national westminster bank v hunter national westminster bank v hunter

Ethan Crane . Main Road. The contracts of February 2011 provided for Mr Hunter as seller to sell the land to K Hunter and Sons Limited for 930,000. The time has come for this state of affairs to be brought to an end by direct intervention by the bank assisted by the Court's order and so I will make the order which I am asked to make. That is in accordance with the normal position in charges of this kind. Ctrl + Alt + T to open/close . 60. Whether that deposit was paid or not paid is not in the event material. 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. contains alphabet). The bank appointed Receivers in relation to all of the charged property on 14th January 2010. 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. The Second Defendant is his wife, Mrs Karen Hunter. Newbury Building Society. If one combines the two phrases "other than any matters other than the charge" what that is saying is that the sale will not be subject to the charge; the buyer under this contract is to take the property free from the charge. 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. The cases linked on your profile facilitate Casemine's artificial intelligence engine in recommending you to potential clients who might be interested in availing your services for similar matters. MR JUSTICE MORGAN: ----and he will have to draft some grounds of appeal. The definition continues but it is not necessary for me to read it out. MR JUSTICE MORGAN: I thought we had got into 2011, but tell me the rule again, 52.4? But the land has been sold by contract to Mr Taylor's company. National Westminster Bank. MR JUSTICE MORGAN: I think the position is this, that the bank and the Receivers, for reasons that appear to be good ones, have given up on you, Mr Hunter. NB v. London Borough of Haringey, [2011] EWHC 3544 (Fam); [2012] 2 FLR 125; [2012] Fam. . 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. They are in force. I don't know, sir, but you tell me. 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. The case of National Westminster Bank plc v Lucas and others Re Estate of Jimmy Savile (deceased) ([2014] EWHC 653 (Ch)) involved a dispute between the Executors and the Trustees of the charitable Will Trust. 90. I am not asking you to move them, that is going to be done despite what you do rather than relying upon you. The battle was between which of the two of them should have conduct of the sale. You have had months, you have had chances, you have behaved the way the evidence shows. - but doesn't want them to do that. Turning then to the position of Mr Taylor's company, the Court has not been given evidence as to the position of that company or the people standing behind it. 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. That has the heading "Effect of contract for sale" but if one reads the passage it can be seen that is dealing with a contract made by a mortgagee acting under the mortgagee's power of sale. In other words, UK Farm Finance Limited were at least advancing the full amount of the intended purchase price of the land. ", 25. Those proceedings were started in the Aylesbury County Court by a claim form dated 29th June 2010. MR JUSTICE MORGAN: In practical terms one of the real, real problems about appeals is the transcript of the judgment. The lot would obviously need to be withdrawn from the auction now if this offer is acceptable to you. Here the entire amount from the 'trust account' was transferred into the personal account in the same bank. 5. As a matter of simple mathematics that is a higher figure than the price to be paid under the auction contract of 1.505 million. 24. The contracts of 23rd February 2011 separately relating to land at Manor Farm and land at Kirkdene have had the dates of the contracts on the cover sheet and within the body of the contract changed from 23rd February 2011 to 14th July 2011. Well, I will deal with that in a moment. This time the contracts provide for the property to be sold for 1.55 million, but the debt secured by the charge over the properties is again, roughly speaking, 2.5 million to 3 million. 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. They agreed, subject to a legal charge on . 45. I think in our earlier discussion of paragraph 5 I suggested that you put in, insofar as it is necessary, pursuant to section 13 just so that it ties in with paragraph 4. (NWBD) Add to my list. 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. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. Southwark Crown Court. 3. Orr. It does not seem to me to be necessary to adjourn this hearing to hear from Mr Taylor's company. 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 am also asked to make orders providing for service in connection with possible committal applications. While he has tended to the cattle it may be that the bank has not done anything to interfere with or tend to the cattle itself. Section 91(2) is in these terms: "In any action, whether for foreclosure or for redemption or for sale or for the raising and payment in any manner of mortgage money, the Court on the request of the mortgagee or of any person interested either in the mortgage money or in the right of redemption and notwithstanding that (a) any other person dissents or (b) the mortgagee or any person so interested does not appear in the action and without allowing any time for redemption or for payment of any mortgage money, may direct a sale of a mortgaged property on such terms as it thinks fit, including the deposit in court of a reasonable sum fixed by the Court to meet the expenses of sale and to secure performance of the terms.". Citation. MR HUNTER: I didn't realise I had to, sir, they're public footpaths, they're nothing to do with me, sir. 41. The agreed price is 1.505 million. If Mr Hunter could not perform that contract, making title free from the charge, then he would be in breach of contract and would be liable to be sued in damages by the buyer. ( a) the names and addresses of the members; ( b) the date on which each person was registered as a member; and. MISS WINDSOR: Subject to handwritten amendments, yes. 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. The defendant bought a house on mortgage with her husband. Lanre Akanni. Mr Hunter told me that the amount of money to be borrowed from UK Farm Finance Limited was not less than 1.55 million. GORDON FRANCIS PELL, director, 1 Feb 2000 - 31 Mar 2010. Rights have been acquired by Mr Taylor's company, Mr Taylo's compoany is on the face of it entitled to pursue those rights. In that sense it was to be a 100 per cent mortgage. As a not-for-profit member organisation, the aim of National Hunter is to work together to prevent fraud for our members and at the same time to protect victims of fraud. MISS WINDSOR: In which case it [inaudible] the penal notice will attach to that too. Brief history In 1968 National Provincial Bank (including its subsidiary District Bank) and Westminster Bank, two of Britain's 'Big Five' banks, agreed to merge as National Westminster Bank. I sincerely hope that Mr Hunter will see just how foolish he has been in the conduct on which he has embarked. Currently, both domestic bank account numbers and IBAN are in circulation. 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. 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. FREDERICK ANDERSON GOODWIN, director, 6 Mar 2000 - 21 Nov 2008. MR JUSTICE MORGAN: Well, I am able to help you and tell you that is the position. National Westminster Bank Plc v Spectrum Plus Ltd & Ors (2005) Summary. 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. At this hearing that is the only document before the Court which gives any information about the possibility of funding to K Hunter and Sons Limited in relation to a possible purchase of the land for 1.55 million. MR JUSTICE MORGAN: And they will take effect whether you issue an appellant's notice or do not issue an appellant's notice. By Clause 1.1 of the charge Mr Hunter charged by way of legal mortgage the property which I have described as the subject of the charge. 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. If I made an order in Mr Hunter's favour under section 91(2) whereby Mr Hunter sold the land to K Hunter and Sons Limited I would place Mr Hunter in breach of contract in favour of Mr Taylor's company. 46. Miss Windsor, is there a point about public footpaths that needs to be considered? Newcote Services Limited. That certainly means that Mr Hunter is not able to convey title to the charged property to a third party. [4] I can see in detail what the parties said to each other because they said it in writing in documents sent by e-mail which have been produced in evidence. Lord Keith of Kinkel, Lord Griffiths, Lord Oliver of Aylemton, Lord Jauncey of Tullichettle. It seems to have been intended that the reference should be to the two contracts originally entered into in February and varied on 14th July 2011. 32. What is unusual about the present case is that there is no dispute but that this property must be sold. They are in essentially the same terms, save that they relate to different parcels of land. NATIONAL WESTMINSTER BANK PLC. V - V National Westminster Bank Void 2STH 18/04/20 14:00: Economicals III V - V Fulham Compton Old Boys II Void . 82. 65. I am inviting the Court to direct a shorter period pursuant to paragraph (2)(a). The letter is in these terms: "Further to our telephone conversation with your solicitor, we write in confirmation that prior to the auction relating to the properties at Manor Farm on 14th July 2011 we had made a formal offer of finance to you to enable you to purchase Manor Farm, comprising the three residential units and the farm land, for a purchase price of 1,550,000. MR HUNTER: The section 91 and the second application, sir. 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. Mr Taylor will therefore get what he has contracted for, he will pay 1.505 million for a freehold free from the charge. 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. 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. 64. So that is the position before one considers the possible application of section 91(2) of the Law of Property Act 1925. He was ordered by the Aylesbury County Court to remove the cattle by a date in the past. 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. MR JUSTICE MORGAN: All right. 89. ", 28. Regina (Financial Conduct Authority) -v-. 20. My offer will remain open up to 5.30 p.m. today on a refinancing of the deal by yourselves for 12 months. Thereafter she was absolutely entitled to the . Right, any other point on the draft order? 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. 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. MR JUSTICE MORGAN: So you want an order for today? MR HUNTER: And again factual information in my witness statements haven't been taken account of, sir. It provided for payment of a deposit of 1. So that is the order. Let me invite Mr Hunter to deal with that. * Enter a valid Journal (must The 14th July was a significant date because it was the date fixed for an auction of the charged property. The last statement in the letter from UK Farm Finance Limited was, I repeat, that funds were available for draw down as at 14th July 2011. Citing: Applied - Henderson v Henderson 20-Jul-1843. In the event that the property remains unsold following this afternoon's auction I would invite you to write to me again tomorrow clearly stating the quantum of the part payment you would intend making now together with proof of funding from your new lender. 83. Has similar elements of design as No 10 Bradford Road, (the National Westminster Bank), Brighouse (q.v.) 79. 87. 75. 25% off till end of Feb! National Westminster Bank Plc - Ventures. 81. GRAHAM STAPLES, secretary, 10 May 1994 - 1 May 1994. 7. The clause provides that the Receiver shall be deemed to be the agent of the mortgagor. John Trenberth v. National Westminster Bank [1979, Eng. 78. Clause 8 of the contract is headed "Matters affecting the property". National Westminster Bank Plc (1968-date), established in London, is part of NatWest Group. It seems to me incumbent on the mortgagor to seek from the High Court any relief which that Court is empowered to give before the possession warrant takes effect.". NatWest Group - Mortgages. 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. Key point The doctrine of inequality of bargaining power was rejected by the House of Lords; the doctrine of undue influence is not subsumed by it Facts 33. I note that in earlier correspondence you stated quite categorically that you were unable to raise more than 1.31 million 'now'. 61. 34. The bank has prepared a detailed chronology of those communications for the purposes of this hearing. In 1989 they granted a charge by way of legal mortgage over the property in favour of the appellant bank (N). 40. Lumley v Wagner (1852) 42 ER 687, Court of Chancery September 2020 Derek Whayman Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. 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. 43. 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. He referred to alternatives that might instead have been pursued. Mr Hunter, I am asked to make an order in detailed terms. Paragraphs 4 and 5 they are to sell the stock. 70. MR JUSTICE MORGAN: Well, let me see. Clause 3 of the charge is headed "Restrictions on charging, leasing, disposing and parting with possession". 53. If one adds the two figures in the two contracts together one gets the aggregate of 1.55 million. The contact provides for a 10 per cent deposit, 150,500. Westminster Bank Ltd (1836-1969), established in London, was a past constituent of NatWest. National Crime Agency v Dong; National Westminster Bank v Jones; National Westminster Bank Plc v Morgan; National Provincial Bank v Ainsworth; Neale v Willis; 0.00%. 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. 18. There is an effective contract by Mr Hunter to sell to Mr Taylor's company. National Westminster Bank (A/K/A NatWest Bank) is a fully-owned subsidiary of the Royal Bank of Scotland Group, which in March 2000, completed the acquisition of NatWest Bank. These powers given by Clause 5 are in addition to all parts conferred on the Receiver under the general law. No such deposit was on offer from K Hunter and Sons Limited. 10. 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. The husband asked the claimant bank to refinance the loan. So for all those reasons I will abridge time to 14 days. 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. 02/23. The appeal considered the application of sections 56, 75 and 140A of the Consumer Credit Act 1974 (the " 1974 Act "). Insofar as the bank seeks an order for sale under section 13 of the Torts (Interference of goods) Act 1977 the point made by Mr Hunter is first that the cattle which are on the land and which might, in breach of the Court orders, in the future be brought onto the land are not "goods" for the purpose of the 1977 Act. I will consider the effect of these contracts without regard to the impact of section 91(2) and the I will consider the possible impact of the statutory provision. Just before we deal with that, I am asked to order costs against you in relation to both applications. That state of affairs has come about because Mr Hunter has continued to act unlawfully by having his cattle on the land, no doubt seeking to make a nuisance of himself and no doubt hoping that he will interfere with the contract for sale in favour of Mr Taylor's company. Mr Hunter has been very well aware for a considerable period of months that the bank has wanted him to remove his cattle. O. Olley v Marlborough Court [1949] 1 KB 532 Omnium D'Enterprises v Sutherland [1919] 1 KB 618 Oscar Chess Ltd v Williams [1957] 1 WLR 370 . 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. On the other hand, he is in person. In the course of submissions today I asked Mr Hunter what his practical proposals might be to bring to an end the state of affairs whereby the bank was being prevented from having possession, as the Court has held it is entitled to do, by reason of his conduct. There was some description of some matters in relation to the land which I have been shown as follows. That correspondence referred to the topic of potential funding for the intended purchase of the farm. The difficulties of a practical kind which are being encountered are described in detail in the evidence which has been put in on behalf of the bank. 41 Lothbury London EC2P 2BP United Kingdom (071) 726-1000. designed by C. S. Nelson (Leeds) in 1895 for the London and Yorkshire Bank Ltd. It is plain to me that he will continue to be uncooperative and difficult in similar ways to those which he has manifested in recent times. Let me see what Mr Hunter says about those two matters and his application for permission. The plaintiff sought summary judgment. The contracts of 23rd February 2011 have not been completed. National Westminster Bank v Somer [2002] QB 1286 5. The tribunal held that the House of Lords decision in Westminster Bank Executor and Trustee Co (Channel Islands) Ltd v National Bank of Greece SA [1971] AC 945 remains the only decision that binds the lower courts on this point. It is agreed that all of the land with which this case is concerned is subject to one or other of those two charges. Dealing with the question of the Court's jurisdiction, Miss Windsor of counsel, who appears on behalf of the bank, initially took the point that the court did not have jurisdiction under this sub-section because by reason of the auction contract or by reason of that and other matters Mr Hunter could not satisfy the Court that he was a person interested in the right of redemption. Section 14(1) defines "goods" to include all chattels personal other than things in action and money. 66. MR JUSTICE MORGAN: And even if I do not give you permission to go to them you are free to go to them and tell them all about it and they will do what is appropriate. Under the auction contract the full balance of the purchase price is payable on completion. This offer is open for acceptance until 4.30 p.m. MR JUSTICE MORGAN: There is something before that, is there? Before confirming, please ensure that you have thoroughly read and verified the judgment. On that date at around 12.18 pm, Mr Hunter sent an e-mail to the bank. 48. I am not satisfied of either of those. MISS WINDSOR: No, because the consequence of that is [inaudible]. On the other hand, this matter has gone on for a considerable time and you have failed to comply with Court orders in the past. Public Company Incorporated: 1968 Employees: 110,000 Assets: 98.64 billion (US$178.4 billion) Stock Index: London New York Tokyo National Westminster Bank (NatWest) was created in 1968 by the merger of three major banks all established in the early 19th century: the District Bank, the National . 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. 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 that clear? The bank has prepared a draft order which has been considered in the course of submissions today. It is not necessary I think to go to every difference and attempt to resolve it. By Clause 5.1.4 in particular a Receiver appointed by the bank under the charge has the power to sell the charged property. I mean, he is entitled to seek to get permission from the Court of Appeal where he will say that what has happened here has been grotesquely unfair, so I am not going to stop him saying things like that. Do you have anything to say about costs? It is only if one takes into account both contracts that one gets an aggregate price of 1.55 million. MISS WINDSOR appeared on behalf of the CLAIMANT. MR JUSTICE MORGAN: Which bit of it do you want to appeal? change. Found National Westminster Bank Plc v Hunter & Anor useful? Millett LJ gave a short judgment agreeing with that of Phillips LJ and the third member of the court, Butler-Sloss LJ, agreed. National Westminster Bank v Daniel: CA 1993 - swarb.co.uk National Westminster Bank v Daniel: CA 1993 The defence contained two contradictory grounds, and the defendant's evidence again contradicted the defences. The sale memorandum states that the deposit was paid, though the evidence is that it was paid the next day, 15th July 2011. It was acquired by the Royal Bank of Scotland in 2000. The beneficiaries named were the widow, children and remoter issue of the settlor. The bank, National Westminster Bank Plc, is involved with the land and buildings to which I have referred pursuant to two legal charges, one dated 6th July 2006 and the second dated 12th April 2007. Sat 11 Feb 23. National Wesminster Bank PLC. 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. What matters more are the events of the 14th July of this year. Mr Taylor's company has acquired contractual rights. The wife got the family home as a life interest and a tax free annuity. Since the possession action began and since the possession order was made t here has rightly been a great deal of communication between the bank and Mr Hunter. The seller there is again Mr Hunter. Read the full decision in Mrs L . 42. 92. In this context Miss Windsor cited a passage from Fisher and Lightwood's Law of Mortgage, 13th edition, paragraph 30.38. MR JUSTICE MORGAN: Right. MR JUSTICE MORGAN: My understanding is that you do not need permission from the Court to attach a penal notice, it is a matter for you. This case concerns agricultural land and buildings at Manor Farm, Pitchcott, Aylesbury and at Kirkdene, Pitchcott, Aylesbury. SE 1422 NE (east side) 6/14 No. 62. There is no application before the Court today to have the appointment set aside or to have the Receivers removed. Miss Windsor in the course of her submissions said that the debt and charges etcetera amounted to some 3 million. Title will be transferred by the mortgagee pursuant to the draft TR2 referred to in the contract. 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. Those changes are initialled; the initials appears to be those of Mr Hunter and his wife, the latter acting on behalf of K Hunter and Sons Limited. Making that contract, as I say, does not take from him his equity of redemption. 1 - 3 National Westminster Bank. Accordingly, the question of selling the land has been one of the matters at the front of anyone's consideration. Whether that came before the other contracts of 14th July or after it in my judgment makes no difference. Sorry, I don't understand what you're asking for. 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. MR JUSTICE MORGAN: There is a Court of Appeal. Included for group value. The trust fund was then worth about andpound;50,000. MR HUNTER: Yeah, I'd like to appeal it, please, sir. 15. 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. 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. MISS WINDSOR: If Mr Hunter would like the three cattle herded through the gate, as he herded the other 87 through, onto his brother's land the Receivers will arrange for the three cattle to be handed over at the gate at that point. 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 . The last thing he wanted to do was to contract at an auction to sell the property, but in law that is precisely what he has done. In the course of his submissions to me today Mr Hunter questioned the bank's entitlement to appoint those Receivers.