Van Lynn Developments Ltd v Pelias Construction Company Ltd (formerly Jason Construction Company Ltd)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DAVIES,LORD JUSTICE WIDGERY |
| Judgment Date | 09 October 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J1009-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 October 1968 |
[1968] EWCA Civ J1009-1
The Master of the Rolls (Lord Denning)
Lord Justice Davies and
Lord Justice Widgery
In The Supreme Court of Judicature
Court of Appeal
Mr, A. B. HIDDEN and Mr. I. M. TENNANT (Instructed by Messrs. Booth & Blackwell) appeared on behalf of the Plaintiffs, Respondents.
Mr. PETER SOLOMON (instructed by Messrs. Timothy Hardacre) appeared on behalf of the Defendants, Appellants.
The plaintiff Company, Van Lynn Developments Ltd., is a company controlled by a young man, Mr. Colin Vandervell, who Is a member of a distinguished family. The defendant company was called Jason Construction Co. Ltd., but has changed Its name to Pellas Construction Company. It is controlled by another young man, Mr. Apponyi. In May of this year the Jason Construction Company Ltd. entered into a contract to build a house at Kingston Hill for a sum of nearly £15,000. It needed finance in order to be able to buy the materials and employ the labour. It got the finance through the good offices of Mr. Colin Vandervell. On his personal request, the bank allowed the Jason Construction Company to overdraw quite considerably; but Mr, Vandervell told the bank that the progress payments (to he made as the house progressed) would be paid into the bank when they were received.
After some little time there was a dispute between Mr. Apponyi and Mr. Colin Vandervell-a dispute which I think it is unnecessary to go Into this morning - but In the result Mr. Apponyi Indicated that the progress payments would not be paid into the bank so as to reduce the overdraft. Thereupon Mr. Vandervell went himself to the bank. The Bank Manager saw both Mr. Apponyi and Mr. Vandervell. The Bank manager told Mr. Apponyi that the progress payments ought to be paid into the bank so as to meet the overdraft which was accruing. Mr. Apponyi said that he did not propose to pay them into the bank. Where upon the bank manager said he would have to call in the overdraft. He did so by a let tar of 15 th June of this year. The bank wrote to the Jason Construction Company and gave notice that they required payment of the amount of £5,385 18a 3d. The bank wrote another letter on 21st June saying that unless payment was made they would have to take their legal remedies.
As Mr. Vandervell had asked the bank for the overdraft, he felt under an obligation to them. So he himself gave a guaranteeto the bank for the amount of the overdraft. He followed it up by paying off himself the amount of the overdraft and he took an assignment from the bank.
The actual assignment has been produced to the Court. It is dated 26th June, 1968, It is between the National Provincial Bank and Van Lynn Developments Limited (which is controlled by Mr, Tandervell). It says that in consideration of the sum of £5,296 19s 53. paid by Van Lynn Developments Ltd. to the bank, the assigner (the bank) "here by assigns unto the assignee (Tan Lynn Developments Ltd.) all that the interest of the assigner in a debt of £5,296 19. £d. owed to the assigner by Jason Construction Co. Ltd." That was a perfectly valid assignment. The next day the solicitor for Tan Lynn Developments Ltd, wrote the following letter on which the point arises: Was it a valid notice of the assignment?
The letter is dated 27th June, 1968, by solicitors on behalf of Van Lynn Developments Ltd. to Jason Construction co. Ltd.; "Dear Sirs, We have been instructed by our above named clients.— that is Tan Lynn Developments Ltd. "to apply to you for the payment of a sum of £5,296 19s 6d. outstanding to them following the assignment of the debt to them by National Provincial Bank Limited. Notice of this Assignment has already been gives. to you. Unless we receive payment for the full amount of this debt at this office by the first post on Monday, 1st July, we have instructions that proceedings will be taken against you without further notice".
There was one sentence in that letter which was in accurate, It is the sentence, "Notice of this assignment has already been given to you". That was wrong. No notice of assignment had been given. But the question is whether, in spite of that wrong statement, the letter Itself is a notice of assignment such as to satisfy the statute. That is a pure question of law. It Is apoint which we can decide today. It is an arguable point, no doubt, but I do not think we should give leave to defend simply to have It argued again. This Court le In as good a position as it ever will be to decide the matter. So I think we should decide It, even under Order XIV.
The relevant section is 136 of the Law of Property Act, 1925, which says that, "Any absolute assignment by writing under the hand of the assignor … of any debt or other legal thing in action, of which express notice in writing has been given to the debtor … is effectual in law …. to pass and transform the date of such notice, (a) the legal right to such debt or thing in action) (b) all legal and other remedies for the same; and (c) the power to give a good discharge for the same without the concurrence of the assignor.
What Is a sufficient notice of assignment? There are only two or three oases on the subject. There is the case of Stanley v. English Fibres Industries Ltd, ( (1899) 68 Law Journal, Q.B., N.S. 839) which was accepted and applied by this Court in ( W. F. Harrison & Co. Ltd v. Burke 1956 2 A.E.R, 169), Those cases show that, if a notice of assignment purports to identify the assignment by giving the date of the assignment - and that date Is a wrong date. then...
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