swarb.co.uk - law index
These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.
Equity - From: 1995 To: 1995
This page lists 18 cases, and was prepared on 22 November 2014.
El Ajou -v- Dollar Land Holdings Plc; ChD 1995 -  2 All ER 213
Castle Phillips Finance -v- Piddington; CA 1995 -  1 FLR 783
South Tyneside Metropolitan BC -v- Svenska International plc; 1995 -  1 All ER 545
Boustany -v- Piggott; PC 1995 -  69 P&CR 298
Racal Group Services Limited -v- Ashmore  STC 1151
Peter Gibson LJ
The company had covenanted to pay an annual sum to charity. Since the last payment under the covenant was to be made less than three years after the execution of the deed, an intended tax advantage was not secured. Held: The company's appeal failed, and the court denied rectification, on the footing that the company had failed to establish to the required standard that the covenant did not give effect to its true intention. Peter Gibson LJ approved a statement as to rectification in Snells Equity: "What is rectified is not a mistake in the transaction itself, but a mistake in the way in which transaction has been expressed in writing".
Tsb Bank Plc -v- Camfield Gazette, 18 January 1995
18 Jan 1995
A court is not able to impose conditions for granting equitable relief.
Morgan Guaranty Trust Co of New York -v- Lothian Regional Council Times, 19 January 1995; 1995 SLT 299; 1995 SC 151
19 Jan 1995
Lord Hope of Craighead
Money paid under error in law is repayable according to equity, and without statutory authority on the ground of unjustified enrichment.
Halifax Building Society -v- Brown and Another; Raphael Jorn Helmsley Ltd -v- Same; CA 8-Feb-1995 - Times, 08 February 1995
Langton -v- Langton and Another Times, 24 February 1995;  2 FLR 890
24 Feb 1995
Equity, Undue Influence
The doctrine of 'unconscionable bargain' does not extend to gifts obtained by undue influence.
Commission for the New Towns -v- Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd); CA 4-Mar-1995 - Times, 04 March 1995; Independent, 15 March 1995;  2 All ER 929;  Ch 259;  26 EG 129
Boscawen and Others -v- Bajwa and Others; Abbey National Plc -v- Boscawen and Others Gazette, 01 June 1995; Independent, 23 May 1995; Times, 25 April 1995;  1 WLR 328;  EWCA Civ 15
10 Apr 1995
Millett LJ, Stuart-Smit LJ, Millet LJ
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halfax's charge. Held: A mortgagee whose loan is used to repay another charged debt is subrogated to that debt, and can rely on that charge. Millett LJ: "If the plaintiff succeeds in tracing his property, whether in its original or in some changed form, into the hands of the defendant, and overcomes any defences which are put forward on the defendant's behalf, he is entitled to a remedy. The remedy will be fashioned to the circumstances. The plaintiff will generally be entitled to a personal remedy; if he seeks a proprietary remedy he must usually prove that the property to which he lays claim is still in the ownership of the defendant. If he succeeds in doing this the court will treat the defendant as holding the property on a constructive trust for the plaintiff and will order the defendant to transfer it in specie to the plaintiff. But this is only one of the proprietary remedies which are available to a court of equity. If the plaintiff's money has been applied by the defendant, for example, not in the acquisition of a landed property but in its improvement, then the court may treat the land as charged with the payment to the plaintiff of a sum representing the sum by which the value of the defendant's land has been enhanced by the use of the plaintiff's money. And if the plaintiff's money has been used to discharge a mortgage on the defendant's land, then the court may achieve a similar result by treating the land as subject to a charge by way of subrogation in favour of the plaintiff."
[ Bailii ]
McGrath -v- Wallis Times, 13 April 1995; Gazette, 12 April 1995
12 Apr 1995
The presumption of advancement is now to be seen as a doctrine of last resort.
Style Financial Services Ltd -v- Bank of Scotland (Scotland) Times, 23 May 1995
23 May 1995
Sums received as agent but paid in overdrawn account are untraceable.
Halifax Building Society -v- Thomas and Another; CA 29-Jun-1995 - Independent, 04 August 1995; Times, 04 July 1995;  Ch 217;  EWCA Civ 21;  4 All ER 673;  2 WLR 63
Midland Bank -v- Cooke and Another; CA 13-Jul-1995 - Independent, 26 July 1995; Times, 13 July 1995; Gazette, 31 August 1995;  4 All ER 562;  2 FLR 915
First National Bank Plc -v- Thompson; CA 25-Jul-1995 - Ind Summary, 31 July 1995; Times, 25 July 1995; Gazette, 15 September 1995
Tribe -v- Tribe Gazette, 15 September 1995; Times, 14 August 1995;  Ch 107;  3 WLR 913;  EWCA Civ 20
26 Jul 1995
The plaintiff held 499 of the 500 issued shares of a company. In 1986 he wished to retire and transferred 30 shares to his son, one of four children, who was to take over the business. In 1988 he was worried about a bill for dilapidations and to safeguard his position and with the intention of defrauding his creditors, he transferred the remaining shares. The judge found that the father and the son had agreed that the shares would be held on trust for the father pending the settlement of the dilapidation claims. Held: The illegal (but unused) purpose of a gift was admitted as evidence to rebut the presumption of advancement.
Millett LJ "But it does not follow that subsequent conduct is necessarily irrelevant. Where the existence of an equitable interest depends upon a rebuttable presumption or inference of the transferor's intention, evidence may be given of the subsequent conduct in order to rebut the presumption or inference which would otherwise be drawn." and
“In my opinion the following propositions represent the present state of the law. (1) Title of property passes both at law and in equity even if the transfer is made for an illegal purpose. The fact that title has passed to the transferee does not preclude the transferor from bringing an action for restitution. (2) The transferor’s action will fail if it would be illegal for him to retain any interest in the property. (3) Subject to (2) the transferor can recover the property if he can do so without relying on the illegal purpose. This will normally be the case where the property was transferred without consideration in circumstances where the transferor can rely on an express declaration of trust or a resulting trust in his favour. (4) It will almost invariably be so where the illegal purpose has not been carried out. It may be otherwise where the illegal purpose has been carried out and the transferee can rely on the transferor’s conduct as inconsistent with his retention of a beneficial interest. (5) The transferor can lead evidence of the illegal purpose whenever it is necessary for him to do so provided that he has withdrawn from the transaction before the illegal purpose has been wholly or partly carried into effect. It will be necessary for him to do so (i) if he brings an action at law or (ii) if he brings proceedings in equity and needs to rebut the presumption of advancement. (6) The only way in which a man can protect his property from his creditors is by divesting himself of all beneficial interest in it. Evidence that he transferred the property in order to protect it from his creditors, therefore, does nothing by itself to rebut the presumption of advancement; it reinforces it. To rebut the presumption it is necessary to show that he intended to retain a beneficial interest and conceal it from his creditors. (7) The court should not conclude that this was his intention without compelling circumstantial evidence to this effect. The identity of the transferee and the circumstances in which the transfer was made would be highly relevant. It is unlikely that the court would reach such a conclusion where the transfer was made in the absence of an imminent and perceived threat from known creditors.”
[ Bailii ]
Brinks Ltd -v- Abu-Saleh and Others (No 3) Times, 23 October 1995;  CLC 133
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.
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