Key cases and academics Flashcards
Mallory 1argument
- a simple AB scenario, where Cheshire Homes was falsely registered but Mallory Enterprises still in actual occupation, so an indemnity should have gone to CH as there was a mistake
- Re Chowoods complicated this, as Arden LJ said that the title split so CH had the legal title whilst ME had the equitable titel
- Corrected by Swift as it is per incurium so ‘not authoritative’ according to Watterson and Goymour
Mallory 2 argument
- Arden LJ said that upon the registration of B, A obtains the right to rectify, which is a propreitary right
- Swift dealt with this also, they found a way to get an indemnity by another path: convenient section in Schedule 8, which meant that forgeries were prejudicial, they can be rectified so indemnity
- Dixon argues that ‘this sidestep will not work in all cases’, so Mallory still poses a problem
Mortgage express v Lambert
- Fraudsters offer to buy Mrs Lambert’s house for lower than market value, she didn’t know the true value, but they couldn’t pay so took out a mortgage
- She was allowed to stay but did not declare this when ‘reasonably expected to do so’ when the bank inquired, as she did not consent to the mortgage
- However, the court argued that she could have declared her actual occupation when asked
- So, she was overreached as the bank paid two trustees [the fraudsters]
- Lees = the case is correct to allow mere equities to be overreached, but practically results in difficulties in this case
Wishart
- one business partner decides to take profits out in the form of a house and lets partner handle legal stuff
- partner falls into debt and puts mortgage on the property
- despite W being first in time, in actual occupation, and did not consent, the Brocklesby principles means that W is subject to the charge because it allows his business partner to act as his agent who he gave authority to act
- only way to clarify case if to say it is limited to commercial settings
Academic
On the definition of mistakes
[+supporting case]
Dixon = ‘the lack of a definition of “mistake” is actually central’
It allows the court to have flexibility.
A mistake encompasses all subsequent transactions as mistakes
= Macleod v Gold Harp Properties Ltd [2014]
Academic
On Mortgage Express v Lambert
Lees = the case is correct to allow mere equities to be overreached, but practically results in difficulties in this case
- the point of overreaching is to protect the bank from rival claims as the beneficiaries go after the trustees for the money, although, in order for Mrs Lambert to get the money in this case, this ‘would add an additional claim’
- as her interest ‘now rests in the mortgage money’
Academic
On Actual Occupation
Bevan = he argues that recent cases show a mistaken and unwelcome change in approach to determining actual occupation, in particular the focus on intentions [as they cannot be seen by someone inspecting the land]
Academics on Swift
Dixon = Despite Swift sidestepping this by using forgeries to get an indemnity, Dixon argues that ‘this sidestep will not work in all cases’
Watterson and Goymour = Swift declared Mallory ‘was per incuriam on both points, and therefore not authoritative’
