Yorkshire Bank Plc v Hall
Jurisdiction | England & Wales |
Judgment Date | 18 December 1999 |
Date | 18 December 1999 |
Court | Court of Appeal (Civil Division) |
County Court - High Court - Proceedings transferred to - Action for possession of dwelling house outside Greater London - Transfer to High Court and consolidation with money actions - Whether High Court having power to make order for possession - Whether leave required to appeal from order in money actions -
Several members of a family carried on business in partnership as property dealers and licensed deposit-takers. Because of changes in banking regulations, they incorporated a company in 1985 with all its issued share capital owned by them. In 1986 the company was registered as a public limited company to which the partners transferred the partnership business in consideration of the issue and allotment of ordinary shares. That transaction was later held to have infringed section 103 of the
On the borrowers' appeals and their application to widen their leave to appeal against the decision of November 1995: —
Held, (1) that the words “any other enactment” in section 42(7)(b) of the County Courts Act 1984, as substituted, included the Act of 1984 itself, so that the section did not operate to allow the transfer to the High Court of proceedings where the county court had exclusive jurisdiction; that therefore there had been no power to transfer the possession proceedings to the High Court; that, since jurisdiction could not be conferred by estoppel or by consent, the judge could only properly have made the possession orders by deconsolidating the proceedings, transferring the possession actions back to the county court and making the orders as if he were sitting in the county court; that, in that event, the borrowers would not have been required by R.S.C., Ord. 59, r. 1B(1)(d) to obtain leave to appeal against the money judgments; but that justice required that they should not, by the error as to jurisdiction, be shut out of an appeal which they would otherwise have been entitled to make as of right; and that, once an appeal reached the stage of hearing, the power of the Court of Appeal to permit new points to be taken, although it should be exercised sparingly, could not be rigidly limited by the terms in which leave had been granted (post, pp. 1724C–H, 1725E–H).
(2) That the Court of Appeal had been right to refuse to grant leave for an appeal on wider grounds, since where an agreement could be carried out both lawfully and unlawfully, it was to be presumed that the parties intended to carry the agreement out lawfully; that, in any event, it was clear from the documentary evidence and the primary facts as found by the judge that the company had not actually made itself liable to the lender for interest on the borrowed money; and that, accordingly, the appeal from the money judgments would be allowed only so far as it related to interest actually paid by the company (post, p. 1726A–G).
(3) That in relation to its operation of the company's account, the lender owed no duty to the family members either as shareholders or as mortgagors, its only relevant duty being to the company as its customer, since it had no security over the assets of the company and no voting rights as holder of ordinary shares and, in the absence of bad faith, had no duty to intervene in the company in the hope of preserving the value of its security; but that, although the borrowers' misconceived claims against the lender arose from the same sequence of events as the lender's claim against them, they were cross-claims rather than defences and, while they might have failed on the basis that the borrowers had been too slow to seek equitable relief, they ought not to have been struck out on the alternative ground that they constituted an abuse of process, since that ground only applied where a party had failed to deploy his full case at an earlier stage; and that, accordingly, the appeals from Jonathan Parker J. would be dismissed (post, pp. 1728H–1729D, 1729E–G, 1730B–G).
The following cases are referred to in the judgment of Robert Walker L.J.:
AIB Finance Ltd. v. Debtors [
Ainsbury v. Millington (Note) [
Arnold v. National Westminster Bank Plc. [
Ashley Guarantee Plc. v. Zacaria [
Bradford Investments Ltd., In re [
Bradford Investments Ltd. (No. 2), In re [
Brady v. Brady [
Brisbane City Council v. Attorney-General for Queensland [
China and South Sea Bank Ltd. v. Tan Soon Gin (alias George Tan) [
Daisystar Ltd. v. Town & Country Building Society [
Downsview Nominees Ltd. v. First City Corporation Ltd. [
Gaskell v. Gosling [
Greenalls Management Ltd. v. Canavan, The Times, 19 May 1997; Court of Appeal (Civil Division) Transcript No. 669 of 1997,
Henderson v. Henderson (
Johnson v. Gore Wood & Co. (unreported), 12 November 1998; Court of Appeal (Civil Division) Transcript No. 1711 of 1998,
National Bank of Greece S.A. v. Pinios Shipping Co. No. 1 [
National Home Loans Corporation v. Yaxley (unreported), 13 December 1996, Rattee J.
Palk v. Mortgage Services Funding Plc. [
Practice Direction (Court of Appeal: Leave to Appeal and Skeleton Arguments) [
Prudential Assurance Co. Ltd. v. Newman Industries Ltd. (No. 2) [
Redman (John) Ltd. v. Filecroft Ltd. [
Sowman v. David Samuel Trust Ltd....
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