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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  















Equity - From: 1995 To: 1995

This page lists 19 cases, and was prepared on 21 May 2019.

 
Boustany v Piggott [1995] 69 PandCR 298
1995
PC
Lord Templeman
Contract, Equity
In discussing what was said to be unconscionable contract, the Board accepted that "It is not sufficient to attract the jurisdiction of equity to prove that a bargain is hard, unreasonable or foolish; it must be proved to be unconscionable, in the sense that "one of the parties to it has imposed the objectionable terms in a morally reprehensible manner, that is to say in a way which affects his conscience"
1 Cites

1 Citers


 
Racal Group Services Limited v Ashmore [1995] STC 1151
1995
CA
Peter Gibson LJ
Equity
The company had covenanted to pay an annual sum to charity. Since the last payment under the covenant was to be made less than three years after the execution of the deed, an intended tax advantage was not secured. Held: The company's appeal failed, and the court denied rectification, on the footing that the company had failed to establish to the required standard that the covenant did not give effect to its true intention. Peter Gibson LJ approved a statement as to rectification in Snells Equity: "What is rectified is not a mistake in the transaction itself, but a mistake in the way in which transaction has been expressed in writing".
1 Citers



 
 El Ajou v Dollar Land Holdings Plc; ChD 1995 - [1995] 2 All ER 213

 
 Castle Phillips Finance v Piddington; CA 1995 - [1995] 1 FLR 783
 
South Tyneside Metropolitan BC v Svenska International plc [1995] 1 All ER 545
1995


Equity
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."
1 Cites

1 Citers


 
Official Trustee in Bankruptcy v Citibank Savings Ltd [1999] BPIR 754; (1995) 38 NSWLR 116
1995

Bryson J
Commonwealth, Equity
(New South Wales) Mr and Mrs P owned and controlled W Ltd. W Ltd borrowed monies from Citibank which took security for repayment in the form of a charge over the home of Mr and Mrs P and also a charge over the home of the parents of Mr P. On the face of the documents, Mr and Mrs P and the parents of Mr P were co-sureties for the debt of W Ltd. W Ltd defaulted and Mr and Mrs P were made bankrupt. Their trustee in bankruptcy sold their home and repaid the debt to Citibank. The trustee then claimed an equal contribution from Mr P's parents on the basis that they were co-sureties with Mr and Mrs P and that the default position was that the co-sureties were equally liable to contribute to the payment of the debt. Held: The claim by the trustee in bankruptcy was dismissed. Mr P's parents had entered into the charge at the request of Mr and Mrs P and therefore Mr and Mrs P were liable to indemnify Mr P's parents and, accordingly, were not entitled to claim a contribution from them. A right of contribution may not arise where two persons borrow money but that money is applied for the purposes of only one of them, or if one guarantor enjoys the whole benefit of the guarantee in another capacity to the exclusion of his co-surety.
In considering whether common intention is essential to rebut contribution, Bryson J said: "The position taken by the plaintiff's counsel before me was to the effect that the prima facie right of contribution can only be rebutted if a common intention to the contrary is clearly proved by evidence of some agreement or arrangement. No doubt it is very usual that rebuttal takes that form, but in my opinion it is not necessary that there should be a common intention or a bilateral arrangement, and it is not necessary that there should be any expression of an intention or arrangement, as circumstances can occur in which an intended outcome is so clear and obvious that it must be imputed to the parties that they intended it. Quite apart from any intention held by the parties or imputed to them, circumstances can occur in which, without there being any expression of intention or actual advertence to the subject of contribution, it is clear that equity does not require that an obligation to make contribution should be imposed on a party. The court should not lose sight of the origin of the right to contribution in the equitable principle that equity is equality, or forget that facts may exist in which it is not appropriate to treat parties under a common liability as in an equal position, or in which some other equitable principle ought to be given effect."
1 Citers


 
Tsb Bank Plc v Camfield Gazette, 18 January 1995
18 Jan 1995
CA

Equity
A court is not able to impose conditions for granting equitable relief.

 
Morgan Guaranty Trust Co of New York v Lothian Regional Council Times, 19 January 1995; 1995 SLT 299; 1995 SC 151
19 Jan 1995
IHCS
Lord Hope of Craighead
Equity
Money paid under error in law is repayable according to equity, and without statutory authority on the ground of unjustified enrichment.
1 Citers



 
 Halifax Building Society v Brown and Another; Raphael Jorn Helmsley Ltd v Same; CA 8-Feb-1995 - Times, 08 February 1995
 
Langton v Langton and Another Times, 24 February 1995; [1995] 2 FLR 890
24 Feb 1995
ChD

Equity, Undue Influence
The doctrine of 'unconscionable bargain' does not extend to gifts obtained by undue influence.
1 Citers



 
 Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd); CA 4-Mar-1995 - Times, 04 March 1995; Independent, 15 March 1995; [1995] 2 All ER 929; [1995] Ch 259; [1995] 26 EG 129
 
Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others Gazette, 01 June 1995; Independent, 23 May 1995; Times, 25 April 1995; [1996] 1 WLR 328; [1995] 4 All ER 769; [1995] EWCA Civ 15
10 Apr 1995
CA
Millett LJ, Stuart-Smit LJ, Millet LJ
Equity, Trusts
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 Halfax's charge. Held: A mortgagee whose loan is used to repay another charged debt is subrogated to that debt, and can rely on that charge. Millett LJ: "If the plaintiff succeeds in tracing his property, whether in its original or in some changed form, into the hands of the defendant, and overcomes any defences which are put forward on the defendant's behalf, he is entitled to a remedy. The remedy will be fashioned to the circumstances. The plaintiff will generally be entitled to a personal remedy; if he seeks a proprietary remedy he must usually prove that the property to which he lays claim is still in the ownership of the defendant. If he succeeds in doing this the court will treat the defendant as holding the property on a constructive trust for the plaintiff and will order the defendant to transfer it in specie to the plaintiff. But this is only one of the proprietary remedies which are available to a court of equity. If the plaintiff's money has been applied by the defendant, for example, not in the acquisition of a landed property but in its improvement, then the court may treat the land as charged with the payment to the plaintiff of a sum representing the sum by which the value of the defendant's land has been enhanced by the use of the plaintiff's money. And if the plaintiff's money has been used to discharge a mortgage on the defendant's land, then the court may achieve a similar result by treating the land as subject to a charge by way of subrogation in favour of the plaintiff."
1 Cites

1 Citers

[ Bailii ]
 
McGrath v Wallis Times, 13 April 1995; Gazette, 12 April 1995
12 Apr 1995
CA

Equity
The presumption of advancement is now to be seen as a doctrine of last resort.

 
Style Financial Services Ltd v Bank of Scotland (Scotland) Times, 23 May 1995
23 May 1995
IHCS

Equity
Sums received as agent but paid in overdrawn account are untraceable.


 
 Halifax Building Society v Thomas and Another; CA 29-Jun-1995 - Independent, 04 August 1995; Times, 04 July 1995; [1996] Ch 217; [1995] EWCA Civ 21; [1995] 4 All ER 673; [1996] 2 WLR 63

 
 Midland Bank v Cooke and Another; CA 13-Jul-1995 - Independent, 26 July 1995; Times, 13 July 1995; Gazette, 31 August 1995; [1995] 4 All ER 562; [1995] 2 FLR 915

 
 First National Bank Plc v Thompson; CA 25-Jul-1995 - Ind Summary, 31 July 1995; Times, 25 July 1995; Gazette, 15 September 1995
 
Tribe v Tribe Gazette, 15 September 1995; Times, 14 August 1995; [1996] Ch 107; [1995] 3 WLR 913; [1995] EWCA Civ 20; [1995] 4 All ER 236
26 Jul 1995
CA
Millett LJ
Equity, Company
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.”
1 Citers

[ Bailii ]
 
Brinks Ltd v AbuSaleh and Others (No 3) Times, 23 October 1995; [1996] CLC 133
23 Oct 1995
ChD
Rimer J
Equity
A person must know of the existence of an obligation of trust to be liable as an accessory to an act in breach of that trust. A person cannot be liable for dishonest assistance in a breach of trust unless he knows of the existence of the trust or at least the facts giving rise to the trust.
1 Cites

1 Citers


 
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