Links: Home | swarblaw - law discussions

swarb.co.uk - law index


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.  














Trusts - From: 1985 To: 1989

This page lists 29 cases, and was prepared on 02 April 2018.

 
Re Thompson's Settlement [1986] Ch 99; [1985] 2 All ER 721
1985

Vinelott J
Trusts
Company shares were held in trust for the grandchildren of the settlor whose two sons were the trustees who effectively ran the company. The plaintiffs proposed the transfer of trust property to the company. The beneficiaries said that such a transaction was voidable at their instance since it breached the rule against self dealing. Held: The rule was to be strictly applied where the trustees' concurrence was required in a transaction in which he had an interest. Without an express authorisation in the trust instrument, such a transacion could not stand against the challenge of a beneficiary.
1 Citers



 
 Carver v Duncan; HL 1985 - [1985] 1 AC 1082
 
Midland Bank Plc v Dobson [1986] 1 FLR 171
12 Jul 1985
CA

Land, Trusts
The trial judge had been entitled to find a common intention constructive trust from evidence which he accepted that the parties treated the house as "our house" and had a "principle of sharing everything". Although the judge should approach such direct evidence with caution, if he does accept such evidence the necessary common intention is proved.
1 Citers


 
Goodman v Gallant [1986] Fam 106; [1985] EWCA Civ 15; [1986] 1 FLR 513; [1986] 2 WLR 236
30 Oct 1985
CA
Slade, Purchase LJJ, Sir Roualeyn Cumming-Bruce
Trusts, Land
The court reviewed the conflicting authorities with regard to the creation of trusts and held that the overwhelming preponderance of authority was that, in the absence of any claim for rectification or rescission, provisions in a conveyance declaring that the plaintiff and the defendant were to hold the proceeds of sale of the property "upon trust for themselves as joint tenants" concludes the question of the respective beneficial interests of the two parties in so far as that declaration of trust, on its true construction, exhaustively declares the beneficial interests. Severance of a beneficial joint tenancy results in a beneficial tenancy in common in equal shares.
Lord Justice Slade said: "In a case where the legal estate in property is conveyed to two or more persons as joint tenants, but neither the conveyance nor any other written document contains any express declaration of trust concerning the beneficial interests in the property (as would be required for an express declaration of this nature by virtue of s 53(1)(b) of the Law of Property Act 1925), the way is open for persons claiming a beneficial interest in it or its proceeds of sale to rely on the doctrine of 'resulting, implied or constructive trusts' (see s 53(2) of the Law of Property Act 1925). In particular, in a case such as that, a person who claims to have contributed to the purchase price of the property which stands in the name of himself and another can rely on the well-known presumption of equity that a person who has contributed a share of the purchase price of property is entitled to a corresponding proportionate beneficial interest in the property by way of implied or resulting trust (see, for example, Pettitt v Pettitt [1970] AC 777 at 813-814, per Lord Upjohn). . . ."
Trustee Act 1925
1 Cites

1 Citers

[ Bailii ]

 
 Marsh v von Sternberg; QBD 1986 - [1986] 1 FLR 526
 
Burnley etc Textile Union v ATWU [1986] 1 All ER 885
1986


Trusts

1 Citers



 
 Malayan Credit Ltd v Jack Chia-MPH Ltd; PC 1986 - [1986] 1 AC 549

 
 Regina v District Auditor No 3 Audit District of West Yorkshire Metropolitan County Council ex parte West Yorkshire Metropolitan County Council; 1986 - [1986] RVR 24
 
Willis and Son v Willis [1986] 1 EGLR 62
1986
CA
Parker LJ, Sir John Donaldson MR
Estoppel, Trusts
The appellants had resisted giving a flat, claiming a promissory estoppel based on the respondents having more than once said that the appellants could live in the premises rent free for as long as they needed. The appellants said that some £1339.90 had been spent relying upon that promise. The appellants produced a letter given to their solicitor to support the particulars. The writer said he had carried out the works. He no longer had details, but could confirm the details from his ledgers. The letter was found to be a complete fiction. He had done no work, had no ledgers and had not been paid. Both appellants knew that it was wholly false. Held: If the falsity of the Robins' letter had not been discovered it would have been relied upon throughout the proceedings. "I find it difficult to see how there could be any more serious conduct than that. When a party comes to the Court and seeks to obtain from it equitable relief, it is accepted, as I have said, that he must come with clean hands. I accept also, as was submitted on behalf of the appellants, that not every item of misconduct can possibly be sufficient to deprive a party who seeks equity from being granted the relief he seeks. Some misconduct may be trivial. But when a party acts as these parties have done – and Joanna Willis must be regarded as having been concerned in this, albeit indirectly, in as much as the document was put forward on behalf of both the appellants – it seems to be impossible for this Court to do other than to take the most serious view of it and to decline to grant equitable relief even if, to which I say nothing because it does not arise on the view I take of this case, they would otherwise have been so entitled." (Sir John Donaldson MR) "The conduct of the appellants which has been disclosed in this case was such that no Court could, in my judgment, possibly grant equitable relief." and "When a person seeks the aid of the Court to obtain the Court's assistance, via the principles of equity, to override somebody's strict legal rights, it is clearly a case for the application of the maxim, as indeed is accepted by the appellants, "that he who comes to equity must come with clean hands"."
1 Citers


 
Harman v Glencross [1986] Fam 81; [1986] 2 FLR 241
1986

Balcombe LJ
Family, Trusts
On the divorce, the wife applied for a property transfer order in relation to the jointly owned matrimonial home. A creditor of her husband then obtained a charging order on H's interest. She sought its varation. The creditor said that there was little point in this since any transfer in her favour would be void against the husband's trustee in bankruptcy under section 42. Held: The decision in In Re Holliday was very much against the run of recent authorities. Balcombe LJ rejected the creitor's suggestion saying: "the wife gave up her claim for periodical payments, and it seems to me that this constituted valuable consideration on her part which would preclude a trustee in bankruptcy of the husband from maintaining that the transfer of property order was void as against him – see Re Abbott [1983] Ch 45."
Bankruptcy Act 1914 42
1 Cites

1 Citers


 
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



 
 Jeeves v Imperial Foods Ltd, Pension Scheme; ChD 27-Jan-1986 - Unreported, 27 January 1986
 
Grant v Edwards and Edwards [1986] 1 Ch 638; [1986] 2 All ER 426; [1986] 3 WLR 114; [1986] EWCA Civ 4; [1986] Fam Law 300; [1987] 1 FLR 87
24 Mar 1986
CA
Nourse LJ, Sir Nicolas Browne-Wilkinson V-C, Mustill LJ
Trusts, Family
A couple were not married but lived together in a house in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names was because she was involved in divorce proceedings and that, if the property were acquired jointly, this might operate to her prejudice in those proceedings. The title was in the defendants’ names with no express evidence of agreement her to have a beneficial interest. She had to establish a common intention acted upon by her, that she should have a beneficial interest. Equity would then not allow the defendant to deny that interest and would construct a trust to give effect to it. Two matters were need for a constructive trust. A common intention that each should have a beneficial interest. Without express words intention can be inferred from circumstances. The claimant has acted to his detriment on the basis of that common intention, with a sufficient link between the common intention and the conduct relied upon. This requires there to have been conduct on which the claimant could not reasonably have been expected to embark unless he was to have an interest in the property. (Browne-Wilkinson): "I suggest that in other cases of this kind, useful guidance may in the future be obtained from the principles underlying the law of proprietary estoppel which in my judgment are closely akin to those laid down in Gissing v Gissing [1971] A.C. 886. In both, the claimant must to the knowledge of the legal owner have acted in the belief that the claimant has or will obtain an interest in the property. In both, the claimant must have acted to his or her detriment in reliance on such belief. In both, equity acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention. The two principles have been developed separately without cross-fertilisation between them: but they rest on the same foundation and have on all other matters reached the same conclusions."
Mustill LJ said: "(1) The law does not recognise a concept of family property, whereby people who live together in a settled relationship ipso facto share the rights of ownership in the assets acquired and used for the purposes of their life together. Nor does the law acknowledge that by the mere fact of doing work on the asset of one party to the relationship the other party will acquire a beneficial interest in that asset.
(2) The question whether one party to the relationship acquires rights to property the legal title to which is vested in the other party must be answered in terms of the existing law of trusts. There are no special doctrines of equity, applicable in this field alone.
(3) In a case such as the present the inquiry must proceed in two stages. First, by considering whether something happened between the parties in the nature of bargain, promise or tacit common intention, at the time of the acquisition. Second, if the answer is "Yes," by asking whether the claimant subsequently conducted herself in a manner which was (a) detrimental to herself, and (b) referable to whatever happened on acquisition. (I use the expression "on acquisition" for simplicity. In fact, the event happening between the parties which, if followed by the relevant type of conduct on the part of the claimant, can lead to the creation of an interest in the claimant, may itself occur after acquisition. The beneficial interests may change in the course of the relationship.)
(4) For present purposes, the event happening on acquisition may take one of the following shapes. (a) An express bargain whereby the proprietor promises the claimant an interest in the property, in return for an explicit undertaking by the claimant to act in a certain way. (b) An express but incomplete bargain whereby the proprietor promises the claimant an interest in the property, on the basis that the claimant will do something in return. The parties do not themselves make explicit what the claimant is to do. The court therefore has to complete the bargain for them by means of implication, when it comes to decide whether the proprietor's promise has been matched by conduct falling within whatever undertaking the claimant must be taken to have given sub silentio. (c) An explicit promise by the proprietor that the claimant will have an interest in the property, unaccompanied by any express or tacit agreement as to a quid pro quo. (d) A common intention, not made explicit, to the effect that the claimant will have an interest in the property, if she subsequently acts in a particular way.
(5) In order to decide whether the subsequent conduct of the claimant serves to complete the beneficial interest which has been explicitly or tacitly promised to her the court must decide whether the conduct is referable to the bargain, promise or intention. Whether the conduct satisfies this test will depend upon the nature of the conduct, and of the bargain, promise or intention.
(6) Thus, if the situation falls into category (a) above, the only question is whether the claimant's conduct is of the type explicitly promised. It is immaterial whether it takes the shape of a contribution to the cost of acquiring the property, or is of a quite different character."
Mustill LJ continued: "(7) The position is the same in relation to situations (b) and (d). No doubt it will often be easier in practice to infer that the quid pro quo was intended to take the shape of a financial or other contribution to the cost of acquisition or of improvement, but this need not always be so. Whatever the court decides the quid pro quo to have been, it will suffice if the claimant has furnished it.
(8) In considering whether there was a bargain or common intention, so as to bring the case within categories (b) and (d) and, if there was one, what were its terms, the court must look at the true state of affairs on acquisition. It must not impute to the parties a bargain which they never made, or a common intention which they never possessed.
(9) The conduct of the parties, and in particular of the claimant, after the acquisition may provide material from which the court can infer the existence of an explicit bargain, or a common intention, and also the terms of such a bargain or intention. Examining the subsequent conduct of the parties to see whether an inference can be made as to a bargain or intention is quite different from examining the conduct of the claimant to see whether it amounts to compliance with a bargain or intention which has been proved in some other way. (If this distinction is not observed, there is a risk of circularity. If the claimant's conduct is too readily assumed to be explicable only by the existence of a bargain, she will always be able to say that her side of the bargain has been performed.)"
1 Cites

1 Citers

[ Bailii ]

 
 Hayim v Citibank NA; PC 1987 - [1987] 1 AC 730; [1987] 3 WLR 83

 
 Martin v Martin; 1987 - [1987] P & CR 238
 
In re Courage Group's Pension Schemes Ryan v Imperial Brewing and Leisure Ltd [1987] 1 WLR 495; [1987] 1 All ER 538
1987
ChD
Millett J
Financial Services, Trusts
It was possible to amend the provisions of a pension scheme provided the amendments did not conflict with the purposes of the scheme. How was a court to identify such purposes: "It is trite law that a power can be exercised only for the purpose for which it is conferred, and not for any extraneous or ulterior purpose. The rule-amending power is given for the purpose of promoting the purposes of the scheme, not altering them. Before I consider this question, I should make some general observations on the approach which I conceive ought to be adopted by the court to the construction of the trust deed and rules of a pension scheme. First, there are no special rules of construction applicable to a pension scheme; nevertheless, its provisions should wherever possible be construed to give reasonable and practical effect to the scheme, bearing in mind that it has to be operated against a constantly changing commercial background. It is important to avoid unduly fettering the power to amend the provisions of the scheme, thereby preventing the parties from making those changes which may be required by the exigencies of commercial life. This is particularly the case where the scheme is intended to be for the benefit not of the employees of a single company, but of a group of companies. The composition of the group may constantly change as companies are disposed of and new companies are acquired; and such changes need to be reflected by modifications to the scheme. Secondly, in the case of an institution of long duration and gradually changing membership like a club or pension scheme, each alteration in the rules must be tested by reference to the situation at the time of the proposed alteration, and not by reference to the original rules at its inception. By changes made gradually over a long period, alterations may be made which would not be acceptable if introduced all at once. Even the main purpose may be changed by degrees." and "So the main purpose of a club or pension scheme may be enlarged by appropriate amendments to the rules; and once it becomes too late to challenge the amendments, the enlarged purposes become the new basis by reference to which any further proposed changes must be considered."
1 Cites

1 Citers


 
Ahmed v Kendrick (1987) 56 P&CR 120
1987


Trusts, Torts - Other
The effect of the passing of a beneficial interest by a fraudster owner of that interest to a third party is to sever the beneficial joint tenancy.
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


 
Turton v Turton [1988] Ch 542
1988
CA
Lord Justice Nourse
Trusts, Family
When ascertaining the beneficial interests in a family home purchased by an unmarried couple, those interests had to be ascertained from consideration of the intentions of the parties at the time of the purchase; they were not to be left for determination in the light of subsequent events. Referring to Walker v Hall, Nourse LJ: "It is thus made clear that Dillon and Lawton LJJ were of the opinion that a beneficial interest acquired under an application of the principles stated in Gissing v Gissing can only be an absolute and indefeasible interest. It cannot be one which is liable to determine or to be defeated or diminished – either automatically or by the exercise of some discretion – on the happening of some future event, for example the separation of an unmarried couple who were living together at the time of its acquisition. The validity of that proposition is in my judgment beyond doubt. It must always be remembered that the basis on which the court proceeds is a common intention, usually to be inferred from the conduct of the parties, that the claimant is to have a beneficial interest in the house. In the common case where the intention can be inferred only from the respective contributions, either initial or under a mortgage, to the cost of its acquisition it is held that the house belongs to the parties beneficially in proportions corresponding to those contributions. . . ." Lord Justice Kerr: ". . . once the court had found the existence of a constructive or implied trust whereby the beneficial rights to the property belonged to the parties in whatever shares the court determined, then the necessary consequence was the recognition by the court of rights which are proprietary in their nature and which lie wholly outside the exercise of any discretionary powers. That was made clear, inter alia, in Gissing v Gissing [1971] AC 886."
1 Cites

1 Citers


 
Passee v Passee [1988] 1 FLR 263
1988


Trusts, Family

1 Citers


 
Midland Bank plc v Pike [1988] 2 All ER 434
1988


Trusts, Insolvency

1 Citers


 
Nestle v National Westminster Bank [2000] WTLR 795; (1988) 10 Tru LI 112
1988
ChD
Hoffmann J
Trusts
The plaintiff was the remainder beneficiary under the will trust of her grandfather, who died in 1922. The trust fund was then worth about £50,000. The last outstanding life interest under the trust was that of her father John, who died in 1986. Thereafter she was absolutely entitled to the trust fund, by that time worth some £269, 203. The plaintiff complained that, after adjusting the 1922 value for changes in the retail prices index to date, it should have been worth about £1 million. She further said that, if adjusted for increases in the ordinary shares index on the stock market, that part of the fund which her grandfather had invested in ordinary shares would have been worth over £1.8 million. She attributed the fact that it was not worth so much to breach of trust on the part of the bank trustee in both misinterpreting the trust investment clause and investing badly. Held: Hoffmann J said: "There was a claim by Miss Nestle for income accounts for the funds since their inception. For the period during which any income might have accrued to capital, namely until John Nestle turned 25 in 1938, those accounts were delivered a long time ago. In respect of the period since that date she has as a capital beneficiary no interest in the disposal of the income and is not in my judgment entitled to accounts."
1 Citers


 
Lloyds Bank plc v Rosset [1988] EWCA Civ 11; [1989] Ch 350
13 May 1988
CA
Purchas LJ, Mustill LJ, Nicholls LJ
Trusts, Land

1 Citers

[ Bailii ]
 
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."
1 Citers

[ Bailii ]
 
Orr v Ford (1989) 167 CLC 316
1989

Deane J
Commonwealth, Trusts
Ordinarily the laches of a beneficiary would not make it inequitable or unreasonable to grant relief in proceedings for the enforcement of an express trust in relation to property in the possession of the trustee.
1 Citers


 
Regina v Inner London Education Authority ex parte Brunyate [1989] 1 WLR 542
1989
HL

Trusts
A trustee with an unlimited power of appointment has an unfettered discretion in his use of the power, but the trustee once appointed owes no duty to the appointor, and must act independently as a trustee.
1 Citers


 
Martin v City of Edinburgh District Council [1989] PLR 10
1989


Trusts
The pursuer, a Conservative member of the defender Council, challenged a policy introduced at the behest of the majority Labour section to disinvest Council assets from South Africa because of their repugnance at apartheid policies. Held: The councillors had failed in their fiduciary duty because they had not undergone due process and taken proper advice. However, the policy might have been lawfully implemented if they were following professional advice. He judge said: "I cannot conceive that trustees have an unqualified duty . . simply to invest trust funds in the most profitable investment available. To accept that without qualification would, in my view, involve substituting the discretion of financial advisers for the discretion of trustees."

 
Sekhon v Alissa [1989] 2 FLR 94
1989

Hoffmann J
Trusts
A house had been conveyed into the daughter's name despite her mother's contribution to the purchase price. Held: In the absence of evidence that the mother's contribution had been by way of gift or a personal loan, the arrangement created a presumption of a resulting trust.

 
Browne v Browne [1989] 1 FLR 291
1989
CA
Butler-Sloss LJ
Family, Trusts
The court considered under what circumstances money held in trust for a party could be included within assets to be considered in an application for ancillary relief in family proceedings. Held: The question is more appropriately expressed as whether the spouse has "immediate access to the funds" of the trust than "effective control" over it.
1 Citers


 
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.