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Equity - From: 1985 To: 1989

This page lists 36 cases, and was prepared on 21 May 2019.


 
 O'Sullivan v Management Agency and Music Limited; CA 1985 - [1985] QB 428; (1984) 2 IPR 499; [1984] 3 WLR 448; [1985] 3 All ER 351
 
Singh v Singh [1985] Fam LR 97
1985

Anthony Lincoln J
Equity, Land
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.
Law of Property Act 1925 30
1 Citers


 
Muschinski v Dodds (1985) 160 CLR 583
1985

Deane J, Mason J
Equity, Commonwealth
(High Court of Australia) The idea of conscience is too vague a notion to found the principles of equity, it would open the door to "idiosyncratic notions of fairness and justice" and "That property was acquired, in pursuance of the consensual arrangement between the parties, to be held and developed in accordance with that arrangement. The contributions which each party is entitled to have repaid to her or him were made for, or in connexion with, its purchase or development. The collapse of the commercial venture and the failure of the personal relationship jointly combined to lead to a situation in which each party is entitled to insist upon realization of the asset, repayment of her or his contribution and distribution of any surplus."

Deane J drew attention to the nature and function of constructive trusts in the common law: "The fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for the indulgence of idiosyncratic notions of fairness and justice. As an equitable remedy, it is available only when warranted by established equitable principles or by the legitimate processes of legal reasoning, by analogy, induction and deduction, starting from the conceptual foundations of such principles . . Under the law of this country - as, I venture to think under the present law of England . . proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion, subjective views about which party 'ought to win' . . and the 'formless void' of individual moral opinion." and "Under the law of [Australia]—as, I venture to think, under the present law of England—proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion, subjective views about which party 'ought to win' and 'the formless void of individual moral opinion'."
1 Citers


 
Leon Corporation v Atlantic Lines and Navigation Co Inc ("The Leon") (1985) 2 Lloyd's Rep 470
1985

Justice Hobhouse
Equity
The court discussed the application of the equitable doctrine of set-off. Justice Hobhouse said: "Equitable principles derive from a sense of what justice and fairness demand. This does not mean that equitable set-off has been reduced to an exercise of discretion. Since the merging of equity and law equitable set-off gives rise to a legal defence. This defence does not vary according to the length of the Lord Chancellor's or arbitrator's foot. The defence has to be granted or refused by an application of legal principle."
When pressed to depart from the rule in Nanfri for fairness, the court said: "It is also correct that equitable principles derive from a sense of what justice and fairness demand and should therefore include the capacity to develop and adapt as the need arises…But this does not mean that equitable set-off has been reduced to an exercise of discretion. Since the merging of equity and law, equitable set-off gives rise to a legal defence. This defence does not vary according to the length of the Lord Chancellor's foot. The defence has to be granted or refused by an application of legal principle.
The relevant principle is that identified by Lord Cottenham in Rawson v. Samuel (1841) Cr. & Ph. 161, at p. 179: "The equity of the bill impeached the title to the legal demand". What this requires is that the Court or arbitrator should consider the relationship between the claim and the cross-claim. This is why not every cross-claim, even though it arises out of the same transaction, necessarily gives rise to an equitable set-off. This element of the cross-claim impeaching the plaintiff's demand is to be found in all the modern cases and is a recognition that the principle being applied is essentially the same as that stated by Lord Cottenham."
1 Citers



 
 Barton v Morris; 1985 - [1985] 1 WLR 1257
 
Nurcombe v Nurcombe [1985] 1 WLR 370
1985
CA
Browne-Wilkinson LJ, Lawton LJ
Company, Litigation Practice, Equity
The court discussed a minority shareholder's action to enforce the company's claim as a derivative claim. Browne-Wilkinson LJ said that such an action, where a courts in equity permitted a person interested to bring an action to enforce the company's claim, was analogous to that in which equity permitted a beneficiary under a trust to sue as plaintiff to enforce a legal right vested in trustees, which right the trustees will not themselves enforce, the trustees being joined as defendants.
He continued: 'Since the wrong complained of is a wrong to the company, not to the shareholder, in the ordinary way the only competent plaintiff in an action to redress the wrong would be the company itself. But, where such a technicality would lead to manifest injustice, the courts of equity permitted a person interested to bring an action to enforce the company's claim. The case is analogous to that in which equity permits a beneficiary under a trust to sue as plaintiff to enforce a legal right vested in trustees (which right the trustees themselves will not enforce), the trustees being joined as defendants. Since the bringing of such an action requires the exercise of the equitable jurisdiction of the court on the grounds that the interests of justice require it, the court will not allow such an action to be used in an inequitable manner so as to produce an injustice.'
. . And "It is pertinent to remember, however, that a minority shareholder's action in form is nothing more than a procedural device for enabling the court to do justice to a company controlled by miscreant directors or shareholders. Since the procedural device has evolved so that justice can be done for the benefit of the company, whoever comes forward to start the proceedings must be doing so for the benefit of the company and not for some other purpose. It follows that the court has to satisfy itself that the person coming forward is a proper person to do so."
Lawton LJ distinguished between actions brought for the benefit of the company on the one hand, and those brought for some other purpose on the other. He went on to say: "It is pertinent to remember, however, that a minority shareholder's action in form is nothing more than a procedural device for enabling the court to do justice to a company controlled by miscreant directors or shareholders. Since the procedural device has evolved so that justice can be done for the benefit of the company, whoever comes forward to start the proceedings must be doing so for the benefit of the company and not for some other purpose. It follows that the court has to satisfy itself that the person coming forward is a proper person to do so. In Gower, Modern Company Law, 4th ed (1979), the law is stated, in my opinion correctly, in these terms. . : 'The right to bring a derivative action is afforded the individual member as a matter of grace. Hence the conduct of a shareholder may be regarded by a court of equity as disqualifying him from appearing as plaintiff on the company's behalf. This will be the case, for example, if he participated in the wrong of which he complains.'"
1 Citers


 
In Re Pittortou (a bankrupt) [1985] All ER 285
1985
ChD
Scott J
Equity, Land, Insolvency
H and W charged the property to secure the H's overdrawn bank account. The account was used both for his business and for payment of expenses relating to the matrimonial home. H was adjudicated bankrupt. W sought her equity to be exonerated from H's debt. Held: Scott J said that where payments had been made for the joint benefit of the household, they must be paid from the net proceeds before division. However an equity of exoneration applied to payments made purely for business purposes and for H's sole benefit, and these were to be deducted only from H's share.
Exoneration depended on the presumed intention of the parties. To apply, it would be necessary to demonstrate that (a) the spouse joined in a charge over jointly owned property; (b) the spouse did so for the purposes of the bankrupt; and (c) the money must have been borrowed and used for the bankrupt's sole benefit.
The joint owner who is effectively in the position of a surety for the other joint owner is not only entitled to be indemnified by the other joint owner in relation to the relevant debt but the right to an indemnity carries with it a proprietary right over the indemnifying party's share in the property. Thus, the party with the benefit of an equity of exoneration has not only a personal claim but is also a secured creditor in relation to that claim.
The court set out a definition of an equity of exoneration: "if the property of a married woman is mortgaged or charged in order to raise money for the payment of her husband's debts, or otherwise for his benefit, it is presumed, in the absence of showing an intention to the contrary, that she meant to charge her property merely by way of security, and in such case, she is in the position of a surety, and is entitled to be indemnified by the husband, and to throw the debt primarily on his estate to the exoneration of her own."
"It is, I think, clear that the effect of the equity of exoneration in a case such as this is indeed to enhance the proprietary interest of the surety/joint mortgagor and not simply to give the surety a personal right to an indemnity from the debtor who is the other joint mortgagor."
1 Cites

1 Citers


 
In Re Alton Corporation [1985] BCLC 27
1985

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

1 Citers


 
Avon Finance Co Ltd v Bridger [1985] 2 All ER 281; [1985] CLY 1289
1985
CA
Brandon LJ
Banking, Undue Influence, Equity
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.
1 Cites

1 Citers


 
The Ypatia Halcoussi [1985] 2 Lloyds Rep 364
1985


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



 
 National Westminster Bank plc v Morgan; HL 7-Mar-1985 - [1985] AC 686; [1985] UKHL 2; [1985] 1 All ER 821; [1985] ANZ Conv R 251; [1985] 2 WLR 588
 
Bristol and West Building Society v Henning [1985] CLY 2950; [1985] 2 All ER 606; [1985] EWCA Civ 6; [1985] 1 WLR 778
2 Apr 1985
CA

Land, Equity

1 Citers

[ Bailii ]
 
Scholefield Goodman and Sons Ltd v Zyngier [1986] AC 562; [1985] UKPC 31; [1985] 3 All ER 105; [1986] FLR 1; [1985] 3 WLR 953
16 Aug 1985
PC
Lord Brightman
Banking, Equity
(Victoria) By a mortgage executed in favour of the bank Mrs Zyngier covenanted to pay to the bank any sums which might be owed to it either by herself or by a named company, including any amounts for or in respect of any bills of exchange on which the company might be liable "either primarily or only in the event of any other person failing to duly pay the same". Lord Brightman: " The fundamental question in the present case, therefore, is whether upon the true construction of the bargain between the bank and Mrs Zyngier, Mrs Zyngier placed herself, as regards bills of exchange accepted by Zinaldi and thereafter dishonoured, in the position of a co-surety alongside the drawer or indorser; or whether, upon the true construction of the bargain, her liability to the bank upon a bill was intended to be limited to a case of default by the parties liable upon the bill. If it were the true meaning of the mortgage that the bank was required to call upon the parties to the bill before it called upon Mrs Zyngier to make good her default, then ex hypothesi no injustice ensued to the drawer upon the bank's adoption of that course and no case for the intervention of a court of equity could arise. If a third party (in the instant case Mrs Zyngier) guarantees a bill of exchange for the benefit of a bank which discounts it, the normal understanding will be that the surety guarantees that payment will be made by one or other of the parties to the bill who are liable upon it, whether as acceptor or drawer or indorser. It will not be the normal understanding that the surety intends to place himself on a level with the drawer, so as to be answerable equally with the drawer if the acceptor defaults. There is no reason why he should. There is no reason to suppose that, in a contract between the bank and the surety, the surety desires to confer a benefit on the drawer and to share with him the responsibility for a dishonoured acceptance. Nor is there any reason why the bank should wish to call upon the surety for payment until the parties to the bill have defaulted." and "Contribution is founded on the principle that equality is equity, and there is no room for the application of this doctrine unless the surety against whom contribution is claimed has placed himself on the same level of liability as the surety who claims contribution from him. It would be possible for a bank guarantee to be so worded that the surety deliberately places himself upon an equal footing with the drawer or indorser of the bill discounted by the bank, but it would produce an irrational result. It is not a construction to be adopted unless the intention is clear, because there is no reason why the bank and the third party who gives the guarantee to the bank should have such an intention."
1 Citers

[ Bailii ]
 
In Re K [1986] Ch 180
1986
CA
Griffiths, Ackner and Browne-Wilkinson LJJ
Equity, Trusts
The court dismissed the appeal against the exercise of discretion by Vinelott J at first instance. After hearing a detailed argument as to why the Judge had not properly exercised his discretion in making a modification order which applied to all the interest accruing to a widow on the death of her husband, Griffiths LJ concluded: "The discretion given to the Judge by section 2(2) is couched in the widest language. I, too, would like to pay tribute to the great care and lucidity with which the Judge reviewed all the material circumstances in this case. I have not been persuaded that any grounds have been demonstrated which would justify this court in interfering with the exercise of his discretion."
Forfeiture Act 1982 2(2)
1 Citers


 
Goddard v Nationwide Building Society [1987] 1 QB 670; [1986] 3 WLR 734
1986
CA
Nourse, May LJJ
Legal Professions, Litigation Practice, Equity
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, and he disclosed his note of the attendance on the plaintiff to the defendant. The note was protected by legal professional privilege. The defendant referred to the note in its defence, which was subsequently the subject of litigation between them, sent to the defendant a copy of his file note of the information which he had given to the plaintiff prior to the completion of the transaction. The defendant pleaded the substance of the contents of the note in its Defence. The plaintiff sought to restrain its use. The defendant now appealed against an order striking out those elements of its defence.
Held: The defendant's appeal succeeded. In the circumstances in which the file note was made, the privilege attaching to it belonged exclusively to the plaintiff. Orders were made requiring the defendant to deliver up the document and restraining him from using it.
Nourse LJ said: "The second question has confronted us, in a simple and straightforward manner, with the task of reconciling the decisions of this court in Calcraft v. Guest [1898] 1 Q.B. 759 and Lord Ashburton v. Pape [1913] 2 Ch. 469. I agree that those decisions are authority for the proposition which May L.J. has stated. However unsatisfactory its results may be thought to be, that proposition must hold sway unless and until it is revised by higher authority.
. . Although, for the reasons given by May LJ, I am in no doubt that our decision must be governed by Lord Ashburton v. Pape [1913] 2 Ch. 469, the confusion which the existing authorities have caused in this case and are liable to cause in others has prompted me to deal with the matter at somewhat greater length than would otherwise have been necessary."
It was crucial that the holder of the privilege should seek relief before the party to whom the confidential communication was disclosed has adduced it in evidence or otherwise relied on it at trial. Second, this equitable jurisdiction can prevail over the rules of evidence relating to privilege. Thirdly, the right of the party seeking equitable relief "does not in any way depend on the conduct of the third party into whose possession the record of the confidential communication has come" Fourth, once the equitable jurisdiction in Ashburton has arisen, there is no discretion to rely upon views of the materiality of the communication or the justice of admitting or excluding it or like considerations: "The injunction is granted in aid of the privilege which, unless and until it is waived, is absolute. In saying this, I do not intend to suggest that there may not be cases where an injunction can properly be refused on general principles affecting the grant of a discretionary remedy, for example on the ground of inordinate delay."
Fifth, even if the equitable jurisdiction can no longer apply, public policy (rather than the exercise of discretion) may nevertheless preclude a party who has acted improperly in the proceedings from using the communication. Last, there should be no distinction in the exercise of the equitable jurisdiction in relation to civil and criminal proceedings.
The court discussed the requirement for confidence in the protection given by legal professional privilege: "A lawyer must be able to give his client an unqualified assurance, not only that what passes between them shall never be revealed without his consent in any circumstances, but that should he consent in future to disclosure for a limited purpose those limits will be respected."
May LJ said: "I think that the ratio of the decision in Lord Ashburton v. Pape was founded upon the confidential nature of the content of the letters written by Lord Ashburton to Nocton. The Court of Appeal was concerned to protect that confidence, in the same way for instance, as the courts protect the trade secrets of an employer against the unauthorised use of them by an employee, both while he remains such as well as after he has left the employment . . I confess that I do not find the decision in Lord Ashburton v. Pape logically satisfactory, depending as it does upon the order in which applications are made in litigation. Nevertheless I think that it and Calcraft v. Guest [1898] 1 Q.B. 759 are good authority for the following proposition. If a litigant has in his possession copies of documents to which legal professional privilege attaches he may nevertheless use such copies as secondary evidence in his litigation; however, if he has not yet used the documents in that way, the mere fact that he intends to do so is no answer to a claim against him by the person in whom the privilege is vested for delivery up of the copies and to restrain him from disclosing or making any use of any information contained in them."
1 Cites

1 Citers


 
AMEV-UDC Finance Ltd v Austin [1986] 162 CLR 1770; (1986) 162 CLR 170; [1986] HCA 63
1986

Gibbs CJ(1), Mason(2), Wilson(2), Deane(3) and Dawson(4) JJ.
Contract, Damages, Equity
High Court of Australia - Contract - Damages - Penalty - Agreement for hire of chattel - Failure to pay instalments of hire - Termination by owner pursuant to contractual power - Damages - Instalments due but unpaid - Damages for loss of contract.
The court discussed the doctrine against penalties in contracts: "But equity and the common law have long maintained a supervisory jurisdiction, not to rewrite contracts imprudently made, but to relieve against provisions which are so unconscionable or oppressive that their nature is penal rather than compensatory. The test to be applied in drawing that distinction is one of degree and will depend on a number of circumstances, including (1) the degree of disproportion between the stipulated sum and the loss likely to be suffered by the plaintiff, a factor relevant to the oppressiveness of the term to the defendant, and (2) the nature of the relationship between the contracting parties, a factor relevant to the unconscionability of the plaintiff's conduct in seeking to enforce the term. The courts should not, however, be too ready to find the requisite degree of disproportion lest they impinge on the parties' freedom to settle for themselves the rights and liabilities following a breach of contract. The doctrine of penalties answers, in situations of the present kind, an important aspect of the criticism often levelled against unqualified freedom of contract, namely the possible inequality of bargaining power. In this way the courts strike a balance between the competing interests of freedom of contract and protection of weak contracting parties: see generally Atiya, The rise and Fall of Freedom of Contract (1979), especially Chapter 22."
"the equitable jurisdiction to relieve against penalties withered on the vine".
1 Citers

[ Austlii ]

 
 Winkworth v Edward Baron Development Co Ltd; HL 1986 - [1986] 1 WLR 1512
 
Kingsnorth Finance Co Ltd v Tizard [1986] 2 All ER 559; [1986] 1 WLR 783
1986
ChD
Finlay QC
Land, Equity
The marriage between the defendants had broken down, but the wife still visited the house regularly, staying and caring for the children when the husband was away. The house was held in his sole name. He charged it to the plaintiffs, who now sought possession. The wife asserted an equitable interest, as a person in possession. Held: The husband had concealed her presence from the lender at the time of the charge. Nevertheless, occupation under the section did not have to be exclusive or continuous. It was not negatived by repeated or even regular absences. The wife was in the house almost every day. The presence of the children should have put the surveyor on inquiry, and knowledge of her presence was to be imputed to the lender who therefore took their charge subject to her rights. Once the surveyor came to be aware that the husband was married, he was under a duty to make appropriate enquiries. The husband's attempts to hide her could not be used by the bank to defeat her claim. What would be reasonable enquiries will depend on the circumstances. The court attempted to equate inquiry in unregistered conveyancing with that expected in registered conveyancing as a result of the decision in Boland.
Law of Property Act 1925 199(1)(ii)(a)
1 Cites


 
Kerr v British Leyland (Staff Trustees) Ltd Unreported March 26, 1986
26 Mar 1986

Fox LJ
Equity
In confirming that trustees did not have an uncontrolled discretion to determine whether the incapacity of a beneficiary of the trust was permanent, the Court held "Now this is not a case of trust where the beneficiaries are simply volunteers. The beneficiaries here are not volunteers. Their rights derive from contractual and commercial origins. They have purchased their rights as part of their terms of employment. Consistently with that, the power of the trustee to decline acceptance of the claim cannot be simply an uncontrolled discretion."
1 Citers


 
Evans v Clayhope Properties Ltd [1987] 1 WLR 225; [1987] 2 All ER 40
1987
ChD
Vinelott J
Equity, Insolvency, Costs
Vinelott J doubted whether a receiver's remuneration could be recovered as litigation costs
1 Cites

1 Citers



 
 Lipkin Gorman (a Firm) v Karpnale Ltd; 1987 - [1987] 1 WLR 987; [1992] 4 All ER 313
 
Goldsworthy v Brickell [1987] Ch 378; [1987] 2 WLR 133
1987
CA
Nourse LJ, Parker LJ
Equity, Undue Influence, Landlord and Tenant
The plaintiff had granted a tenancy of his substantial farm to the first defendant, and made him a partner. The first defendant later bought out the plaintiff who was in turn later reconciled with his only son who had previously had some considerable involvement with the farm. The plaintiff gave a general power to the son who now sought to set aside the transactions as having been obtained by undue influence. Held: A presumption of undue influence could be raised where the gift was so large or improvident that it could not be accounted for from mere friendship. Equity has refused to put limits on what is to be held to be a fiduciary relationship and to which the presumption of undue influence can apply. There has to exist a degree of trust and confidence such that: (Nourse LJ) "The party in whom it is reposed, either because he is or has become an adviser of the other or because he has become entrusted with the management of his affairs or every day needs or for some other reason, is in a position to influence him into effecting the transaction of which complaint is later made." and acquiescence in its proper sense involves “a standing by so as to induce the other party to believe that the wrong is assented to.”
Parker LJ said: “Upon whatever precise basis it is sought to uphold a transaction which was originally obtained by undue influence it is an essential ingredient that it would be inequitable to allow the influenced party to set aside the transaction.”
Nourse LJ also said: "Undue influence is of two kinds: (1) express or, as it is nowadays more usually known, actual undue influence, and (2) that which in certain circumstances is presumed from a confidential relationship; by which in this context is meant a relationship wherein one party has ceded such a degree of trust and confidence as to require the other, on grounds of public policy, to show that it has not been betrayed or abused. In cases where there is no confidential relationship actual undue influence must be proved. In cases where there is such a relationship it is sometimes alleged, but need not be proved and may never have occurred. Occasionally, even where there is no direct evidence of influence, it is found that there is both a confidential relationship and actual undue influence . . " and " . . Because they have occasioned little or no debate on this appeal, three further general observations may be briefly made. First, it is not every relationship of trust and confidence to which the presumption applies. No generalisation is possible beyond the definition already attempted. Secondly, with relationships to which it does apply the presumption is not perfected and remains inoperative until the party who has ceded the trust and confidence makes a gift so large, or enters into a transaction so improvident, as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary men act. Although influence might have been presumed beforehand, it is only then that it is presumed to have been undue. Thirdly, in a case where the presumption has come into operation the gift or transaction will be set aside, unless it is proved to have been the spontaneous act of the donor or grantor acting in circumstances which enable him to exercise an independent will and which justify the court in holding that the gift or transaction was the result of a free exercise of his will."
Agricultural Holdings Act 1948 8
1 Cites

1 Citers


 
In re Montagu's Settlement Trusts [1987] Ch 264
1987

Sir Robert Megarry V-C
Equity, Trusts
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."
1 Citers


 
Kemp v Neptune Concrete Ltd [1988] 2 EGLR 87
1988

Lord Justice Purchas
Equity, Contract
In a lease, the parties had agreed in negotiations that the six year term should be extended to 12 years, but had failed altogether to address the issue of a second rent review. Held: The court would not manufacture an agreement on that point. The court explained the first criterion for rectification: "First, there must be a mistake by the party seeking relief in executing the deed which does not translate that party's subjective intention at the time of the execution of the deed. I distinguish this from an intention which the party would have formed if either he or she had been properly advised, or had even applied their minds to the problem. In those circumstances it is clear that, from the passages I have already cited, the moment of time at which the subjective intention of the party seeking relief must be determined is at, or immediately before, executing the deed. Thus, no ex post facto intention can be admitted in such circumstances."
1 Citers


 
Hector v Lyons (1988) 58 PandCR 156
1988

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

1 Citers



 
 Stephens v Avery; 1988 - [1988] Ch 449
 
Stephens v Avery [1988] 2 WLR 1280; [1988] I Ch 449; [1988] 2 All ER 477
1988
ChD
Sir Nicholas Browne-Wilkinson V-C
Equity, Intellectual Property
The parties had been friends and had discussed their sex lives. The defendant took the information to a newspaper and its editor, the second and subsequent defendants who published it. The plaintiff sought damages saying the conversations and disclosures had been confidential. The defendants appealed against a refusal to strike out the claim. Held: The defendants had published knowing that the material was disclosed in confidence. Though gross sexual immorality might not be protected from disclosure, information about sexual activites could be protected under a legally enforceable duty of confidence, where it would be unconscionable for someone who had received information on an expressly confidential basis to disclose it. It was up to the defendants to show that there had been no basis in law for the claim. They had failed to do so. However, the fact that all the conditions for relief have been established does not mean, in the case of a remedy in equity, that relief will automatically follow. The court has an equitable jurisdiction to restrain a breach of confidence independently of any right at law, and this is capable of protecting relationships outside that of husband of wife, though possibly only where the confidence was express.
The fact that information may be known to a limited number of members of the public does not of itself prevent it having and retaining the character of confidentiality: "Information only ceases to be capable of protection as confidential when it is in fact known to a substantial number of people."
1 Citers


 
In re TR Technology Investment Trust Plc [1988] BCLC 256
1988
ChD
Hoffmann J
Company, Equity
The court was asked whether the limition on the circumstances in which the court could remove restrictions imposed under section 794, applied to a merely interim order. Held: It did not. Hoffmann J said of the powers t demand information given under the 1985 Act: "the company, through its existing board, is given the unqualified right to insist that contests for the hearts and minds of shareholders are conducted with cards on the table." and "A company is therefore able, by notices under s212, to track down all persons who, within a very extended definition, have interests in its shares. The reason why the definition is so extensive is to counter the limitless ingenuity of persons who prefer to conceal their interests behind trusts and corporate entities."
Companies Act 1985 212
1 Cites

1 Citers



 
 Evans v Clayhope Properties Ltd; CA 1988 - [1988] 1 WLR 358

 
 Attorney-General v Guardian Newspapers Ltd; QBD 1988 - [1988] 2 WLR 805

 
 Attorney-General v Guardian Newspapers Ltd; CA 2-Jan-1988 - [1988] 2 WLR 805
 
Dyer v Dyer (1788) 2 Cox 92; [1788] EWHC Exch J8
27 Nov 1988

Eyre CJ
Trusts, Equity, Land
Where property is purchased by one person in the name of another there is a presumption that a resulting trust is created: "The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold or leasehold; whether taken in the name of the purchasers and others jointly, or in the name of others without that of the purchaser, whether in one name or several; whether jointly or successive - results to the man who advances the purchase money. It is the established doctrine of a court of equity that this resulting trust may be rebutted by circumstances in evidence."
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[ Bailii ]
 
In re a Debtor (No 1 of 1987), ex parte the Royal Bank of Scotland [1989] 1 WLR 271; [1989] 2 All ER 46
1989
CA
Lord Justice Nicholls
Insolvency, Equity
A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form. Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice Nicholls said: "The question arising on this appeal concerns the exercise by the court of its power to set aside a statutory demand "on other grounds" within sub-paragraph (d) [of rule 6.5(4)] In my view, the right approach to paragraph (4) of rule 6.5 is this. Under the Act, a statutory demand which is not complied with founds the consequence that the debtor is regarded as being unable to pay the debt in question or, if the debt is not immediately payable, as having no reasonable prospect of being able to pay the debt when it becomes due. That consequence, in turn, founds the ability of the creditor to present a bankruptcy petition because, under section 268(1), in the absence of an unsatisfied return to execution or other process, a debtor's inability to pay the debt in question is established if, but only if, the appropriate statutory demand has been served and not complied with. When therefore the rules provide, as does rule 6.5(4)(d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand 'ought' to be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court's intervention is called for to prevent that injustice."
and "When therefore the rules provide, as does rule 6.5(4)(d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand "ought" to be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court's intervention is called for to prevent that injustice.
This approach to sub-paragraph (d) is in line with the particular grounds specified in sub-paragraphs (a) to (c) of rule 6.5(4). Normally it would be unjust that an individual should be regarded as unable to pay a debt if the debt is disputed on substantial grounds: sub-paragraph (b). Likewise, if the debtor has a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt: sub-paragraph (a). Again, if the creditor is fully secured: sub-paragraph (c)."

and "Nevertheless, applying the approach which I have indicated above as the correct approach to these statutory provisions, in my view it by no means follows from the existence of these defects that this statutory demand ought to be set aside. The court will exercise its discretion on whether or not to set aside a statutory demand, having regard to all the circumstances. That must require a court to have regard to all the circumstances as they are at the time of the hearing before the court. There may be cases where the terms of the statutory demand are so confusing or so misleading that, having regard to all the circumstances, justice requires that the demand should not be allowed to stand. There will be other cases where, despite such defects in the contents of the statutory demand, those defects have not prejudiced and will not prejudice the debtor in any way, and to set aside the statutory demand in such a case would serve no useful purpose. For example a debtor may be wholly unable to pay a debt which is immediately payable, either out of his own resources, or with financial assistance from others. In such a case the only practical consequence of setting aside a statutory demand would be that the creditor would immediately serve a revised statutory demand, which also and inevitably would not be complied with. In such a case the need for a further statutory demand would serve only to increase costs. Such a course would not be in the interests of anyone." and
"In these circumstances I am in no doubt that, despite the mistakes in this statutory demand and the use strictly of the incorrect form, and despite the debtor not being aware of the precise amount of the debt when the demand was served on him, justice does not require that this statutory demand should be set aside. I can see no injustice in the consequences which flow from non-compliance with a statutory demand being permitted to flow in this case, despite the existence of those features."
Insolvency Rules 1986 (1986 No 1925) 6.1 6.5(4)(d) - Police Act 1996 2
1 Citers


 
Davitt v Titcumb [1990] Ch 110; [1989] 3 All ER 417
1989
ChD
Scott J
Wills and Probate, Insurance, Equity
The defendant bought a house in joint names with the deceased, but was subsequently convicted of her murder. The house was purchased with the assistance of an endowment life policy in their joint names. Whilst he was imprisoned, the policy was used to pay off the mortgage, and the house sold. The issue was how to calculate any share he had in the proceeds. Held: The fund would not have come into existence but for his criminal act. He was barred by public policy from benefiting under it. The equity of redemption in the policy enured to the personal representatives of the deceased., who were to be treated as having provided the proceeds of the policy for the calculation.
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 Lipkin Gorman v Karpnale Ltd; CA 1989 - [1989] 1 WLR 1340
 
Lac Minerals v International Corina Resources Ltd (1989) 61 DLR (4th) 14 Can SC (Canada); [1989] 2 SCR 574; [1990] FSR 441; 69 OR (2d) 287; 1989 CanLII 34 (SCC)
11 Aug 1989

McIntyre, Lamer, Wilson, La Forest and Sopinka JJ
Commonwealth, Intellectual Property, Damages, Equity
Supreme Court of Canada on appeal from the court of appeal for ontario - Commercial law -- Confidentiality -- Mining companies discussing possible joint venture -- Confidential exploration results disclosed during discussions -- High potential property adjacent to lands of exploration company -- Mining company in receipt of information purchasing property for own use -- Whether or not company in breach of duty respecting confidences -- Whether or not breach of fiduciary duty -- If so, the appropriate remedy.
Industrial and intellectual property -- Trade secrets -- Confidentiality -- Mining companies discussing possible joint venture -- Confidential exploration results disclosed during discussions -- High potential property adjacent to lands of exploration company -- Mining company in receipt of information purchasing property for own use -- Whether or not company in breach of duty respecting confidences -- If so, the appropriate remedy.
Trusts and trustees -- Fiduciary duty -- Trade secrets -- Confidentiality -- Mining companies discussing possible joint venture -- Confidential exploration results disclosed during discussions -- High potential property adjacent to lands of exploration company -- Mining company in receipt of information purchasing property for own use -- Whether or not breach of fiduciary duty -- If so, the appropriate remedy.
Remedies -- Unjust enrichment -- Restitution -- Constructive trust -- Nature of constructive trust -- When constructive trust available.
[ Canlii ]
 
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