That was a case, different from the present case, where the mortgagor suffering from severe negative equity wished to see the property sold and bring to an end the ongoing liability to pay interest, but the mortgagee did not intend to exercise its power of sale and did not wish to see the property sold at that point in the market. The contracts appear to be in essentially the same terms apart from the identity of the land and the price. There are well known authorities including Property & Bloodstock Limited v Emerton [1968] Ch.94, which say that when a mortgagee contracts to sell the mortgaged property the equity of redemption is suspended between the making of the contract and completion and is finally extinguished upon completion of that contract. MR JUSTICE MORGAN: Right. MR HUNTER: Sir, do I understand you correctly, sir, what you just said that I can actually appeal against what you've just said; is that correct? 18. Main Road. 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. MR JUSTICE MORGAN: I am making an order that you do not go on that land. 56. National Carriers v Panalpina [1981] A.C. 675 National Westminster Bank v Morgan [1985] AC 686 Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126 Niersmans v Pesticcio [2004] WTLR 699 . If one adds the two figures in the two contracts together one gets the aggregate of 1.55 million. ", 26. However, the comparison ceases to be favourable to Mr Hunter from that point. The letter does refer to "a formal offer of finance" which suggests that something in written form and in more detail did exist by 29th July 2011. 77. MR JUSTICE MORGAN: You do not want an order for costs? National Westminster Bank, byname NatWest, former British bank holding company with branches and subbranches in the United Kingdom and operations across the world. I can now pick up the chronology again by referring to what happened at that auction. Formal demands by the bank for payment were made in 1992 and there were intermittent payments by the husband until January 1993, after which he was declared bankrupt. He is the freeholder of the land, the land is subject to a mortgage and that mortgage on the face of it can be redeemed on payment of the full sum outstanding to the bank. 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. 1895 for the London and Yorkshire Bank Ltd. by C. S. Nelson (Leeds). 12. Pursuant to the negotiations with Mr Hunter on 14th July 2011, some at least of the purchase price, perhaps a substantial part of the purchase price, was to be postponed for a 12 month period. New Wave Capital Ltd. Newable Business Finance Ltd. Newable Limited. The auction contract identifies further terms which apply to this sale. Coordinates Latitude: 53.4064 / 5324'23"N Longitude: -2.9913 / 259'28"W OS Eastings: 334197 OS Northings: 390410 OS Grid: SJ341904 Mapcode National: GBR 72N.YW Mapcode Global: WH877.0MVY Plus Code: 9C5VC245+HF Entry Name: National Westminster Bank Listing Date: 28 June 1952 Grade: II* Source: Historic England Source ID: 1205939 43. 0 - 3 London Legends FC. It is only if one takes into account both contracts that one gets an aggregate price of 1.55 million. The e-mail was in these terms: "Further to our recent correspondence, I am writing to you again to make an increased offer of 1.550 million to be paid in 12 months' time. "Even if one assumes that the Chancery Court has the power to order sale of mortgaged property on terms that displaced the mortgagee's right to possession, I do not consider that it follows from this that the County Court as part of its inherent jurisdiction can properly suspend an order or warrant for possession in order to enable the mortgagor to apply to the High Court for an order under section 91. Under the auction contract the full balance of the purchase price is payable on completion. By Clause 3.1.3 in particular Mr Hunter agreed that he would not without the bank's prior written consent dispose of the charged property. I will start the comparison by looking at the position of K Hunter and Sons Limited. This works out as three complaints per 1,000 relevant accounts. Regina (Financial Conduct Authority) -v-. Those proceedings were started in the Aylesbury County Court by a claim form dated 29th June 2010. Is there a system to do that, sir? There is no evidence before me that that consent was obtained or given. There is a second application before the Court----. First of all, to bring the present unsatisfactory state of affairs to end I will make an specific order backed with a penal notice that Mr Hunter and anyone acting on his behalf must not enter upon any part of the property or move or bring any cattle or any livestock or other chattels onto the property. The argument is not about what the Receivers can do today but is instead what they should have done prior to the holding of the auction on 14th July 2011. It has not been served with notice of this application and has not had an opportunity to put forward its position. Illingworth v Houldsworth [1904] AC 355, HL; affg sub nom Re Yorkshire Woolcombers Association Ltd, Houldsworth v Yorkshire Woolcombers Association Ltd [1903] 2 Ch 284, CA. 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. I will hear the parties on any detailed points arising in relation to the order, but in principle it seems to me it is an appropriate order for the Court to make. Until the Court of Appeal grapple with your case these orders will bind you. 34. In those circumstances, the cattle being on the land in the possession of the bank under the control of the Receivers it seems to me that at that point in time, if not earlier -- and I decide nothing about the earlier period -- that the cattle will be under the control of the bank which seeks this order. MR JUSTICE MORGAN: You cannot fail to understand that. So that is as much as I think I can indicate on that. In my judgment it is clear that Mr Hunter has been and remains a person interested in the right of redemption. The Court of Appeal was in no doubt that in a case where everyone agreed the property should be sold that it was not appropriate to use the jurisdiction of section 91(2) to override the mortgagee's exercise of its power of sale. If it sued Mr Hunter for specific performance of that contract it would prima facie be entitled to it certainly so long as Mr Hunter remains the owner of the land. National Westminster Bank Plc v Hunter and Another: ChD 23 Nov 2011 - swarb.co.uk National Westminster Bank Plc v Hunter and Another: ChD 23 Nov 2011 Reasons for dismissal of claim under section 91. In that sense it was to be a 100 per cent mortgage. 9. There was some description of some matters in relation to the land which I have been shown as follows. 5. He has, on the face of it -- although it is not for today for me to decide -- deliberately broken orders of the Court seeking to gain advantage by his breach. 50. National Westminster Bank plc v Spectrum Plus Ltd and others [2005] UKHL 41 Practical Law Case Page D-000-1223 (Approx. 83. That certainly means that Mr Hunter is not able to convey title to the charged property to a third party. By Stuart Littlewood. MR JUSTICE MORGAN: No, but the Court of Appeal is not going to really know what this case is about, particularly with Mr Hunter acting without legal assistance, unless it sees what was put forward as the reasons for the decision. [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. Well, I will deal with that in a moment. 63. Those are the principal matters of fact which are material to the application to which I next refer. The Court will simply not tolerate that conduct continuing. The other differences between the two contracts favour the auction contract over the suggested position with K Hunter and Sons Limited. Although Mr Hunter is not in a position to raise that money there still remains an equity of redemption in the event that he were able to raise that money. 13 December 2021. By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. 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. Walking down Lord Street and turning onto Church Street in Fleetwood is the wonderful National Westminster Bank Building. Get 2 points on providing a valid reason for the above Working with your business. It was acquired by the Royal Bank of Scotland in 2000. MR JUSTICE MORGAN: ----or one of the orders should not be made, then given that it is going to take effect either immediately or tomorrow the only point in running that appeal is if you can get to the Court of Appeal fast. Is there a public footpath across the land? 24. Branches were almost immediately opened at Brighton, Canterbury, Croydon, Lewes, Maidstone, Sevenoaks, Tonbridge, Tunbridge Wells and Woolwich. You have done this with full knowledge that I am still in possession of Manor Farm, Pitchcott. Hudson v Secretary of State for Social Services, Jones v Secretary of State for Social Services [1972] 1 All ER 145, [1972] AC 944, [1972] 2 WLR 210, HL. MISS WINDSOR: This is the first I have heard of it. [1991] 2 AC 93, [1991] 3 All ER 41, [1991] 2 WLR 1177. It is possible this bank is of similar date and by the same architect. The bank replied in these terms: "Given the proximity of the property being offered for sale at auction, I do not propose to consider your proposal today. I will take legal advice on it, sir. Mr Hunter has one point in his favour in this comparison, he says that the price to be paid by K Hunter and Sons Limited is 1.55 million. Quite apart from that being the position between the seller and the buyer, Mr Hunter by entering into that contract would appear to have been in breach of the condition in the charge that he should not dispose of the property without the consent of the bank. 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. My improved offer of 1.550 million to be paid in 12 months is clearly above the guide price set by Allsops and well in excess of the 1.375 million valuation by Savills. However, what one does know -- and it is a positive factor -- is that the purchaser was able to raise the 10 per cent deposit the day after the auction was concluded. Citing: Applied - Henderson v Henderson 20-Jul-1843. 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. The charge is a defined phrase which enables one to see it is a reference to the charges in favour of National Westminster Bank, to which I have referred. MISS WINDSOR: 52.4(2): "The appellant must file the appellant's notice at the appeal court within such period as may be directed by the lower court or where the court makes no such direction 21 days after the date of the decision of the lower court that the appellant wishes to appeal." MR JUSTICE MORGAN: I think in the circumstances I am minded to say the letter should be returned to you signed by 4 p.m. tomorrow. The position is that the contract which has come into existence following the auction is between Mr Hunter as seller, acting through the Receivers, and Mr Taylor's company, but when it comes to the transfer of title pursuant to that contact title will not be transfered by a transfer executed by Mr Hunter as transferor, it will instead be transfered pursuant to a transfer executed by the bank as chargee. 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 . But possession and control do not turn upon ownership, one man can be the owner and another can be in possession and a third can have control. MR JUSTICE MORGAN: And that is to be without prejudice to any powers you would have to recover costs----. It would necessarily follow that if that order were to be made that Mr Hunter would be able to make title free from the charge to K Hunter and Sons Limited, so the intervention of the Court would free Mr Hunter from the legal difficulty he is otherwise under. At the date of the order for possession in August 2010 the debt was approaching 3.5 million. Should they be successful in Court, which is likely to take six months or more, their tenancies on Manor Farm, Pitchcott will inevitably devalue the properties by up to 50 per cent. Can I appeal that you're only giving me two weeks as a litigant in person to appeal, sir? England and Wales. 11.2, if the condition has not be satisfied within six months of the auction date then either the buyer or the seller can serve notice on the other to terminate this contract. The District Judge on that hearing made an order that both Defendants give possession of the charged property on or before 5th October 2010. National Westminster Bank Football Club is a football club based in Beckenham, England. Although Mr Hunter has entered into conflicting contracts, it may very well be the case due to the connection with K Hunter and Sons Limited that it will not sue Mr Hunter for damages because he is unable to perform those contracts. I am not asking you to move them, that is going to be done despite what you do rather than relying upon you. The immediate difficulty created by those contracts for Mr Hunter is that Mr Hunter was not then and has not since been in a position to redeem the bank's charge. National Westminster Bank Ltd v Barclays Bank International Ltd [1975] 1 QB 654 (17 June 1974) is a decision of the High Court relating to the duty of care of a bank in relation to forged cheques with respect to persons other than their customer. MR HUNTER: The section 91 and the second application, sir. Having considered the effect of the conflicting contracts which exist and the challenge which Mr Hunter has raised to the conduct of the Receivers, I can now go to the ultimate issue which is whether the Court should exercise the jurisdiction it has which would enable Mr Hunter to sell the land to K Hunter and Sons Limited free from the charge, placing himself in breach of the contract with Mr Taylor's company, or whether the Court should make no such order. Having set out the relevant facts, having identified the legal position under the various contracts which have come into existence, having informed myself of the way in which the jurisdiction under section 91(2) has been and should be exercised, in my judgment this does not begin to be a case in which the Court should intervene and upset the arrangements which have been brought into existence. Under section 12(3) it is open to the bank to serve a particular notice which if it is not complied with will entitle them to sell the goods, namely the cattle. [4] I do not have any evidence to judge what the measure of damages might be, but that would be the legal consequence. Decision date: 6 May 2021. Prima facie, if the same person enters into two contracts for the sale of the same piece of land both contracts are binding in the law of contract, although there is a plain inconsistency between them and the Court may have to determine what remedies to give to which purchaser and in what circumstances. Contains public sector information licensed under the Open Government Licence v3.0. John Trenberth v. National Westminster Bank [1979, Eng. National Westminster Bank Ltd v Halesowen Presswork & Assemblies Ltd [1972] AC 785 is a decision of the House of Lords in relation to a banker's right to combine accounts under English law. The mortgagor's obligations were defined earlier in the document as all of the mortgagor's liability to the bank of any kind. Morgan J [2011] EWHC 3170 (Ch) Bailii Law of Property Act 1925 91 England and Wales Updated: 28 June 2021; Ref: scu.449869 It is not necessary for today's purposes to decide when it was that Mr Hunter and K Hunter and Sons Limited altered the date on the February contracts to be 14th July 2011. Now, outside court if you and the Receivers can come to a practical solution of the kind Miss Windsor has referred to nothing in the order stops that because the Receivers can give you permission to go there for a limited purpose, nothing in the order stops that.
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