Aldous LJ, Ward LJ, Swinton Thomas LJ
Plaintiff claiming defendant agreed to sell share of beneficial joint tenancy in property – Plaintiff claiming agreed price paid to defendant – Transfer of mortgage into full name of plaintiff not completed – Property sold – Plaintiff seeking specific performance of contract – Whether plaintiff’s claim prevented by delay or laches – Judge ordering proceeds of sale be paid to plaintiff – Appeal dismissed
On 9 April 1974 a property in Fleckney, Leicestershire, was conveyed to the plaintiff and defendant as beneficial joint tenants and mortgaged to Halifax Building Society. The plaintiff claimed that in April 1975, after the parties had decided to part, the defendant agreed to sell her interest in the property to him, subject to the mortgage, for £1,400. The plaintiff paid the money to the defendant and thereafter paid the mortgage instalments and other property outgoings; none was paid by the defendant.
On 1 May 1975 both parties applied to Halifax to transfer the mortgage into the plaintiff’s name. Both parties instructed solicitors to effectuate the arrangements on their behalf, but the formalities were not completed. Subsequently, the plaintiff wished to sell the property and, by letter dated 2 February 1983, requested that the defendant sign an enclosed draft conveyance. The defendant did not do so and denied the plaintiff’s claim to the whole of the proceeds of the property. In view of the resulting difficulties in selling the property, the plaintiff stopped paying mortgage instalments and in 1988 Halifax, as mortgagee, sold the property. However, Halifax would not release the surplus proceeds of sale, in the sum of £81,000, to the plaintiff alone until the dispute was resolved. As a result, the plaintiff commenced proceedings for specific performance of the alleged oral agreement for the sale of the defendant’s share of the property.
Plaintiff claiming defendant agreed to sell share of beneficial joint tenancy in property – Plaintiff claiming agreed price paid to defendant – Transfer of mortgage into full name of plaintiff not completed – Property sold – Plaintiff seeking specific performance of contract – Whether plaintiff’s claim prevented by delay or laches – Judge ordering proceeds of sale be paid to plaintiff – Appeal dismissed On 9 April 1974 a property in Fleckney, Leicestershire, was conveyed to the plaintiff and defendant as beneficial joint tenants and mortgaged to Halifax Building Society. The plaintiff claimed that in April 1975, after the parties had decided to part, the defendant agreed to sell her interest in the property to him, subject to the mortgage, for £1,400. The plaintiff paid the money to the defendant and thereafter paid the mortgage instalments and other property outgoings; none was paid by the defendant.
On 1 May 1975 both parties applied to Halifax to transfer the mortgage into the plaintiff’s name. Both parties instructed solicitors to effectuate the arrangements on their behalf, but the formalities were not completed. Subsequently, the plaintiff wished to sell the property and, by letter dated 2 February 1983, requested that the defendant sign an enclosed draft conveyance. The defendant did not do so and denied the plaintiff’s claim to the whole of the proceeds of the property. In view of the resulting difficulties in selling the property, the plaintiff stopped paying mortgage instalments and in 1988 Halifax, as mortgagee, sold the property. However, Halifax would not release the surplus proceeds of sale, in the sum of £81,000, to the plaintiff alone until the dispute was resolved. As a result, the plaintiff commenced proceedings for specific performance of the alleged oral agreement for the sale of the defendant’s share of the property.
The judge found that the plaintiff had made a payment of £1,400 to the defendant, and that thereafter he had paid the mortgage instalments and other outgoings, which was only explicable in the circumstances on the basis of a contract, as alleged, between the plaintiff and defendant. Accordingly, he ordered that the proceeds of sale be paid to the plaintiff. The defendant appealed contending that the judge erred in granting the plaintiff relief without a primary application for an order for specific performance of the oral contract, and in not properly applying the doctrine that a plaintiff seeking specific performance had to show himself to be “ready, desirous, prompt and eager”.
Held The appeal was dismissed.
If it was the law that as a result of delay or laches the plaintiff was not entitled to specific performance of the contract, it would be a miscarriage of justice. The defendant had sold her share and tha fact that the written transfer of the property had not been completed did not mean that the plaintiff was not entitled to his full share. Once the plaintiff had paid the £1,400 to the defendant, she had become a bare trustee of the legal title, which had ended once the property had been sold. The plaintiff’s possession gave him an equitable interest in the property to which the court was to give effect. The contract had, in essence, been performed and the plaintiff was entitled to the relief sought: Williams v Greatrex [1956] 3 All ER 705, applied; Mills v Haywood (1877) 6 ChD 196, distinguished.
Timothy Harry (instructed by Nelsons, of Nottingham) appeared for the plaintiff; Charles Taylor (instructed by Clifford Cowling & Co, of Fleet) appeared for the defendant.
Thomas Elliott, barrister
