The county’s principal contention is that it is entitled to have restitution of the profits which it has lost and the power company has gained as a result of the injunctive orders; but we see no basis upon which any such relief can be granted. Restitution is awarded upon the principle that a party against whom an erroneous judgment or decree has been carried into effect is entitled, upon reversal, to that which he has lost thereby [authorities cited]. It cannot be awarded here, because the county has lost nothing which the power company has received, as a result of the injunctive orders of the court. The income received by the latter was received from the sale of power which it produced and had a right to sell. It received nothing from the county and nothing to which the county would have been entitled, or which it would have received, had the injunctive orders not been entered [authorities cited] The most that can be said is that the suit and the injunctive orders issued therein damaged the county by delaying the construction of its project and that the power company’s business profited by being freed of competition as a result of the delay; but to grant recovery on this basis would be to award damages on account of the suit and injunctive orders, which as we have seen, cannot be done. The effect of the rule cannot be avoided by calling a claim for damages one for restitution.’

Judges:

Parker K

Citations:

(1939) 107 F(2d) 484

Cited by:

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

International, Litigation Practice, Equity

Updated: 01 May 2022; Ref: scu.242620

In re Oriental Commercial Bank: 1871

The court considered the rule against double proof. Mellish LJ said: ‘This rule against double proof applies in the Court of Chancery as well as in the Court of Bankruptcy, and therefore would apply equally where companies are being wound up.’
After referring to the extent to which the principle should be carried, he continued: ‘But the principle itself – that an insolvent estate, whether wound up in Chancery or in Bankruptcy, ought not to pay two dividends in respect of the same debt – appears to me to be a perfectly sound principle. If it were not so, a creditor could always manage, by getting his debtor to enter into several distinct contracts with different people for the same debt, to obtain higher dividends than the other creditors, and perhaps get his debt paid in full. I apprehend that is what the law does not allow; the true principle is, that there is only to be one dividend in respect of what is in substance the same debt, although there may be two separate contracts.’

Judges:

Mellish LJ

Citations:

(1871) LR 7 Ch App 99

Jurisdiction:

England and Wales

Cited by:

Cited – In re Melton, Milk v Towers CA 1918
In 1901 Richard Melton and another guaranteed to a Bank his son Arthur’s debts up to andpound;500. Richard died survived by his widow, Arthur and three daughters, giving his real estate to his widow for her life, with remainder to his four children . .
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.

Equity, Insolvency

Updated: 01 May 2022; Ref: scu.238735

The Ypatia Halcoussi: 1985

Rectification is not available where the written agreement fails to deal with an issue because the parties have overlooked it.

Citations:

[1985] 2 Lloyds Rep 364

Cited by:

Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 01 May 2022; Ref: scu.238577

Barclays Bank v Miller: CA 1990

In a case of inordinate, culpable and prejudicial delay where it is seriously arguable that the cause of action would be time-barred if fresh proceedings were issued, the better course may be to dismiss the action for want of prosecution and leave the question of limitation for determination in those fresh proceedings if issued.
After considering the principle in Birkett v James that it is exceptional to strike out an action for want of prosecution if the limitation has not expired, Lord Justice Staughton said: ‘It seems to me that the House of Lords was not there considering a case where it was open to doubt and serious argument whether the cause of action would be time barred if a fresh writ were issued. In such a case it may well be that the interests of justice are best served by dismissing the action for want of prosecution, leaving it to the plaintiff, if he chooses to do so and if he has the funds, to start a fresh action. The alternative is that masters, and judges on appeal and even this court, may become embroiled, on an application to dismiss for want of prosecution, in long and elaborate arguments as to whether some future action, if it were brought, would be time barred. There is a good deal to be said for the view that masters should not have that task forced upon them when the problem may never arise and, if it does arise, could perhaps more conveniently be considered in another way.’

Judges:

Lord Justice Staughton

Citations:

[1990] 1 WLR 343, [1990] 1 All ER 1040

Jurisdiction:

England and Wales

Citing:

Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .

Cited by:

Cited – Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 30 April 2022; Ref: scu.235773

Barclays Bank Ltd v Bird: 1954

An equitable chargee has an immediate right to possession, subject only to his first obtaining an order for possession from the court: ‘An equitable mortgagee . . has no right to possession until the court gives it to him.’

Judges:

Harman J

Citations:

[1954] 1 Ch 274

Jurisdiction:

England and Wales

Cited by:

Cited – Paragon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
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: 30 April 2022; Ref: scu.229646

Thomas A Edison Ltd v Bock: 1912

(High Court of Australia) ‘There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard on defence.’

Citations:

(1912) 15 CLR 679

Cited by:

Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity

Updated: 30 April 2022; Ref: scu.223662

Jones v De Marchant: 1916

A husband wrongfully used 18 beaver skins belonging to his wife together with four skins of his own, to have a fur coat made up which he then gave to his mistress. The wife was held entitled to recover the coat. The mistress knew nothing of the true ownership of the skins, but her innocence was held to be immaterial. She was a gratuitous donee and could stand in no better position than the husband. The coat was a new asset manufactured from the skins and not merely the product of intermingling them. The problem could not be solved by a sale of the coat in order to reduce the disputed property to a divisible fund, since (as we shall see) the realisation of an asset does not affect its ownership. It would hardly have been appropriate to require the two ladies to share the coat between them. Accordingly it was an all or nothing case in which the ownership of the coat must be assigned to one or other of the parties. The determinative factor was that the mixing was the act of the wrongdoer through whom the mistress acquired the coat otherwise than for value.

Citations:

(1916) 28 DLR 561

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, Commonwealth

Updated: 30 April 2022; Ref: scu.220694

Westfield Holdings Ltd v Australian Capital Television: 1992

The court concluded, after looking at whether there had been a clog on the equity of redemption in an arm’s length commercial mortgage transaction where a mortgagee had obtained the right to purchase the whole of the mortgaged property, that: ‘There does not appear to be any commercial reason why, in 1992, the court should invalidate any transaction merely because a mortgagee obtains a collateral advantage or seeks to purchase a mortgage property. Quite obviously, equity must intervene if there is unconscionable conduct. Again equity must intervene in a classic case where it can see that a necessitous borrower it not, truly speaking, a free borrower.
In my view, in 1992, the rule [concerning clogs on the equity of redemption] only applies where the mortgagee obtains a collateral advantage which in all the circumstances is either unfair or unconscionable. It may be that the court presumes from the mere fact of a collateral advantage that the transaction is unconscionable unless there is evidence to the contrary, but the principle does not extend to invalidate automatically cases in which the mortgagee has obtained the right to purchase the whole or part of the mortgaged property in certain circumstances or has obtained a collateral advantage where the circumstances show that there has been no unfairness or unconscionable conduct.’

Judges:

Young J

Citations:

(1992) 32 NSWLR 194, 5 BPR 11,615

Jurisdiction:

Australia

Commonwealth, Banking, Equity

Updated: 30 April 2022; Ref: scu.219909

Joyce v Joyce: 2 Jan 1978

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

Judges:

Megarry V-C

Citations:

[1978] 1 WLR 1170, [1979] 1 All ER 175

Citing:

Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .

Cited by:

Cited – Inglorest Investments Ltd v Robert Campbell and Another CA 2-Apr-2004
The appellants appealed an order that property be part of the estate of the deceased. There had been an agreement to assign the reversion of the lease to the claimant. That was not completed, but he later acquired the freehold reversion. No written . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 30 April 2022; Ref: scu.211390

Clark v McLean: IHCS 1994

A female pursuer was involved in a road traffic accident caused by her boyfriend. She brought an action against him one year after the expiry of the triennium (which had begun to run when she reached the age of 18 in 1984). An action of damages which she had raised against her former solicitors for professional negligence had been sisted pending the outcome of the action against her boyfriend. The Temporary Lord Ordinary, on being moved to allow the action to be brought under section 19A, allowed a proof before answer, leaving all pleas standing.
Held: ‘The onus being on the pursuer to satisfy the court that the terms of section 19A(1) should be applied, the court must first determine whether the pursuer’s case in relation to the application of that section is relevant. If the case is relevant, the court must consider whether or not there is sufficient agreement between the parties on the material facts for it to decide upon the applicability of the section. If there is not, then … the court should allow a preliminary proof on these facts. If, on the other hand, there is sufficient agreement on the material facts, then the court must proceed to adjudicate upon the application of section 19A(1). In our view, it should seldom be necessary for the court, in an action of damages for personal injuries involving only two parties, to allow a proof with all pleas standing, including those relating to the question of time bar and those relating to the merits of the action.’

Judges:

Lord MacLean

Citations:

1994 SC 410

Cited by:

Cited – David Lannigan v Glasgow City Council OHCS 12-Aug-2004
The pursuer said the teachers employed by the defendant had failed to identify that was dyslexic, leading him to suffer damage. The defenders said the claim was time barred, which the pursuer admitted, but then said that the claim ought to go ahead . .
Lists of cited by and citing cases may be incomplete.

Scotland, Limitation, Equity

Updated: 30 April 2022; Ref: scu.200281

Dublin City Distillery (Great Brunswick Street, Dublin) Limited and Another v Doherty: HL 1914

D had advanced monies to a distillery company on the security of manufactured whisky stored in a warehouse. On the occasion of each advance, the company delivered to D an invoice and a warrant which described the particulars of the whisky and stated that it was deliverable to D or his assigns.
Held: A person against whom the unauthorised liquidator is litigating may not object to such lack of authorisation, for it is a matter between the liquidator and the creditors. Lord Parker stated: ‘in my opinion s.151 of the Companies (Consolidation) Act, 1908, which enables a liquidator in the case of a winding-up in Ireland to bring or defend legal proceedings with the sanction of the Court, was not intended to confer, and does not confer, on third parties any right to object to proceedings brought by a liquidator in the name of the company, on the ground that no such sanction has been obtained.’
Delivery of the subject property is absolutely necessary to complete a pledge, although the transfer of possession may be actual or constructive: ‘There are, however, cases in which possession may pass to the pledgee without actual delivery, for example, whenever there is some agreement between the parties the effect of which is to change the possession of the pledger from a possession on his own account as owner into a possession as bailee for the pledgee: see Meyerstein v. Barber.(1) Such an agreement operates as a delivery of the goods to the pledgee and a redelivery of the goods by the pledgee to the pledger as bailee for the purposes mentioned in the agreement. A mere book entry cannot, however, have this effect . .’
The terms of the warrant were ambiguous. Lor Parker said that if the true meaning of the warrant was that it was intended to be an acknowledgement by the distillery company that it held the goods referred to as bailee for D or his assigns by indorsement: ‘it is sufficient to change the nature of the company’s possession, operating as an actual delivery of the goods to [D], and a redelivery of the same goods by him to the company to hold as bailee for him. Under these circumstances, on the hypothesis that the company was in actual possession, [D] obtained a good pledge at common law.’

Judges:

Lord Parker of Waddington

Citations:

[1914] AC 823, 111 LT 8

Statutes:

Companies (Consolidation) Act 1908

Jurisdiction:

England and Wales

Cited by:

Cited – Borealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Equity, Company, Insolvency

Updated: 29 April 2022; Ref: scu.194545

Williams v Burlington Investments: 1977

Citations:

[1977] SJ 121

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: 29 April 2022; Ref: scu.190144

Maddison v Alderson: HL 1883

The requirement of the doctrine of part performance is that the acts of part performance relied upon must be ‘referable’ to the contract sued on. The principle underlying the doctrine of part performance was expressed by Lord Selborne: ‘In a suit founded on such part performance, the defendant is really ‘charged’ upon the equities resulting from the acts done in execution of the contract, and not (within the meaning of the statute) upon the contract itself. If such equities were excluded, injustice of a kind which the statute cannot be thought to have had in contemplation would follow. The matter has advanced beyond the stage of contract; and the equities which arise out of the stage which it has reached cannot be administered unless the contract is regarded.’

Judges:

Lord Selborne LC, Lord Blackburn

Citations:

(1883) 8 App Cas 467

Statutes:

Statute of Frauds 1677 3

Jurisdiction:

England and Wales

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 – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Edwards v SOGAT CA 1971
Mr Edwards, who was black, was a skilled worker in a 100-per-cent union printshop. His employers were compelled to dismiss him after his dues had been allowed to fall into arrear through a union official’s neglect. He sued the union in contract. He . .
Cited – Actionstrength Limited v International Glass Engineering In Gl En SpA and others HL 3-Apr-2003
Actionstrength agreed with Inglen to provide construction staff to build a factory for St-Gobain. Inglen failed to pay. Actionstrength claimed against for the amount due. Inglen went into liquidation. The claim was now against St-Gobain. The claim . .
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 – Thorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
Cited – United Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge.
Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 29 April 2022; Ref: scu.188268

Winkworth v Edward Baron Development Co Ltd: HL 1986

A company director has duties to the company’s creditors as well as the shareholders. ‘Equity is not a computer. Equity operates on conscience . .’

Judges:

Lord Templeman

Citations:

[1986] 1 WLR 1512

Jurisdiction:

England and Wales

Cited by:

Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
Cited – Fassihim, Liddiardrams, International Ltd, Isograph Ltd v Item Software (UK) Ltd CA 30-Sep-2004
The first defendant (F) had been employed by a company involved in a distribution agreement. He had sought to set up a competing arrangement whilst a director of the claimant, and diverted a contract to his new company.
Held: A company . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 29 April 2022; Ref: scu.188616

Singh v Singh: 1985

A husband resisted his former wife’s claim under the section against his brother, her brother-in-law. He asserted, with a view to deceiving both his wife and the Court, that his brother, who held the fee of a house, did not hold any share beneficially for the husband but held entirely for himself, the brother. That would have denied the wife any beneficial interest in the house. He fell out with his brother and adjusted his stance in the related proceedings that were heard at the same time to assert instead that the brother held in part beneficially for him, the husband.
Held: The court considered refusing relief to the husband on the ‘clean hands’ principle but had decided not to do so, because (i) that to do so would harm the former wife, who was not only innocent of the husband’s fraud but was its intended victim and who could recover only if the husband succeeded against his brother and (ii) that the husband had made a clean breast of the falsity of his assertions ahead of the hearings.

Judges:

Anthony Lincoln J

Citations:

[1985] Fam LR 97

Statutes:

Law of Property Act 1925 30

Jurisdiction:

England and Wales

Cited by:

Cited – Gonthier and Another v Orange Contract Scaffolding Ltd CA 25-Jun-2003
The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
Lists of cited by and citing cases may be incomplete.

Equity, Land

Updated: 29 April 2022; Ref: scu.188283

South Tyneside Metropolitan BC v Svenska International plc: 1995

The question was asked as to whether an anticipatory change of position could support a defence to a claim for restitution: ‘save perhaps in exceptional circumstances, the defence of change of position is in principle confined to changes which take place after receipt of the money . . It does not however follow that the defence of change of position can never succeed where the alleged change occurs before the receipt of the money.’

Citations:

[1995] 1 All ER 545

Citing:

Followed – Kleinwort Benson Ltd v South Tyneside Metropolitan Borough Council ChD 1994
A claim for money had and received fell within section 5 Limitation Act, should be treated with caution. Hobhouse J said: ‘The cause of action in money had and received arises when the relevant money is paid by the plaintiff to the defendant.’

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

Equity

Updated: 29 April 2022; Ref: scu.188270

China National Foreign Trade Transportation Corporation v Evlogia Shipping Co SA of Panama (The Mihalios Xilas): HL 1979

A hire clause was in bespoke terms providing for withdrawal ‘in default of payment’. The payment of hire for the final instalment was deficient because, as the umpire held, the charterers’ deductions for the length of the final voyage and bunkers on board at redelivery were unreasonable. There was no dispute that there was a default in payment of hire and the argument was addressed to whether owners had waived the right to withdraw in reliance on the withdrawal clause.
Held: The House considered the doctrines of election between different courses of action, and affirmation of a contract.
Lord Salmon criticised said: ‘My Lords, it would seem that there are some members of the Court of Appeal who do not approve of the Baltime form of charter and other forms of charter such as the New York Produce Exchange and the Shelltime forms which closely resemble it. These forms of charter are undoubtedly very strict in relation to the due payment of hire: their meaning, however, is perfectly clear and it is not permissible to put a construction upon them which would depart from that meaning. Unless the full amount of hire is paid by its due date the owners have the undoubted right to withdraw their vessel providing they do so within a reasonable time of the charterers’ default. The only exception is when the parties by their course of conduct (a) have as in the present case accepted that disbursements made by the charterers in respect of the owners’ liabilities may be deducted from the hire subject to vouchers being produced, or e.g., (b) have accepted as in Tankexpress A/S v. Compagnie Financiere Belge des Petroles S.A. [1949] A.C. 76 that the amount of hire posted two days before it falls due shall be deemed to have been paid in time. Otherwise, unless the full hire is paid by the time it falls due the charterers are in default and the vessel may be withdrawn. On the appeal to your Lordships’ House in The Laconia [1977] A.C. 850 I ventured to point out that the law relating to the owners’ rights under a Baltime form of charter to withdraw their vessel should the charterers fail to pay the hire in time had been clearly stated by your Lordships’ House in the Tankexpress case; but that a great deal of doubt on the subject had since been generated by the Court of Appeal in The Georgios C [1971] 1 Q.B. 488 and had troubled the waters ever since. I expressed the hope that those doubts might finally be dispelled by your Lordships’ reversal of the Court of Appeal’s decision in The Laconia and overruling its decision in The Georgios C. These doubts were, however, temporarily revivified by the decision of the Court of Appeal in the present case but will now, I think, permanently be laid to rest by your Lordships’ decision allowing this appeal; Certainty of meaning is of primary importance in all commercial transactions. Commercial contracts all over the world, having nothing to do with the United Kingdom, have for generations provided that any dispute arising under the contract shall be decided in the English commercial court or by arbitration in London according to English law. This is because of the confidence which exists throughout the commercial world in the administration of English justice. I fear that this confidence will hardly be strengthened should there be any further decisions in the Court of Appeal similar to those in The Georgios C, The Laconia and the instant case.’

Judges:

Scarman L, Lord Salmon

Citations:

[1979] 1 WLR 1018

Jurisdiction:

England and Wales

Cited by:

Cited – Oliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
Cited – Oliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
Cited – Peyman v Lanjani CA 1985
Application was made for consent to assign a lease. The court was asked whether or not the purchaser of a leasehold interest in a property, who had elected to affirm the contract despite a repudiatory breach by the vendor, could be held to his . .
Cited – Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA 6-Feb-2006
The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract, Transport

Updated: 29 April 2022; Ref: scu.188151

Stockloser v Johnson: CA 1954

Romer LJ said that, in the absence of pressure or duress, or other vitiating elements, there was no jurisdiction to provide for relief against forfeiture in the event of the purchaser’s default in contracts other than those relating to land.
Denning and Somervell LJJ doubted the correctness of Farwell J and held that where the sum forfeited was out of all proportion to the damage and it was unconscionable for the vendor to retain it, then equity would intervene : even though at common law there was no cause of action whereby the purchaser could have recovered the money paid over.
Denning LJ asked: ‘Suppose a buyer has agreed to buy a necklace by instalments, and the contract provides that, on default in payment of any one instalment, the seller is entitled to rescind the contract and forfeit the instalments already paid. The buyer pays 90 per cent. of the price but fails to pay the last instalment. He is not able to perform the contract because he simply cannot find the money. The seller thereupon rescinds the contract and retakes the necklace and resells it at a higher price. Surely equity will relieve the buyer against forfeiture of the money on such terms as may be just’

Judges:

Romer, Denning and Somervell LJJ

Citations:

[1954] CLY 1463, [1954] 1 QB 476

Jurisdiction:

England and Wales

Citing:

Considered – Mussen v Van Diemen’s Land Company ChD 1938
Land was to be sold in stages to the purchaser.
Held: Specific performance, with or without compensation, would be ordered at the suit of a purchaser wherever possible, so long as he was able and willing to complete. Farwell J said : ‘There . .

Cited by:

Considered – Workers Trust and Merchant Bank Ltd v Dojap Investments Ltd PC 22-Feb-1993
(Jamaica) The purchaser at an auction had been obliged under the terms of the auction contract to pay a deposit of 25%. He failed to complete, and the vendor took the deposit by way of forfeit. The standard deposit payable would be 10%. The Court of . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 29 April 2022; Ref: scu.187692

Sport International Bussum BV v Inter-Footwear Ltd: HL 2 Jan 1984

A contractual licence was granted to use names and trademarks for sports shoes. An earlier action between the parties had been stayed on the terms scheduled to a Tomlin order, which provided for Inter-Footwear to pay a sum in instalments and to have a licence (partly exclusive and partly non-exclusive) to use the names and marks. If any instalment was not paid on the due date, the whole unpaid balance became due at once and the licensor could determine the licence. There was a delay in payment of the second instalment and the licensor terminated the licence.
Held: Relief was not available against the forfeiture of a mere contractual licences. As to the discussion of proprietoty or possessory right in Scaptrade: ‘Mr Wilson submitted that in the present case the licences to use the trade marks and names created proprietary and possessory rights in intellectual property. He admits, however, that so to hold would be to extend the boundaries of the authorities dealing with relief against forfeiture. I do not believe that the present is a suitable case in which to define the boundaries of the equitable doctrine of relief against forfeiture. It is sufficient that the appellants cannot bring themselves within the recognised boundaries and cannot establish an arguable case for the intervention of equity. The recognised boundaries do not include mere contractual licences and I can see no reason for the intervention of equity.’

Judges:

Lord Templeman

Citations:

[1984] 1 WLR 776, [1984] 2 All ER 321

Jurisdiction:

England and Wales

Citing:

Applied – Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade) HL 1983
The House considered giving relief from forfeiture where an owner had justifiably withdrawn his vessel in accordance with the terms of the charter.
Held: A withdrawal clause under a time charter, exercised on the ground of the charterer’s . .
Appeal from – Sport Internationaal Bussum BV v Inter-Footwear Ltd CA 1984
There had been a contractual licence to use names and trademarks for sports shoes. An earlier action between the parties had been stayed on the terms scheduled to a Tomlin order, which provided for Inter-Footwear to pay andpound;105,000 in three . .

Cited by:

Cited – Python (Monty) Pictures Ltd v Paragon Entertainment Corporation and Another ChD 21-May-1998
Where a copyright assignment was subject to the provisions of a side letter, a sub-assignee was subject to the same provisions even though he was not made aware of the existence of the side letter. . .
Lists of cited by and citing cases may be incomplete.

Contract, Intellectual Property, Equity

Updated: 29 April 2022; Ref: scu.187750

Knox v Gye: HL 1872

A court will, by analogy, apply a statutory limitation period if the remedy in equity, specific performance, is ‘correspondent to the remedy at law’ and where ‘the suit in equity corresponds with an action at law’. Lord Westbury said: ‘For where the remedy in Equity is correspondent to the remedy at Law, and the latter is subject to a limit in point of time by the statute of limitations a Court of Equity acts by analogy to the statute, and imposes on the remedy it affords the same limitation . . But if any proceedings in Equity be included within the words of the statute, there a Court of Equity, like a Court of Law, acts in obedience to the statute.’

Judges:

Lord Westbury

Citations:

(1872) LR 5 HL 656

Jurisdiction:

England and Wales

Cited by:

Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – P and O Nedlloyd Bv v Arab Metals Co and others CA 13-Dec-2006
An order for specific performance had been refused in a disputed contract for carriage. The claimant argued that normal limitation periods should not be applied by analogy.
Held: Because there was no corresponding legal remedy the remedy in . .
Lists of cited by and citing cases may be incomplete.

Limitation, Equity

Updated: 29 April 2022; Ref: scu.187429

McHugh v Union Bank of Canada: PC 1913

There was a mortgage of horses, which the mortgagee needed to drive to market if he was to sell them.
Held: If a mortgagee goes on with a sale of property which is unsaleable as it stands, a duty of care may be imposed on him, when taking the necessary steps, first to render the mortgaged property saleable. The mortgagee owed to the mortgagor a duty to take proper care of the horses whilst driving them to market. The duty imposed on the mortgagee was to take care to preserve, not increase, the value of the security.

Judges:

Lord Moulton

Citations:

[1913] AC 299

Cited by:

Cited – Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris CA 21-Oct-2003
The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor . .
Lists of cited by and citing cases may be incomplete.

Animals, Equity

Updated: 29 April 2022; Ref: scu.187038

In re Montagu’s Settlement Trusts: 1987

In the context of knowing receipt, a categorisation of knowledge is used to determine whether a person is bound by notice.
Sir Robert Megarry V-C said: ‘The cold calculus of constructive and imputed notice does not seem to me to be an appropriate instrument for deciding whether a [person’s] conscience is sufficiently affected for it to be right to bind him by the obligations of a constructive trustee.’

Judges:

Sir Robert Megarry V-C

Citations:

[1987] Ch 264

Jurisdiction:

England and Wales

Cited by:

Cited – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
Cited – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Cited – Royal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .
Cited – Criterion Properties Plc v Stratford UK Properties Llc and others ChD 27-Mar-2002
Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts

Updated: 29 April 2022; Ref: scu.187273

Kerrison v Glyn, Mills, Currie and Co: HL 1912

The plaintiff arranged with his bankers for them to honour cheques of one Patterson and when they advised the plaintiff of the amount of the cheques so honoured, the plaintiff would pay Kessler and Co. The plaintiff paid andpound;500 to the defendants for the credit of Kessler and Co., without being advised by Kessler and Co. that that was due, in ignorance of the fact that Kessler and Co. had committed an act of bankruptcy. The plaintiff sought to recover the andpound;500 from the defendants on the basis of mistake of fact. The plaintiff, having paid the money only in anticipation of a future liability, succeeded at first instance. The Court of Appeal took a different view on the basis that under the arrangement in force at the time of payment, the plaintiff owed that sum to Kessler and Co. and so the plaintiff could not recover the money paid to the defendants even though it was paid under a mistake of fact.
Held:
Of the Court of Appeal’s conclusion that the plaintiff was bound to pay Kessler and Co. andpound;500. Lord Atkinson said: ‘But it followed as a necessary consequence of this conclusion . . that when the plaintiff . . lodged with the defendant the sum of 500L to be placed to the credit of Kessler and Co., he was simply in the position of a debtor who had paid to his creditor the debt he owed in ignorance of the fact of that creditor’s bankruptcy, and that this ignorance did not amount to such a mistake of fact as would entitle the debtor to have the money refunded to him. On the assumption that the plaintiff was, by lodging this sum of money, merely paying a debt he owed, the Court of Appeal were, I think, clearly right in this latter conclusion.’ A payment which is made under a mistake of fact but discharges an existing debt owing to the principal, on whose behalf the payee is authorised to receive payment, is irrecoverable.’

Judges:

Lord Atkinson

Citations:

(1912) 81 LJKB 465

Jurisdiction:

England and Wales

Cited by:

Cited – Lloyds Bank Plc v Independent Insurance Co Ltd CA 26-Nov-1998
The bank had made an electronic transfer of funds for a customer in satisfaction of that customer’s proper debt, but it was done under a mistake of fact as to the cleared status of funds received.
Held: The appeal was turned down. The bank was . .
Cited – Morgan v Ashcroft CA 1937
A gift may be recovered where it was made under the mistaken belief that the donee is someone else. The mistake must be as to a fact which, if true, would create a liability to pay .
Scott LJ said of the Kerrison case that ‘it was definitely . .
Lists of cited by and citing cases may be incomplete.

Equity, Banking

Updated: 29 April 2022; Ref: scu.187275

Commercial Bank of Australia Ltd v Amadio: 1983

(Australia) ‘it is necessary for the plaintiff who seeks relief to establish unconscionable conduct, namely that unconscientious advantage has been taken of his disabling condition or circumstances’ Deane J: ‘Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or obtain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so. The adverse circumstances which may constitute special disability for the purposes of the principles relating to relief against unconscionable conduct may take a wide variety of forms and are not susceptible to being comprehensively catalogued.’

Judges:

Mason J, Deane J

Citations:

(1983) 46 ALR 402

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

Commonwealth, Contract, Equity

Updated: 29 April 2022; Ref: scu.186685

National Westminster Bank plc v Skelton (Note): 1993

The court distinguished a claim by the mortgagee for possession from a claim on the mortgagor’s personal covenant to pay what was due. A claim for a set-off is merely a sub-species of counterclaim. The court will not readily imply a term into a legal mortgage restricting the right of the bank, as legal mortgagee, to take possession of the property.
A pleaded equitable set off arising from a counterclaim for an unliquidated sum cannot defeat a claim to possession.

Judges:

Slade LJ

Citations:

[1993] 1 WLR 72

Cited by:

Applied – Ashley Guarantee plc v Zacaria CA 1993
In possession proceedings based on a mortgage debt, the mortgagee’s right to possession of the mortgaged property will not be defeated by a cross-claim of the mortgagor in the absence of some contractual or statutory provision to the contrary. . .
Cited – Sonia Burkett, Regina (on the Application of) v London Borough of Hammersmith and Fulham CA 15-Oct-2004
The appellant challenged an order for costs after dismissal of her application for judicial review of the respondent’s planning decision. The claimant had been granted legal aid at about the time of the bringing in of the new legal aid scheme. The . .
Cited – National Westminster Bank Plc v Ashe (Trustee In Bankruptcy of Djabar Babai) CA 8-Feb-2008
The mortgagees had made no payments under the charge for more than twelve years, and had remained in possession throughout. They argued that the bank were prevented from now seeking to enforce the charge. The bank argued that the possession had not . .
Cited – Lexi Holdings v Pooni and Another ChD 21-Apr-2008
. .
Cited – Thakker v Northern Rock Plc QBD 5-Feb-2014
. .
Lists of cited by and citing cases may be incomplete.

Banking, Equity

Updated: 29 April 2022; Ref: scu.184795

Hanley v Pearson: 1879

Rectification was ordered of a voluntary settlement on the uncontradicted affidavit evidence of the settlor without any need for objective manifestation of intention.

Citations:

(1879) 13 Ch D 545

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: 29 April 2022; Ref: scu.184584

Walker v Armstrong: 1856

The court considered a request for rectification of a document.

Citations:

(1856) 8 De GM and G 531

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: 29 April 2022; Ref: scu.184578

Leigh v Dickeson: 1884

The principles of equitable accounting apply equally to beneficial tenancies in common and beneficial joint tenancies. The guiding principle is that neither party can take the benefit of an increase in the value of the property without making an allowance for what had been expended by the other in order to obtain it.

Citations:

(1884) 15 QBD 60, [1881-5] All ER Rep 1099

Jurisdiction:

England and Wales

Cited by:

Cited – Re Gorman ChD 1990
The matrimonial home was in the joint names of husband and wife. After the marriage broke down, the husband left the home, and the wife discharged all mortgage payments (both capital and interest). The husband was adjudicated bankrupt. The wife . .
Cited – Byford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
Cited – in Re Pavlou (A Bankrupt) ChD 17-Mar-1993
Mr and Mrs Pavlou bought a house for andpound;12,500 with a mortgage of andpound;9,500. After the husband left, the wife remained in sole occupation, and paid the mortgage instalments as they fell due. Thirteen years after the marriage Mrs Pavlou . .
Lists of cited by and citing cases may be incomplete.

Equity, Land

Updated: 29 April 2022; Ref: scu.183861

Re Gorman: ChD 1990

The matrimonial home was in the joint names of husband and wife. After the marriage broke down, the husband left the home, and the wife discharged all mortgage payments (both capital and interest). The husband was adjudicated bankrupt. The wife sought credit for the mortgage interest payments in an equitable accounting on the sale of the home.
Held: She could only have such credit against a set-off in favour of the trustee in bankruptcy for an occupation rent. If an account is taken, the party paying the instalments should not be entitled to set a due proportion of the whole of the instalments paid against the share of the other party. The mortgagee will normally have a charge on the property for principal and interest and a right to possession and sale to enforce his charge. The payment of instalments due under the mortgage operates to relieve the property from the charge and gives rise to an equitable right of contribution by the co-owner who has not paid his due proportion of the instalments.

Judges:

Vinelott J and Sir Mervyn Davies

Citations:

[1990] 1 WLR 616, [1990] 2 FLR 284

Jurisdiction:

England and Wales

Citing:

Cited – Leigh v Dickeson 1884
The principles of equitable accounting apply equally to beneficial tenancies in common and beneficial joint tenancies. The guiding principle is that neither party can take the benefit of an increase in the value of the property without making an . .
Cited – Suttill v Graham CA 1977
The husband remained in the home after the divorce and paid all mortgage instalments.
Held: An occupation rent was payable.
Stamp LJ said: ‘a beneficiary entitled to an equal share in equity of property of which he is a trustee, and which . .

Cited by:

Cited – Byford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
Cited – Stack v Dowden CA 13-Jul-2005
The parties purchased a property together. The transfer contained a survivorship restriction but no declaration of the beneficial interests. The judge had held the property to be held as tenants in commn on equal shares.
Held: In a case where . .
Lists of cited by and citing cases may be incomplete.

Land, Equity, Insolvency

Updated: 29 April 2022; Ref: scu.183860

Standing v Bowring: CA 18 Dec 1885

The Plaintiff, a widow, in the year 1880, caused pounds 6000 Consols to be transferred into the joint names of herself and the Defendant, who was her godson. She did so with the express intention that the Defendant, in the event of his surviving her, should have the Consols for his own benefit, but that she should have the dividends during her life; and she had previously been warned that if she made the transfer she could not revoke it. The first notice the Defendant had of the transaction was a letter from the Plaintiff’s solicitors about the end of 1882 claiming to have the fund retransferred to the Plaintiff. Held, that the legal title of the Defendant as a joint tenant of the stock was complete, although he had not assented to the transfer until he was requested to join in re-transferring the stock, for that the legal title of a transferee of stock is complete without acceptance.
A transfer of property to a person without his knowledge, if made in proper form, vests the property in him at once, subject to his right to repudiate it when informed of the transfer.
Held, further, that the Plaintiff could not claim a re-transfer on equitable grounds, the evidence clearly shewing that she did not, when she made the transfer, intend to make the Defendant a mere trustee for her except as to the dividends. Held, therefore (affirming the decision of Mr. Justice Pearson), that the Plaintiff was not entitled to have the stock re-transferred to her.
A gift of shares was made, but challenged.
Held: Registration of the transfer was actually completed and so the gift was completely constituted.

Citations:

(1885) 31 Ch 282, [1885] UKLawRpCh 282

Links:

Comonlii

Jurisdiction:

England and Wales

Citing:

At ChD – Standing v Bowring ChD 1-Jul-1884
The Plaintiff, a widow, in the year 1880 caused a sum of pounds 6000 Consols to be transferred into the joint names of herself and the Defendant, who was her godson, and in whose welfare she took great interest. This transfer was not made known to . .

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, . .
Cited – Scott v Bridge and Others ChD 25-Nov-2020
Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 29 April 2022; Ref: scu.183421