Extra Case Law (not Core Set) For Assessment Centre

Question 1

Akram v Adam (CA)

Answer 1

If claim form was posted to D’s address, this is good service

Question 2

Albany Homes v Massey

Answer 2

Court entitled to take view that there is no realistic prospect of sums due being discharged, where D asks for suspension pending outcome of other proceedings

Question 3

Alliance Building Society v Shave

Answer 3

PO can be made against occupier in absence of Mgor. Order does not prejudice Mgor in their absence

Question 4

Alliance Building Society v Yap

Answer 4

In ejectment, no need to serve anyone not in possession of the property with the summons for possession

Question 5

Barclays Bank v Ellis (CA)

Answer 5

Party seeking to rely on HRA should provide court with any decisions of the ECHR on which they rely. Mere references to the ECHR do not help the court

Question 6

Daniels v Walker

Answer 6

If the CPR have been complied with, should not be allowed to raise the HRA as a form of last ditch defence

Question 7

Patricia Meads and others v UK

Answer 7

Eviction is compatible with Art 8 ECHR, where: it is carried out in accordance with the law (under court order), it pursues a legitimate aim (protection of mgees rights), and it is necessary and proportionate in a democratic society (mgor has had reasonable chance to pay sums due)

Question 8

Britannia Building Society v Earl

Answer 8

Unauthorised tenant does not become statutory tenant as against Mgee

Question 9

CGBS v Booker

Answer 9

Where MGee entrusted with conduct of the sale, Mgor should not generally be left in possession pending completion (unless Mgor agrees to this course)

Question 10

CGBS v Grant

Answer 10

A judge may stay execution of a PO without hearing formal evidence if the Mgee does not dispute oral evidence

Question 11

CGBS v Johnson

Answer 11

In the normal course of events, the proper approach is to suspend the money judgment on the same terms as the PO, unless there are special circumstances justifying a departure from that course

Question 12

Esso Petroleum v Alstonbridge Properties

Answer 12

Mgees app for PO is simply an app for possession of land - not proceedings for enforcing the mortgage. So, anyone not in possession is not a party to the proceedings

Question 13

First National Bank v Syed

Answer 13

Court should not exercise its discretion under s36 to stay or suspend PO if repayment within a reasonable time is manifestly beyond the means of the debtor

Question 14

Greyhound Guaranty V Caulfield

Answer 14

Where Mgor has fallen into arrears, the Mgees right to possession crystallises and remains exercisable, notwithstanding the repayment of the arrears. Proper course is to adjourn the claim to be reinstated if further arrears accrue

Question 15

Halifax Plc v Ankerman

Answer 15

Court requires firm evidence from D if the court is to exercise its discretion to deny the claimant it’s remedy

Question 16

Lloyds Bank Plc v Hawkins

Answer 16

If C obtains money judgment against D in the county court under a legal mortgage, may be estopped from bringing a separate action in the High Court for the same sum, having failed by inadvertence to claim the sum due

Question 17

Mortgage Agency Services Number 2 v Bal (CA)

Answer 17

Once the warrant for possession has been executed, the statutory jurisdiction ceases to be exercisable. The court can only act under its inherent jurisdiction if the judgment on which the warrant is based is set aside, or the execution of the warrant amounts to an abuse of process or oppression

Question 18

Mortgage Express v Da Rocha Afodu

Answer 18

In context of app to re-enter, pending app for permission to appeal, an alleged marketing of the property at an undervalue could not amount to oppression in the execution of the warrant.

Question 19

National and Provincial Building Society v Lloyd

Answer 19

Obiter dictum that if clear evidence that completion of sale could take place in a year, court could exercise s36 discretion.

But this is obiter, and is distinguishable from sale of house, as it related to sale of a farm.

Question 20

National Westminster Bank v Skelton

Answer 20

A Mgor cannot usually resist a Mgee’s action for possession by claiming an equitable set-off for an unliquidated sum exceeding the sum of the mortgage arrears

Question 21

Paragon Finance v Nash

Answer 21

The CCA 1974 provided borrowers with only limited protection from the working of the free market. The court could intervene only where a bargain was grossly unfair to the borrower, either because the payments required to be made where grossly exorbitant or grossly contravened ordinary principles of fair dealing

Question 22

Paratus AMC v Jameer

Answer 22

A borrower who asks the court to exercise its statutory discretion to allow further time for payment must present frankly and fully up to date information in respect of his expenditure and income such that the court could place reliance on that information

Question 23

RBS v Miller

Answer 23

For purposes of s36 AJA, the relevant time for determining whether land included a dwelling house was the time when Mgee claimed possession of the mortgaged property, not when the mortgage was granted

Question 24

Colonial State Bank v A Carey Harrison III (CA)

Answer 24

The courts jurisdiction to curtail a mgees right to possession is specifically limited to the s36 power. The court has no other inherent jurisdiction or other jurisdiction under the CPR

Question 25

Target Home Loans v Clothier

Answer 25

If a sale is more readily achieved if the house is occupied rather than repossessed, then may exercise the s36 discretion (3 months in this case)

Question 26

Town and Country Building Society v Julien

Answer 26

It is for the Mortgagor to show that he is likely to be able to pay ye arrears within a reasonable period of time

Question 27

Tuohy v Gary Bell

Answer 27

A warrant of possession issued before the date on which possession was to be given up was a nullify, not merely irregular. D’s failure to comply with a PO was prima facile contempt of court

Question 28

UCB Bank v Chandler

Answer 28

Where a money judgment was pleaded but not mentioned at a hearing for possession, the D could not plead res judicata except in the estoppel sense. It could not be sensibly supposed that D expected to be released from indebtedness

Question 29

Zinda v RBS

Answer 29

If, under an SPO, the arrears have been cleared and there was provision for a continuing payment of the CMI, the Mgee is still entitled to enforce the PO. There is no requirement for further proceedings to be issued

Question 30

BoS v Hussain/Ashraf (unreported)

Answer 30

HHJ Platt considered that subpara 1(4) (a) (app made by the tenant) of the Mortgage Repossessions (protection of tenants) act 2010 should be read disjunctively from (b) and (c) - so, he had discretion to suspend the warrant despite the tenants failing to request a written undertaking from the Mgee. (NB in a similar case in Bromley CC in 2012, a CJ held that the provisions of s1(4) should be read conjunctively

Question 31

Forcelux v Binnie (CA)

Answer 31

A possession hearing does not constitute a trial for the purposes of CPR 39.3

Question 32

LB of Hackney v Findlay (CA)

Answer 32

Although per Forcelux v Binnie a possession hearing does not constitute a trial, CPR 39.3 applies by analogy

Question 33

Abbey National Mortgages v Bernard

Answer 33

Court cannot suspend a PO, however hard the circumstances, if no prospect of Mgor reducing the arrears