swarb.co.uk - law index
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Equity - From: 2001 To: 2001
This page lists 21 cases, and was prepared on 21 May 2019.
Meftah v Lloyd's TSB Bank Plc [2001] 2 All ER (Comm) 741
2001
Land, Equity
A short delay in the sale of a property by a mortgagee was appropriate to allow proper advertising of a property.
1 Citers
Bland v Ingrams Estates Ltd and Others (1) Times, 18 January 2001
18 Jan 2001
CA
Landlord and Tenant, Land, Equity
An equitable charge of a lease has standing to apply to court for relief from forfeiture for non-payment of rent, where the tenant did not himself seek relief, but only indirectly on the basis that the lessee and chargor has a duty to take reasonable steps to preserve the charge's security. The tenant stands in a similar position to a trustee unwilling to defend trust assets, and the chargee can act joining in the tenant as defendant and claim relief in the tenant's shoes.
Law of Property Act 1925 146(4)
1 Citers
Swift and Another v Dairywise Farms Limited and others; CA 1-Feb-2001 - [2001] EWCA Civ 145
Casio Computer Co Ltd v Sayo and Others Times, 06 February 2001; Gazette, 08 February 2001
8 Feb 2001
CA
Jurisdiction, Equity, Banking
In a case alleging knowing assistance in the fraudulent transfer of funds through the banking system, acts forming part of the events had occurred within the jurisdiction. It was proper to join a defendant to the action here, even though he was resident in Spain. Under the Convention the defendants could be sued either in the jurisdiction of their residence or where any of the events giving rise to the tort occurred.
Brussels Convention on Enforcement of Judgments in Civil and Commercial Matters 1968
1 Citers
Hurst v Bennett and Others In Re A Debtor (No 302 of 1997); CA 16-Feb-2001 - Times, 15 March 2001; Gazette, 26 April 2001; [2001] EWCA Civ 182
Fuller v Happy Shopper Markets Ltd and Another; ChD 6-Mar-2001 - Gazette, 15 February 2001; Times, 06 March 2001; [2001] EWHC Ch 702; [2001] 25 EG 159; [2001] 2 LLR 49; [2001] 2 Lloyd's Rep 49; [2001] 2 EGLR 32; [2001] L and TR 16; [2001] 1 WLR 1681
Derby v Scottish Equitable Plc [2001] EWCA Civ 369; [2001] 3 All ER 818; [2001] OPLR 181; [2001] 2 All ER (Comm) 274; [2001] Pens LR 163
16 Mar 2001
CA
Simon Brown, Robert Walker, Keene LJJ
Equity, Estoppel
The court was asked questions of some general interest and importance as to claims for money paid under a mistake and the defences of change of position and estoppel.
[ Bailii ]
Scottish Equitable v Derby [2001] 3 All ER 818; [2001] EWCA Civ 369; [2001] OPLR 181; [2001] 2 All ER (Comm) 274; [2001] Pens LR 163
16 Mar 2001
Robert Walker LJ
Equity
The claimant company sought repayment of a sum paid in error to the defendant. She replied that she had changed her position as a result of and relying upon the payment. Held: The court gave as "the most obvious example" of the kind of decision made by a payee which, even though it involves no immediate expenditure, will nonetheless give rise to the defence of change of position, the voluntary giving up of a job at an age when it would not be easy to get new employment.
1 Cites
1 Citers
[ Bailii ]
Bim Kemi v Blackburn Chemicals Ltd [2001] 2 Ll Rep 93; [2001] EWCA Civ 457; [2001] CLC 1166; [2001] 2 Lloyd's Rep 93
3 Apr 2001
CA
Potter LJ, Sedley LJ, Jonathan Parker LJ
Equity, Contract
The question was the degree of connection which must be shown between (1) a claim for unliquidated damages for breach of a contract and (2) a cross-claim for unliquidated damages for breach of a different contract between the same parties, in order to permit the latter claim to be the subject of an equitable set-off against the former claim. Held. The degree of closeness required for an equitable or transaction set-off was that of an "inseparable connection", but it was not necessary that the cross-claim should arise out of the same contract. All that was required was that it should flow from the dealings and transactions which gave rise to the subject of the claim.
Potter LJ said: "Like the Judge, I consider that Mr. Turner's submissions for Blackburn are correct. In so holding, again like the Judge, I regard it as appropriate to apply the test propounded by Lord Brandon in the Bank of Boston case unconstrained by the former concept, difficult to define and apply, of 'impeachment of title', which has since been replaced, or at least redefined, in terms of a cross-claim which 'flows out of and is inseparably connected with the dealings and transactions giving rise to the subject in the claim'. While the circumstances of every case call for individual consideration, it seems to be that the Dole Fruit case provides a useful parallel with the situation in this case. There, the Court was satisfied there was a sufficiently close connection in the case of a claim for the price of goods sold and delivered pursuant to a contract made under the 'umbrella' of a distributorship agreement which had been repudiated."
1 Citers
[ Bailii ]
Parsons v McBain [2001] FCA 376; (2001) 109 FCR 120; 192 ALR 772
5 Apr 2001
Black CJ, Kiefel, Finkelstein JJ
Equity, Insolvency, Trusts
Federal Court of Australia - BANKRUPTCY - constructive trust - transfer of property to beneficiary - whether void as against trustee in bankruptcy
EQUITY - equity of exoneration - how defeated
TRUSTS - "common intention constructive trust" - whether trustee in bankruptcy takes subject to trust - time at which trust ari
A surety, or a person in the position of a surety, has a right of exoneration whereby he or she is entitled to be indemnified by the principal debtor against any liability incurred as a consequence of being called on to pay the debt, describing it as an incident of the relationship between surety and principal debtor.
"Where co-owners mortgage their property so that money can be borrowed for the benefit of one mortgagor, the other co-owner will be treated as if he or she was a surety and the equity of exoneration will also arise. In those circumstances that other has an interest in the property of the co-mortgagor whose property is to be regarded as primarily liable to pay the debt: Parsons at [21], Duncan, Fox and Co v North and South Wales Bank (1880) 6 App Cas 1 at 10.
However, the right to exoneration is lost where the surety receives a benefit from the loan or the funds raised in respect of which the charge has been given. "So, if the borrowed funds are applied to discharge the surety's debts, the surety could not claim exoneration, at least in respect of the benefit received."
Here, the giving of the [Brighton Westpac mortgage] might have created a relationship whereby Mr Mogilevsky would be treated as a surety and Mrs Mogilevsky would be treated as principal debtor if:
the mortgage was for the purpose of raising money to benefit the co-owner, in this case Mrs Mogilevsky;
the money borrowed was used for that purpose; and
Mr Mogilevsky derived no benefit from the money so raised."
1 Citers
[ Austlii ]
Johnson v EBS Pension Trustees Ltd and Another; ChD 11-May-2001 - Gazette, 11 May 2001
Mills v News Group Newspapers Limited [2001] EWHC Ch 412
4 Jun 2001
ChD
Mr Justice Lawrence Collins
Information, Media, Human Rights, Equity
The applicant was in a relationship with Paul McCartney, and in view of attacks on other former Beatles, she sought to restrain publication of the address of a property she had contracted to buy. The newspaper had said it would not publish unless others did, but refused to give an undertaking. The applicant obtained an injunction. Held: The freedom of the press is vital, but also a right of privacy was developing. A duty of confidence can arise in equity independently of any dealings directly between the parties, in this case where the information may be confidential in nature. The PCC code of practice could be taken into account by the court. To justify a prior restraint, the court must be satisfied that the claimant would be likely to succeed at trial. The house had not been chosen with a view to the claimant's security, and this was not a case in which an injunction should have been granted.
Human Rights Act 1998 12 - Press Complaints Commission, Code of Practice
1 Cites
[ Bailii ]
National Westminster Bank Plc v Somer International (Uk) Limited [2001] EWCA Civ 970; [2002] QB 1286; [2002] 3 WLR 64; [2002] 1 All ER 198; [2001] All ER (D) 235; [2001] Lloyds Rep Bank 263
22 Jun 2001
CA
Lord Justice Peter Gibson, Lord Justice Potter, Lord Justice Clarke
Equity, Banking
The bank by mistake credited £76,000 to the Defendant's account and erroneously later indicated that it had come from a customer of the Defendant, M; in reliance on that, the Defendant dispatched goods to the value of some £13,000 to M who later ceased trading and effectively disappeared without paying. Held: The defendant's appeal failed. Because the Defendant had only suffered detriment in relation to the £13,000 it was not entitled to keep the balance because it will be unconscionable for it to do so. With respect to the defence of change of position to a claim for equitable restitution, "change of position" only protects actual reduction of the transferee's assets following receipt."
Potter LJ said: "Similarly, the point is made that, albeit in Skyring -v Greenwood and Holt -v- Markham there was no exact enquiry into the degree to which each defendant had altered his financial position, there was equally no judicial statement that estoppel by representation could not operate pro tanto in an appropriate case. In Skyring -v- Greenwood, indeed, it is not clear that there was evidence of any detrimental reliance, the court simply assuming that it had taken place. In Holt -v- Markham, while it is clear from the judgment of Warrington LJ at 512 that not all the money had been spent, there is no indication whether the balance which remained was substantial and it is clear that, in addition to mere spending, the defendant had parted with his War Savings Certificates: see per Bankes LJ at 511. It seems to me that those cases do no more than establish that the court will generally think it appropriate to treat the matter broadly and will not require the defendant to demonstrate in detail the precise degree or value of the detriment which he has suffered in circumstances where, as Slade LJ pointed out, "he may find it difficult subsequently to recall and identify retrospectively the nature and extent of commitments undertaken or expenditure incurred as a result of an alteration in his general mode of living". However, it is open to the court, acting on equitable principles, to take the view that some restitution is necessary, albeit the burden upon the defendant of proving the precise extent of his detriment should be a light one. In these circumstances, the court may well have broad regard to, without being bound to follow, the developing lines of the courts' approach in `change of position' cases. However, the two defences will remain distinct, unless or until the House of Lords rules otherwise."
Peter Gibson LJ said: "I fully accept that the court, when assessing detriment, should not apply too demanding a standard of proof because of the practical difficulties faced by a defendant conducting a business who has been led to believe that the moneys paid by mistake are his (see the remarks of Slade L.J. in Howlett at pp. 621, 2) . . "
1 Citers
[ Bailii ]
Jones v Morgan; CA 28-Jun-2001 - Times, 24 July 2001; [2001] EWCA Civ 995; (2001) 82 P and CR DG20; [2001] NPC 104; [2001] Lloyds Rep Bank 323; [2002] 1 EGLR 125
Longstaff and Another v Birtles and Others Gazette, 06 September 2001; Times, 18 September 2001; [2001] EWCA Civ 1219; [2002] 1 WLR 470
26 Jul 2001
CA
Lord Justice Laws, Lord Justice Mummery, Sir Anthony Evans
Legal Professions, Equity
The claimants were clients of a firm of solicitors. At the suggestion of the solicitors, they entered into a partnership with the solicitors to run a hotel. No suggestion was made that they should seek independent advice. The business failed, and they claimed damages for professional negligence. Held: The duty to the client was paramount, including the duty to cause the client to receive independent legal advice. The defendant's solicitors' fiduciary duty extended beyond the termination of the retainer. The proceedings being amended to add a claim for breach of fiduciary duty, they were entitled to equitable compensation for losses occasioned.
1 Citers
Islamic Press Agency Inc v Abdullah Abbas Al-Wazir Times, 04 October 2001; [2001] EWCA Civ 1276
31 Jul 2001
CA
Lord Justice Henry, Lord Justice Robert Walker and Sir Anthony Evans
Equity
Equity recognises a right to payment of interest on a debt on discharge of a mortgage, even where the charge did not itself contain any such provision. Here a separate loan had come to be charged on the property, and there was no sufficient reason to displace the rule recognising the right to equitable interest.
[ Bailii ]
Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc; HL 11-Oct-2001 - Times, 17 October 2001; [2001] UKHL 44; [2001] 3 WLR 1021; [2002] 2 AC 773; [2002] HLR 4; [2002] 1 Lloyd's Rep 343; [2001] NPC 147; [2001] Fam Law 880; [2001] 43 EGCS 184; [2001] 2 All ER (Comm) 1061; [2001] 4 All ER 449; [2001] 2 FLR 1364; [2002] 1 P and CR DG14; [2001] 3 FCR 481
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199; [2001] 185 ALR 1; 76 ALJR 1
15 Nov 2001
Gleeson CJ
Commonwealth, Information, Equity, Constitutional
(High Court of Australia) The activities of a company which processed possum meat for export ("what the processing of possums looks,and sounds like") were not such as to attract the quality of being confidential for the purpose of the law protecting confidentiality.
Austlii Equity - Equitable remedies - Interlocutory injunction - Principles to be applied - Need for plaintiff to show a serious question to be tried - Defence that plaintiff has no equity - Nature of discretion to grant interlocutory relief - Relevance of implied freedom of political communication under the Constitution.
Practice and procedure - Interlocutory injunctions - Power of Supreme Court to grant interlocutory injunction - Whether s 11(12) of Supreme Court Civil Procedure Act 1932 (Tas) alters basis on which the Supreme Court has power to grant an interlocutory injunction - Purpose for which power exists to grant an interlocutory injunction - Meaning of "just and convenient".
Torts - Privacy - Whether Australian law recognises a tort of invasion of privacy - Whether right to privacy attaches to corporations - Relevance of implied freedom of political communication under the Constitution to the tort of privacy.
Constitutional law (Cth) - Interpretation of Constitution - Implications from Constitution - Implied freedom of communication concerning government and political matters - Whether law providing for interlocutory injunction against broadcaster infringes implied freedom - Whether injunction if granted would infringe freedom - Relevance of implied freedom to grant of injunction - Whether properly or at all taken into account.
Trespass to land - Trespasser illegally made clandestine film of activities and gave it to a broadcaster - Whether owner has right to restrain publication of film by broadcaster.
Words and phrases - "unconscionability" - "just and convenient" - "interlocutory injunction".
1 Citers
[ Austlii ]
Dextra Bank and Trust Company Limited v Bank of Jamaica [2002] 1 All ER (Comm) 193
26 Nov 2001
PC
Lord Bingham of Cornhill, Lord Goff of Chieveley, Lord Hobhouse of Woodborough, Sir Martin Nourse, Sir Patrick Russell
Banking, Commonwealth, Equity
(Jamaica) A cheque was drawn which was used as part a complex financial arrangement intended to purchase foreign currency to work around Jamaica's foreign exchange control regulations. It was asserted that by presenting the cheque used in the deception, it had been converted. The principle question was whether the cheque had been delivered as required under the Act. It was argued that the agent delivering the cheque was acting outside any authority entrusted to him by the drawer, and that accordingly no delivery was made. However his involvement was merely adventitious and could not invalidate delivery. The claimants sought restitution. The appellants asserted that they could rely upon the defence of 'change of position' and that the court should consider the relative degrees of fault of the parties. The court held that it was wrong to include any such calculation. "Their Lordships are, however, most reluctant to recognise the propriety of introducing the concept of relative fault into this branch of the common law, and indeed decline to do so. They regard good faith on the part of the recipient as a sufficient requirement in this context." The appeal was dismissed.
1 Cites
1 Citers
[ PC ] - [ PC ]
Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516
6 Dec 2001
Gleeson CJ, Gaudron, Gummow, Kirby, Haynes, Callinan JJ
Commonwealth, Equity
High Court of Australia - Rothmans were licensed to act as wholesalers of tobacco products under a New South Wales statute. They sold products to retailers for a price including licence fees, which were in reality a form of indirect taxation, payable by Rothmans to the New South Wales government. The Act imposing that liability on Rothmans was held by the High Court to be unconstitutional. The retailers then sued Rothmans to recover the amounts which they had paid in respect of the tax which had until then been unlawfully imposed on Rothmans.
The retailers argued unsuccessfully that there was an implied agreement under which they could claim repayment of any unpaid tax. This argument was described in the leading judgment of Gleeson CJ, Gaudron and Hayne JJ, as "artificial and unconvincing". However, the retailers succeeded in restitution.
Gleeson CJ, Gaudron and Hayne JJ, stated that "Failure of consideration is not limited to non-performance of a contractual obligation, although it may include that". They also rejected Rothmans' argument that the restitution claims failed because there had not been a total failure of consideration, by interpreting the consideration for the total payments made by the retailers as containing severable parts.
Gummow J (concurring), advocated: "caution in judicial acceptance of any all-embracing theory of restitutionary rights and remedies founded upon a notion of 'unjust enrichment'. To the lawyer whose mind has been moulded by civilian influences, the theory may come first, and the source of the theory may be the writing of jurists not the decisions of judges. However, that is not the way in which a system based on case law develops; over time, general principle is derived from judicial decisions upon particular instances, not the other way around."
After reviewing the authorities Gummow J held that failure of consideration in this area of law may include the collapse of a bargain, which need not be contractual in nature. There had been no failure in the performance by Rothmans of any promise made by them, but there had been a "failure of consideration" in the "failure to sustain itself of the state of affairs contemplated as a basis for the payments the appellants seek to recover".
1 Citers
Noakes and Co Ltd v Rice; HL 17-Dec-2001 - [1902] AC 24; [1901] UKHL 3
