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Equity - From: 1970 To: 1979

This page lists 47 cases, and was prepared on 21 May 2019.

 
Joscelyne v Nissen [1970] 2 QB 86
1970
CA

Equity
The court considered an application for rectification. Held: Rose v Pim did not assert or reinstate the view that an antecedent complete concluded contract was required for rectification. It only showed that prior accord on a term or meaning of a phrase to be used must have been outwardly expressed or communicated between the parties. The burden of proof on the party asking for rectification is high.
1 Cites

1 Citers



 
 In re Morris Deceased; ChD 1970 - [1971] P 62; [1970] 1 All ER 1057; [1970] 2 WLR 865
 
Lee-Parker v Izzett (1) [1971] 1 WLR 1688; [1971] 3 All ER 1099
1971
ChD
Goff J
Landlord and Tenant, Equity
Money expended by a tenant on discharging his landlord's covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence of set-off at law to a claim for unpaid rent. Justice Goff discussed the case of Taylor v Beal: "I do not think this is bound up with technical rules of set off. It is an ancient common law right. I therefore declare that so far as the repairs are within the express or implied covenants of the landlord, the third and fourth defendants are entitled to recoup themselves out of future rents and defend any action for payment thereof. It does not follow however that the full amount expended by the third and fourth defendants on such repairs can properly be treated as payment of rent. It is a question of fact in every case whether and to what extent the expenditure was proper.
For the sake of avoiding misunderstanding I must add that of course the Taylor v Beal right can only be exercised when and so far as the landlord is in breach and any necessary notice must have been given to him."
1 Cites

1 Citers


 
Lloyd v Stanbury [1971] 1 WLR 535; [1971] 2 All ER 267
1971

Brightman J
Damages, Equity
A purchaser who had been let into possession before completion and had spent money on improvements to the property was not entitled to claim for such expenses because they would not usually have been within the contemplation of the parties. As to rectification: "If, therefore, the defence of rectification is to succeed I must be convinced that it was not the intention either of Mr Stanbury or of Mr Lloyd that 1428 [that is a parcel of land] should be included in the contract. It is not sufficient that there should be convincing proof that the written contract did not represent the true intention of the parties. I must also be satisfied that there was a common intention and I emphasise a common intention, of Mr Stanbury and Mr Lloyd that 1428 should be excluded."
1 Citers



 
 Ebrahimi v Westbourne Galleries Ltd and Others (on Appeal from In Re Westbourne Galleries Ltd); HL 3-May-1972 - [1975] 235 EG 901; [1973] AC 360
 
Hussey v Palmer [1972] 1 WLR 1286; [1972] 3 All ER 744; [1972] EWCA Civ 1
22 Jun 1972
CA
Lord Denning MR, Phillimore, Cairns LJJ
Equity, Trusts
A mother had provided a sum to her daughter and son in aw when she moved in with them. The money was used to build an extension. She now appealed against a finding that she did not have an equitable interest in the house. Held: lord Denning MR adopted a free-ranging remedial basis for constructive trusts and came to the view that: "The two [resulting trust and constructive trust] runs together. By whatever name it is described, it is trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded upon large principles of equity, to be applied in cases where the defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or a share in it."
[ Bailii ]

 
 Shiloh Spinners Ltd v Harding; HL 13-Dec-1972 - [1973] 2 WLR 28; [1973] AC 691
 
Harlow Development Corporation v Kingsgate (Clothing Productions) Ltd (1973) 226 EG 1960.
1973

Walton J
Landlord and Tenant, Equity
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.
1 Citers


 
Lloyds Bank Limited v Marcan [1973] 1 WLR 1387
1973
CA
Russell LJ, Cairns LJ
Equity, Land
The mortgagor, knowing of the bank's application for possession of the property, granted a lease to his wife for a term of twenty years. He intended to deprive the mortgagee bank of the ability to obtain vacant possession of the property as and when a possession order was made. Held: Before section 172 could be used to avoid a transaction, dishonesty had to be shown. This transaction was dishonest. Russell LJ said:- "If he disposes of an asset which would be available to his creditors with the intention of prejudicing them by putting it, or its worth, beyond their reach, he is in the ordinary case acting in a fashion not honest in the context of the relationship of debtor and creditor"
Cairns LJ said that:- "a conveyance for good consideration would be regarded as fraudulent if made with the deliberate intention of hindering creditors and for the benefit of the debtor himself rather than as a bona fide… arrangement"
Law of Property Act 1925 172

 
Re Earl of Coventry's Indenture [1974] Ch 77
1974


Equity

1 Citers


 
Jeune v Queens Cross Properties Ltd [1974] Ch 97
1974


Landlord and Tenant, Equity
The lease contained a covenant by the landlord to carry out repairs. A balcony of his, not within the area let, was at risk of collapsing. Held: Damages alone would be not an adequate remedy. The court ordered specific performance of the landlord's covenant.
1 Citers


 
The Brede [1974] QB 233
1974

Lord Denning MR
Equity
The court considered when a set off is available to a party. Lord Denning said: "It is available whenever the cross-claim arises out of the same transaction as the claim or out of a transaction that is closely related to the claim."
1 Citers


 
Leake (formerly Bruzzi) v Bruzzi [1974] 1 WLR 1528
1974
CA
Ormrod LJ
Trusts, Equity
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.
Married Women's Property Act 1882 17
1 Citers


 
Lloyds Bank plc v Bundy [1975] QB 326; [1974] 3 All ER 757
1974
CA
Lord Justice Denning MR, Sir Erich Sachs, Cairns LJ
Banking, Undue Influence, Equity
"Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy, the defendant, was a farmer there. His home was at Yew Tree Farm. It went back for 300 years. His family had been there for generations. It was his only asset. But he did a very foolish thing. He mortgaged it to the bank." The defendant and his son were the banks customers over many years. He had been advised that he could not afford to give greater support to his son, but later did so by extending the guarantee, and charging his property. The Bank sought to rely on the guarantee given to a bank by a father to support his son's existing borrowing. The lending bank was found to have exercised undue influence over the customer. It was inappropriate for the father to give the guarantee because the bank manager knew the father and that thefather would rely upon him. Held: The court set out to create a general principle of relief against harsh bargains on the ground of inequality of bargaining power.
1 Citers


 
A Schroeder Music Publishing Co Ltd v Macaulay [1974] 1 WLR 1308
1974


Intellectual Property, Equity
Assignments of copyright which were manifestly inequitable and oppressive could be void or unenforceable on grounds of public policy.
1 Citers


 
Burston Finance Ltd v Spierway Ltd [1974] 1 WLR 1648; [1974] 3 All ER 735
1974
ChD
Walton J
Undue Influence, Equity
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House. Held: A voidable charge is a valid charge unless and until set aside: "[W]here A's money is used to pay off the claim of B, who is a secured creditor, A is entitled to be regarded in equity as having had an assignment to him of B's rights as a secured creditor. It finds one of its chief uses in the situation where one person advances money on the understanding that he is to have certain security for the money he has advanced, and for one reason or another, he does not receive the promised security. In such a case he is nevertheless to be subrogated to the rights of any other person who at the relevant time had any security over the same property and whose debts have been discharged in whole or in part by the money so provided by him."
1 Citers


 
In Re Wallis and Simmonds (Builders) Ltd [1974] 1 WLR 391; [1974] 1 All ER 561; [1974] AC 467
1974
ChD
Templeman J
Land, Equity
The deposit of title documents, without more, gives rise to an inference that the deposit was intended by the parties to operate as creating an equitable charge or mortgage over the property whose title document is deposited. In logic there could be no distinction between deposits to secure a first and third party indebtedness.
Templeman J said: "But in my judgment this is a contractual lien - it is said to be a contractual lien - and that makes all the difference. It is also a contractual charge; true it is that the charge arises by presumption, but it does not arise by operation of law. What the court does is to say: `We shall not compel the parties to write down in so many words what the effect of the deposit of title deeds is; we shall simply assume that when they contract, and although they probably do not know the consequences, the person who takes the title deeds contracts not only to retain them but also to have an equitable charge on the land.' The presumption reads into the contract the charge which is implied. If that is right, the charge was created by the company and is therefore registrable under s95."
1 Citers


 
White and others v Vandervell Trustees Ltd. (No. 2), Re Vandervell's Trusts (No 2) [1974] EWCA Civ 7; [1974] Ch 269; [1974] 1 All ER 47; [1974] 3 WLR 256
3 Jul 1974
CA
Lord Denning MR, Stephenson LJ, Lawton LJ
Taxes Management, Equity, Trusts
Lord Denning MR described the modern practice concerning pleadings: "It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated."
1 Cites

1 Citers

[ Bailii ]

 
 Mountford and Another v Scott; CA 17-Oct-1974 - [1974] EWCA Civ 10; [1975] Ch 258
 
General Credits (Finance) Pty Ltd v Stoyakovich [1975] Qd R 352
1975


Commonwealth, Equity, Banking
A mortgagee sued the mortgagor for money owing under a mortgage after the sale by the mortgagee of the security. The mortgagors alleged that the sale was at a gross undervalue and sought to set-off their claim against the debt owed to the mortgagee. On an application by the mortgagee for summary judgment, Dunn J. in the Queensland Supreme Court gave the mortgagors conditional leave to defend; if there was a sale at the alleged undervalue of $l0,200, the mortgagee's claim should be reduced by that sum.
1 Citers


 
Riverlate Properties Ltd v Paul [1975] Ch 133
1975
CA
Russell, Stamp and Lawton L.JJ
Equity
A lessor sought to have the lease rectified against the tenant, saying the tenant had sufficient knowledge of the error in the lease to permit that remedy. Held: The tenant had no such knowledge as would have brought the doctrine into play. In approving the dicta in Roberts with regard to rectification for unilateral mistake, the court added: "Whether there was in any particular case knowledge of the intention and mistake of the other party must be a question of fact to be decided upon the evidence. Basically it appears to us that it must be such as to involve the lessee in a degree of sharp practice."
1 Cites

1 Citers


 
Cantor v Cox (1975) 239 EG 121
1975

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

1 Citers



 
 In re Clark (a bankrupt); ex parte the Trustee v Texaco Ltd; ChD 1975 - [1975] 1 WLR 559
 
Aluminium Industrie Vaassen B V v Romalpa Aluminium Ltd [1976] 1 WLR 676
11 Feb 1975
ChD
Mocatta J
Company, Contract, Insolvency, Equity
The plaintiffs sold aluminium to the defendant and by a clause in the contract retained their title in the materials sold until payment was received. The purchaser went into insolvent receivership, and the seller sought recovery of the equipment and proceeds of sale of articles made from the materials. The defendants allowed that they had been bailees of the material supplied by the plaintiffs until all debts were paid, but claimed that this was overridden by sales to bona fide purchasers. Held: The clause showed an intention to create a fiduciary arrangement between seller and buyer, and the plaintiffs were entitled to recover the proceeds of sales to third parties.
1 Cites

[ lip ]
 
Burgess v Rawnsley [1975] 3 All ER 244; [1975] EWCA Civ 2
15 Apr 1975
CA
lord Denning MR, Browne LJ, Sir John Pennicuick
Equity

1 Cites

1 Citers

[ Bailii ]

 
 Crabb v Arun District Council; CA 23-Jul-1975 - [1976] Ch 179; [1975] 3 All ER 865; [1975] EWCA Civ 7
 
Fox et al v Royal Bank of Canada et al [1976] 2 SCR 2; 1975 CanLII 150 (SCC)
7 Oct 1975

Martland, Judson, Ritchie, Spence and Dickson JJ
Commonwealth, Equity
Canlii Supreme Court of Canada - Guarantee -Surety and sub-surety - Co-sureties - Sub-surety guaranteeing liability of surety - Surety paying creditor-Right of sub-surety to indemnity from the co-sureties.
1 Citers

[ Canlii ]

 
 Re Butlin's Settlement Trusts; 1976 - [1976] Ch 251
 
Paul v Speirway Ltd (in liquidation) [1976] Ch 220; [1976] 2 All ER 587
1976

Oliver J
Equity
The plaintiff had made a loan to a company in which he had a joint interest in order to enable it to pay the price due under a contract for the purchase of development land. The company failed, and he now claimed to be a secured creditor by subrogation to the vendor's lien. Held: A person who pays off a mortgage debt is entitled - and unless the contrary appears is presumed - to preserve the security for its own benefit. The advance to the company was intended to be an unsecured loan and held that this excluded any remedy by way of subrogation, which would give the plaintiff more than he had bargained for.
Oliver J rejected the proposition, advanced by counsel for the company, that the remedy of subrogation was available only when the common intention of the parties was that the plaintiff should have some security which, for one reason or another, he did not get. Oliver J confined himself to a narrower proposition that: "where on all the facts the court is satisfied that the true nature of the transaction between the payer of the money and the person at whose instigation it is paid is simply the creation of an unsecured loan, this in itself will be sufficient to dispose of any question of subrogation."
1 Cites

1 Citers


 
Security Trust Co v The Royal Bank of Canada [1976] AC 503; [1975] UKPC 23
1976
PC
Lord Cross
Commonwealth, Land, Equity, Contract
(Bahamas) A company, Fisher agreed to buy land with part of the purchase price to be paid by a fixed date and the balance secured by a mortgage to the vendor. A conveyance and a mortgage were duly executed and held in escrow pending payment of the agreed proportion of the price. Fisher failed to pay the stipulated sum on the fixed date. Fisher then granted a debenture, creating a fixed charge on its existing property and a floating charge on future property. A receiver was subsequently appointed under the debenture. The contract was eventually completed. In the subsequent litigation, the question arose whether the charge over the property created by the debenture took priority over the vendor's mortgage. The Judicial Committee of the Privy Council, allowing the vendor's appeal, held that Fisher's interest in the land was merely an equity of redemption subject to the vendor's mortgage, and that the mortgage accordingly took priority over the charge created by the debenture. Lord Cross limited the extent of the law of escrow: "On fulfilment of the condition subject to which it was delivered as an escrow, a deed is not taken to relate back to the date of its delivery for all purposes, but only for such purposes as are necessary to give efficacy to the transaction - ut res magis valeat quam pereat (see Butler and Baker's case (1591) 3 CoRep 25a). Thus, the fact that the grantor has died before the condition of an escrow is fulfilled does not entail the consequence that the disposition fails. If and when the condition is fulfilled the doctrine of relation back will save it, but notwithstanding the relation back for that limited purpose the grantee is not entitled to the rents of the property during the period of suspense or to lease it or to serve notices to quit."
1 Citers

[ Bailii ]
 
Re a debtor (No 24 of 1971), ex parte Marley (J) v Trustee of the property of the debtor [1976] 1 WLR 952; [1976] 2 All ER 1010
1976
ChD
Foster J and Fox J
Equity
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"
1 Citers



 
 Aluminium Industrie Vaassen B V v Romalpa Aluminium Ltd; CA 16-Jan-1976 - [1976] 1 WLR 676
 
Suttill v Graham [1977] 1 WLR 819
1977
CA
Stamp, Ormerod LJJ
Equity, Family
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 he himself occupies, is to be charged with at least an occupation rent so that if as here he seeks to charge his co-beneficiary trustee with half the outgoings he should be charged with half the occupation rent . . That will normally produce a fair result and save costs and where, as here, the husband in possession does not submit to be charged with an occupation rent, it must be wrong that he should seek to charge the wife with half the mortgage interest which he has paid while living in the property rent free and resisting a sale of the property."
Ormrod LJ said: "So far as my recollection goes, it has been the normal practice in this class of case to allow the occupying spouse to take credit for repayments of capital but not of interest, because he or she has had the benefit of the use of the house. It was certainly so where the husband was in occupation, although it may not always have been the case where the wife, and particularly the children, were in occupation."
Married Women's Property Act 1882 17
1 Citers


 
Williams v Burlington Investments [1977] SJ 121
1977


Equity, Land

1 Citers



 
 Orakpo v Manson Investments Ltd; HL 1977 - [1978] AC 95; [1977] 3 All ER 1
 
Tito v Waddell (No 2); Tito v Attorney General [1977] Ch 106; [1977] 3 All ER 129; [1977] 3 WLR 972
1977
ChD
Megarry VC
Land, Equity, Constitutional, Damages
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees "But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a trustee has not sold to himself, in substance he has. Again one must regard the realities. If the question is asked: "Will a sale of trust property by the trustee to his wife be set aside?", nobody can answer it without being told more; for the question is asked in a conceptual form, and manifestly there are wives and wives. In one case the trustee may have sold privately to his wife with whom he was living in perfect amity; in another the property may have been knocked down at auction to the trustee's wife from whom he has been living separate and in enmity for a dozen years."
The issue arose, in relation to "the 1931 transaction", as to whether the acts of which the claimants complained were done on behalf of the Government of the Gilbert and Ellice Islands Colony (in which case no claim lay against the Crown, because excluded by the 1947 Act) or the Government of the United Kingdom (in which case, if a claim lay, it was not excluded). The court accepted that the colonial government was a subordinate government, all important decisions being referred to London, and the Crown, on the advice of the United Kingdom Government, having important powers that could be used to override acts of the colonial government. But the Vice-Chancellor concluded: "In my judgment the government of the United Kingdom was not the government of the Gilbert and Ellice Islands Colony at any material time. It had important advisory and supervisory functions, as well as paramount powers. It also contributed much to the governing of the colony, in general and to the 1931 transaction in particular, eg in settling the form of the 1931 lease; but it was not the government."
As to damages: "Per contra, if the plaintiff has suffered little or no monetary loss in the reduction of value of his land, and he has no intention of applying any damages towards carrying out the work contracted for, or its equivalent, I cannot see why he should recover the cost of doing work which will never be done. It would be a mere pretence to say that this cost was a loss and so should be recoverable as damages."
Crown Proceedings Act 1947 40(2)(b)
1 Cites

1 Citers


 
Lazard Brothers and Co Ltd v Fairfield Properties Co (Mayfair) Ltd (1977) Sol Jo 793
1977

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


 
The Teno [1977] 2 Lloyds Rep 289
1977

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


 
in Re Berry (a bankrupt) [1978] 2 NZLR 373
1978

Richardson, Somers JJ
Equity
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."
1 Citers


 
Federal Commerce Ltd v Molena Alpha Inc; (The "Nanfri") [1978] QB 927
1978
CA
Goff LJ, Lord Denning MR
Contract, Landlord and Tenant, Equity
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire. Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to extinguish or reduce an instalment of rent due, any cross claim arising out of the provisions of the lease and the operation of the lease. Equitable set-off is ultimately based on considerations of justice.
Lord Denning MR said: "It is now far too late to search through the old books and dig them out. Over 100 years have passed since the Judicature Act 1873. During that time the streams of common law and equity have flown together and combined so as to be indistinguishable the one from the other. We have no longer to ask ourselves what would the courts of common law or courts of equity have done before the Judicature Act? We have to ask ourselves: what should we do now so as to ensure fair dealing between the parties? See United Scientific Holdings Ltd. v. Burnley Borough Council [1978] A.C. 904 per Lord Diplock. This question must be asked in each case as it arises for decision: and then, from case to case, we shall build up a series of precedents to guide those who come after us. But one thing is clear: it is not every cross-claim which can be deducted. It is only cross-claims that arise out of the same transaction or are closely connected with it. And it is only cross-claims which go directly to impeach the plaintiff's demands, that is, so closely connected with his demands that it would be manifestly unjust to allow him to enforce payment without taking into account the cross-claim. Such was . . Hanak v. Green."
Judicature Act 1873
1 Cites

1 Citers


 
Joyce v Joyce [1978] 1 WLR 1170; [1979] 1 All ER 175
2 Jan 1978

Megarry V-C
Contract, Equity
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. "
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Mediterranea Reffineria Siciliana Petroli SpA v Mabanaft GmbH Court of Appeal transcript 816
2 Jan 1978
CA
Templeman LJ
Litigation Practice, Equity
The plaintiff sought orders to assist it in tracing the product of a cargo of oil, delivery of which was alleged to have been obtained from the plaintiff without the production of bills of lading, Mr. Justice Mocatta had made a sweeping order requiring directors and an employee of the defendant company to make full disclosure of certain specified facts on affidavits and directed that one of them should file an affidavit of documents. The defendant appealed. Held. The appeal failed. Templeman LJ said: "The court of equity has never hesitated to use the strongest power to protect and preserve a trust fund in interlocutory proceedings on the basis that, if the trust fund disappears by the time the action comes to trial, equity will have been invoked in vain."
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 Quennell v Maltby; CA 15-Nov-1978 - [1979] 1 WLR 318; [1979] 1 All ER 568; [1978] EWCA Civ 1

 
 Pascoe v Turner; CA 1-Dec-1978 - [1979] 1 WLR 431; [1978] EWCA Civ 2; [1979] 2 All ER 945
 
China National Foreign Trade Transportation Corporation v Evlogia Shipping Co SA of Panama (The Mihalios Xilas) [1979] 1 WLR 1018
1979
HL
Scarman L, Lord Salmon
Equity, Contract, Transport
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."
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 Johnson v Agnew; HL 1979 - [1980] AC 367; [1979] 2 WLR 487; [1979] 1 All ER 883
 
Re Woodstock (a bankrupt) Unrported,19 November 1979
19 Nov 1979
ChD
Walton J
Equity
Walton J drew attention in his judgment to the need for the courts, in considering how the equity of exoneration should work as between a husband and a wife, to take into account the relationship which husbands and wives bear, or ought to bear, to one another in their family affairs in current times. The guide that Victorian cases can provide to the inferences which should be drawn from the dealings with one another of husbands and wives today is often not very valuable.
As to the case of Hall v Hall: 'I do not think I have to go into the interesting question whether that case is now good law in view of completely changed social conditions. It appears to me that that case was decided in the days when the wife did nothing except sit at home and run the household and boss the servants about, and the husband was expected to be, and indeed was, the provider. Times have now changed, and I am very far from that if that case were to be heard on precisely the same facts tomorrow, the decision would necessarily be the same.' "
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