Cresswell V Potter

{\rtf1 \ansi
{\colortbl;
\red0\green0\blue0;
\red255\green255\blue255;
}
{\fonttbl {
\f0 Arial;}{
\f1 Symbol;}{
\f2 Times New Roman;}{
\f3 Georgia;}{
\f4 sans-serif;}{
\f5 Source Sans Pro;}{
\f6 serif;}{
\f7 Courier New;}{
\f8 Arial Unicode MS;}
}
{\*\generator Apache XML Graphics RTF Library;}
\fet0 \ftnbj
{\*\listtable
{\list\listtemplateid-1824918782\listsimple{\listlevel\leveljc\levelfollow0\
levelspace0\levelindent400{\leveltext\'01\u160\'3f}{\levelnumbers}}{\listname ;}\
listid-175178135}
{\list\listtemplateid-1861075977\listsimple{\listlevel\leveljc\levelfollow0\
listid300013258}
{\list\listtemplateid18658276\listsimple{\listlevel\leveljc\levelfollow0\
listid287697962}
}
{\*\listoverridetable
{\*\listoverride{\listid-175178135\listoverridecount0\ls1}}
{\*\listoverride{\listid-175178135\listoverridecount0\ls2}}
{\*\listoverride{\listid300013258\listoverridecount0\ls3}}
}
\paperw12240 \paperh15840 \margt1080 \margb1080 \margl1080 \margr1080 \headery720 \
footery720 \itap0 \cols1
\sectd {\header {
{\trowd \ltrrow \trleft0
\clpadb60 \clpadfb3 \clpadl400 \clpadfl3 \clbrdrt \clbrdrb \brdrcf17 \brdrw20 \
brdrs \clbrdrl \trql \clvertalb \clwWidth9380 \cellx9380
\clpadb60 \clpadfb3 \clpadl400 \clpadfl3 \clbrdrt \clbrdrb \brdrcf17 \brdrw20 \
brdrs \clbrdrr \trql \clwWidth700 \cellx10080
\intbl
{\b0 \cf1 \f0 \ri0 \i0 \ql \fs18 \li0
{\b0 \cf1 \f0 \ul0 \strike0 \i0 \fs18
}
{\b1 \cf18 \f0 \i0 \fs18
{\b1 \cf18 \f0 \ul0 \strike0 \i0 \fs18 \sa0 \sb0
Cresswell v Potter, [1978] 1 W.L.R. 255 (1968)
}
}
}
}\b0 \cf1 \f0 \ri0 \ul0 \strike0 \i0 \ql \fs18 \li0 \sa0 \sb0 \intbl \cell \intbl
{\qr \b0 \cf1 \f0 \ri0 \i0 \fs18 \li0
}\qr \b0 \cf1 \f0 \ri0 \i0 \fs18 \li0 \intbl \cell \row }
{\trowd \lastrow \trleft0
\clbrdrb \clbrdrl \trql \clwWidth10080 \cellx10080
\intbl
{\b0 \cf1 \f0 \ri0 \i0 \ql \fs18 \li0
}\b0 \cf1 \f0 \ri0 \i0 \ql \fs18 \li0 \intbl \cell \row }}\par }{\footer {
\clpadl60 \clpadfl3 \clbrdrt \brdrcf17 \brdrw20 \brdrs \clbrdrb \clbrdrl \trql \
clvertalb \clwWidth9300 \cellx9300
\clpadl60 \clpadfl3 \clbrdrt \brdrcf17 \brdrw20 \brdrs \clbrdrb \clbrdrr \trql \
clwWidth700 \cellx10000
\intbl
{\b0 \cf17 \f0 \ri0 \i0 \ql \fs20 \li0
\u169\'3f 2023 Thomson Reuters.
}
}\b0 \cf17 \f0 \ri0 \ul0 \strike0 \i0 \ql \fs20 \li0 \sa0 \sb0 \intbl \cell \intbl
{\qr \b0 \cf17 \f0 \ri0 \i0 \fs20 \li0
{\b0 \i0 \ul0 \fs20 \f0 \chpgn }
}\qr \b0 \cf17 \f0 \ri0 \ul0 \strike0 \i0 \fs20 \li0 \intbl \cell \row }}\par }
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0 \par}\sect\sbknone\pgncont\cols1{\ids0
{\b0 \cf1 \f2 \i0 \fs20
}
{\b0 \cf23 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf23 \f2 \ri0 \i0 \qj \fs20 \li0
For educational use only
\par
}
}
{\b0 \cf23 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf23 \f2 \ri0 \i0 \qj \fs20 \li0
}
{\b0 \cf23 \f2 \ri0 \i0 \qj \fs20 \li0
{\b1 \cf19 \f2 \ri0 \i0 \ql \fs36 \li0
}
{\b1 \cf25 \f2 \i1 \fs36
*255
}
}
Note
\par
}
{\b1 \cf19 \f2 \ri0 \i0 \ql \fs36 \li0
{\b1 \cf19 \f2 \i0 \fs36 \chcbpat27
Cresswell
}
}
}
v
}
Potter
}
}
\par
}
}
}
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0 {
\clcbpat2 \clbrdrt \clbrdrb \clbrdrl \trql \clvertalc \clwWidth600 \cellx600
\clcbpat2 \clbrdrt \clbrdrb \clbrdrr \trql \clvertalc \clwWidth9480 \cellx10080
\intbl
{\ri0 \li0
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
{\*\shppict {\pict \pngblip \picw40 \pich40 \picwgoal560 \pichgoal560
89504e470d0a1a0a0000000d49484452000000280000002808060000008cfeb86d00000019744558745
36f6674776172650041646f626520496d616765526561647971c9653c000002da4944415478da62fcff
ff3fc360064c0c831c8c3a9052c0822ec0c8c84894c6f2853ac2402a00881d81580f88158198072afd0
588ef03f12520de0fc41b3ae3afbc25c65cf43cc1882140c0814087811c5309c4c140cc4a6440fc06e2
b540dc0e74e8259a3810e8305e20d505c4e9206564c618c8b299405c0674e867aa3910e8386d503401b
10a9592d61d50f2003af22a2107321191d62c80d4312a3a8e016ad631a8d9e4e76268c8ed04623e1a64
5090993ba17690ee40689adb4023c7213b7203d42ee28a1924d0458d68cdf65aca202ba207663f7b778
361d296506cd10db22b93e810841625e9943a4e59c21cee3810d87b713a2ea5e9503b898ee24a0a8a12
3870d44d81b341a177edf17e5c4a19a176127620b48608a6d47132223a0c2a921628a1f79f016fcb291
86a37c1100c20a186c01d7a3a44871e0cb042ed26e840474a1d27c6afcca025e7444ae8e1b41b9b03f5
2875a0834e1230513192127a38edc6e640454a1c27c02dc960a0e4434ee861b51b9b03792871a0bd4e2
20313231339a187d56e1662757a1a15022d4f82f34fdd5ec3b0e14433c3bfffff10a673083198aa0491
1b7a4457755fb029dc7eae9fe1e0957970be996a0843a45d3703331322c3db6ac533b030b3931b7a58e
dc6e6c0fbb874a33b5257de8d21d1791a031b0b2703271b2f83b95a18a5a1779f982806b57875f13912
92d620d10d2a8c53dde6323c78758e81838d8792d083d94dd0812093a3f19982ee4859115d30a642dad
b4f4c146f80f6211808391239ba49ac3570f55b36107420b4f7b5961813b1399282d05b8bade787ab35
d30eede090e4480a42ef3fd44ee29a5bd0aee14c624d87399282d09b89ab3b8aafa02e036217625bd5b
08c43660faf8ce43e09b4df0a6afe7ca2619fe413b4fbf999ac5e1db4dfea4e234782cc74c7d63726a9
5f0c34e00490b2824605b500c82c2ba8d9948f6e417d6904c43388cddd78722bc80c23422137fc068f0
6cdf0db6003a343c0c3de8100010600af8338415eaecdce0000000049454e44ae426082}}
\par
}
}\b0 \cf1 \f2 \ri0 \i0 \ql \li0 \fs18 \intbl \cell \intbl
{\ri0 \li0
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
{\b1 \cf45 \f2 \i0 \fs18
Positive/Neutral Judicial Consideration
\par
}
}
}
}
}\b1 \cf45 \f2 \strike0 \i0 \fs18 \sa0 \sb0 \ri0 \ul0 \ql \li0 \chcbpat2 \intbl \
cell \row }}\par
}
}
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
{\b1 \cf1 \f2 \i0 \fs18
Court
\par
}
}
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
Chancery Division
\par
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
\u160\'3f
\par
}
}
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
{\b1 \cf1 \f2 \i0 \fs18
Judgment Date
\par
}
}
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
26 November 1968
\par
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
\u160\'3f
\par
}
}
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
{\b1 \cf1 \f2 \i0 \fs18
Report Citation
\par
}
}
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
[1978] 1 W.L.R. 255
\par
}
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \ql \fs18 \li0
\u160\'3f
\par
}
}
}
{\b0 \cf1 \f2 \i0 \fs20
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf21 \f2 \i0 \fs20
}
{\qr \b0 \cf1 \f2 \ri0 \i0 \fs20 \li0
{\*\shppict {\pict \pngblip \picw83 \pich35 \picwgoal1660 \pichgoal700
89504e470d0a1a0a0000000d4948445200000053000000230803000000df4ec6f300000300504c54450
000000101010202020303030404040505050606060707070808080909090a0a0a0b0b0b0c0c0c0d0d0d
0e0e0e0f0f0f1010101111111212121313131414141515151616161717171818181919191a1a1a1b1b1
b1c1c1c1d1d1d1e1e1e1f1f1f2020202121212222222323232424242525252626262727272828282929
292a2a2a2b2b2b2c2c2c2d2d2d2e2e2e2f2f2f303030313131323232333333343434353535363636373
6161616262626363636464646565656666666767676868686969696a6a6a6b6b6b6c6c6c6d6d6d6e6e6
e6f6f6f7070707171717272727373737474747575757676767777777878787979797a7a7a7b7b7b7c7c
7c7d7d7d7e7e7e7f7f7f8080808181818282828383838484848585858686868787878888888989898a8
a8a8b8b8b8c8c8c8d8d8d8e8e8e8f8f8f90909091919192929293939394949495959596969697979798
98989999999a9a9a9b9b9b9c9c9c9d9d9d9e9e9e9f9f9fa0a0a0a1a1a1a2a2a2a3a3a3a4a4a4a5a5a5a
6a6a6a7a7a7a8a8a8a9a9a9aaaaaaabababacacacadadadaeaeaeafafafb0b0b0b1b1b1b2b2b2b3b3b3
b4b4b4b5b5b5b6b6b6b7b7b7b8b8b8b9b9b9babababbbbbbbcbcbcbdbdbdbebebebfbfbfc0c0c0c1c1c
1c2c2c2c3c3c3c4c4c4c5c5c5c6c6c6c7c7c7c8c8c8c9c9c9cacacacbcbcbcccccccdcdcdcecececfcf
cfd0d0d0d1d1d1d2d2d2d3d3d3d4d4d4d5d5d5d6d6d6d7d7d7d8d8d8d9d9d9dadadadbdbdbdcdcdcddd
ddddedededfdfdfe0e0e0e1e1e1e2e2e2e3e3e3e4e4e4e5e5e5e6e6e6e7e7e7e8e8e8e9e9e9eaeaeaeb
ebebecececedededeeeeeeefefeff0f0f0f1f1f1f2f2f2f3f3f3f4f4f4f5f5f5f6f6f6f7f7f7f8f8f8f
9f9f9fafafafbfbfbfcfcfcfdfdfdfefefeffffffe2b05d7d000004b14944415478da63fccf4075c0c4
3024cdfcfd9781e1df6f0ac383058577feb428d79f6f9f55eca8e8cecb2aeed77543f52efea5963b7fc
d59c998f7e1fd27868f9b5679e6f2926f2673038c7535ee4b7bd23be1ac892e8c89417b3bd5e42934f3
d1f57fbbc202b3943f3f3531e40c7bcba2a4ca92c5217eebbb30057e3fce7cf47a79c001c6ef7c0c4ab
e7f045e08ee0a963bffe2c715550ae24849f06186cd4f46698667bb5ef0eeb8c12c2229fb4ca0e69e06
48eeeb370686cf3f21aaff3eb974f90988fdfd33107f02a7be0fff18fea3a63e883b396fba7f53e0626
5d167defe9189db5be73fe3edaec7699aac20b9fb338fb1fa27480259effbd7b3f0fe78f657a7dde4f1
b2edff2c22ad80821fb62cfbcccaf44e21d50f2d3c1fdf33faf7fdc323a5152fc45e7e55bf7f56fddcf
e8fcc710f8541f124c6d5f1759e049071caf174776b5a6238cb3c0f4d618dc6fb4d8e20addc869b76c7
f74ace9e276081eaf7fda6bfd95905649bb49f2ebc706dd1359769ac798702af3bed014bf232707202a
93b5e5f0f07f330b2cad5d7037dcac5c9004b6dfc0cd2a2d1d318267c4131f3efb9afdc8cdc0c0f048a
7d85398485bd0e8a3e646368357877fd1d489611a2a8f66d0934cabcc481824c407124231c059fbd420
9cf57cf992ffc62faf7cda9656914db8b177f9232557771aaff66fef440081e48773630784299c69018
61448e176e4e26211477bee0b50dfa2d6bad78956bdfab57dcae1739a5f8ec9477065b483c43683af34
3540e16072c98e9e7fd8b50011477fe6665608c65bcca2c236ec4cef3f7ee27e5d79cdfb5b48092bf10
9a1e317071e04993cb945a50d312df9b9d7fc4bfddfef9e97ff4e91faaefec0fbc143d765fe2fddf4f8
2c809f9e76f5c064ebaf476df2e61d4342fc66da6f0f14f283347d039234349b14f61660f1d648f32c9
598821f4c932bc7982cb4c0bd74fafd7a3e52321e187fc364aecefb6315d3cc3f2e9d9a6cfcbb5df6d5
8193f85530ea1d088f3cf1e54931079c72c60a142d366b4bce9fef677daf56f4a8926d10cd7effef255
adb1bf72f2aab6b6202f442f48b7aa37c3f4f7103ddf800efeff9fe11fdcec7f0ca2bd0c190f50cd94e
764916660fd1df97fedff4f3fdeeeffeaff59d6ed5f80321bd8297f19fe81e866b15b5990103d750458
c1fc65f80e643e3bc6c0f007081982529e25ff4431f3ad2263bd263be717355b25f64f421ed20c9f98d
9e315ac183f820b11861f20d51a1b6456d81e033aee7a2130a77efbceb0f5f3e72f3380a9ed03103230
741bee4bfe8b9cdf8f7ffa2affe6e63d19d19717ec4d0e6b488b1d62d367d6bb7e53811f9888e65d63e
3e4051a231bc57a78d2d225135a85abd9df2d3ac17366d182fefd3522bb567cfe2725cec6e17e73f339
3e39503a628478efddf18fe7b29598bef5cfaa1129f6ae1563f851a622a1afc00e947bfd55f0df7b361
9b00b7ede7ef0954b568383e1f31b41c63f5f7efee391f9fb889be3cb3739366070bc7fcf20cf0a3713
08f6b6a9b50a7d58a7c4f393e99ab3c2b79613b1018294d6474ad1172b5fb17f7df9f7cb23ceefdb0b2
4679b73525ec731d97b9e9c27bd4c9e71a6e412c6b65836f2eb4d469452ffebb3db3f39beea8a0b50b1
1dc2adaabaff4d28a5ed258c62cb81f2361886998c23a7fd0900c223c87f2b741dfd0000000049454e4
4ae426082}}
\par
}
{\b0 \qc \cf1 \f2 \ri0 \i0 \fs20 \li0
Chancery Division
\par
}
}
{\b0 \qc \cf1 \f2 \ri0 \i0 \fs20 \li0
Megarry J.
\par
}
}
{\b0 \qc \cf1 \f2 \ri0 \i0 \fs20 \li0
1968 Nov. 26
\par
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
Equity\u8212\'3fUnconscionable bargain\u8212\'3fConveyance\u8212\'3fWife executing
deed conveying interest in matrimonial home to husband\u8212\'3fDeed releasing her
from liability under mortgage\u8212\'3fWhether transaction fair, just and
reasonable
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
The following cases are referred to in the judgment:
\par
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
}{\fi-360 \li {\*\pn \pnlvlblt \ilvl0 \ls1 \pnindent400 \pnf1 {\f2 \pntxtb \
u160\'3f}}{\listtext \b0 \cf1 \f2 \ri200 \i0 \qj \fs20 \li400 \u160\'3f\tab }\ls1
{\pntext }
{\pard }\b0 \cf1 \f2 \ri200 \i0 \qj \fs20 \li400
}
{\b0 \cf1 \f2 \i1 \fs20
Aylesford (Earl of)
}
v
}
}
}
. Morris (1873) 8 Ch.App. 484
}
}
.
\par {\pntext }
}
{\pntext }
}
{\b0 \cf1 \f2 \i1 \fs20
Fry
}
v
}
}
}
. Lane (1888) 40 Ch. D. 312
}
}
.
\par {\pntext }
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
Action
\par
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
The plaintiff, Hilda Frances
}
Cresswell
}
}
}
, married the defendant, Ivan Victor
}
Potter
}
}
}
, on October 29, 1955, and a house was purchased subject to mortgage in the
defendant\rquote s name. In 1958 the house was sold and Slate Hall, Wakes Colne,
Essex, was purchased as the parties\rquote home and those premises were conveyed
to the plaintiff and defendant as joint tenants. In June 1959 the plaintiff left
the defendant and subsequent matrimonial proceedings ended with a decree of
dissolution of the marriage being made absolute on October 1, 1959. On August 6,
1959, the plaintiff executed a deed of release and conveying to the defendant her
interest in Slate Hall. The defendant subsequently sold the property.
\par
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
The plaintiff brought an action claiming that the release was ineffective as
against the proceeds of sale and that she was entitled to a half share of those
proceeds.
\par
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
The facts are stated in the judgment.
\par
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \i0 \fs20
Representation
\par
}
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\pntext }
J. H. G. Sunnucks for the plaintiff.
\par {\pntext }
}
{\pntext }
A.J. Balcombe for the defendant.
\par {\pntext }
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
MEGARRY J.
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
The facts of this case lie within a narrow compass. The plaintiff, a telephonist,
was formerly the wife of the defendant. They were married on October 29, 1955, a
decree nisi was granted on July 1, 1959, and the decree was made absolute on
October 1, 1959. The divorce was granted on the defendant\rquote s petition. A
house, no. 98, St. Andrew\rquote s Avenue, Colchester, was acquired in the
defendant\rquote s name at or shortly after the time of the marriage, subject to a
mortgage. The plaintiff contributed nothing towards the purchase price; but certain
improvements to the house were effected by the defendant, his father and friends,
and it is common ground that the plaintiff paid for at least some of the materials.
The defendant put the plaintiff\rquote s contribution at about \u163\'3f65, whereas
the plaintiff says that it was some \u163\'3f200. It was certainly not trivial, for
the defendant says that it comprised a fireplace, a bath (of second quality), a
basin, a watercloset, taps, a hotwater cylinder, a radiator, piping and fitting. He
explains the apparently low cost of these as being due to the purchases being made
at trade prices over 10 years ago.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
In 1958, when the Colchester house had been sold for a price which left a surplus
of some \u163\'3f300 or \u163\'3f350 after discharging the mortgage and
}
{\b1 \cf25 \f2 \i1 \fs20
*256
}
}
costs, the premises which give rise to the dispute were bought and conveyed to the
plaintiff and the defendant as joint tenants in law and in equity. No suggestion
has been made that the plaintiff did not thereupon become beneficially entitled to
a potential half interest. These premises, which included about an acre and a half
of land, were known as Slate Hall, Wakes Colne, Essex. The conveyance was dated
November 29, 1958, and so was a mortgage to the Halifax Building Society which was
executed by the plaintiff and the defendant. The consideration for the conveyance
was \u163\'3f1,500, and the loan was \u163\'3f1,200.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
The marriage was soon in trouble, and in June 1959, the plaintiff left the
defendant, having confessed to him some while earlier that she was pregnant by
another man.
}
Shortly after the decree absolute she remarried. The divorce was undefended, and
evidence of the plaintiff\rquote s adultery was obtained by Mr. Thomas Olyott, an
inquiry agent. On August 6, 1959, the plaintiff executed the document upon which
this case turns. It was stated to be a conveyance, and by it, in return for an
indemnity against the liabilities under the mortgage but for no other
consideration, the plaintiff released and conveyed to the defendant all her
interest in Slate Hall. I shall call this deed \u8220\'3fthe release.\u8221\'3f
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
On December 9, 1960, the defendant sold part of Slate Hall for \u163\'3f1,950. On
September 12, 1961, aided by a planning permission for the erection of houses on
the land which he obtained a year or more after the execution of the release, the
defendant made a contract to sell the remainder of Slate Hall for \u163\'3f1,400;
and later this sale was completed. The total obtained for the property was thus \
u163\'3f3,350. After allowing for costs, moving expenses and the like, the
defendant\rquote s view is that he made a \u8220\'3fprofit\u8221\'3f of some \
u163\'3f1,400 on the whole deal.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
The plaintiff does not seek to upset these dispositions, but claims that the
release is ineffective as regards the proceeds of sale, and that she is entitled to
half of these. No point has been taken upon the jurisdiction to set aside the
release in this qualified manner. What the defendant says is, quite simply, that
the release is valid. The whole case turns on whether or not the release was
executed in circumstances which, the plaintiff alleges, amount to unfair dealing.
The release was drafted by Mr. Puxon, an experienced solicitor who was acting for
the defendant in the divorce. He drafted it in consequence of messages that he had
received from the defendant that the plaintiff would give up her interest in the
house. Looking back, Mr. Puxon agrees that it would have been better if the
plaintiff had been separately advised. As it was, he had the release given to Mr.
Olyott with instructions to get it executed by the plaintiff.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
On August 4, 1959, Mr. Olyott called at the house where the plaintiff was staying.
He had seen the plaintiff at least twice before in connection with the divorce. As
on previous occasions, he asked the plaintiff to come out into his car; for there
was illness in the house. He can remember very little about the execution of the
release. He could not remember the document, or whether he asked the plaintiff to
read it; and he did not know what was in it. He was not interested. The plaintiff
signed it, and Mr. Olyott added his name and address to the attestation clause,
describing himself as a retired police inspector, as, indeed, he was, in addition
to being an inquiry agent.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
According to the plaintiff, Mr. Olyott said that the document was for the sale of
the house. She made some inquiry about whether she would get her money back, and
Mr. Olyott said that so far as he knew she would. The reference to getting her
money back was to what she had spent on
}
{\b1 \cf25 \f2 \i1 \fs20
*257
}
}
the Colchester house. She did not read the release, and thought that she was
signing a document which would make it possible to sell the property without
affecting her rights in it.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
The defendant asserts that at some stage before the divorce the plaintiff had said
to him that she did not want anything to do with Slate Hall, or that it was not any
good to her if she could not live there. He said that he had had Slate Hall put
into their joint names because, having been employed as a carpenter, he was going
to start up on his own as a builder, and if he went bankrupt he would still have
(the house to live in.
}
It has very properly not been suggested that this in any way prevented the
plaintiff from becoming entitled to a beneficial interest in the premises.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
Mr. Sunnucks, for the plaintiff, has put before me a considerable number of
authorities on setting aside transactions at an undervalue. I think I can go
straight to the well-known case of
}
{\b0 \cf1 \f2 \i1 \fs20
Fry
}
v
}
}
}
. Lane (1888) 40 Ch.D. 312
}
}
. In his judgment, Kay J. considered many of the authorities, and then said at p.
322:
\par
}
{\b0 \cf1 \f2 \ri1000 \i0 \qj \fs20 \li1200
}
{\b0 \cf1 \f2 \ri1000 \i0 \qj \fs20 \li1200
\u8220\'3fThe result of the decisions is that where a purchase is made from a poor
and ignorant man at a considerable undervalue, the vendor having no independent
advice, a Court of Equity will set aside the transaction. This will be done even in
the case of property in possession, and a fortiori if the interest be reversionary.
The circumstances of poverty and ignorance of the vendor, and absence of
independent advice, throw upon the purchaser, when the transaction is impeached,
the onus of proving, in Lord Selborne\rquote s words, that the purchase was \
u8216\'3ffair, just, and reasonable.\u8217\'3f\u8221\'3f
\par
}
}
\u160\'3f
\par
}
}
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
The reference to Lord Selborne L.C.\rquote s words is a reference to his judgment
in
}
{\b0 \cf1 \f2 \i1 \fs20
Earl of Aylesford
}
v
}
}
}
. Morris (1873) 8 Ch.App. 484
}
}
, 491.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
The judge thus laid down three requirements. What has to be considered is, first,
whether the plaintiff is poor and ignorant; second, whether the sale was at a
considerable undervalue; and third, whether the vendor had independent advice. I am
not, of course, suggesting that these are the only circumstances which will
suffice; thus there may be circumstances of oppression or abuse of confidence which
will invoke the aid of equity. But in the present case only these three
requirements are in point. Abuse of confidence, though pleaded, is no longer relied
on; and no circumstances of oppression or other matters are alleged. I must
therefore consider whether the three requirements laid down in
}
{\b0 \cf1 \f2 \i1 \fs20
Fry
}
v
}
}
}
. Lane
}
}
are satisfied.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
I think that the plaintiff may fairly be described as falling within whatever is
the modern equivalent of \u8220\'3fpoor and ignorant.\u8221\'3f Eighty years ago,
when
}
{\b0 \cf1 \f2 \i1 \fs20
Fry
}
v
}
}
}
. Lane
}
}
was decided, social conditions were very different from those which exist today. I
do not, however, think that the principle has changed, even though the euphemisms
of the 20th century may require the word \u8220\'3fpoor\u8221\'3f to be replaced by
\u8220\'3fa member of the lower income group\u8221\'3f or the like, and the word \
u8220\'3fignorant\u8221\'3f by \u8220\'3fless highly educated.\u8221\'3f The
plaintiff has been a van driver for a tobacconist, and is a Post Office
telephonist. The evidence of her means is slender. The defendant told me that the
plaintiff probably had a little saved, but not much; and there was evidence that
her earnings were about the same as the defendant\rquote s, and that these were
those of a carpenter. The plaintiff also has a legal aid certificate.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
In those circumstances I think the plaintiff may properly be described as \
u8220\'3fpoor\u8221\'3f in the sense used in
}
{\b0 \cf1 \f2 \i1 \fs20
Fry
}
v
}
}
}
. Lane
}
}
, where it was applied to a laundryman who, in 1888, was earning \u163\'3f1 a
week. In this context, as in others, I do not think that \u8220\'3fpoverty\
u8221\'3f is confined to destitution. Further,
}
{\b1 \cf25 \f2 \i1 \fs20
*258
}
}
although no doubt it requires considerable alertness and skill to be a good
telephonist, I think that a telephonist can properly be described as \
u8220\'3fignorant\u8221\'3f in the context of property transactions in general and
the execution of conveyancing documents in particular. I have seen and heard the
plaintiff giving evidence, and I have reached the conclusion that she satisfies the
requirements of the first head.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
The second question is whether the sale was at a \u8220\'3fconsiderable
undervalue.\u8221\'3f
}
Slate Hall cost \u163\'3f1,500, \u163\'3f1,200 of the price being provided by the
mortgage. The release recited that \u163\'3f1,196 13s 5d remained outstanding on
the mortgage, so that very little had been paid off the capital sum due.
Nevertheless, all that the plaintiff was getting for giving up her half interest in
Slate Hall was the release from her liability under the mortgage. If Slate Hall was
worth no more than it cost, she was giving up her half share in an equity worth \
u163\'3f300; and, after all, the mortgage was a recent mortgage to a well-known
building society. If she had sought advice it is unlikely in the extreme that she
would have been told that there was any real probability that the value of the
property would be less than the sum due under the mortgage. There can be little
doubt that she was getting virtually nothing for \u163\'3f150.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
In fact, as is now known, within a little over two years the property fetched \
u163\'3f3,350, so that at the time in question the plaintiff\rquote s share of the
equity may have been worth appreciably more than \u163\'3f150. It is true, as Mr.
Balcombe pointed out on behalf of the defendant, that there was no valuation
evidence before me, and that any valuation of the property must rest upon
inferences from the prices for which the property was sold. I do not think it right
to assume, without evidence, that there was a dip in the value of the property
between its purchase in November 1958, and the sales in December 1960, and
September 1961; and without such a dip it seems to me that the probabilities point
to the property having a value in August 1959, which at all events substantially
exceeded the sum due under the mortgage for \u163\'3f1,200. The more valuable the
equity, of course, the less valuable would be the indemnity against the mortgage.
It seems to me that by the release the plaintiff parted with her interest in Slate
Hall at an undervalue which cannot be dismissed as being trifling or
inconsiderable. In my judgment the undervalue was \u8220\'3fconsiderable.\u8221\'3f
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
As for independent advice, from first to last there is no suggestion that the
plaintiff had any. The defendant, his solicitor and the inquiry agent stood on one
side: on the other the plaintiff stood alone. This was, of course, a conveyancing
transaction, and English land law is notoriously complex. I am certainly not saying
that other transactions, such as hire-purchase agreements, are free from all
difficulty. But the authorities put before me on setting aside dealings at an
undervalue all seem to relate to conveyancing transactions, and one may wonder
whether the principle is confined to such transactions, and, if so, why. I doubt
whether the principle is restricted in this way; and it may be that the explanation
is that it is in conveyancing matters that, by long usage, it is regarded as usual,
and, indeed, virtually essential, for the parties to have the services of a
solicitor. The absence of the aid of a solicitor is thus, as it seems to me, of
especial significance if a conveyancing matter is involved. The more usual it is to
have a solicitor, the more striking will be his absence, and the more closely will
the courts scrutinise what was done.
\par
}
}
}
{\b1 \cf25 \f2 \i1 \fs20
*259
}
}
\par
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
Mr. Balcombe points out that the plaintiff was not bereft of possible legal
assistance; for on or before July 28, 1959, when she was having difficulty in
getting some furniture and effects from Slate Hall, she consulted a Colchester firm
of solicitors, who wrote a letter dated July 28, 1959, that produced the required
result. If she wanted legal advice, he said, this shows that she knew how to get
it.
}
However, what matters, I think, is not whether she could have obtained proper
advice but whether in fact she had it; and she did not. Nobody, of course, can be
compelled to obtain independent advice: but I do not think that someone who seeks
to uphold what is, to him, an advantageous conveyancing transaction can do so
merely by saying that the other party could have obtained independent advice,
unless something has been done to bring to the notice of that other party the true
nature of the transaction and the need for advice.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
Mr. Balcombe has forcefully urged on me that human memories are fallible, and that
where so much time has passed the evidence of contemporary documents is especially
important. That, of course, I fully accept. He then points to two notes in Mr.
Puxon\rquote s file, made on June 26 and July 24, 1959, recording statements by the
defendant that the plaintiff had agreed that the house should stand in the
defendant\rquote s name. This, he contends, strongly supported the defendant\rquote
s story of the plaintiff telling him that the house was no good to her as she could
not live there. These notes were made some weeks after the plaintiff had left Slate
Hall, and it may be that in the matrimonial disputes that had preceded her
departure, or later, she had said something of this kind, although she denies it.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
The conversion of a statement that a house is no good to a person into a formal
transaction whereby that person relinquishes a half-share in the house is, of
course, a serious matter. Such a statement may be intended to have legal
consequences, or it may not. In any case, as Mr. Sunnucks points out, it would be
perfectly possible for the plaintiff to have been willing to leave the sale of the
house to the defendant without thereby intending to relinquish her rights to a
moiety of the net proceeds of sale, or realising that by executing the release she
would be doing this; and there is nothing, I think, in the contemporary notes in
Mr. Puxon\rquote s file which is inconsistent with this view. Indeed, for what it
is worth, the notes of June 26 (though not the note of July 24) record that what
the defendant told the solicitors was that the house should be transferred \
u8220\'3finto his name,\u8221\'3f not \u8220\'3fto him.\u8221\'3f
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
The defendant\rquote s view of the transaction was that the plaintiff was giving
him nothing. He had lost so much, he said. He had lost his wife and his young child
(who left with the plaintiff), and his home had been broken up. I find it hard,
however, to treat the execution of the release by the plaintiff as amounting in
effect to conscience money, conferring upon the defendant merely some compensation
in respect of the plaintiff having left him for another man, or anything like it.
What was done by the release was, in substance, that a gift was made by a wife who
was being divorced to the husband who was divorcing her; and such a transaction,
though by no means impossible, is at least not very usual, and would, I think, have
to be established by evidence a good deal more convincing that anything I have
heard.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
At the end of the day, my conclusion is that this transaction cannot stand. In my
judgment the plaintiff has made out her case. and so it is for the defendant to
prove that the transaction was \u8220\'3ffair, just, and reasonable.\u8221\'3f This
he has not done. The whole burden of his case has been that the
}
{\b1 \cf25 \f2 \i1 \fs20
*260
}
}
requirements of
}
{\b0 \cf1 \f2 \i1 \fs20
Fry
}
v
}
}
}
. Lane, 40 Ch.D. 312
}
}
, were not satisfied, whereas I have held that they were. I fully accept that the
plaintiff\rquote s claim is open to some justifiable criticisms.
}
It was brought none too promptly, and it took some time for the full claim to be
formulated. The plaintiff\rquote s idea initially seems to have been that she ought
to recover the money expended by her in materials for the Colchester house; and
this, guided no doubt by legal advice, later became a claim to half the proceeds of
sale of Slate Hall.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
I give full weight to these and other criticisms that Mr. Balcombe has so cogently
put forward. Yet having seen and heard the witnesses, I accept the plaintiff\rquote
s evidence in its essentials. I would, of course, be reluctant to do anything to
weaken the security given by solemn conveyancing documents executed under seal.
Nevertheless, although Mr. Puxon at no time acted for the plaintiff, in acting for
the defendant I think he ought to have realised that if he did no more than send an
inquiry agent round to get the release executed by the plaintiff, with no
explanation of its effect, no discussion of its contents, and no attempt to warn
her that she ought to get independent advice unless she understood it, questions as
to its validity might well arise. The document abounds in terms which, though
speaking to the conveyancer in language of precision, can hardly be expected to
speak to a van driver and telephonist lucidly or, indeed, at all.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
It would not have been very difficult to send to the plaintiff a short covering
letter which explained that by signing the release the plaintiff would be giving up
her half-share in Slate Hall to the defendant in return for nothing except an
agreement by him that she would never have to pay anything under the mortgage,
adding that she ought to consider getting independent advice before signing the
document. If in the teeth of that information the plaintiff had executed the
release without obtaining such advice, I think that the requirement that there
should be independent advice might well have been discharged. In other words, I do
not think that the requirement of independent advice should be regarded as an
absolute. But here there was no attempt whatever to comply with the requirement,
whether absolute or qualified.
\par
}
}
}
\u160\'3f
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li200
Accordingly, it seems to me that this action ought to succeed, and, subject to
discussion of the terms of the appropriate order, I so hold.
\par
}
}
}
\u160\'3f
\par
}
}
\u160\'3f H. J.
\par
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\b0 \cf1 \f2 \i0 \fs20
Representation
\par
}
}
}
}
{\b0 \cf1 \f2 \ri0 \i0 \qj \fs20 \li0
{\pntext }
Solicitors: Simmons & simmons; Collyer-Bristow & Co.
\par {\pntext }
}
}
}
{\qr \b0 \cf1 \f2 \ri0 \i1 \fs20 \li0
Order accordingly.
\par
}
}
}
{\b0 \cf21 \f2 \i0 \fs20
}
{\b0 \qc \cf1 \f2 \ri0 \i0 \fs20 \li0
{\b0 \qc \cf22 \f2 \ri0 \i0 \fs20 \li0
(c) Incorporated Council of Law Reporting for England & Wales
\par
}
}
}
{\b0 \qc \cf1 \f2 \ri0 \i0 \fs20 \li0
}
}
}
}\sect }

Cresswell V Potter

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Cresswell V Potter

Uploaded by

Copyright:

Available Formats

{\rtf1 \ansi

You might also like