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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: 2003 To: 2003

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

 
Hulbert and Others v Avens and Another Times, 07 February 2003
30 Jan 2003
ChD
Richard Seymour QC, J
Damages, Trusts, Equity
The claimant sought damages for breach of trust against the defendant solicitors, who had acted as trustees under deeds of trust. They claimed for losses incurred by way of penalties for the late payment of capital gains tax. The defendants said that there should be offset the sums earned by the unpaid tax by way of interest. Held: Whether a breach of trust had occurred was to be decided as at the date of the alleged acts constituting the breach, but the damages fell to be caculated with respect to the situation as at the date of the hearing. Accordingly the sums received could be set off. Courts of equity did not award damages, but ordered restitution.
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 Abacus Trust Company (Isle of Man) Colyb Limited v Barr, Barr, and Barr; ChD 6-Feb-2003 - [2003] EWHC 114 (Ch); Gazette, 03 April 2003; [2003] WTLR 149; [2003] 2 WLR 1362; [2003] 1 All ER 763; [2003] Ch 409
 
Rowe, Regina (on the Application of) v Vale of White Horse District Council [2003] 1 Lloyds Rep 418; [2003] EWHC 388 (Admin)
7 Mar 2003
Admn
The Hon Mr Justice Lightman
Utilities, Local Government, Equity
The local council sought to claim payment for sewerage services enjoyed by a householder. Held: Where a supplier has supplied services to another and there is no contractual relationship in existence, the law may afford to the supplier restitutionary remedy. Lightman J said: "there are four essential ingredients to a claim in restitution:
(i) a benefit must have been gained by the defendant;
(ii) the benefit must have been obtained at the claimant's expense;
(iii) it must be legally unjust, that is to say there must exist a factor (referred to as an unjust fact) rendering it unjust, for the defendant to retain the benefit;
(iv) there must be no defence available to extinguish or reduce the defendant's liability to make restitution."
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[ Bailii ]
 
Wilson v Truelove Times, 21 February 2003; Gazette, 13 March 2003; Gazette, 10 April 2003; [2003] EWHC 750 (Ch); [2003] 23 EG 136; [2003] 2 EGLR 63; [2003] 10 EG 164; [2003] WTLR 609
25 Mar 2003
ChD
Simon Berry QC
Land, Equity, Estoppel
The claimants requested a declaration that an option to repurchase land was void under the 1964 Act. Held: The option to repurchase land was prima facie void. The right arose on the coming into existence of the agreement, or at the latest on the original purchase. The defendants sought assistance in equity under an estoppel by convention. The fact that the defendant's right arose under statute did not prevent equity overriding that right. To establish an estoppel generally it was necessary to identify some unconscionable conduct on the part of the defendant. None was shown here. To establish an estoppel by convention, there was no requirement for unconscionable behaviour, but it was necessary to show some common mistake as to the meaning of the contract, followed by a course of conduct establishing reliance upon that conventional interpretation. That was absent here. The parties were merely mistaken.
Perpetuities and Accumulations Act 1964 9(2)
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[ Bailii ]
 
Vadim Schmidt v Rosewood Trust Limited Times, 29 March 2003; [2003] UKPC 26; Gazette, 05 June 2003; [2003] 2 AC 709; (2002-03) 5 ITELR 715; [2003] 3 All ER 76; [2003] 2 WLR 1442; [2003] Pens LR 145; [2003] WTLR 565
27 Mar 2003
PC
Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough, Lord Walker of Gestingthorpe
Commonwealth, Trusts, Equity
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary. Held: Times had moved on, and trust documents had taken more and more indirect ways of conferring benefits. The settlements were badly drafted, but that should not be used to excuse a court fulfilling its duties. The right to seek disclosure did not depend upon a fixed and transmissible beneficial interest. The object of a discretion may have similar rights, and the right was not dependant upon establishing a proprietary interest, but the remedy would be in equity and subject to the court's discretion. A beneficiary of a discretionary trust has a non-assignable and non-transmissible interest in the trust, and has no entitlement as of right to any trust documents or other information relating to the trust in the possession or control of the trustees.
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[ PC ] - [ Bailii ] - [ PC ]
 
Bhullar and others v Bhullar and Another [2003] EWCA Civ 424; [2003] 2 BCLC 241
31 Mar 2003
CA
Lord Justice Brooke Lord Justice Schiemann Lord Justice Jonathon Parker
Company, Equity
The claimants were 50% shareholders in a property investment company and sought relief alleging prejudicial conduct of the company's affairs. After a falling out, two directors purchased property adjacent to a company property but in their own company name. Held: The company had not been looking to acquire further property, and the purchase could not be described as a developing business opportunity in the standard sense. Where a fiduciary has exploited a commercial opportunity for his own benefit, the relevant question is not whether the party to whom the duty is owed had some kind of beneficial interest in the opportunity: that would be too formalistic and restrictive an approach. Rather, it is simply whether the fiduciary’s exploitation of the opportunity is such as to attract the application of the rule. Each case must be viewed on its own facts. In this case there was a conflict, and the director had acted in breach of his duty to the company. The directors were liable for profits resulting from the acquisition of a property neighbouring that of their company even though they had obtained this information not as directors but as passers-by: "the existence of the opportunity was information which it was relevant for the company to know, and it follows that [the directors] were under a duty to communicate it to the company."
Companies Act 1985 459
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[ Bailii ]
 
Rose v AIB Group (UK) plc and Another Times, 08 July 2003; Gazette, 31 July 2003
9 Jun 2003
ChD
Nicholas Warren QC
Equity, Insolvency
The bank had received and paid substantial sums from the company before the petition for insolvency had been presented, and had discharged the director's charge on his house. The liquidator sought restitution under the Act. The bank replied that it had acted already in such a way as to put its own position at risk, and that the claim in restitution should be denied. Held: The court was required to try to achieve equal payment pari passsu of the debts. The bank was entitled to an order validating payments it had made prior to presentation. For payments made subsequently, the defence of restitution might be available according to the facts of the case allowing for good and bad faith. Here the alleged change of position resulted form the bank's own act, not on any assessment of the validity of the credits.
Insolvency Act 1986 127
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Borkan General Trading Ltd v Monsoon Trading Ltd Times, 28 July 2003
8 Jul 2003
CA
Peter Gibson, Clarke LJJ, Dyson J
Equity, Contract
A contract for a tug expressly provided a benefit for a third party. He now sought to claim benefit under it. Held: If, in the absence of a trust in his favour a third party for whose benefit a contract had expressly been made, could not take that benefit, then a trust would be implied. In this case it had been correct to imply actual authority to contract on behalf of the claimant.
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Shalson v Russo Times, 03 September 2003; Gazette, 18 September 2003
11 Jul 2003
ChD
Rimer J
Equity, Contract
The claimant sought recovery of substantial sums he had advanced by way of loan, where the loan was induced by fraud. He sought to trace the funds into, inter alia, a motor yacht which it had been used to purchase. Held: The transaction was voidable, not immediately void. On discovery of the fraud, the claimant could put forward a proprietary claim to the money in order to trace them. The lender did not have the benefit of an immediate constructing trust of the money loaned before the contract was rescinded. It was the implied rescission of the loan contract which enabled the proprietary interest. In this case it was not appropriate to allow the claimant to consolidate an overdrawn current and a deposit account. Only those funds which put the account in credit could be taken into account.
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Century SA (UK) Ltd v Clibbery and Another [2003] EWCA Civ 1374
17 Jul 2003
CA

Estoppel, Equity
The major shareholder in the claimant company allowed the defendant and her mother to occupy a substantial house owned by the company. When possession was sought, the defendant argued that it had been promised to her that she could live there for as long as she wished. The defendant now asserted a proprietary estoppel, and appealed summary judgment against her. Held: The matter should go to full trial.
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[ Bailii ]
 
Deutsche Morgan Grenfell Group Plc v The Commissioners of Inland Revenue, HM Attorney General [2003] EWHC 1779 (Ch); Times, 30 July 2003; [2003] EWHC 1866 (Ch)
18 Jul 2003
ChD
The Hon Mr Justice Park
Corporation Tax, Equity, Equity
The taxpayer sought to bring an action for restitution by the revenue of sums paid under a mistake of law. Under the Metallgesellschaft decision, rights of election for recovery of overpaid tax applied only between UK resident companies. Held: The limitation period began only upon the decision which stated the law, and not upon the parties first presenting the arguments which were upheld. The payment had been made under a mistake of law, and was recoverable by way of restitution.
Limitation Act 1980 32(1)(c)
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[ Bailii ] - [ Bailii ]
 
Deutsche Morgan Grenfell Group Plc v The Commissioners of Inland Revenue, HM Attorney General [2003] EWHC 1779 (Ch); Times, 30 July 2003; [2003] EWHC 1866 (Ch)
18 Jul 2003
ChD
The Hon Mr Justice Park
Corporation Tax, Equity, Equity
The taxpayer sought to bring an action for restitution by the revenue of sums paid under a mistake of law. Under the Metallgesellschaft decision, rights of election for recovery of overpaid tax applied only between UK resident companies. Held: The limitation period began only upon the decision which stated the law, and not upon the parties first presenting the arguments which were upheld. The payment had been made under a mistake of law, and was recoverable by way of restitution.
Limitation Act 1980 32(1)(c)
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 DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3); CA 28-Jul-2003 - [2003] EWCA Civ 1048; Times, 09 September 2003; [2004] 1 BCLC 131
 
Mallusk Cold Storage Ltd v Department of Finance and Personnel [2003] NIQB 58; [2003] QBD (NI) 370
29 Aug 2003
QBNI
Coghlan J
Northern Ireland, Equity, Taxes Management
The first plaintiffs constructed premises which were rated as from 1 April 1987. Having taken advice, they appealed the rating assessment on the ground that the premises were industrial premises, and had a nil rateable value. The appeal was rejected, and the first plaintiffs accordingly paid the rates demanded. They then joined with other companies in the cold storage business and obtained an opinion from senior counsel, but after discussion decided that it was not commercially worthwhile to pursue the matter further. In a different case the Lands Tribunal for Northern Ireland held that such premises were indeed industrial premises for rating purposes. The rates paid by the first plaintiffs were refunded, but only as from the date of the decision. The second plaintiffs, who occupied cold storage premises, also received a refund of the rates which they had paid as from the date of the decision. The plaintiffs sought to recover the rates paid prior to that date, relying on Kleinwort Benson. The respondent department accepted that Kleinwort Benson had abrogated the mistake of law rule in cases involving what Lord Goff had described as 'private transactions', but contended that it had not abrogated the rule in cases involving repayment of taxes and other similar public charges. It further contended that Woolwich did not apply, since the demand for the rates was not ultra vires. Coghlan J: a claim for restitution of money paid under a mistake of law was available in respect of sums paid by way of taxes. However, both actions were statute-barred, on the ground that the limitation period started to run when the plaintiffs received senior counsel's opinion, since as from that date they were in a state of doubt as to the state of the law, rather than labouring under a mistake of law.
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[ Bailii ]
 
Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited [2003] EWCA Civ 1446; [2004] 1 All ER (Comm) 193; Gazette, 20 September 2003; [2004] QB 985
23 Oct 2003
CA
Lord Justice Clarke Lord Justice Sedley The President
Banking, Equity
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had been loaded, but they had not. Held: An inspector certifying the goods should know what was expected, and in this case it was to confirm that the goods had been laden. SGS was in breach of its duty to check that they were laden. The judge was correct to find that default causative of the loss. The judge was entitled to reach the conclusion which he did on deceit. The defence of change of position to a claim for restitution was not lost only where the defendant was dishonest or had otherwise behaved wrongfully. Where a recipient of money knew it was as a result of a mistake of factor of law it would be unconscionable not to order its return. The judge was entitled to find that the bank was not acting in good faith when it paid on the money it had received without further inquiry.
Civil Liability (Contribution) Act 1978
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[ Bailii ]
 
Warnborough Ltd v Garmite Ltd [2003] EWCA Civ1544
5 Nov 2003
CA
Lord Justice Simon Brown Lord Justice Judge Lord Justice Jonathon Parker
Land, Equity
Warnborough (W) sold real property to Garmite (G), leaving the purchase price outstanding but secured by a mortgage in favour of W. G also granted W an option to repurchase the property. The issue was whether the option to repurchase was "a clog on the equity of redemption". Held. The appeal was allowed with the result that the issue as to the character of the transaction had to be determined at a subsequent trial.
Jonathan Parker LJ referred to the need to assess the real nature and substance of the transaction. The Court had to look at the "substance" of the transaction and to enquire as to the true nature of the bargain which the parties had made. To do that, the Court examined all the circumstances, with the assistance of oral evidence if necessary. Where the alleged "clog" was entered into against the background of a sale of the property, by the grantee of the option as owner of the property to the grantor, for a price left outstanding on mortgage there must be "a very strong likelihood" that on an examination of all the circumstances the court would conclude that the substance of the transaction was one of sale and of purchase and not one of mortgage. The transaction undoubtedly involved a genuine and enforceable mortgage. The court's approach did not involve a finding that the mortgage was ineffective or had some other character but rather that the part of the transaction which involved a mortgage was not to be regarded as the dominant part of the transaction, which identified the character of the transaction. The transaction was a composite of its parts and although one part of the transaction involved a mortgage, the legal character of the composite transaction was a transaction of sale and purchase. The court rejected the argument that the sale was "incidental to the loan" as turning the transaction "on its head".
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[ Bailii ]

 
 Commerzbank Ag v Price-Jones; CA 21-Nov-2003 - Times, 26 November 2003; [2003] EWCA Civ 1663
 
Coulter v Chief Constable of Dorset Police Times, 24 December 2003; [2003] EWHC 3391; [2004] 1 WLR 1425
12 Dec 2003
ChD

Police, Insolvency, Equity
The claimant had failed in an action for damages against the respondent, and had failed to pay the costs award. The respondent issued a statutory demand. He claimed that it was invalid because the chief constable had changed in the interim, and there had been no assignment of the benefit of the order. Held: The office of chief constable was not a corporation, but an office. Some assignment was required. There was no statutory assignment, but there had been an equitable one. An equitable assignment need take no particular form: "All that is needed is a sufficient expression of an intention to assign". Equity would treat as done that which ought to have been done.
Insolvency Rules 1986 (1986 No 1925) 6.1
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Thames Cruises Limited v George Wheeler Launches Limited, Kingwood Launches Limited [2003] EWHC 3093 (Ch)
16 Dec 2003
ChD
The Honourable Mr Justice Peter Smith
Equity, Transport, Negligence, Company
The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the parties had agreed to secure jointly, and that the new licence was held in trust for all parties. Held: There was no partnership; each company operated separately. Even so, the defendants were in breach of the agreement they made to make a joint tender and it was not conscionable for them to have made a bid without reference to the Claimant and to retain the benefit of that bid without recompense to the Claimant.
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[ Bailii ]
 
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