MISS WINDSOR: I am instructed to ask for the standard order for costs to be assessed if not agreed. National Westminster Bank, byname NatWest, former British bank holding company with branches and subbranches in the United Kingdom and operations across the world. The bank brought possession proceedings against Mr and Mrs Hunter. I have explained why he is not in a position to perform the other contracts in favour of K Hunter and Sons Limited. There is a second application before the Court----. [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. 4. Venue: CLUB LANGLEY Pitch 1. 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. MR JUSTICE MORGAN: Right. The final reason for abridging time is that you are bound by a contract to sell Mr Taylor's company and I do not think it is appropriate to place the bank and the Receivers under time pressure where they might end up having difficulty in meeting time limits under the contract. Nestle v National Westminster Bank This is an appeal by the plaintiff in the action, Miss Nestle, against a judgment of Hoffmann J., given as long ago as 29th June 1988, whereby, at the end of the trial of the action, he dismissed all Miss Nestle's claims against the defendant in the action, National Westminster Bank Plc. MR JUSTICE MORGAN: Well, let me see. 61. 84. Nothing of that kind was put before the bank prior to the auction taking place and nothing of that kind has been put before the Court today. That is in place of 3(ii), is it? 30. 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 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: Mr Hunter pays the costs for the two applications on the standard basis to be subject to a detailed assessment? Mr Hunter has himself prepared a chronology which he has placed before me. 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 . Is that a point to ask? The contracts of 23rd February 2011 have not been completed. National Westminster Bank Plc v Spectrum Plus Ltd & Ors (2005) Summary. In 1989 they granted a charge by way of legal mortgage over the property in favour of the appellant bank (N). 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. 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. GBX. MR JUSTICE MORGAN: He is a member of the public and the public has the right. . FCA-v-Natwest-Sentencing-remarks-131221.pdf 405.95 kb. Clause 8.1.A reads: "The seller will sell the property free from incumbencies other than any matters other than the charge contained in the land registry entries." It seems to me inevitable that I must proceed today on the basis that the Receivers have been validly appointed and have the powers vested in them by the legal charges. 33. The wife got the family home as a life interest and a tax free annuity. MR JUSTICE MORGAN: Do you want to have access to move them on a particular time? Their payments fell into arrears and the building society started proceedings for repossession. Confirmation statement filters Accounts Capital Charges Confirmation statements . 80. ", 25. It said: "The property is not vacant, there is a 60 strong beef cattle herd currently on the property. It has not been served with notice of this application and has not had an opportunity to put forward its position. 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. Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. There is an effective contract by Mr Hunter to sell to Mr Taylor's company. The Claimant claimed damages . In that wa, Mr Hunter decided in February 2011 that he would sell the land which remained subject to the charges to the company K Hunter and Sons Limited to which I have referred. The sale memorandum records that the seller is Mr Hunter acting by his Receivers. Click here to remove this judgment from your profile. I will take legal advice on it, sir. 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. 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. They are currently members of the Amateur Football Combination . 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. 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. The matter then turned upon the way in which that jurisdiction should be exercised and in the somewhat special circumstances of that case it was decided that it would be unfair to leave the property unsold and it would be appropriate for the Court to assist the mortgagor by making an order for sale. 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. 5. We use necessary cookies to make our site work. (2) There shall be entered in the register. Once you create your profile, you will be able to: Claim the judgments where you have appeared by linking them directly to your profile and maintain a record of your body of work. 9. By Stuart Littlewood. 20. That would have left a balance of 2.5 million, which I am told in the course of argument has risen further by reason of fees and charges being added to the principal debt. [4] Bank. Whether that deposit was paid or not paid is not in the event material. So shall we talk about the first and start with you, Miss Windsor? 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. Those proceedings were heard in the County Court on 10th August 2010. MR JUSTICE MORGAN: You are not being given the opportunity to move the cattle, as I understand it. 64. 6. In relation to the contract relating to Manor Farm, in addition to the change of date there is one further change, that is the purchase price, which had previously been 922,500, has been revised to 1,542,500. Mr Hunter cannot apply to set aside the contract in favour of Mr Taylor's company; there is no basis on which he is able to do so. Decision date: 6 May 2021. I note that your letter is silent on these points. 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. MR JUSTICE MORGAN: ----and he will have to draft some grounds of appeal. Mr Hunter, I am asked to make an order in detailed terms. Adam Billey. 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. These powers given by Clause 5 are in addition to all parts conferred on the Receiver under the general law. Before confirming, please ensure that you have thoroughly read and verified the judgment. By clause 1 of the charge Mr Hunter covenanted to discharge on demand the mortgagor's obligations. There is no application before me today for any relief in relation to what happened in relation to Kirkdene and it is not necessary for me to go into that matter any further or say anything about it. Published 2 March 2022 Explore the topic. The Receivers submit that they did the right thing by putting the property up for auction and getting the best bid at auction. I note that in earlier correspondence you stated quite categorically that you were unable to raise more than 1.31 million 'now'. 12. 38. ", 26. 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. MISS WINDSOR appeared on behalf of the CLAIMANT. 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 . The Court of Appeal is there to correct errors made by judges such as myself. Dressed stone, slate roof. 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. It is not clear from what I was told in the course of his submissions by Mr Hunter whether other formal documents exist. 92. The auction contract identifies further terms which apply to this sale. Taxpayer stake in Natwest reduced again as government sells shares. The particulars of sale referred to the land. It is in your interests to get to the Court of Appeal. Ctrl + Alt + T to open/close . 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. 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. 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. MR JUSTICE MORGAN: Shall I hear what he says about that first? The battle was between which of the two of them should have conduct of the sale. It does not seem to me to be necessary to adjourn this hearing to hear from Mr Taylor's company. 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. The 14th July was a significant date because it was the date fixed for an auction of the charged property. 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. The Court of Appeal considered that it had jurisdiction to make an order in those circumstances. Nestle v. National Westminster Bank plc ; Soud : Odvolac soud : Rozhodnuto : 6. kvtna 1992 : Citace [1992] EWCA Civ 12 , [1993] 1 WLR 1260 Historie ppadu ; Pedchoz akce [2000] WTLR 795; Independent, 4. ervence 1988, (1996) 10 (1) Trust law International 113, 115 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. 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. I can only give permission if I am satisfied that you have a real prospect of success in the Court of Appeal or there is some other reason why this case should be considered by the Court of Appeal. Newbury Building Society. 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. Constructive trusts and proprietary estoppel often do what unjust enrichment cannot Birks, An Introduction to the Law of Restitution (Clarendon Press, 1989), 89 Fuller,Legal Fictions (Stanford University Press, 1967) Att-Gen for Hong Kong v. Reid [1994] AC 324 Westdeutsche Landesbank v. In this context Miss Windsor cited a passage from Fisher and Lightwood's Law of Mortgage, 13th edition, paragraph 30.38. 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. Mr Hunter had said in correspondence and has made it clear at the hearing today that the application which he makes is pursuant to the Court's power conferred by section 91(2) of the Law of Property Act 1925. 93. 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: So you want an order for today? PPI complaints represent 59% of the . The bank replied in these terms: "In my letters to you earlier this week I made it clear to you that as a condition of any proposals being accepted and for me to be able to ask the Receivers to withdraw the property from the auction the bank would require your solicitor (1) to pay a non-refundable deposit of 10 per cent of any agreed settlement figure prior to auction and (2) to provide proof of funding. Royal Trust Bank v National Westminster Bank plc [1996] BCC 613 was a decision of the Court of Appeal in relation to the nature of a floating charge . But if you cannot come to terms then you will be irrelevant and all these things will be done no matter what you think. Has similar elements of design as No 10 Bradford Road, (the National Westminster Bank), Brighouse (q.v.) Is there a system to do that, sir? 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. In the course of his submissions to me today Mr Hunter questioned the bank's entitlement to appoint those Receivers. National Westminster Bank PLC. 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. They're there, they're on the map, sir. In other words, you have to do this very rapidly indeed if you are to do anything at all. 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. Mr Hunter was represented by counsel; Mrs Hunter was not represented by a legal representative. 23. We confirm that the funds would be available to you pursuant to the loan facility offered to have enabled you to complete an agreement for the purchase of the property upon completion of the necessary conveyancing formalities. It is clear that it is in Mr Hunter's interest to decline to cooperate and to make life difficult to the bank, although it is not in Mr Hunter's interest for him to break Court orders as he, on the face of it, has done, the Court orders to which I refer including an order made by the District Judge in the County Court on 31st August 2011, which required Mr Hunter to remove his stock from the land.