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. There is now insufficient time for the bank to be comfortable as to the terms of your proposals prior to the auction later this afternoon. 89. 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. I appreciate your difficulty that you are in person, you have to get legal advice. In 1989 they granted a charge by way of legal mortgage over the property in favour of the appellant bank (N). MISS WINDSOR: [inaudible] the first sentence application for permission to appeal----. Mr Hunter's second point is that section 12 of the 1977 Act in terms applies to goods "in the possession or under the control of a bailee". I note that in earlier correspondence you stated quite categorically that you were unable to raise more than 1.31 million 'now'. He was ordered by the Aylesbury County Court to remove the cattle by a date in the past. 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. 48. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. ", 25. By Clause 5.1.4 in particular a Receiver appointed by the bank under the charge has the power to sell the charged property. 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. Miss Windsor in the course of her submissions said that the debt and charges etcetera amounted to some 3 million. 18. 11. MR JUSTICE MORGAN: Do you have it in a form that he could sign straight away? If the buyer sought specific performance the buyer would be entitled to take title to the property, but because the property is charged with a debt of 2.5 million or more the buyer would not pay the purchase price to Mr Hunter but would instead have a substantial claim for damages in addition to the remedy of specific performance. In case of any confusion, feel free to reach out to us.Leave your message here. That causes me to be a little circumspect about the reliability of the general statements made, not supported by documents which really ought to exist, in the letter of 29th July 2011. MR JUSTICE MORGAN: Which bit of it do you want to appeal? Lekan Akanni. 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. However, the comparison ceases to be favourable to Mr Hunter from that point. MR JUSTICE MORGAN: Well, let me see. Sentencing Remarks of Mrs Justice Cockerill. 3. 6 bay facade. Against that background, Mr Hunter asks the Court to order a sale of the property and in particular a sale which will be a sale by Mr Hunter to K Hunter and Sons Limited pursuant to the pair of contracts of 14th July 2011. You are asking him to deliver up the passports etcetera by 4 p.m. tomorrow. . The court set down the principles to be applied in abuse of process cases, where a . The contracts appear to be in essentially the same terms apart from the identity of the land and the price. Paragraphs 4 and 5 they are to sell the stock. 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." The other differences between the two contracts favour the auction contract over the suggested position with K Hunter and Sons Limited. In 1989 they granted a charge by way of legal mortgage over the property in favour of the appellant bank (N). I have referred to that letter on the question of funding because the question of funding was raised in the communications between the parties prior to the auction in this case. Right, any other point on the draft order? For the sake of completeness I will start with the contracts of February 2011, although the position there is essentially the same as with the contracts of 14th July 2011 in favour of K Hunter and Sons Limited. I remain open to further negotiations. National Westminster Bank Ltd v Halesowen Presswork & Assemblies Ltd In National Westminster Bank Ltd v Halesowen Presswork & Assemblies Ltd [1972] AC 785 it was held that an agreement between a bank and its customer that the debit on one account could not be set off against the credit on another account was void. 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 . Mr Hunter had no proposals of a positive or constructive kind to put forward. 68. MR JUSTICE MORGAN: The second application is brought by the bank. But for today's purposes all I need to record is that it is not necessary for me to form a view whether the contracts with K Hunter and Sons Limited of 14th July 2011 came into existence before the land was knocked down at auction or after that date. MR JUSTICE MORGAN: Mr Hunter pays the costs for the two applications on the standard basis to be subject to a detailed assessment? Miss Windsor, is there a point about public footpaths that needs to be considered? We need to discuss the detail of the Court order, we need to discuss costs and we need to discuss Mr Hunter's application, which I apprehend he may wish to make, to have permission to appeal. Those are the principal matters of fact which are material to the application to which I next refer. [4] National Westminster Bank Plc v Hunter Law of Property Act 1925, s.91(2) - Mortgagor having continued interest in right of redemption - Conflicting contracts for sale - Whether mortgagee acted correctly in proceeding to sale by action - Applicability of remedy where sale contracted - Torts (Interference with Goods) Act 1977, s.13 - Order for sale of cattle 72. 38. Hunter Menton Senior VP, Sales, Corporate Business Unit at National Westminster Bank Hunter Menton is a Senior VP, Sales, Corporate Business Unit at National Westminster Bank based in London, Greater London. London Stock Exchange uses cookies to improve its website. 74. MR JUSTICE MORGAN: And they will take effect whether you issue an appellant's notice or do not issue an appellant's notice. If there is no point----, MR HUNTER: If I want to move the cattle, sir, how can I move the cattle if----. I am very far from satisfied on the material before me today that K Hunter and Sons Limited has tied up satisfactorily the question of funding a purchase at a price of 1.55 million. 16. The 14th July was a significant date because it was the date fixed for an auction of the charged property. 55. It is also relevant to refer to a limited company which is called K Hunter and Sons Limited. 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. 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. 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. The charge of 6th July 2006 is in relation to property described as land and buildings at Manor Farm, Pitchcott, Aylesbury, Land Registry title number BM195811, and the charge dated 12th April 2007 relates to land at Kirkdene, Pitchcott, Aylesbury, Land Registry title number BM126848. The contact provides for a 10 per cent deposit, 150,500. 330. I shall be asking the Court to make a direction under CPR 52.4 to be the period be seven days in this case. Nestle v National Westminster Bank plc [1992] EWCA Civ 12 is an English trusts law case concerning the duty of care when a trustee is making an investment. 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. Jurisdiction code: Breach of Contract, Disability Discrimination, Maternity and Pregnancy Rights, Sex Discrimination. 83. But the land has been sold by contract to Mr Taylor's company. Adam Billey. That is what he has to do to get the appeal up and running, is it? In this context Miss Windsor cited a passage from Fisher and Lightwood's Law of Mortgage, 13th edition, paragraph 30.38. 45. Newcote Services Limited. 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. That certainly means that Mr Hunter is not able to convey title to the charged property to a third party. 21. Confirmation statement filters Accounts Capital Charges Confirmation statements . Do you want to say anything about the points of details save for the general points? There have been further communications between Mr Hunter and the bank in the period from February 2011 to July 2011. This involves a comparison of what the Receivers achieved by auctioning the property and the alternative of negotiating and perhaps concluding a contract with Mr Hunter or K Hunter and Sons Limited. MISS WINDSOR: Subject to handwritten amendments, yes. (NWBD) Add to my list. 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. Shares were issued on the sending of the allotment letter, not when the shares came to be registered in the company's books. 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. 2 - 0 Beckenham FC. 70. 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. It was paid by cheque and the cheque has cleared. MR JUSTICE MORGAN: As to the appeal, which bits do you want to appeal? 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. 0 - 3 London Legends FC. It may be that the auction contract was an involuntary contract on his part. 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. No, sir, I think the Court's been unfair and unjust, sir, and I think there are factual statements that I've made, sir, today that have been misinterpreted and also the second application is whether you've given the power to stop me seeing my cattle that the bank has no charge, I don't believe this Court has that power, sir. 92. In National Bank of Greece, Lord Hailsham applied a multi-factorial test in determining source of interest. Title will be transferred by the mortgagee pursuant to the draft TR2 referred to in the contract. I have not been asked to grant a stay of any of the orders, but if I were asked I would refuse to grant a stay, which means that Mr Hunter would have to go to the Court of Appeal and seek to obtain a stay there. 44. So again absent intervention from the Court, Mr Hunter is not able to perform his obligations under that contract. Abuse of Process and Re-litigation. You will also now be aware of the two papers served at Aylesbury County Court on Monday, 11th July 2011 by Mr Oldham and Mr Malt, who intend to establish their proprietal rights over Manor Farm, Pitchcott. Paragraph 2 says you are not to go there. We pride ourselves on our independence, and our human touch. You are able to go to a Lord Justice and say to the Lord Justice what you want to say, but I do not give you permission to appeal. 24. MR HUNTER: Yeah, I'd like to appeal it, please, sir. It is not necessary I think to go to every difference and attempt to resolve it. The Receivers have actually got the maps, sir. Having done that, Mr Hunter entered into two contracts of sale, one relating to a small area of land at Kirkdene for 7,500 and the other relating to the bulk of the land at a price of 922,500. It is not said that those sums were available to K Hunter and Sons Limited, I was told K Hunter and Sons Limited had no assets apart possibly from the benefit of the contract to which I have referred. MR JUSTICE MORGAN: Well, I think, Mr Hunter, given the cleverness of your point that you had better put in some evidence on which I can act that there is a public footpath and then apply to vary the order in relation to it and that will be considered. Ethan Crane . Mr Hunter told me that the amount of money to be borrowed from UK Farm Finance Limited was not less than 1.55 million. MR JUSTICE MORGAN: Right. Joe Bumpus. The contract provides for title to pass to the purchaser pursuant to a Land Registry transfer form, in form TR2, which is to be executed by National Westminster Bank Plc as transferor pursuant to the legal charges.