Goss and others v Laurence George Chilcott As Liquidator of Central Acceptance Limited (In Liquidation): PC 23 May 1996

(New Zealand) Mr and Mrs Goss, had been granted a loan by the claimant finance company under a mortgage instrument that had been avoided by the claimant because it had been fraudulently altered by Mr Haddon, an employee of the claimant, without the claimant’s authority. Mr Haddon was the brother of Mrs Goss. The advance from the claimant having been made available to Mr and Mrs Goss, it was as agreed between them and Mr Haddon in fact received by Mr Haddon. Mr and Mrs Goss took no security from Mr Haddon. Mr Haddon was unable to repay the advance. Mr and Mrs Goss argued that their inability to recover the money from Mr Haddon constituted a defence of change of position to the claimant’s action for restitution of the money paid for a consideration that had totally failed.
Held: The loan remained repayable despite the unenforceability of the mortgage instrument under which it was secured. The defence failed because Mr and Mrs Goss knew that the money lent would have to be repaid to the claimant and, in paying it to Mr Haddon, they had taken the risk that the loss would fall on them.
Lord Goff said: ‘From the beginning, the Defendants were under an obligation to repay the advance once it had been paid to them or to their order; and this obligation was of course unaffected by the fact that they had allowed the money to be paid over to Mr Haddon. The effect of the alteration of the mortgage instrument was that their contractual obligation to repay the money was discharged; but they had nevertheless been enriched by the receipt of the money, and prima facie were liable in restitution to restore it. They had however allowed the money to be paid over to Mr Haddon in circumstances in which, as they well knew, the money would nevertheless have to be repaid to the company. They had, therefore, in allowing the money to be paid to Mr Haddon, deliberately taken the risk that he would be unable to repay the money, in which event they themselves would have to repay it without recourse to him. Since any action by them against Mr Haddon would now be fruitless they are seeking, by invoking the defence of change of position, to shift that loss onto the company. This, in their Lordships’ opinion, they cannot do. The fact that they cannot now obtain reimbursement from Mr Haddon does not, in the circumstances of the present case, render it inequitable for them to be required to make restitution to the company in respect of the enrichment which they have received at the company’s expense.’

Judges:

Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Steyn, Lord Hoffmann, Lord Cooke of Thorndon

Citations:

Gazette 12-Jun-1996, Times 06-Jun-1996, [1996] UKPC 17, [1996] AC 788

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedDavidson, Public Officer, &Amp;C v Cooper And Another 6-Jul-1844
. .
CitedFibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd HL 15-Jun-1942
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated . .
CitedDavid Securities Pty Ltd v Commonwealth Bank of Australia 7-Oct-1992
(High Court of Australia ) Restitution – Money paid under mistake – Mistake of law – Right to recover – Unjust enrichment – Defences – Change of position. . .

Cited by:

CitedKommune and Another v DEPFA Acs Bank ComC 4-Sep-2009
Local authorities in Denmark sought to recover sums paid to the defendant banks for swap trading, saying that the payments had been outwith their powers. . .
Lists of cited by and citing cases may be incomplete.

Banking, Commonwealth, Equity

Updated: 19 May 2022; Ref: scu.80939

Eagle Trust Plc v SBC Securities Ltd; Same v Sbci Bank Corporation Investment Banking Ltd: ChD 28 Sep 1994

A financial adviser was not liable in negligence for the allegedly negligent selection of sub-underwriters. On the issue of knowing receipt in a claim for restitution, ‘What the decision in Belmont (No 2) . . shows most clearly is that in a ‘knowing receipt’ case it is only necessary to show that the defendant knew that the monies paid to him were trust monies and of circumstances which made the payment a misapplication of them. Unlike a ‘knowing assistance’ case it is not necessary, and never had been necessary, to show that the defendant was in any sense a participator in the fraud.’

Judges:

Vinelott J

Citations:

Independent 28-Sep-1994, [1993] 1 WLR 484

Citing:

CitedBelmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .

Cited by:

ApprovedBank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
CitedCriterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
CitedCriterion Properties Plc v Stratford UK Properties Llc and others ChD 27-Mar-2002
Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Equity

Updated: 19 May 2022; Ref: scu.80209

Don King Productions Inc v Warren and Others: ChD 13 Apr 1998

Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence of an obligation binding the conscience of the person vested with the legal ownership is the hallmark of a trust.’ and ‘in principle I can see no objection to a party to contracts involving skill and confidence or containing non-assignment provisions from becoming trustee of the benefit of being the contracting party as well as the benefit of the rights conferred. I can see no reason why the law should limit the parties’ freedom of contract to creating trusts of the fruits of such contracts received by the assignor or to creating an accounting relationship between the parties in respect of the fruits.’

Judges:

Lightman J

Citations:

Times 13-Apr-1998, Gazette 13-May-1998, [2000] Ch 291, [1998] 2 All ER 608

Citing:

See AlsoDon King Productions Inc v Warren King and Another (No 2) ChD 18-Jun-1998
An application for a Mareva injunction made ex parte was exceptionally justified when a partner failed to explain unaccounted for receipts after a full opportunity had been given, and there was no logical or innocent basis for the concealment of . .
CitedVandepitte v Preferred Accident Insurance Corp. of New York PC 1933
The plaintiff was injured in a motor accident. He failed in a direct claim against the insurers of the negligent defendant driver. The insurance was effected by the father (Mr Berry) of the negligent driver and provided that an indemnity would be . .
CitedTarget Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .

Cited by:

See AlsoDon King Productions Inc v Warren King and Another (No 2) ChD 18-Jun-1998
An application for a Mareva injunction made ex parte was exceptionally justified when a partner failed to explain unaccounted for receipts after a full opportunity had been given, and there was no logical or innocent basis for the concealment of . .
Appeal fromDon King Productions Inc v Warren; Roberts; Centurion Promotions Limited (Formerly Sports Network Limited); Sports Network Usa, Inc; Time Warner Entertainment Company, Lp and Sport International, Inc CA 19-Nov-1998
Contracts between the members of a firm and third parties, and which were subject to the partnership contract, but which were expressed to be personal and incapable of assignment, were still held on trust for the partnership, and renewals made . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedBarbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 19 May 2022; Ref: scu.80091

Corporacion Nacional Del Cobre: ChD 13 Dec 1996

No defence of contributory negligence was to be allowed against a claim involving an allegation of corruption by means of bribery. The defendants had bribed one of the plaintiff’s employees. The plaintiff claimed restitution, and an account from the defendants as constructive trustees for profits. The defendants wanted to assert that there was an equivalent to contributory negligence within the law of equity. There was no proper reason for distinguishing deceit by bribery from other forms of deceit. There had to be something to have put the plaintiff on notice of the deceit, and that was absent here.

Citations:

Gazette 13-Dec-1996

Damages, Equity

Updated: 19 May 2022; Ref: scu.79515

Brinks Ltd v AbuSaleh and Others (No 3): ChD 23 Oct 1995

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.

Judges:

Rimer J

Citations:

Times 23-Oct-1995, [1996] CLC 133

Citing:

See AlsoBrinks Ltd and Another v AbuSaleh and Others ChD 6-Mar-1995
A delay in issuing Order 14 proceedings is not in itself relevant. . .

Cited by:

Not approvedBarlow Clowes International Ltd and Another v Eurotrust International Ltd and others PC 10-Oct-2005
(Court of Appeal of the Isle of Man) Defendants appealed a finding of dishonest assistance in the activities of Barlow Clowes.
Held: The judge had been able to reach the conclusions on the basis of the evidence. The appeal of the deemster . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 18 May 2022; Ref: scu.78584

Official Trustee in Bankruptcy v Citibank Savings Ltd: 1995

(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.’

Judges:

Bryson J

Citations:

[1999] BPIR 754, (1995) 38 NSWLR 116

Cited by:

CitedDay v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity

Updated: 18 May 2022; Ref: scu.567255

Re Woodstock (a bankrupt): ChD 19 Nov 1979

Walton J drew attention in his judgment to the need for the courts, in considering how the equity of exoneration should work as between a husband and a wife, to take into account the relationship which husbands and wives bear, or ought to bear, to one another in their family affairs in current times. The guide that Victorian cases can provide to the inferences which should be drawn from the dealings with one another of husbands and wives today is often not very valuable.
As to the case of Hall v Hall: ‘I do not think I have to go into the interesting question whether that case is now good law in view of completely changed social conditions. It appears to me that that case was decided in the days when the wife did nothing except sit at home and run the household and boss the servants about, and the husband was expected to be, and indeed was, the provider. Times have now changed, and I am very far from that if that case were to be heard on precisely the same facts tomorrow, the decision would necessarily be the same.’ ‘

Judges:

Walton J

Citations:

Unrported,19 November 1979

Citing:

CitedHall v Hall ChD 1911
An equity of exoneration in favour of a wife arises ‘at the time she charges her estate’. The doctrine of exoneration is based on an inference in each case from all the facts of that particular case. Where one co-habitee joins in granting a charge . .

Cited by:

CitedIn Re Pittortou (a bankrupt) ChD 1985
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 . .
CitedDay v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 18 May 2022; Ref: scu.567253

In Re Wallis and Simmonds (Builders) Ltd: ChD 1974

The deposit of title documents, without more, gives rise to an inference that the deposit was intended by the parties to operate as creating an equitable charge or mortgage over the property whose title document is deposited. In logic there could be no distinction between deposits to secure a first and third party indebtedness.
Templeman J said: ‘But in my judgment this is a contractual lien – it is said to be a contractual lien – and that makes all the difference. It is also a contractual charge; true it is that the charge arises by presumption, but it does not arise by operation of law. What the court does is to say: `We shall not compel the parties to write down in so many words what the effect of the deposit of title deeds is; we shall simply assume that when they contract, and although they probably do not know the consequences, the person who takes the title deeds contracts not only to retain them but also to have an equitable charge on the land.’ The presumption reads into the contract the charge which is implied. If that is right, the charge was created by the company and is therefore registrable under s95.’

Judges:

Templeman J

Citations:

[1974] 1 WLR 391, [1974] 1 All ER 561, [1974] AC 467

Cited by:

CitedUnited Bank of Kuwait Plc v Sahib and Others CA 2-Feb-1996
The bank appealed against a decision that the simple deposit of deeds with a bank did not take effect as an equitable charge.
Held: Depositing deeds with a bank is not sufficient to create a charge over them. The old law as to the creation of . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 18 May 2022; Ref: scu.434815

Craythorne v Swinburne: 1789

Citations:

[1789] EngR 449, (1789-1817) 2 Ves Jun Supp 363, (1789) 34 ER 1133 (E)

Links:

Commonlii

Cited by:

See AlsoCraythorne v Swinburne 23-Jul-1807
No contribution in favour of one Surety against another : his engagement, according to the bond, and parol evidence, which was held admissible, being, not as Co-surety, but, without the privity of the other, as a distinct collatteral secnrity, . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 18 May 2022; Ref: scu.366080

Pryor v Pryor: CA 29 Apr 1864

Parents having a power of appointing an estate to all or any of their children appointed it absolutely to two of their sons, upon the understanding that the appointments should resettle the estate upon certain trusts for the benefit of all the children then living during their respective lives, and subject thereto for the benefit of the children of the sons. This resettlement was made by a contemporaneous deed. Held, that the transaction could not be supported by analogy to the common case of an appointment to a daughter in contemplation of her marriage, accompanied by a contemporaneous settlement of the appointed fund, but that the appointment was void in equity, as made upon a bargain for the benefit of persons not objects of the power,

Judges:

Knight Bruce LJ

Citations:

[1864] EngR 412, (1864) 3 De G J and S 205, (1864) 46 ER 353

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedEclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 18 May 2022; Ref: scu.282126

Lupton v White: 19 Dec 1808

Whatever alteration of form any property may undergo, the true owner is entitled to seize it in its new shape if he can prove the identity of the original material.

Citations:

(1808) 15 Ves 442, [1808] EngR 429, (1808) 15 Ves Jun 432, (1808) 33 ER 817

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedFoskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
CitedIndian Oil Corporation v Greenstone Shipping SA 1988
A ship had on board some oil of the shipowners and it was mixed with oil, the property of the receivers, and transported to India. The mixture could not be separated for practical purposes and the question was how much of the oil were the receivers . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 16 May 2022; Ref: scu.220693

Plowright v Lambert: 1885

The courts of equity have recognised that a fiduciary relationship can exist ‘in almost every shape’.

Judges:

Field J

Citations:

(1885) 52 LT 646

Cited by:

CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 16 May 2022; Ref: scu.216364

Classic International Pty Ltd v Lagos: 2002

(New South Wales Supreme Court) ‘I am satisfied that both parties believed that the agreement for lease would validly take effect according to its terms and that had they known of the substantial variation which the Retail Leases Act 1994 would impose upon the agreement, they would not have entered into it’ and ’42. I do not need to consider the vexed question of whether the mistake in the present case is one of fact or one of law. As to whether, in the law of Australia, the doctrine of common ‘mistake applies to’ a mistake of law, I need do no more that set out the following passage from Cheshire and Fifoot’s Law of Contract 8th Aust Ed., para 12.8: ‘Operative mistake traditionally has been confined to mistakes of fact and not of law. This distinction has always been blurred and has been notoriously difficult to apply. It appears that equity did not draw a clear line between mistakes of fact and law. If there was such a rule, it was often honoured in the breach. In Western Australia the law/fact distinction has been abolished by legislation (with certain safeguards). The whole question has now almost certainly been laid to rest by the decision of the High Court in David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353. In that case the distinction between mistake of law and mistake of fact was rejected in the light of a very considerable body of judicial and academic criticism of the distinction. . . . the rule precluding recovery of moneys paid under a mistake of law should be held not to form part of the law in Australia.’

Judges:

Palmer J

Citations:

[2002] NSWSC 115

Jurisdiction:

England and Wales

Cited by:

CitedMargaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity, Contract

Updated: 16 May 2022; Ref: scu.187292

Pankhania v The London Borough of Hackney: ChD 2002

A brochure listing properties to be sold at auction decribed the property as being subject to a terminable licence. In fact it was a secure tenancy. The question arose as to whether a misrepresentation of law could found a cause of action.
Held: ‘I have concluded that the ‘misrepresentation of law’ rule has not survived the decision in Klienwort Benson Ltd. Its historical origin is as an off-shoot of the ‘mistake of law’ rule, created by analogy with it, and the two are logically inter-dependent. Both are grounded in the maxim ‘ignorantia juris non excusat’, a tag whose dubious utility would have been enhanced, had it gone on to explain who was not excused and from what. As it stands, it means no more than that ignorance of the general law does not excuse anyone from compliance with it, a proposition with which criminal lawyers are familiar. In translation, it has become distorted and amplified meaning, in such expressions as ‘everyone’ is taken to know the Law’, from which follow two further propositions (underpinning the ‘mistake of law’ and ‘misrepresentation of law’ rules respectively) (i) ‘ as you are taken to know the law, it is your fault if you are mistaken as to it, even if I have misrepresented it to you, and because of that you should have no relief’. Those two propositions bear little relation to, and do not follow logically from, the maxim ‘ignorantia juris non excusat’, but save for its Latin roots, no basis for the ‘misrepresentation of law’ rule is to be found, as Lane L.J. remarked in Andre. The distinction between fact and law in the context of relief from misrepresentation has no more underlying principle to it than it does in the context of relief from mistake. Indeed, when the principles of mistake and misrepresentation are set side by side, there is a stronger case for granting relief against a party who has induced a mistaken belief as to law in another, than against one who has merely made the same mistake himself. The rules of the common law should, so far as possible, be congruent with one another, and based on coherent principle. The survival of the ‘misrepresentation of law’ rule following the demise of the ‘mistake of law’ rule would be more than a quixotic anachronism. Its demise rids this area of the law of a series of distinctions, such as the ‘private rights’ exception, whose principal function has been to distinguish the ‘mistake of law’ rule, and confine it to a very narrow compass, albeit not to extinguish it completely.’

Judges:

Rex Tedd QC

Citations:

[2002] EWHC 2441 (Ch)

Jurisdiction:

England and Wales

Citing:

AppliedKleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
CitedStreet v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .

Cited by:

CitedMargaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
CitedBrennan v Bolt Burdon and Others, London Borough of Islington, Leigh Day and Co CA 29-Jul-2004
The claimant sought damages for injury alleged to have been suffered as tenant of a house after being subjected to carbon monoxide poisoning, and also from her former solicitors for their delay in her claim. The effective question was whether the . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 16 May 2022; Ref: scu.187291

Nant-y-glo and Blaina Ironworks Co v Grave: 1878

Shares in a company had been given by a promoter to the defendant to induce him to become a director.
Held: They belonged to the company.

Judges:

Sir James Bacon V-C

Citations:

(1878) 12 Ch D 738

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Lists of cited by and citing cases may be incomplete.

Company, Equity

Updated: 16 May 2022; Ref: scu.551506

Equity and Law Home Loans Ltd v Prestridge and Another: CA 15 Jan 1992

The Building Society chargee was entitled to possession because the charge was signed, but only to extent of the knowledge of the person signing charge. A woman partner had charged the house originally, but her partner had then unlawfully re-mortgaged it without her knowledge. Her interests did not have precedence up to the value of the original loan.

Citations:

Gazette 15-Jan-1992

Equity

Updated: 15 May 2022; Ref: scu.80359

Collins v Jones and Others: ChD 3 Feb 2000

A unilateral document could not be rectified to make it into something which it was not intended to be at the time it was executed, even if the alteration would give better effect to the general intention of the parties. The choice of different means to achieve the same object was not to be allowed by rectification.

Citations:

Times 03-Feb-2000

Equity

Updated: 15 May 2022; Ref: scu.79281

Lord Cranstown v Johnston: 1796

Lord Cranstown was the absentee owner of a valuable estate in a Caribbean island, but he owed the defendant Johnston a modest amount of money. Johnston sued for the money to be brought in the local court, whose laws permitted a form of substituted service. He nailed the writ on a post and on the courthouse door. Thus, as Johnston had intended all along, Lord Cranstown received no actual notice of the proceedings. Judgment was given by default, the estate was put up for auction to satisfy the judgment, and Johnston, who was the only bidder, acquired the property for the amount of the debt, which was far less than the value of the estate. From beginning to end Johnston uttered no false representation to anyone, nor did he violate any law of the island, nor did he owe any contractual obligation to Lord Cranstown; but he did know that he was going behind Lord Cranstown’s back in getting the estate for a pittance. Lord Cranstown brought suit in England to recover the estate.
Held: Although he would not question the jurisdiction of the foreign court, or the regularity of its proceedings, and although he would not presume that the local laws would set aside the transaction, it was a fraud all the same according to English rules of equity, and that the defendant Johnston must restore the estate upon being repaid the original debt and expenses.

Judges:

Arden MR

Citations:

(1796) 3 Ves 170

Jurisdiction:

England and Wales

Cited by:

CitedR Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 13 May 2022; Ref: scu.199521

Norris v Chambres: 1862

A company director had advanced part of a loan for the purchase of a mine in Prussia. He died, and because of lack of funds, his estate risked losing everything. His estate sought its recovery.
Held: ‘With respect to this advance, I think that, upon the authority of Penn v. Lord Baltimore, which has often been acted upon, the Plaintiff would have been entitled to succeed if he could have proved that the claim for a declaration of the proposed charge or lien on the Maria Anna mine was founded on any contract or privity between him or the deceased [director] and the Defendants, the purchasers of the mine, and if there had not been a suit in the Prussian Courts, in which the same question was raised and had been decided in the Plaintiff’s favour. But I agree in thinking with the Master of the Rolls that the Plaintiff has failed to shew any such contract or privity. Upon the evidence adduced the purchasers of the mine, whom he sues, are to be considered as mere strangers, and any notice which they may have had of the transactions between [the deceased director] and [the old company] (which has now ceased to exist) cannot give this Court jurisdiction to declare the proposed lien or charge on lands in a foreign country. An English Court ought not to pronounce a decree, even in personam, which can have no specific operation without the intervention of a foreign Court, and which in the country where the lands to be charged by it lie would probably be treated as a brutum fulmen. I do not think that the Court of Chancery would give effect to a charge on land in the county of Middlesex so created by a Prussian Court sitting as Dusseldorf or Cologne. But another objection is lis alibi pendens, a suit pending before the proper tribunal in Prussia, and that by this tribunal, a decree has actually been pronounced in favour of the Plaintiff, giving him what he seeks . . We must suppose that the Court at Dusseldorf has ample means to enforce the whole of its decree, and that the Plaintiff will have the full benefit of that decree, which may be considered as creating a debt for which the opposite parties are personally liable and a charge upon the property sold.’

Judges:

Lord Campbell LC

Citations:

(1862) 3 De G.F. and J. 583

Jurisdiction:

England and Wales

Citing:

Appeal fromNorris v Chambres 1861
A company director had committed suicide; the claim was brought by his estate. The company had been established in England to work a Prussian coal mine, and the director had personally advanced a large sum towards its purchase. The company agreed to . .
CitedPenn v Lord Baltimore 1750
The court compelled Lord Baltimore to comply with the obligations he had assumed to the Penn family, by setting the Mason-Dixon line, demarcating boundaries between the privately-owned territories of Maryland, Pennsylvania and Delaware, and . .

Cited by:

CitedR Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
CitedDeschamps v Miller 1908
The parties disputed land in India. A French couple, had married in France in community of property. So according to the French marriage contract the wife was supposed to be entitled to one half of the husband’s after-acquired property. The husband . .
ExplainedMacmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) ChD 1-Jul-1993
Bona fide chargees for value of shares situated in New York and held on trust for Macmillan were able, by application of New York law, to take the shares free of Macmillan’s prior equitable interest of which the chargees had had no notice. Where . .
Lists of cited by and citing cases may be incomplete.

Equity, Jurisdiction

Updated: 13 May 2022; Ref: scu.199520

Ghana Commercial Bank v Chandiram: PC 1960

The bank made an advance to the owner of property in Accra which was used to pay off his indebtedness to Barclays (DC and O) Ltd, secured by an equitable mortgage. The owner executed a legal mortgage in favour of the Ghana Bank, but this was invalidated by a previous attachment of the property by a creditor.
Held: The Ghana Bank was entitled to be subrogated to the equitable mortgage which had been paid off. ‘It is not open to doubt that where a third party pays off a mortgage he is presumed, unless the contrary appears, to intend that the mortgage shall be kept alive for his own benefit.’

Judges:

Lord Jenkins

Citations:

[1960] AC 732

Jurisdiction:

Commonwealth

Citing:

CitedButler v Rice 1910
The wife owned a Bristol property and a Cardiff property subject to a andpound;450 charge in favour of a bank with whom the title deeds had been deposited. The husband asked the plaintiff to lend him andpound;450 to pay off the mortgage. The . .

Cited by:

CitedUCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
CitedBoscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
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 Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 13 May 2022; Ref: scu.190508

Coulter v Chief Constable of Dorset Police: ChD 12 Dec 2003

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.

Citations:

Times 24-Dec-2003, [2003] EWHC 3391, [2004] 1 WLR 1425

Statutes:

Insolvency Rules 1986 (1986 No 1925) 6.1

Jurisdiction:

England and Wales

Citing:

CitedAttorney-General for New South Wales v Perpetual Trustee Co Ltd PC 14-Mar-1955
(Australia) The Crown could not recover damages for the loss of the services of a police constable as the result of injuries caused by the negligence of a third person. A chief constable was an office held under the Crown, and the usual relationship . .

Cited by:

Appeal fromCoulter v Chief Constable of Dorset Police CA 8-Oct-2004
The appellant had failed in his action against the police and been ordered to pay the costs. A statutory demand was issued in the name of the respondent, but as the new chief constable had no deed of assignment, he was only equitable assignee.
See AlsoCoulter v Chief Constable of Dorset Police CA 13-Jul-2005
An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
Lists of cited by and citing cases may be incomplete.

Police, Insolvency, Equity

Updated: 12 May 2022; Ref: scu.189946

Meftah v Lloyd’s TSB Bank Plc: 2001

A short delay in the sale of a property by a mortgagee was appropriate to allow proper advertising of a property.

Citations:

[2001] 2 All ER (Comm) 741

Jurisdiction:

England and Wales

Cited by:

CitedDen Norske Bank Asa v Acemex Management Company Ltd CA 7-Nov-2003
Money had been loaned for the purchase of three ships,and mortgages over the ships had been given given. The borrowers were in default, and the lender sought to arrest the vessels. The defendant argued that the way the arrest had been undertaken . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 12 May 2022; Ref: scu.187672

Boustany v Piggott: PC 1995

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’

Judges:

Lord Templeman

Citations:

[1995] 69 PandCR 298

Citing:

CitedAlec Lobb (Garages) Ltd v Total Oil Ltd QBD 1983
To establish that a contract was unconscionable, a party had to have made an unconscientious use of its superior position or superior bargaining power to the detriment of someone suffering from some special disability or disadvantage. This weakness . .
CitedAlec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .

Cited by:

CitedChagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
CitedPortman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 12 May 2022; Ref: scu.186677

Norwich Union Life Insurance Society v Qureshi and Another; Aldrich and Others v Norwich Union Life Insurance Co Ltd: CA 13 Aug 1999

The provider of endowment insurance, has a duty of utmost good faith to an insured, but need disclose only matters which are material to the risk. Such facts need not include every fact which might affect the decision to enter into any contract collateral to the insurance contract. Duties under the Financial Services Act did not extend this duty.

Citations:

Times 13-Aug-1999

Statutes:

Financial Services Act 1986 47

Jurisdiction:

England and Wales

Financial Services, Equity, Insurance

Updated: 11 May 2022; Ref: scu.84363

Heinl and Others v Jyske Bank (Gibraltar) Ltd: CA 8 Sep 1999

Where a party had in fact assisted another in a fraudulent act in breach of trust, that party was not to be held liable in equity on the basis that objectively he should have known that the acts assisted were fraudulent, but the test is rather subjective. It must be established that he acted with the actual knowledge that a fraudulent act was being perpetrated.

Judges:

Nourse LJ, Sedley LJ, Colman J

Citations:

Gazette 08-Sep-1999, Times 28-Sep-1999, [1999] 1 Lloyds Rep Banking 511

Jurisdiction:

England and Wales

Cited by:

CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 10 May 2022; Ref: scu.81307

Maxwell v Maxwell: 1852

The court rejected a request to apply the doctine of election despite evidence that the testator might have disapproved of the result.

Citations:

(1852) 2 De G M and G 705

Jurisdiction:

England and Wales

Cited by:

CitedFrear v Frear and Another CA 2-Dec-2008
Claim for interest in land
The claimant asserted an interest in the house in his mother’s estate and claimed against the personal representatives. He had lived in the house with his mother. He had previously assisted in the purchase of an earlier family home after being . .
Lists of cited by and citing cases may be incomplete.

Equity, Wills and Probate

Updated: 10 May 2022; Ref: scu.278401

Re Turner’s Settled Estates: 1884

In the case of mixed motives the Court will apply a ‘but for’ test, namely whether the power to transfer would have been exercised but for the intent to achieve the ulterior purpose or whether the power would have been exercised in any event

Citations:

(1884) 28 Ch D 205

Jurisdiction:

England and Wales

Cited by:

CitedEclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 09 May 2022; Ref: scu.595478

In re Dagenham (Thames) Dock Co; Ex parte Hulse: CA 1873

The Court of Appeal in chancery heard an appeal from the Master of the Rolls from his refusal of the Master of the Rolls to make a declaration in the winding up of the purchaser company. The purchaser had sought a direction that if the balance of the purchase monies were paid with interest it should be relieved from termination of the contract brought about by its not paying the purchase money by the due date. The Lord Justices held that the forfeiture was in the nature of penalty from which the court would relieve. Relief was to be granted, not against the forfeiture of the instalments, but against the forfeiture of the estate under a contract which involved the retention of the purchase money. The Court granted the purchaser, who had been in possession for five years and carried out improvements, further time to pay the second and final instalment of a purchase price on the ground that the clause requiring him to vacate and to forfeit the first instalment for not having paid the second instalment on time, was a ‘penalty’.

Citations:

(1873) LR 8 Ch App 1022

Jurisdiction:

England and Wales

Cited by:

ApprovedKilmer v The British Columbia Orchard Lands Limited PC 26-Feb-1913
British Columbia . .
CitedLegione v Hateley 1982
(High Court of Australia) Purchasers of land were put on notice that unless they paid the price by 10th August the contract of sale would be rescinded. On 9th August the purchasers’ solicitor telephoned the vendor’s solicitors and spoke to the . .
CitedCavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity

Updated: 09 May 2022; Ref: scu.593110

Marriott v Hampton: KBD 1775

The plaintiff paid for goods bought from the defendant. The defendant then brought an action for payment of the price alleging that he had not been paid. The claimant could not find his receipt for the first payment, and was ordered by the court to pay again. He then found the receipt and brought an action for money had and received to recover the second payment.
Held: Where money has been wrongly paid under the compulsion of legal process it cannot be recovered back in action for money had and received to the payer’s use.
Lord Kenyon said: ‘I am afraid of such a precedent. If this action could be maintained I know now that cause of action could ever be at rest. After a recovery by process of law there must be an end to litigation, otherwise there would be no security for any person.’

Judges:

Lord Kenyon CJ

Citations:

[1775-1802] All ER Rep 631

Jurisdiction:

England and Wales

Cited by:

AppliedWilson v Ray 1-May-1839
Lord Denman CJ descirbed the pronciple establishedin Marriott: .that what a party recovers from another by legal process, without fraud, the loser shall never recover back by virtue of any facts which could have availed him in the former proceeding. . .
CitedJohn Ruskin College v Harley QBD 26-Nov-2013
A sum had been paid into court in 1997. Other sums were paid out, but this sum was left against costs liability. It was discovered much laterand paid out to the claimant. The former defendant now said that it had been paid out twice, and alleged . .
Lists of cited by and citing cases may be incomplete.

Equity, Litigation Practice

Updated: 09 May 2022; Ref: scu.593141

Lewis v Cotton: 18 Dec 2000

(Court of Appeal of New Zealand) The Court considered the equitable doctrine of mutual wills. The doctrine recognised that the executors and trustees of a will may be required to hold affected assets upon a constructive trust in terms of a revoked will.
Held: The imposition of a constructive trust based on mutual wills has two fundamental requirements:
(a) There was an underlying consultation and coordination between two testators which resulted in an agreement or an arrangement as to how they would make their respective wills (which were then made).2 I will refer to this as the requirement for ‘corresponding wills’. Reference is sometimes made to ‘mirror wills’ and, more ambiguously and confusingly, to ‘mutual wills’.
(b) There must have been a contract or mutual understanding (intended to bind each testator to a future cause of action) that neither testator

Judges:

Richardson P, Blanchard J,Tipping J

Citations:

[2000] NZCA 39, [2001] 2 NZLR 21, (2000) 20 FRNZ 86

Links:

NZLII

Jurisdiction:

England and Wales

Cited by:

CitedLegg and Another v Burton and Others ChD 11-Aug-2017
Testing for Mutual Wills
The parties disputed whether wills were mutual. The claimants challenged the probate granted to a later will of their deceased mother, saying that her earlier will had been mutual and irrevocable after the death of their father.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity

Updated: 09 May 2022; Ref: scu.593131

Andrews v Australia and New Zealand Banking Group Ltd: 6 Sep 2012

Austlii High Court of Australia – Banker and customer – Penalty doctrine – Consumer and commercial credit card accounts – Honour fee – Dishonour fee – Late payment fee – Non-payment fee – Over limit fee – Whether those fees penalties – Whether penalty doctrine limited to circumstances where there is breach of contract – Significance of law respecting penal bonds – Grounds for equitable intervention – Whether penalty doctrine now wholly a rule of common law.
Equity – Doctrines and remedies – Relief against penalties – Significance of law respecting penal bonds – Whether relief available only in cases of breach of contract – Whether penalty doctrine now wholly a rule of common law.
Words and phrases – ‘bond’, ‘condition’, ‘dishonour fee’, ‘exception fees’, ‘honour fee’, ‘penalty’.

Judges:

French CJ, Gummow, Crennan, Kiefel, Bell JJ

Citations:

[2012] HCA 30, (2012) 247 CLR 205, (2012) 290 ALR 595, [2012] ASC 155, (2012) 86 ALJR 1002

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedCavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.

Contract, Equity, Banking

Updated: 09 May 2022; Ref: scu.593106

Inntrepreneur Pub Company (CPC) and Another v Sweeney: ChD 27 May 2002

The landlord sought an injunction against the defendant. The defendant countered, relying upon sec 2(1).
Held: The remedy provided by the section was limited to the award of damages. It could not, therefore, be used to defend an action for an injunction. Whilst he might be entitled in equity to repudiate the lease, he could not repudiate only part of the lease. The landlord might e criticised for its earlier conduct of the case, but rule 44 was concerned with the behaviour of the parties in conducting the litigation itself, and the rule could not be used to overturn the costs consequences because of misbehaviour outside the litigation.

Judges:

Mr Justice Park

Citations:

Times 26-Jun-2002, Gazette 27-Jun-2002

Statutes:

Misrepresentation Act 1967 2(1), Civil Procedure Rules 44.3(4)(a)

Jurisdiction:

England and Wales

Damages, Torts – Other, Equity, Costs

Updated: 08 May 2022; Ref: scu.174083

Bank of Credit and Commerce International SA (No 8): CA 1997

A security was granted to secure a debt owed by a third party.

Citations:

[1997] 4 All ER 568

Jurisdiction:

England and Wales

Citing:

CitedChina and South Sea Bank Limited v Tan Soon Gin PC 1990
A mortgagee’s decision on sale is not constrained by reason of the fact that the exercise or non-exercise of the power will occasion loss or damage to the mortgagor. He can sit back and do nothing. He is not obliged to take steps to realise his . .

Cited by:

CitedSerious Organised Crime Agency v Szepietowski and Others ChD 15-Oct-2010
The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 08 May 2022; Ref: scu.425367

Lane v Page: 15 Jun 1754

Fraudulent execution of a power to jointure. A power to jointure having been executed under an agreement that the creditor of the husband should have part of the jointure, the appointment was set aside as far as the creditors were to benefit. The fraud being on the remainder man confirmation by the wife after husband’s death of no effect.

Citations:

[1754] EngR 106, (1754) Amb 233, (1754) 27 ER 155

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedEclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 07 May 2022; Ref: scu.378085

Aleyn v Belchier: 5 Jul 1758

Power of jointuring executed in favour of a wife, but with an agreement that the wife should only receive a part as an annuity for her own benefit, and that the residue should be applied to the payment of the husband’s debts : held, a fraud upon the power and the execution set aside, except so far as related to the annuity, the bill containing a submission to pay it, and only seeking relief against the other objects of the appointment

Citations:

[1758] EngR 208, (1758) 1 Eden 132, (1758) 28 ER 634

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedEclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 07 May 2022; Ref: scu.342509

Birley v Birley: CA 12 Mar 1858

An absolute appointment was made to an object of a power, under a prior ‘understanding’ between the appointor and appointee, to hold in ‘In trust ‘ for persons, some of whom were objects and some not.
Held: The whole was void.

Judges:

Sir John Romilly MR

Citations:

[1858] EngR 441, (1858) 25 Beav 299, (1858) 53 ER 651

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedEclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 07 May 2022; Ref: scu.288912

Re Chawda (in bankruptcy): 2014

Mr Chawda and his wife jointly owned a residential property which they charged to secure a loan, part of which refinanced the original purchase loan. The case concerned the balance of about 78,000 pounds. Mr Chawda and his brother carried on business together. The sum of 78,000 pounds had been used to refinance the purchase of a property which had been jointly purchased by Mr Chawda and his brother and in which Mrs Chawda had no interest. The brothers converted it into flats and business premises which they let. They received the rental income. It was re-mortgaged to raise andpound;285,000 which was used to make payments to businesses run by one or both of the brothers and to make a personal payment to Mr Chawda’s brother and his wife. The property was later sold for 690,000 pounds, resulting in a very substantial capital profit. After paying off the secured loan, the proceeds were applied in making a variety of payments. 10,000 pounds was paid to a company run by Mr Chawda, of which Mrs Chawda was the sole director. Its business was subsequently sold. A total of some 68,000 pounds out of the proceeds of sale was paid to the joint account of Mr and Mrs Chawda and spent for the benefit of themselves and their family.
Held: The circumstances of the case negated any inference that the equity of exoneration should apply in favour of Mrs Chawda. The transactions had to be seen ‘in the context of the Chawdas functioning as a family unit as many, perhaps even most, modern families do’. In her evidence, Mrs Chawda more than once referred to ‘us’ and ‘we’ when discussing their affairs. Other factors also established that they ‘operated as one’: Mrs Chawda worked in her husband’s business, initially without pay for seven days a week; they did not have separate bank accounts but operated and had joint control over joint bank accounts, into which they paid all their income from all sources; they both took the benefits of the ups and the burdens of the downs of Mr Chawda’s businesses. The benefits included a half-share in a house bought for 925,000 pounds, the monies totalling 68,000 pounds received from the sale of a business, and family holidays, leading the Chief Registrar to comment that ‘the parallels between the circumstances of the Chawda and the Pittortou families are clear’ He concluded: ‘It seems to me that in the circumstances in which a husband and wife operate as the Chawdas have, pooling their earnings and profits, administering their financial affairs jointly and enjoying together a prosperous life, if not an extravagance one such as that of the Pagets. It is as unattractive as it is artificial for one of them to take the benefits while at the same time seeking to enforce an individual right in one respect only to the disadvantage of the other spouse (or in this case his creditors).’

Judges:

Chief Registrar Baister

Citations:

[2014] BPIR 49

Jurisdiction:

England and Wales

Cited by:

CitedArmstrong v Onyearu and Another CA 11-Apr-2017
Exoneration of partner’s equity on insolvency
The court considered the equity of exoneration, where property jointly owned by A and B is charged to secure the debts of B only, A is or may be entitled to a charge over B’s share of the property to the extent that B’s debts are paid out of A’s . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 04 May 2022; Ref: scu.581748

Parsons v McBain: 5 Apr 2001

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.’

Judges:

Black CJ, Kiefel, Finkelstein JJ

Citations:

[2001] FCA 376, (2001) 109 FCR 120, 192 ALR 772

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedArmstrong v Onyearu and Another CA 11-Apr-2017
Exoneration of partner’s equity on insolvency
The court considered the equity of exoneration, where property jointly owned by A and B is charged to secure the debts of B only, A is or may be entitled to a charge over B’s share of the property to the extent that B’s debts are paid out of A’s . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency, Trusts

Updated: 04 May 2022; Ref: scu.581747

Dunne v English: CA 1874

A partner had made a secret profit from the sale of partnership property.
Held: The other partner sought and obtained relief ‘substantially in accordance with the first and second paragraphs of the prayer of the bill’, which had sought ‘a declaration . . that the Plaintiff was entitled to share equally with the Defendant in the profits . . and that the Defendant was bound to make over to the Plaintiff one half of the profits . .’ Because of the importance which equity attaches to fiduciary duties, ‘informed consent’ to a fiduciary acting for two parties is only effective if it is given after ‘full disclosure’.
Sir George Jessel MR said of a partner: ‘The Defendant was not only in law the agent of the partnership to sell (being himself a partner, and every partner being an agent of the partnership), but he was in fact the agent who had been engaged in negotiating the sale.’

Judges:

Sir George Jessel MR

Citations:

(1874) LR 18 Eq 524

Jurisdiction:

England and Wales

Cited by:

CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
CitedHosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
Lists of cited by and citing cases may be incomplete.

Equity, Agency, Company

Updated: 04 May 2022; Ref: scu.551499

Manks v Whiteley: 1911

Judges:

Parker J

Citations:

[1911] 2 Ch 448

Jurisdiction:

England and Wales

Cited by:

CitedSzepietowski v The Serious Organised Crime Agency CA 21-Jul-2011
The claimant owned properties subject to charges in favour of a bank. The Agency alleged that the properties represented the proceeds of crime. The agency had settled its claim by taking a second charge over one property. When that was sold, only . .
CitedSzepietowski v The National Crime Agency SC 23-Oct-2013
S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 04 May 2022; Ref: scu.540470

Wallis v Woodyear: 1855

Wood V-C said that a first mortgagee has the right to have recourse to ‘any of his securities which first come to hand’ and to ‘realise his securities in such manner and order as he thinks fit’.

Judges:

Wood V-C

Citations:

(1855) 2 Jur (NS) 179

Jurisdiction:

England and Wales

Cited by:

CitedSzepietowski v The National Crime Agency SC 23-Oct-2013
S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 04 May 2022; Ref: scu.540469

Anonymous [1482] EngR 2: 1482

Payment without acquittal.-A mm payeth debt upon a single obligation without taking acquittance, therefore this will not discharge him at the common law, but he shall be relieved therein in chancery (quare 22 E. 4. 6 [1482]) by the party’s oath,
but not by witness.

Citations:

[1482] EngR 2, (1482) Cary 2, (1482) 21 ER 1 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Equity

Updated: 04 May 2022; Ref: scu.470385

Clarke v Dickson: 1858

The plaintiff brought his claim for money had and received by the purchaser of shares in a company. He said that he had been induced to purchase the shares by a fraudulent misrepresentation but he had failed in his action at common law.
Held: Erle J: ‘the plaintiff cannot avoid the contract under which he took the shares, because he cannot restore them in the same state as when he took them.’ Crompton J: ‘when once it is settled that a contract induced by fraud is not void, but voidable at the option of the party defrauded, it seems to me to follow that, when that party exercises his option to rescind the contract, he must be in a state to rescind it; that is, he must be in such a situation as to be able to put the parties into their original state before the contract . . . The plaintiff must rescind in toto or not at all; he cannot both keep the shares and recover the whole price. That is founded on the plainest principles of justice. If he cannot return the article he must keep it, and sue for his real damage in an action on the deceit.’

Judges:

Crompton J, Erle J

Citations:

(1858) EL BL and EL 148

Jurisdiction:

England and Wales

Cited by:

CitedHalpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
Lists of cited by and citing cases may be incomplete.

Equity, Contract

Updated: 01 May 2022; Ref: scu.244659

Barclays Bank v Miller: CA 1990

In a case of inordinate, culpable and prejudicial delay where it is seriously arguable that the cause of action would be time-barred if fresh proceedings were issued, the better course may be to dismiss the action for want of prosecution and leave the question of limitation for determination in those fresh proceedings if issued.
After considering the principle in Birkett v James that it is exceptional to strike out an action for want of prosecution if the limitation has not expired, Lord Justice Staughton said: ‘It seems to me that the House of Lords was not there considering a case where it was open to doubt and serious argument whether the cause of action would be time barred if a fresh writ were issued. In such a case it may well be that the interests of justice are best served by dismissing the action for want of prosecution, leaving it to the plaintiff, if he chooses to do so and if he has the funds, to start a fresh action. The alternative is that masters, and judges on appeal and even this court, may become embroiled, on an application to dismiss for want of prosecution, in long and elaborate arguments as to whether some future action, if it were brought, would be time barred. There is a good deal to be said for the view that masters should not have that task forced upon them when the problem may never arise and, if it does arise, could perhaps more conveniently be considered in another way.’

Judges:

Lord Justice Staughton

Citations:

[1990] 1 WLR 343, [1990] 1 All ER 1040

Jurisdiction:

England and Wales

Citing:

CitedBirkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .

Cited by:

CitedHopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 30 April 2022; Ref: scu.235773

Dublin City Distillery (Great Brunswick Street, Dublin) Limited and Another v Doherty: HL 1914

D had advanced monies to a distillery company on the security of manufactured whisky stored in a warehouse. On the occasion of each advance, the company delivered to D an invoice and a warrant which described the particulars of the whisky and stated that it was deliverable to D or his assigns.
Held: A person against whom the unauthorised liquidator is litigating may not object to such lack of authorisation, for it is a matter between the liquidator and the creditors. Lord Parker stated: ‘in my opinion s.151 of the Companies (Consolidation) Act, 1908, which enables a liquidator in the case of a winding-up in Ireland to bring or defend legal proceedings with the sanction of the Court, was not intended to confer, and does not confer, on third parties any right to object to proceedings brought by a liquidator in the name of the company, on the ground that no such sanction has been obtained.’
Delivery of the subject property is absolutely necessary to complete a pledge, although the transfer of possession may be actual or constructive: ‘There are, however, cases in which possession may pass to the pledgee without actual delivery, for example, whenever there is some agreement between the parties the effect of which is to change the possession of the pledger from a possession on his own account as owner into a possession as bailee for the pledgee: see Meyerstein v. Barber.(1) Such an agreement operates as a delivery of the goods to the pledgee and a redelivery of the goods by the pledgee to the pledger as bailee for the purposes mentioned in the agreement. A mere book entry cannot, however, have this effect . .’
The terms of the warrant were ambiguous. Lor Parker said that if the true meaning of the warrant was that it was intended to be an acknowledgement by the distillery company that it held the goods referred to as bailee for D or his assigns by indorsement: ‘it is sufficient to change the nature of the company’s possession, operating as an actual delivery of the goods to [D], and a redelivery of the same goods by him to the company to hold as bailee for him. Under these circumstances, on the hypothesis that the company was in actual possession, [D] obtained a good pledge at common law.’

Judges:

Lord Parker of Waddington

Citations:

[1914] AC 823, 111 LT 8

Statutes:

Companies (Consolidation) Act 1908

Jurisdiction:

England and Wales

Cited by:

CitedBorealis Ab v Stargas Limited and Others and Bergesen Dy A/S Berge Sisar Dorealis Ab v Stargas Limited and Others HL 27-Mar-2001
The ship came to port, and samples of the cargo proved contaminated. The carrier asserted that the consignee was to be deemed to have demanded delivery, and had so assumed the risk. The court found that the mere taking of samples was not such a . .
Lists of cited by and citing cases may be incomplete.

Equity, Company, Insolvency

Updated: 29 April 2022; Ref: scu.194545

Satnam Investments Ltd v Dunlop Heywood and Co Ltd and Others: CA 13 Jan 1999

Satnam’s agents (DH) had passed on confidential information to the claimant’s business rival (Morbaine). Armed with this information Morbaine acquired a development site which Satnam had wanted to buy.
Held: The court rejected an argument that Morbaine held the site on constructive trust for Satnam. A company purchasing land on strength of unintended and uninvited disclosure of confidential information from a rival for the land did not, simply because of that, hold the land on trust of whatever nature for the owner of the information. Nourse LJ: ‘Clearly, DH and Mr Murray can be regarded as trustees of the information and, clearly, Morbaine can be regarded as having been a knowing recipient of it. However, even assuming, first, that confidential information can be treated as property for this purpose and, secondly, that but for the disclosure of the information Morbaine would not have acquired the Brewery Street site, we find it impossible, in knowing receipt, to hold that there was a sufficient basis for subjecting the Brewery Street site to the constructive trust for which Satnam contends. The information cannot be traced into the site and there is no other sufficient nexus between the two.’

Judges:

Nourse LJ

Citations:

Times 31-Dec-1998, Gazette 13-Jan-1999, Gazette 10-Feb-1999, [1999] 3 All ER 652

Jurisdiction:

England and Wales

Cited by:

CitedCrown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Equity

Updated: 28 April 2022; Ref: scu.89022

Generator Developments Ltd v Lidl UK Gmbh: CA 8 Mar 2018

Generator appealed from a refusal of an equitable interest in land acquired by the responent

Judges:

Longmore, Lewison LJJ, Rose J

Citations:

[2018] EWCA Civ 396

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedPallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .
Lists of cited by and citing cases may be incomplete.

Equity, Land

Updated: 13 April 2022; Ref: scu.605786

In Re Ritson, Ritson v Ritson: CA 1899

The joint debts of a partnership are payable out of the joint assets if sufficient even though secured on the separate property of one partner.
Chitty LJ said of a deceased partner that his ‘interest in the joint assets [of the partnership] was only his share of the surplus after payment of the joint debts’

Judges:

Chitty LJ, Lindley MR

Citations:

[1899] 1 Ch 128

Jurisdiction:

England and Wales

Citing:

Appeal fromIn Re Ritson ChD 1898
. .

Cited by:

CitedHighbury Pension Fund Management Company and Another v Zirfin Investments Ltd and Others ChD 14-Feb-2013
The court was asked: ‘a) Does the doctrine of marshalling permit the marshalling of securities held over property that does not belong to the common debtor? In particular, is a creditor of a guarantor entitled to marshal (or be subrogated to) . .
CitedMcLean and Another v Trustees of The Bankruptcy Estate of Dent and Others ChD 26-Oct-2016
Marshalling your Dogs Equitably
Application by the joint administrators of a partnership affording the opportunity to consider the application of the equitable doctrines of marshalling and subrogation in relation to a fixed charge over a dog.
Held: The equitable principle of . .
Lists of cited by and citing cases may be incomplete.

Equity, Company

Updated: 12 April 2022; Ref: scu.570481

Chase Manhattan Bank NA v Israel-British Bank (London) Ltd: 1981

Goulding J approved the statement in Story’s Commentaries on Equity Jurisprudence: ‘the receiving of money which consistently with conscience cannot be retained is, in equity, sufficient to raise a trust in favour of the party for whom or on whose account it was received. This is the governing principle in all such cases. And therefore, whenever any controversy arises, the true question is, not whether money has been received by a party of which he could not have compelled the payment, but whether he can now, with a safe conscience, ex aequo et bono, retain it.’

Judges:

Goulding J

Citations:

[1981] Ch 105

Cited by:

CitedBailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
Lists of cited by and citing cases may be incomplete.

Banking, Equity

Updated: 12 April 2022; Ref: scu.568653

The Governor And Company of Undertakers For Raising Thames Water In York Buildings v Alexander Mackenzie, Writer, To The Signet: PC 15 May 1795

Who bears the Expense of a Ranking and Sale? – Election of the Common Agent. – Can the Common Agent be a Purchaser? – Expense of an interim Warrant.

Citations:

[1795] EngR 4112, (1795) 8 Bro PC 42, (1795) 3 ER 432

Jurisdiction:

Scotland

Citing:

At Court of SessionYork Buildings Co v Mackenzie SCS 8-Mar-1793
Purchase by Common Agent at Auction Voidable
The defendant was the ‘common agent’ for the sale of the assets of an insolvent partnership and purchased some of the assets at a judicial auction.
Held: The purchase was voidable, even though it was made at a sale by auction.
Who bears . .
Lists of cited by and citing cases may be incomplete.

Equity, Insolvency

Updated: 12 April 2022; Ref: scu.356457

Weigall v Waters: 1795

Where a party has fairly laid out money on repairing what he was not bound to repair, a court of equity might grant him relief. The tenant had paid andpound; 30 but Lord Kenyon still regarded the cross-claim as one for uncertain damages. The quantum of the sum must have been either unchallenged or unchallengeable before it could be regarded as deductible.

Judges:

Lord Kenyon

Citations:

(1795) 6 TR 488

Cited by:

CitedBritish Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity

Updated: 12 April 2022; Ref: scu.247744

Robins v Goldingham: 1872

Where a solicitor discharges himself in the course of an action, he should be subject to an order for the transfer of the papers subject to an order respecting his lien for any unpaid costs.

Citations:

(1872) LR 13 Eq 440

Jurisdiction:

England and Wales

Cited by:

CitedIsmail and Another v Richards Butler (A Firm) QBD 23-Feb-1996
A solicitor’s lien on papers can be set aside by the court to allow litigation to proceed, where there was a continuing retainer, and the lien was with regard to concluded matters. However, the release of the papers would reduce the value of the . .
CitedGamlen Chemical Co (UK) Ltd v Rochem Ltd CA 4-Dec-1979
Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect . .
Lists of cited by and citing cases may be incomplete.

Equity, Legal Professions

Updated: 12 April 2022; Ref: scu.222602

Trustee of the Property of F C Jones and Sons (A Firm) v Jones: CA 13 May 1996

A bankruptcy order was made in 1984. Under the 1914 Act the trustee in bankruptcy got title to all the assets of the bankrupt as of the date of the act of bankruptcy. So, the trustee owned the partnership assets. The wife drew andpound;11,700 out of those assets and invested in potato futures. By November 1984, she had made andpound;50,000 using that money. The trustee sought to recover that sum.
Held: It was the fruit of his money. A trustee in bankruptcy was entitled to an account of profits of investments withheld from him.

Judges:

Miller LJ

Citations:

Gazette 22-May-1996, Times 13-May-1996, [1997] Ch 159

Statutes:

Bankruptcy Act 1914

Jurisdiction:

England and Wales

Cited by:

CitedFoskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
CitedSmithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Equity

Updated: 10 April 2022; Ref: scu.90004

Nurdin and Peacock Plc v D B Ramsden and Co Ltd: ChD 18 Feb 1999

A mistake of law was sufficient to ground an order for the repayment of money paid under that mistake. It was not necessary for there to be a mistaken belief of a liability to do so, provided the mistake was the cause of the overpayment.

Citations:

Times 18-Feb-1999, Gazette 24-Feb-1999

Citing:

See alsoD B Ramsden and Co Ltd v Nurdin and Peacock Plc and Another ChD 14-Sep-1998
The tenant overpaid rent, including a payment in May 1997 on advice that the payment would be recoverable following litigation establishing that it was an overpayment. The court later held that the payments in question were indeed overpayments. The . .

Cited by:

See AlsoD B Ramsden and Co Ltd v Nurdin and Peacock Plc and Another ChD 14-Sep-1998
The tenant overpaid rent, including a payment in May 1997 on advice that the payment would be recoverable following litigation establishing that it was an overpayment. The court later held that the payments in question were indeed overpayments. The . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 09 April 2022; Ref: scu.84391

Mace and Others v Rutland House Textiles Ltd (In Administrative Receivership): ChD 1 Dec 1999

Company pension trustees granted a sub-lease to the company, and the same solicitor acted for both parties. The company sought rectification of what it claimed was a mistake in the lease. Despite the absence of any clear evidence of the precise nature of the mistake, without any outward expression of accord from which a common intention could be derived, rectification was available where the mistake was as to the language. The trustees should not be prevented from seeking to show their case. The absence of any outward and explicit instructions was not enough to defeat an application for rectification of the agreement, provided there was convincing proof of the common intention asserted.

Citations:

Gazette 01-Dec-1999, Times 11-Jan-2000

Contract, Equity

Updated: 09 April 2022; Ref: scu.83272

Langton v Langton and Another: ChD 24 Feb 1995

The doctrine of ‘unconscionable bargain’ does not extend to gifts obtained by undue influence.

Citations:

Times 24-Feb-1995, [1995] 2 FLR 890

Cited by:

CitedRandall v Randall ChD 30-Jul-2004
The executor sought to set aside gifts made by the deceased, an elderly aunt before her death to his brother, alleging undue influence.
Held: The recipient had acted falsely in failing to declare overpayments of benefits. The deceased had been . .
CitedForsdike v Forsdike CA 21-Feb-1997
The claimant appealed dismissal of his claim to set aside a transfer by way of gift by his father on the basis of an alleged undue influence.
Held: The judges was entitled to make the findings he had done, and to be impressed by the spacing of . .
Lists of cited by and citing cases may be incomplete.

Equity, Undue Influence

Updated: 09 April 2022; Ref: scu.82950

Johnson v EBS Pension Trustees Ltd and Another: ChD 11 May 2001

The claimants claim arose from a security given in replacement of an earlier charge. The second charge included an additional clause for payment of a service charge. The claimants as solicitors trustee did not mention the additional charge. The defendant sought to defend on the basis that the claimants were in breach of a fiduciary duty, or breach of confidence. To establish such an action the party asserting it did not need to show any conscious disloyalty, but did have to show some transfer of property. In this case, any failure was inadvertent, and would not have affected the decision to execute the deed, and the counterclaim was dismissed.

Citations:

Gazette 11-May-2001

Equity

Updated: 08 April 2022; Ref: scu.82552

In Re Eurofinance Group Ltd: ChD 6 Jul 2000

Where a quasi-partnership had been created with the expectation that a party would be involved in the management of the business, it was a breach of his right to exclude him. This was a consequence of the restraint imposed by equity on relations between majority and minority partners, and not the cause of it. Because the continuing partners would continue the business, the share of the partner ordered to be purchased, should be valued as a going concern.

Citations:

Times 04-Jul-2000, Gazette 06-Jul-2000

Equity, Company

Updated: 08 April 2022; Ref: scu.81869

Grindal and Another v Hooper and Others: ChD 17 Dec 1999

A conveyance to joint tenants required any severance of the joint tenancy, to be recorded by endorsing the notice of severance on the transfer. The joint tenancy was purported to be severed, but no notice was endorsed. The failure to endorse the notice could not defeat the validity of the severance. The purpose of the clause was to assist any purchaser in obtaining good title, and was not intended to limit the effect of any severance as between the tenants.

Citations:

Gazette 17-Dec-1999, Gazette 20-Jan-2000, Times 08-Feb-2000

Land, Equity

Updated: 08 April 2022; Ref: scu.81050

Fyffes Group Ltd and Others v Templeman and Others: QBD 14 Jun 2000

A person who bribed an agent to award a contract was liable to account for profits secured by the bribery as was the agent he bribed, but unlike for the agent, the extent of his liability was limited to exclude profits which he would have earned in any event. The recompense in damages should not be allowed to lead to the unjust enrichment of the injured party.

Judges:

Toulson J

Citations:

Times 14-Jun-2000, Gazette 22-Jun-2000, [2000] 2 Lloyds Rep 643

Cited by:

CitedCrown Dilmun, Dilmun Investments Limited v Nicholas Sutton, Fulham River Projects Limited ChD 23-Jan-2004
There was a contract for the sale of Craven Cottage football stadium, conditional upon the grant of non-onerous planning permissions. It was claimed that the contract had been obtained by the defendant employee in breach of his fiduciary duties to . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedFiona Trust Holding Corp and others v Privalov and others ComC 21-May-2007
Allegations were made of different varieties of fraud. Applications were made for freezing orders. . .
Lists of cited by and citing cases may be incomplete.

Agency, Equity

Updated: 08 April 2022; Ref: scu.80712

Burton and Another v FX Music Ltd and Another; Taube v FX Music Ltd: ChD 8 Jul 1999

To decide that a party had made itself a trustee of a promise, the court had first to look at whether the person making the promise had indicated he had intended such. Once clear instructions had been evidenced, and payments made, the court would be reluctant to find that no trust had been created. Letters requesting payment of royalties had been acted upon.

Citations:

Times 08-Jul-1999, [1999] EMLR 826

Jurisdiction:

England and Wales

Trusts, Equity

Updated: 08 April 2022; Ref: scu.78767

Main and Othersv (Giambrone and Law (A Firm) and Others: CA 31 Jul 2017

Appeal by lawyers practising in England and Italy against a judgment holding them liable to compensate clients who lost money in a disastrous ‘holiday homes’ venture. The principal issues in this appeal are whether the claimants are entitled to equitable compensation for their lost deposits and whether the losses suffered are within the scope of the lawyers’ duties.

Judges:

Jackson, Underhill, Moylan LJJ

Citations:

[2017] EWCA Civ 1193

Links:

Bailii

Jurisdiction:

England and Wales

Equity, Legal Professions

Updated: 28 March 2022; Ref: scu.591679

AIB Group (UK) Plc v Mark Redler and Co Solicitors: SC 5 Nov 2014

Bank not to recover more than its losses

The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to be secured by a first charge over the borrowers’ property. The solicitors had acted for both the bank and the borrowers. The bank appealed against rejection of its claim to be entitled to recover the entire sum it had paid, asserting a breach of trust, notwithstanding that its actual losses were rather less.
Held: The bank’s appeal failed. It was entitled to recompense only for the actual loss suffered. Payment of the amount claimed would be penal and retrograde.
Lord Toulson said: ‘The purpose of a restitutionary order is to replace a loss to the trust fund which the trustee has brought about. To say that there has been a loss to the trust fund in the present case of pounds 2.5m by reason of the solicitors’ conduct, when most of that sum would have been lost if the solicitors had applied the trust fund in the way that the bank had instructed them to do, is to adopt an artificial and unrealistic view of the facts.’
and: ‘in circumstances such as those in Target Holdings the extent of equitable compensation should be the same as if damages for breach of contract were sought at common law. That is not because there should be a departure in such a case from the basic equitable principles applicable to a breach of trust, whether by a solicitor or anyone else . . Rather, the fact that the trust was part of the machinery for the performance of a contract is relevant as a fact in looking at what loss the bank suffered by reason of the breach of trust, because it would be artificial and unreal to look at the trust in isolation from the obligations for which it was brought into being. I do not believe that this requires any departure from proper principles.’
Lord Reed concluded: ‘Some of the typical obligations of the trustee of a fund are strict: for example, the duty to distribute the fund in accordance with the purposes of the trust. Others are obligations of reasonable care: for example, the duty to exercise reasonable care and skill in the management of the fund. Since these equitable obligations relate to a fund held for trust purposes, the trustee’s liability for a breach of trust will, again putting the matter broadly, depend upon its effect upon the fund: the measure of compensation will generally be based upon the diminution in the value of the fund caused by the trustee’s default.’
and: ‘The result of the appeal was undoubtedly correct. The mortgage advance had been paid out prematurely and to the wrong person, with the consequence that at that point the trustee did not have the charges which he ought to have had. That deficiency was however remedied when the charges were obtained some weeks later. The assets under the control of the trustee were then exactly what they ought to have been. There was nothing missing from the trust fund, and therefore no basis for a claim for restoration. For the same reason, there was no basis for a claim to compensation by the mortgagee.’

Judges:

Lord Neuberger, Lady Hale, Lord Wilson, Lord Reed, Lord Toulson

Citations:

[2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, UKSC 2013/0052, [2015] AC 1503

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary

Statutes:

Judicature Act 1873

Jurisdiction:

England and Wales

Citing:

At ChDAIB Group (UK) Plc v Mark Redler and Co (A Firm) ChD 23-Jan-2012
The claimant bank sought damages from the defendant solicitors, saying that they had paid on mortgage advance moneys but failed to deliver as promised and required, a first mortgage over the property purchased. The solicitors had failed to discharge . .
CitedTarget Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
At CAAIB Group (UK) Plc v Mark Redler and Co Solicitors CA 8-Feb-2013
The defendant firm of solicitors had acted for the claimants under instructions to secure a first charge over the secured property. They failed to secure the discharge of the existing first charge, causing losses. AIB asserted breach of trust.
CitedCaffrey v Darby 1801
A fiduciary has a strict duty to account; equity imposes stringent liability on a fiduciary as a deterrent – pour encourager les autres. Lord Eldon LC said: ‘It would be very dangerous, though no fraud could be imputed to the trustees, and no kind . .
CitedNocton v Lord Ashburton HL 19-Jun-1914
The defendant solicitor had persuaded his client to release a charge, thus advancing the solicitor’s own subsequent charge on the same property. The action was started in the Chancery Division of the High Court. The statement of claim alleged fraud . .
CitedCanson Enterprises Ltd v Boughton and Co 21-Nov-1991
Canlii Supreme Court of Canada – Canada – Damages — Breach of fiduciary duty — Solicitor preparing conveyance not advising purchasers of secret profit made on a flip — On agreed facts, purchasers fully . .
CitedLibertarian Investments Ltd v Hall 6-Nov-2013
(Hong Kong) A trustee owes a duty to hold trust funds and apply them for the purposes of the trust (a stewardship or custodial duty). He is bound to answer for his stewardship when called on by the beneficiary to do so. If for any reason he . .
CitedBartlett v Barclays Bank Trust Co Ltd (Nos 1 and 2) ChD 1980
A claim was made against a trustee for compensation for losses incurred during the administration of the trust.
Held: For a court to order an account by a trustee on the basis of wilful default, and make the defendant liable not only for . .
CitedAgricultural Land Management Ltd v Jackson (No 2) 2-May-2014
(Supreme Court of Western Australia) Equity – Fiduciary duties – Whether mere existence of conflict is actionable – Whether a breach of conflict rule requires a fiduciary actually to act in a position of conflict and pursue or prefer a personal . .
CitedMothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
CitedEx parte Adamson; In re Collie CA 1878
The Court of Chancery never entertained a suit for damages occasioned by fraudulent conduct or for breach of trust, and that the suit was always for ‘an equitable debt, or liability in the nature of a debt’. . .
CitedLivingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
CitedMagnus v Queensland National Bank 1888
A custodial bank was liable to restore trust funds merely because it dissipated the trust funds in a manner which was not authorised. Lord Halsbury LC said: ‘we are not at liberty to speculate whether the same result might not have followed whether . .
CitedBank of New Zealand v New Zealand Guardian Trust Co Ltd 1999
New Zealand Court of Appeal – Gault J said: ‘Recent cases show a trend in favour of analysis by reference to the scope of the duty, and enquire as to the risks against which there was a duty to protect the plaintiff. In South Australia Asset . .
CitedKelly v Cooper and Cooper Trading As Cooper Associates (A Firm) Co PC 19-Oct-1992
Bermuda – The fiduciary obligations imposed on an agent will depend on the express and implied terms of the contract. Although an agent is, in the absence of contractual provision, in breach of his fiduciary duties if he acts for another who is in . .
CitedHodgkinson v Simms 30-Sep-1994
Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by . .
CitedCadbury Schweppes v FBI Foods 28-Jan-1999
Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction . .
CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
CitedKM v HM 29-Oct-1992
Supreme Court of Canada – Limitation of actions – Torts – Assault and battery – Incest – Woman bringing action against father for damages for incest – Whether or not action limited by Limitations Act – Application of the reasonable discoverability . .
CitedBreen v Williams 6-Sep-1996
High Court of Australia – Medicine – Doctor/patient relationship – Medical records – Patient’s right to access – Contractual right – Doctor’s duty to act in patient’s ‘best interests’ with utmost good faith and loyalty – Patient’s proprietary right . .
CitedMaguire v Makaronis 25-Jun-1997
High Court of Australia – Equity – Fiduciary duties – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Ascertainment of particular fiduciary duties.
Equity – Equitable remedies – Rescission – Relevance of . .
CitedYouyang Pty Ltd v Minter Ellison Morris Fletcher 3-Apr-2003
High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as . .
CitedPilmer v Duke Group Ltd 3-Apr-2003
High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as . .
CitedAmaltal Corpn Ltd v Maruha Corpn 20-Feb-2007
Supreme Court of New Zealand – Blanchard J said that even in a commercial relationship, there might be aspects which engaged fiduciary obligations: ‘That is because in the nature of that particular aspect of the relationship one party is entitled to . .
CitedPremium Real Estate Ltd v Stevens 6-Mar-2009
Supreme Court of New Zealand – The court was asked as to the forfeiture of remuneration by an agent for breach of fiduciary duty.
Held: In relation to remoteness of damage, it was observed that the question of foreseeability in common law . .
CitedAkai Holdings Ltd v Kasikornbank PCL 8-Nov-2010
Court of Final Appeal – Hong Kong – Lord Neuberger of Abbotsbury NPJ said: ‘the notion that equitable compensation is assessed on a somewhat different basis from common law damages is clearly right (albeit that the difference can be overstated)’ and . .

Cited by:

CitedPurrunsing v A’Court and Co (A Firm) and Another ChD 14-Apr-2016
The claimant had paid money for a property, but the seller was a fraudster and no money or title was recovered. The claimant sued both his conveyancers and the solicitors who had acted for the fraudster, in each case innocently. The defendants each . .
Lists of cited by and citing cases may be incomplete.

Equity, Damages, Legal Professions

Leading Case

Updated: 11 February 2022; Ref: scu.538296

Ashcroft v Barnsdale and Others: ChD 30 Jul 2010

The parties sought to rectify a deed of family arrangement varying a will. The variation deed had had several mistakes which in fact increased the sum of Inheritance Tax owed. HMRC refused to accept the rectification deed unless approved by the court.
Held: The request for rectification was granted. The claimant had demonstrated a specific common intention as to how the parties’ fiscal objectives were to be achieved; and that, owing to a mistake in the way in which that intention was expressed in the Deed of Variation, effect had not been given to that intention.
Hodge J QC said: ‘The court cannot rectify a document merely because it fails to achieve the fiscal objectives of the parties to it. A mere misapprehension as to the tax consequences of executing a particular document will not justify an order for its rectification. The specific intention of the parties as to how the fiscal objective was to be achieved must be shown if the court is to order rectification. The court will order the rectification of a document only if it is satisfied by cogent evidence (sufficient to counteract the effect of the parties’ subscription to the relevant document) that: (1) the document does not give effect to the true agreement or arrangement between the parties, and (2) there is an issue, capable of being contested, between the parties; it being irrelevant, first, that rectification of the document is sought or consented to by all of them; and, secondly, that rectification is desired because it has beneficial fiscal consequences. Conversely, the court will not order rectification of a document if the parties’ rights will be unaffected, and if the only effect of the order will be to secure a fiscal benefit for one or more of them.’

Judges:

Hodge J QC

Citations:

[2010] EWHC 1948 (Ch)

Links:

Bailii

Statutes:

Inheritance Tax Act 1984 211

Jurisdiction:

England and Wales

Citing:

CitedWhiteside v Whiteside CA 1950
The husband had executed a deed in favour of his former wife after dissolution of their marriage covenanting to pay a specified sum per annum free of income tax up to but not exceeding a stated amount. This provision was in substitution for one . .
CitedGibbon v Mitchell ChD 1990
G executed a deed surrendering his life interest in a trust fund in order to vest the property in his two children: the deed did not have that effect because of two errors (one of which was ignoring the fact that his life interest was subject to . .
CitedRacal Group Services Limited v Ashmore CA 1995
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 . .
CitedAllnutt and Another v Wilding and others; Re Strain (deceased) CA 3-Apr-2007
The trustees of a discretionary settlement requested its rectification on the basis that the now deceased settlor’s solicitor had mistakenly not appreciated the need to confer interests in possession on the beneficiaries, with the consequence that . .
CitedOun v Ahmad ChD 19-Mar-2008
The parties agreed in writing for the sale of leasehold property to the claimant. One document had been signed, but later one said that it had not included an aportionment. Another document then set out the apportionment. When the defendant refused . .
CitedChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Equity, Inheritance Tax

Updated: 06 February 2022; Ref: scu.421236

RBC Trustees (Ci) Ltd and Others v Stubbs and Others: ChD 7 Feb 2017

Application for rectification or rescission brought by the trustees of a settlement created by the First Defendant Mrs Janatha Stubbs, as to two deeds of revocation and appointment. Each Deed effected a revocation and reappointment of the trusts on which certain shares of a trust fund were held under a settlement. It was said that the Deeds were wrong because they effect a revocation and reappointment of the trusts relating to two of the settlor’s children, whereas they were only intended to effect a rather more limited revocation of certain interests, that is the successive life interests of their then spouses.
Held: The requirements for rectification were met.

Judges:

Rose J

Citations:

[2017] EWHC 180 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Trusts, Equity

Updated: 29 January 2022; Ref: scu.573912

Matchmove Ltd v Dowding and Another: CA 7 Dec 2016

Appeal against a finding that an oral agreement for the purchase of land was effective through a proprietary estopple and a constructive trust.

Sir Terence Etherton MR, Lloyd Jones LJ and Arnold J
[2016] EWCA Civ 1233
Bailii
Law of Property (Miscellaneous Provisions) Act 1989 2(5)
England and Wales

Land, Contract, Equity, Estoppel

Updated: 26 January 2022; Ref: scu.572005

Creggy v Barnett and Another: CA 11 Oct 2016

Appeal by the defendant, against an order requiring Mr Creggy to pay to the claimants the sum of US$2,305,795.68 including interest as equitable compensation for his breach of fiduciary duty in transferring in 1998 approximately US$1.2m to a Maltese lawyer. The monies came from the Swiss bank accounts of two Liberian companies, Pound Investments Inc and Glacier Investments Inc which, together with other offshore structures, were established by Mr Creggy for the purpose, as the judge found, of tax avoidance.

Sir Terence Etherton MR, Patten, Sales LJJ
[2016] EWCA Civ 1004
Bailii
England and Wales

Equity, Torts – Other

Updated: 24 January 2022; Ref: scu.570109

Der Merwe v Goldman and Others: ChD 11 Apr 2016

The claimants had executed a deed creating a trust of their house, in ignorance of tax changes making such an arrangement liable to Inheritance Tax. The claimant now sought the setting aside of the settlement.
Held: The order was made, no consideration having been given.

Morgan J
[2016] EWHC 790 (Ch), [2016] WLR(D) 179, [2016] 4 WLR 71, [2016] WTLR 913
Bailii, WLRD
Inheritance Tax Act 1984 1 2 3
England and Wales

Inheritance Tax, Equity

Updated: 13 January 2022; Ref: scu.562026

Derby v Scottish Equitable Plc: CA 16 Mar 2001

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.

Simon Brown, Robert Walker, Keene LJJ
[2001] EWCA Civ 369, [2001] 3 All ER 818, [2001] OPLR 181, [2001] 2 All ER (Comm) 274, [2001] Pens LR 163
Bailii
England and Wales

Equity, Estoppel

Updated: 13 January 2022; Ref: scu.147474

Taylor v Dickens and Another: ChD 24 Nov 1997

The court has no general equitable power to enforce a promise even though broken in unconscionable circumstances.

Times 24-Nov-1997, [1998] 1 FLR 806
England and Wales
Cited by:
CitedThorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .

Lists of cited by and citing cases may be incomplete.

Equity

Updated: 09 January 2022; Ref: scu.89745

Three Rivers District Council and Others v Governor and Company of Bank of England: CA 6 Dec 1994

Equitable assignors of a deposit cannot pursue a claim for recovery of the assigned debt without joining in the assignee as a party, though it can sue in its own name.

Peter Gibson LJ
Times 06-Dec-1994, Independent 13-Dec-1994, [1996] QB 292
England and Wales
Cited by:
CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .

Lists of cited by and citing cases may be incomplete.

Equity, Banking, Litigation Practice

Updated: 20 December 2021; Ref: scu.89885

Fuller v Happy Shopper Markets Ltd and Another: ChD 6 Mar 2001

A tenant complained to the landlord about his failure to repair. He ceased paying rent, and the landlord eventually distrained for rent by direct action.
Held: The tenant was unable to claim a legal set-off because there was no context of legal proceedings upon which such a claim must depend, but nevertheless he was able to assert an equitable set-off, because of the close relationship between the claim and the basis of the set-off, which would leave a balance due to him.

Lightman J
Gazette 15-Feb-2001, Times 06-Mar-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
Bailii
England and Wales
Citing:
CitedWilkinson And Another v Godefroy 17-Jan-1839
The court considered a claim for the recovery of money from a stakeholder to whom it had been entrusted, in which case a demand is necessary to throw upon the depositee a duty to repay. . .
CitedFreeman v Jeffries CExC 1868
(Court of Exchequer) The incoming tenant plaintiff had agreed to buy the outgoing tenant’s interest in a farm at a price determined by two valuers. He paid pounds 2,000 on account; the valuation took place; the plaintiff gave to the outgoing tenant . .
CitedBaker v Courage and Co 1910
The plaintiff had owned a public house. On selling the leasehold to the defendants brewers, they had overpaid him by andpound;1,000. He deposited a sum at interest with the defendants. When he came to withdraw the last of the deposit (by coincidence . .
CitedKleinwort Benson Ltd v South Tyneside Metropolitan Borough Council ChD 1994
A claim for money had and received fell within section 5 Limitation Act, should be treated with caution. Hobhouse J said: ‘The cause of action in money had and received arises when the relevant money is paid by the plaintiff to the defendant.’
CitedSim v Rotherham Metropolitan Borough Council 1981
The 1870 Act applied where an employee’s contract was terminated in the course of a period at the end of which payment would be made. Scott J said: ‘Mr Goudie submitted that the real question was whether a teacher was entitled to be paid for the . .
CitedAectra Refining and Marketing Inc v Exmar NN CA 15-Aug-1994
A time loss claim can found a legal set-off claim against ship owners, provided that the loss claim can be made in the same court. The court referred to a ‘transaction set-off and independent set-off’. Cross-claims must both be due and payable, and . .
CitedFederal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .
CitedEller v Grovecrest Investments Ltd CA 1995
The court set out the history of the development of the law relating to the availability of set-off in the case where a landlord has levied or intends to levy distress.
Held: The law had developed, and an equitable right of set off against a . .
CitedTalbot v Frere CA 1878
Sir George Jessel MR said: ‘there could not be a set-off until action brought and set-off pleaded.’ . .
CitedStein v Blake HL 18-May-1995
Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity

Updated: 18 December 2021; Ref: scu.80707

Lee-Parker v Izzett (1): ChD 1971

Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence of set-off at law to a claim for unpaid rent. Justice Goff discussed the case of Taylor v Beal: ‘I do not think this is bound up with technical rules of set off. It is an ancient common law right. I therefore declare that so far as the repairs are within the express or implied covenants of the landlord, the third and fourth defendants are entitled to recoup themselves out of future rents and defend any action for payment thereof. It does not follow however that the full amount expended by the third and fourth defendants on such repairs can properly be treated as payment of rent. It is a question of fact in every case whether and to what extent the expenditure was proper.
For the sake of avoiding misunderstanding I must add that of course the Taylor v Beal right can only be exercised when and so far as the landlord is in breach and any necessary notice must have been given to him.’

Goff J
[1971] 1 WLR 1688, [1971] 3 All ER 1099
England and Wales
Citing:
CitedBeall v Smith CA 6-Dec-1873
Lord Justice James discussed the practice in the Court of Chancery on claims brought by people without mental capacity: ‘The law of the Court of Chancery undoubtedly is that in certain cases where there is a person of unsound mind, not so found by . .

Cited by:
CitedSmith v Muscat CA 10-Jul-2003
The tenant was sued by his landlord for arrears of rent, but sought an equitable set-off for damages for disrepair accruing under the previous landlord.
Held: If the entitlement to recover arrears of rent passes from assignor to assignee, and . .
CitedAndrews and Another v Brewer and Another CA 17-Feb-1997
Tenants challenged an order for possession, saying the form of notice was defective. The date specified in the notice was clearly a clerical error. It provided that the tenancy would commence on 29 May 1993 and end on 28 May 1993, on the face of it, . .
CitedGraham v Pitkin PC 9-Mar-1992
A delay in completion was not challenged by a notice to complete; mere delay may itself be repudiatory. Specific performance was considered. As to Lee-Parker v Izzett, the Board doubted the finding that there was no contract in that case, because . .
CitedThe Mortgage Corporation Ltd v Ubah CA 21-Mar-1996
The respondent mortgagee had obtained an order for possession against the mortgagor freeholder, referred to in the judgment as ‘the Chief’, who had, prior to the mortgage, granted a tenancy to the appellant.
Held: The landlord’s retention of a . .
CitedEdlington Properties Limited v J H Fenner and Co Limited CA 22-Mar-2006
The landlord had assigned the reversion of the lease. There was an outstanding dispute with the tenant defendant who owed arrears of rent, but sought to set these off against a claim for damages for the landlord’s failure to construct the factory in . .
CitedBritish Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd ChD 19-Dec-1978
Money expended by a tenant on discharging his landlord’s covenants will in appropriate circumstances operate as a partial or a complete discharge so as to furnish a defence at law to a claim for unpaid rent; and where the tenant has suffered damage . .
See AlsoLee-Parker v Izzett (2) 1972
A contract was exchanged subject to ‘the purchaser obtaining a satisfactory mortgage’.
Held: A contract which is said to be conditional, but where the condition is not expressed clearly or is too imprecise as in this case, may be void for . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Equity

Updated: 05 December 2021; Ref: scu.185861

Roadchef (Employee Benefits Trustees) Ltd v Hill and Another: ChD 29 Jan 2014

Challenge to share transfer.

Proudman J
[2014] EWHC 109 (Ch)
Bailii
England and Wales
Cited by:
CitedEclairs Group Ltd and Glengary Overseas Ltd v JKX Oil and Gas Plc SC 2-Dec-2015
Company Director not Trustee but is Fiduciary
The Court was asked about an alleged ‘corporate raid’, an attempt to exploit a minority shareholding in a company to obtain effective management or voting control without paying what other shareholders would regard as a proper price.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Equity, Company

Updated: 29 November 2021; Ref: scu.520825

In re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose: ChD 1949

The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
Held: Equity will not compel an imperfect gift to be completed. Nevertheless, the testator had done everything in his power to divest himself of the shares in question to Mr Hook. He had executed a transfer. It was not suggested that the transfer was not in accordance with the company’s regulations. He had handed that transfer together with the certificates to Mr Hook. There was nothing else the testator could do. Mr Hook’s legal title would not be perfected until the directors passed the transfer for registration, but that was not an act which the testator had to do, it was an act which depended on the discretion of the directors. The gift was effective

Jenkins J
[1949] Ch 78
England and Wales
Cited by:
CitedPennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
ApprovedIn re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
CitedMascall v Mascall CA 13-Jun-1984
The question was whether a gift of land was completely constituted by delivery of the land certificate
Held: Equity will not come to the aid of a volunteer. Therefore, if a donee needs to get an order from a court of equity in order to . .
CitedPennington and Another v Waine, Crampton and others CA 4-Mar-2002
The deceased had made a gift of shares. She had executed a transfer, and acting upon the promise, the donee had agreed to become a director which he could only do if he also became a shareholder. The transfer was delivered to the deceased’s agent, . .
CitedBurnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
Appeal fromIn re Rose, Rose v Inland Revenue Commissioners CA 1952
The deceased had executed instruments of transfer and delivered them with the relevant certificates to the transferees.
Held: The transfers were transferred the whole of the deceased’s title both legal and equitable in the shares and all . .
MentionedZeital and Another v Kaye and Others CA 5-Mar-2010
The deceased had held an apartment through beneficial interests in shares in a limited company. He died intestate. The parties disputed the ownership of the two shares. The company had been put into a members’ liquidation, and the company liquidator . .

Lists of cited by and citing cases may be incomplete.

Company, Wills and Probate, Equity

Updated: 17 November 2021; Ref: scu.183412

Commission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd): CA 4 Mar 1995

The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to mislead the plaintiff into making the relevant mistake, the plaintiff had in fact made it, and this was sufficiently unconscionable conduct on the part of the defendant to render it liable to rectification. The deliberate attempt to hide the other’s mistake made the contract unenforceable. An offer and acceptance of a land contract may not be by letter. Rectification may in certain circumstances be ordered, where there has been no common mistake, but one party has proceeded on a base which the other knew to be mistaken. Where A intends B to be mistaken as to the construction of a contract and diverts B’s attention from discovering the mistake by making false and misleading statements and B makes the mistake which A intends, then suspicion and not actual knowledge of the mistake is enough for rectification to be granted.
Stuart-Smith LJ said: ‘[W]here a false representation is made for the purpose of inducing the other party to adopt a certain course of conduct and the representation is such as to influence a person behaving reasonably to adopt that course of conduct, the court should infer, in the absence of evidence to the contrary, that the representation did have that effect.’ and
‘In the case of unilateral mistake, that is to say where only one party is mistaken as to the meaning of the contract, rectification is not ordinarily appropriate. This follows from the ordinary rule that it is the objective intention of the parties which determines the construction of the contract and not the subjective intention of one of them. Also, it would generally be inequitable to compel the other party to execute a contract, which he had no intention of making, simply to accord with the mistaken interpretation of the other party: see Olympia Sauna Shipping Co SA v Shinwa Kaiun Kaisha Ltd [1985] 2 Lloyds Rep. 364, 371 per Bingham J. But the court will intervene if there are ‘additional circumstances that render unconscionable reliance on the document by the party who has intended that it should have effect according to its terms:’ Spry, Equitable Remedies, 4th ed. (1990), p.599. The debate in this case turns on what amounts to unconscionable conduct.’

Stuart-Smith LJ, Evans LJ, Farquharson LJ
Times 04-Mar-1995, Independent 15-Mar-1995, [1995] 2 All ER 929, [1995] Ch 259, [1995] 26 EG 129
Law of Property (Miscellaneous Provisions) Act 1989 2
England and Wales
Cited by:
CitedWell Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
CitedGeorge Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedColes and Others v William Hill Organisation Ltd ChD 18-Mar-1998
When agreeing an extension of an existing lease, the new lease by mistake included a break clause which had been intended by neither party. The tenant’s solicitors noticed the error in their client’s favour but did not mention it. The landlord only . .
CitedNorth Eastern Properties Ltd v Coleman and Another CA 19-Mar-2010
The appellants challenged specific performance orders obliging them to complete the purchase of apartments, saying that the contracts had not complied with the 1989 Act, and that their repudiation of the contracts had been accepted. The contracts . .
CitedDaventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.79287

In re Diplock’s estate: CA 1948

After considering a situation in which trust money had been applied in making alterations to the property of an innocent third party but had not added to the value of the property,
Held: The origin of the equitable rules of tracing were described: ‘the metaphysical approach of equity coupled with and encouraged by the far-reaching remedy of a declaration of charge that enabled equity to identify money in a mixed fund.’ and
‘In the absence of authority to the contrary, our conclusion is that as regards the Diplock money used in these cases it cannot be traced in any true sense; and, further, that even if this were not so, the only remedy available to equity, viz., that of a declaration of charge, would not produce an equitable result and is inapplicable accordingly’
and ‘In the case of adaptation of property of the volunteer by means of trust money, it by no means necessarily follows that the money can be said to be present in the adapted property. The beneficial owner of the trust money seeks to follow and recover that money and claims to use the machinery of a charge on the adapted property in order to enable him to do so. But in the first place the money may not be capable of being followed. In every true sense the money may have disappeared. …. The result may add not one penny to the value of the house. Indeed the alteration may well lower the value of the house. …. Can it be said that in such cases the trust money can be traced and extracted from the altered asset? Clearly not for the money will have disappeared leaving no monetary trace behind. ….’
As regards limitation, the 12 year period for enforcing a will trust runs from the date of the death, even though a personal representative is not bound to distribute within a year from death.

Lord Greene MR
[1948] Ch 465
England and Wales
Citing:
ExplainedSinclair v Brougham HL 1914
An insolvent building society had, outside its powers, run a banking business. The House considered the competing claims of the unadvanced shareholders of the building society’s intra vires business, members of the society who had not been granted . .

Cited by:
CitedAluminium Industrie Vaassen B V v Romalpa Aluminium Ltd ChD 11-Feb-1975
The plaintiffs sold aluminium to the defendant and by a clause in the contract retained their title in the materials sold until payment was received. The purchaser went into insolvent receivership, and the seller sought recovery of the equipment and . .
CitedFoskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
CitedFoskett v McKeown and Others HL 18-May-2000
A property developer using monies which he held on trust to carry out a development instead had mixed those monies with his own in his bank account, and subsequently used those mixed monies to pay premiums on a life assurance policy on his own life, . .
CitedGreen and others v Gaul and Another; In re Loftus deceased ChD 18-Mar-2005
The claimants began an action in January 2003 to seek to set aside the appointment of an administrator from December 1991, and to have set aside transfers of property made within the estate.
Held: The limitation period against a personal . .
Appeal fromMinistry of Health v Simpson; In re Diplock dec HL 1950
The will of Cable Diplock purported to make a gift to charity, and was distributed accordingly. The house however found the gift to be invalid.
Held: A personal remedy existed for the recovery of amounts wrongly paid in the distribution of an . .
CitedGomez and others v Vives CA 3-Oct-2008
The claimant appealed a finding that the court did not have jurisdiction over income payable to a trust governed by English law under which the claimant was beneficiary.
Held: The appeal failed in part. Because Article 5 is in derogation from . .

Lists of cited by and citing cases may be incomplete.

Equity, Limitation

Leading Case

Updated: 11 November 2021; Ref: scu.182265

Harries and Others v Church Commissioners for England and Another: ChD 25 Oct 1991

Trustees Investing using Wider Considerations

The applicant sought a declaration that the Commissioners were obliged to have regard to the object of promoting the Christian faith and not to act in a manner which would be incompatible with that object when managing the assets of which they were trustees. The plaintiffs said that the commissioners, in making investment decisions, attached overriding importance to financial considerations, and that they were only prepared to take non-financial considerations into account to the extent that they did not significantly jeopardise or interfere with accepted investment principles.
Held: The declarations sought were refused. The Church Commissioners were entitled to take ethical considerations into account in forming an investment policy provided there was no risk of detriment to the Trust funds. Ethical investments putting financial return at risk were not open to trustees. Investments should aim for the best return, and be chosen only not to conflict with any express aims of the charity, and should not be used to make moral statements. Trustees must find balance neither bringing their charity into disrepute, nor failing to act with prudence. Such considerations could be allowed provided they did not adversely affect the return.
When property was held by trustees for the purpose of generating money, then prima facie, the purposes of the trust were best served by the trustees seeking to obtain the best return which was consistent with commercial prudence and in most cases, the best interests of the charity required that the trustees’ choice of investments be made solely on the basis of well-established investment criteria. The circumstances in which charity trustees were bound or entitled to make financially disadvantageous investment decisions for ethical considerations were extremely limited and there was no evidence that such circumstances existed in the case before the court. The declaration was refused.
Donald Nicholls VC said: ‘the law is not so cynical as to require trustees to behave in a fashion which would bring them or their charity into disrepute . . on the other hand, trustees must act prudently. They must not use property held by them for investment purposes as a means for making moral statements at the expense of the charity of which they are trustees.’

Sir Donald Nicholls VC
Gazette 11-Nov-1991, [1992] 1 WLR 1241, [1992] 2 All ER 300, [1991] 135 SJLB 180, Times 30-Oct-1991, Independent 29-Oct-1991
England and Wales

Trusts, Equity, Charity

Leading Case

Updated: 11 November 2021; Ref: scu.81250

Vadim Schmidt v Rosewood Trust Limited: PC 27 Mar 2003

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.

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough, Lord Walker of Gestingthorpe
Times 29-Mar-2003, [2003] UKPC 26, Gazette 05-Jun-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
PC, Bailii, PC
Citing:
CitedMcPhail v Doulton (on appeal from In re Baden’s Deed Trusts) HL 6-May-1970
The settlor asked whether the test for validity, in point of certainty of objects, is the same for trusts and powers, or whether the test for trusts is more demanding.
Held: The test is the same. The context was a provision, held to be a . .
CitedIn re Manisty’s Settlement ChD 1974
The court contrasted the exercise by trustees of an intermediate power with the exercise of a wide special power.
Held: A wide power, whether special or intermediate, does not negative or prohibit a sensible approach by trustees to the . .
CitedO’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
CitedIn re Londonderry’s Settlement; Peat v Lady Walsh CA 3-Nov-1964
The Court considered limitations on the right to disclosure of trust documents, and in particuar the need to protect confidentiality in communications between trustees as to the exercise of their dispositive discretions, and in communications made . .

Cited by:
CitedFranses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
CitedBreakspear and others v Ackland and Another ChD 19-Feb-2008
Beneficiaries sought disclosure of a wishes letter provided by the settlor to the trustees in a family discretionary trust.
Held: The confidentiality in the letter was, in the absence of some express term by the settlor, in the trustees, and . .
CitedDawson-Damer and Others v Taylor Wessing Llp and Others ChD 6-Aug-2015
The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .
CitedTN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .
CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.180352

Heath v Kelly and Another: ChD 24 Jul 2009

The defendant and the deceased had purchased a house as joint tenants in equity. The claimant sought to enforce an agreement for the sale of the defendant’s half share. Payment having been made. The defendant argued that the agreement was uncertain and unenforceable.
Held: The agreement appeared to have been made under a misapprehension as to the legal position. The mistake appeared to have been created by the party seeking to rely on it, and equity could refuse specific performance of the contract. The claimant had also delayed her action. Specific performance was refused. Declaration as to interests accordingly.

Purle QC J
[2009] EWHC 1908 (Ch), [2009] Fam Law 1044, [2010] 1 FLR 610, [2009] 2 P and CR DG21
Bailii
England and Wales
Citing:
CitedGreat Peace Shipping Ltd v Tsavliris (International) Ltd CA 14-Oct-2002
The parties contracted for the hire of a ship. They were each under a mistaken impression as to its position, and a penalty became payable. The hirer claimed that the equitable doctrine of mutual mistake should forgive him liability.
Held: . .
CitedMilward v Earl Thanet CA 1801
Lord Alvanley MR said: ‘a party cannot call upon a Court of Equity for specific performance, unless he has shewn himself ready, desirous, prompt, and eager.’ . .
CitedP and O Nedlloyd Bv v Arab Metals Co and others CA 13-Dec-2006
An order for specific performance had been refused in a disputed contract for carriage. The claimant argued that normal limitation periods should not be applied by analogy.
Held: Because there was no corresponding legal remedy the remedy in . .
CitedWilliams v Greatrex CA 1956
A purchaser agreed to buy land to be laid out in building plots. On payment of a deposit and giving notice, the purchaser was to be entitled to enter onto a particular plot in order to build on it. The arrangement met with difficulties, with the . .

Lists of cited by and citing cases may be incomplete.

Land, Contract, Equity

Updated: 11 November 2021; Ref: scu.361469

Ketteringham and Another v Hardy: ChD 3 Feb 2011

Two partners had together bought several properties for development, and now disputed the interests in one of them. One partneer had dies, and the refusal of development permission and the fall in property values left the land in negative equity. The court was asked to find that a partnership existed and that the estate was liable to contribute to the losses.
Held: No partnership existed. The matter was to be resolved according to the principles of equitable accounting. The real question to be determined is whether it was the common intention of the parties that Nick Ketteringham would contribute to the liability under the mortgage in the event that the net proceeds of sale were less than the sum outstanding under the mortgage. No such common contention had been expressed, and therefore the estate could not be held liable to contribute.

Behrens J
[2011] EWHC 162 (Ch), [2011] WTLR 1367
Bailii
Partnership Act 1890 24
England and Wales
Citing:
CitedClarke v Harlowe ChD 12-Aug-2005
A house was bought in the joint names of the parties. It was in bad condition. An express declaration of trust said they held as beneficial joint tenants. One tenants was earning much more than the other. He paid all the mortgage instalments. Very . .
CitedWilcox v Tait CA 13-Dec-2006
The court considered the principles of equitable accounting as between co-owners of land.
Held: The question of whether there is a liability to account depends on the intention of the parties. Jonathan Parker LJ said: ‘Moreover, it is in any . .
CitedFrench v Styring 8-May-1857
A and B were joint owners of a race horse, and had agreed that A should keep and train and have the general management of the horse, conveying him to and entering him for the different races ; that 35s. per week should be allowed for his keep ; and . .
CitedJaenicke v Schulz 1924
. .

Lists of cited by and citing cases may be incomplete.

Trusts, Equity

Updated: 11 November 2021; Ref: scu.428427

Hosking v Marathon Asset Management Llp: ChD 5 Oct 2016

Loss of agent’s share for breach within LLP

The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a limited liability partnership.
Held: The profit share of a partner or LLP member can potentially be subject to forfeiture. A partner or LLP member is an agent the mere fact that someone is a partner or LLP member as well as an agent should not preclude the operation of a principle which affects agents more generally.

Newey J
[2016] EWHC 2418 (Ch), [2016] WLR(D) 501, [2017] Ch 157, [2017] 2 WLR 746,
Bailii, WLRD
Arbitration Act 1996, Partnership Act 1890, Limited Liability Partnerships Act 2000, Limited Liability Partnership Regulations 2001
England and Wales
Citing:
CitedAndrews v Ramsay 1903
The plaintiff asked the defendant estate agents to find a purchaser for his property at a price of pounds 2,500 and if one such was found the agents’ fee would be pounds 50. A purchaser, one Clutterbuck, at pounds 2,100 was found. He paid the agents . .
CitedKeppel v Wheeler CA 1927
The plaintiff engaged the defendant estate agents to sell a property, instructing them to market it at 6,500 pounds but that he would accept 6,000 pounds. The plaintiff accepted an offer of 6,150 pounds ‘subject to contract’. Before exchange, . .
CitedImageview Management Ltd v Jack CA 13-Feb-2009
The appellant company acted for the respondent footballer in placing him with a football club. The respondent said that he had also taken a payment from the club, nominally for arranging a work permit. The respondent said this was improper. The . .
CitedBank of Ireland and Another v Jaffery and Another ChD 23-May-2012
Claim for breach of fiduciary duty brought by the Bank against one of its erstwhile senior executives.
Held: Vos J concluded that forfeiture of agency fees would be disproportionate and inequitable for breach of an employment or agency . .
CitedDunne v English CA 1874
A partner had made a secret profit from the sale of partnership property.
Held: The other partner sought and obtained relief ‘substantially in accordance with the first and second paragraphs of the prayer of the bill’, which had sought ‘a . .
CitedHelmore v Smith 1886
The relationship between partners is of a fiduciary nature.
Bacon V-C said: ‘If fiduciary relation means anything I cannot conceive a stronger case of fiduciary relation than that which exists between partners. Their mutual confidence is the . .
CitedHilton v Barker Booth & Eastwood (a Firm) CA 22-May-2002
The firm of solicitors acted for both parties in a conveyancing transaction, in a situation when they were permitted to do so. The firm had previously acted for one party in a case where he had been convicted of a crime. The other party said the . .
CitedAvrahami and Others v Biran and Others ChD 25-Jun-2013
Management fees were to be forfeited for breach of a fiduciary duty by an agent. . .
CitedPremium Real Estate Ltd v Stevens 6-Mar-2009
Supreme Court of New Zealand – The court was asked as to the forfeiture of remuneration by an agent for breach of fiduciary duty.
Held: In relation to remoteness of damage, it was observed that the question of foreseeability in common law . .
CitedF and C Alternative Investments (Holdings) Ltd v Barthelemy and Another (No 2) ChD 14-Jul-2011
The court was asked as to the fiduciary obligations owed by members of the board of a limited liability company.
Held: Sales J said that: ‘there is nothing in the Act to qualify the usual fiduciary obligations which an agent owes his principal . .
CitedErikson v Carr 1945
New South Wales – an individual was alleged to have disentitled himself to commission as a result of a breach of duty.
Held: Though the legal rights of the parties would depend on the jury’s conclusions as to, among other things, ‘whether it . .
CitedOlson v Gullo 1994
(Court of Appeal for Ontario) A Mr Olson and a Mr Gullo had formed a partnership to develop a tract of land. Mr Gullo nevertheless bought and sold part of the land for his own account at a substantial profit which he planned to pocket. The trial . .
CitedZahid v M Young Legal Associates Ltd and others CA 16-May-2006
Is it possible for a person to be a partner in a firm, and thus liable jointly with the other partners to creditors of the firm, even if his agreement with them is not that he should be entitled to participate in its profits but that he should be . .
CitedZahid v M Young Legal Associates Ltd and others CA 16-May-2006
Is it possible for a person to be a partner in a firm, and thus liable jointly with the other partners to creditors of the firm, even if his agreement with them is not that he should be entitled to participate in its profits but that he should be . .
CitedReinhard v Ondra Llp and Others ChD 14-Jan-2015
The parties disputed whether the claimant had become a member of the defendant limited liability partnership.
Warren J said: ‘the ‘share’ of a member [of an LLP] is the totality of the contractual or statutory rights and obligations of that . .

Lists of cited by and citing cases may be incomplete.

Agency, Equity, Company

Updated: 10 November 2021; Ref: scu.569924

Reeve v Lisle and others: HL 1902

In 1896 the plaintiffs agreed to lend andpound;5,000 to the defendant to be secured by a ship mortgage (executed later), requiring that if at any time during the period of two years the plaintiffs should elect to enter into partnership with the defendant, they would relieve the defendant of liability for payment of the mortgage money, and would transfer the ship, free of the mortgage, so that it could form part of the capital of the partnership. The plaintiffs did not go into partnership, but nor was the loan repaid. A further mortgage was executed, as additional security, in June 1898. In July they made a further agreement, which, after referring to the existing mortgages, the fact that the monies were outstanding and a request from the defendant for further time for payment, gave the plaintiffs a right, for five years, to enter into partnership with the defendant, in which case the same consequences would follow as had been agreed in the April 1896 agreement. In February 1900 the plaintiffs sought to exercise the right to enter into partnership with the defendant. The defendant resisted, on the basis that the right granted by the July 1898 agreement was in the nature of a clog on the right to redeem the mortgage made in June of that year. The House was asked whether the mortgage of June 1898 and the agreement of July 1898 were, in reality, one and the same transaction.
Held: It said no. The parties to a mortgage may, by a separate, independent transaction validly agree to give the mortgagee an option over the mortgaged property, and thus may have the effect of depriving the mortgagor of his right to redeem.
Lord Macnaghten said: ‘Notwithstanding the very able and ingenious argument by [counsel for the appellant] to prove that the purpose of this document [the July 1898 agreement] was really consolidation and rearrangement of the mortgages, in my opinion it was nothing of the kind.’
Lord Lindley said: ‘In point of fact, the real transaction was not taking a mortgage security for 5000l. or getting a better security than they had. The real transaction [in July 1898] was that the mortgagees were bargaining for a share in the partnership on certain terms.’

Lord Macnaghten, Lord Lindley
[1902] AC 461
England and Wales
Citing:
Appeal fromReeve v Lisle and others CA 1902
The parties had entered into a series of agreements for loans, and partnerships. The defendants resisted a request by the plaintiff to be allowed, under the agreement, into partnership on a failure to repay the loan.
Held: The appeal . .

Cited by:
CitedJones v Morgan CA 28-Jun-2001
The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly . .

Lists of cited by and citing cases may be incomplete.

Equity

Leading Case

Updated: 10 November 2021; Ref: scu.443247