designed by C. S. Nelson (Leeds) in 1895 for the London and Yorkshire Bank Ltd. The Claimant claimed damages . Further, under section 12(1)(a) Mr Hunter is already in breach of an obligation to take delivery of the cattle. However, the comparison ceases to be favourable to Mr Hunter from that point. Mr Hunter replied by an e-mail received at 14.07 on that day. I have referred to the land which is the subject matter of the charge. 31. In these circumstances, if it is a relevant question to ask whether the Receivers did the right thing when they took the property to auction and sold it at auction, as compared with cancelling the auction and continuing to talk to Mr Hunter, my conclusion is that they plainly and unarguably took the better course. It is not a case where the contract which is first in time is valid and the contract which is second in time lacks legal effect. BRIGHOUSE BRADFORD ROAD, BRIGHOUSE. 84. Mr Hunter was represented by counsel; Mrs Hunter was not represented by a legal representative. The contracts provided for the buyer to take the land free from the bank's charge. 22. 61. Venue: CLUB LANGLEY Pitch 1. MR HUNTER: So what are you asking for? 13 December 2021. Facts [ edit] A testator died in 1922 and named his widow, two sons and wives and one grandchild as the beneficiaries. What strikes one from reading section 91(2) of the Law of Property Act 1925 is that it gives the Court in appropriate circumstances a power to order the sale of property. 41 Lothbury London EC2P 2BP United Kingdom (071) 726-1000. It seemed to emerge in the course of argument that Mr Taylor is known to Mr Hunter and it also seemed to emerge that the buyer is not Mr Taylor personally but is a company controlled by Mr Taylor. So under these contracts Mr Hunter on the face of it was contracting to sell land which was subject to a charge charging a liability to pay a sum of money well in excess of 2.5 million for a purchase price of 930,000. I will return to the circumstances in which the Court might or might not make such an order after I have considered the effect of the various contracts which have been entered into. There are other provisions which may perhaps be useful in connection with a proposed sale by a Receiver but it is not necessary to refer to them in this judgment. Mr Taylor's company has acquired contractual rights. Mr Hunter has persistently said in the course of his submissions that he did not make that contract, he is not bound by it, he is not the seller. Part payment will be paid up-front with the remainder being paid in 12 months' time, which would have to be on a second charge basis. 83. 77. MR JUSTICE MORGAN: Right. Until the Court of Appeal grapple with your case these orders will bind you. 6. Has similar elements of design as No 10 Bradford Road, (the National Westminster Bank), Brighouse (q.v.) Sentencing Remarks of Mrs Justice Cockerill. Can I appeal that you're only giving me two weeks as a litigant in person to appeal, sir? MR JUSTICE MORGAN: Well, I'm not giving you permission to do it. 88. I remain open to further negotiations. Hunter, Dan 13 13 1 13 Key, Jono 1 1 14 Macdougal, Ewan 12 . It is not clear from what I was told in the course of his submissions by Mr Hunter whether other formal documents exist. It is agreed that all of the land with which this case is concerned is subject to one or other of those two charges. The mortgagor put forward a number of reasons why the mortgagor should have conduct of the sale, one of those perceived benefits was that the mortgagor could remain in possession and resist an order for possession or the enforcement of an order for possession in favour of the mortgagee. 18. The consequence of that will be that the only contract that Mr Hunter is able to perform is the one in favour of Mr Taylor's company. 3. For every 1,000 home finance loans that we had outstanding, we received five complaints. That certainly means that Mr Hunter is not able to convey title to the charged property to a third party. MR JUSTICE MORGAN: Which bit of it do you want to appeal? FCA-v-Natwest-Sentencing-remarks-131221.pdf 405.95 kb. In this context Miss Windsor cited a passage from Fisher and Lightwood's Law of Mortgage, 13th edition, paragraph 30.38. This decision, together with an academic article written by Roy Goode, [1] is sometimes looked upon as the turning point in relation to the stricter requirements in relation to . MR JUSTICE MORGAN: If there is a public footpath and if you come to court asking for this to be varied then that is entirely something you can do and the Court will react to it when it has the evidence on which to act. The bank has prepared a detailed chronology of those communications for the purposes of this hearing. 36. True it is that Mr Hunter owns the cattle, the bank does not own the cattle and does not have a security interest in the cattle. We use necessary cookies to make our site work. It may be convenient at this point before considering the application of section 91(2) to that state of affairs to investigate a matter which has been very much in dispute in the course of argument. There is an effective contract by Mr Hunter to sell to Mr Taylor's company. By Stuart Littlewood. It is also the case that there have been further applications to the Court and eventually Mr and Mrs Hunter did leave the land, that is they ceased to reside on any part of the land or buildings. National Westminster Home Loans Ltd. Nationwide Building Society. v. Arthur Young McClelland Moores & Co. (Practice Note) . If you want to have some sort of suspension or stay you will have to go to the Court of Appeal at an oral hearing probably and ask for them to be modified. Mr Hunter says that the cattle are in his possession, they are under his control, they are not in the possession of the bank, they are not under the control of the bank. 75. Title will be transferred by the mortgagee pursuant to the draft TR2 referred to in the contract. I have been shown a number of authorities on the operation of section 91(2). Under section 13 the Court has the power in relation to goods to which section 12 applies where it is shown that the bank would be entitled to sell the goods if it gave a notice in accordance with schedule 1 to the Act, the Court may then authorise the sale subject to such terms and conditions as may be specified in the order. Adam Billey. So for all those reasons I will abridge time to 14 days. As the charges are in the same terms it will suffice if I refer to one of them and I will refer to the charge of 6th July 2006. In the suit brought by the beneficiaries it was held by the chancery division that once the trust account was opened, the . The beneficiaries named were the widow, children and remoter issue of the settlor. 2 storeys and attic. So it will be the lodging of the appeal which will enable a number to be added to the appeal and then my instructing solicitors to apply for an expedited hearing and even at that point we anticipate it will take some weeks. 34. 45. What matters more are the events of the 14th July of this year. He was ordered by the Aylesbury County Court to remove the cattle by a date in the past. By section 352 of the Act of 1985: " (1) Every company shall keep a register of its members and enter in it the particulars required by this section. National Westminster v Morgan [1985] AC 686 by Will Chen 2.I or your money back Check out our premium contract notes! Citing: Applied - Henderson v Henderson 20-Jul-1843. Sorry, I don't understand what you're asking for. The mortgagor does not need an order of the Court to force the mortgagee to sell the property, the mortgagee has been taking active steps to sell the property and has got the benefit of a contract under which it will sell the property. That's correct? Jul 2021. The Court of Appeal decision in National Westminster Bank Plc. The bank appointed Receivers in relation to all of the charged property on 14th January 2010. You are also aware that there is waste contaminated by asbestos that has to be removed by 2nd August 2011, which is a condition set by the enforcement notice served by Aylesbury Vale District Council. [2] It is the leading English case and a banker's right to combine accounts, [3] and also an important decision relating to insolvency set-off. 72. Read the full decision in Ms A Willis v National Westminster Bank plc: 2205821/2020 - Judgment with Reasons. MR JUSTICE MORGAN: There is something before that, is there? The bank wishes to sell, the bank has taken steps to sell, the bank has gone about the matter in a way which cannot be undone, certainly not on the application of Mr Hunter as mortgagor. The cattle are chattels personal and are therefore goods and therefore the statutory provisions apply to the cattle. The Second Defendant is his wife, Mrs Karen Hunter. The leading authority which identified the potential of the sub-section is the decision of the Court of Appeal in Palk v. Mortgage Services Funding Plc [1993] Ch. 32. Is there a public footpath across the land? The mortgagor's obligations were defined earlier in the document as all of the mortgagor's liability to the bank of any kind. I don't understand the system, sir. So in Mr Hunter's favour I determine that he is a person interested in the right of redemption. At all material times the First Defendant, Mr Robert Hunter, has been the freehold owner of that land. National Westminster Bank. The bank has prepared a draft order which has been considered in the course of submissions today. Southwark Crown Court. So I do not think there is any inconsistency in the order. 30. Is that clear? By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. It is not said that any evidence as to the availability of funding beyond what was stated in the letters was provided to the bank before or on 14th July 2011. Constructive trusts and proprietary estoppel often do what unjust enrichment cannot Birks, An Introduction to the Law of Restitution (Clarendon Press, 1989), 89 Fuller,Legal Fictions (Stanford University Press, 1967) Att-Gen for Hong Kong v. Reid [1994] AC 324 Westdeutsche Landesbank v. MR JUSTICE MORGAN: Shall I hear what he says about that first? National Westminster Bank. As the months went by the bank considered what course it should take and at some point it considered it should sell the land by auction in a conventional way. I am also asked to make orders providing for service in connection with possible committal applications. On 26th August 2011 Mr Hunter applied in the Aylesbury Count Court for the following order -- I read from the application notice: "Application to permit me to complete a contract entered into in February 2011, varied on 14th July 2011, to sell Maple Barn, two barn conversions, farm buildings and 104 acres of farmland to K Hunter and Sons Limited for 1.55 million." Bank) G. V. II. 6 bay facade. Those proceedings were started in the Aylesbury County Court by a claim form dated 29th June 2010. Sat 18 Feb 23. Mr Hunter has put before me a written argument prepared for him by solicitors whom he has consulted which puts forward the rival point of view. Because he is unable to perform them they will not be performed and title will be available to be transferred to Mr Taylor's company. I turn then to the contracts made on 14th July 2011, if that is the correct date, in favour of K Hunter and Sons Limited. So just reading the section alone one questions what it is the Court would be doing if it was to interfere with the state of affairs that has come about out of court. Phillips LJ, as he then was, said at page 1567: "I recognise the principles of the inherent jurisdiction of the Court" -- I omit certain words -- "but I question whether that principle can justify the Court in exercising its power to order a sale of mortgaged property under section 91 in circumstances where the mortgagee is seeking to enter into possession in order to sell property in which there is negative equity and where the sole object with which the mortgagor seeks that order is to prevent the mortgagee exercising his right to possession so that the mortgagor can negotiate his own sale while in possession.