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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kinane v Mackie-Conteh  EWCA Civ 45 (01 February 2005)
Cite as:  EWCA Civ 45
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
Mr Michel Kallipetis QC
(Sitting as a deputy High Court judge)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE NEUBERGER
| David Kinane
||Respondent / Cross Appellant
|- and -
||Appellant / Cross Respondent
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Angus Macpherson (instructed by Phillips) for the Respondent
Crown Copyright ©
Lady Justice Arden :
"Alimamy Conteh 8 November 2001
Hannah [sic] Laura Conteh
To: David Kinane ...
Dear David Kinane,
In respect of the financial assistance you have provided we are happy to offer our home as security. We agree that you may place a charge in the sum of £100,000.00 (ONE HUNDRED THOUSAND POUNDS ONLY) over the property shown above which is our home. We fully understand as a result of this action our home may be at risk.
Because of our knowledge and expertise in our areas of business and our current contractual commitments we are totally confident in being able to pay to you, or your nominees, the sum of £100,00 within the next 120 days in order to have this charge removed.
Please arrange for the charge documents to be produced as soon as possible so that we can bring this matter to a swift conclusion. Please also ask the Solicitor acting for you to send us an invoice for the work he does on you[r] behalf in arranging this charge over our property.
Section 53 of the 1925 Act
"(1) Subject to the provisions hereinafter contained with respect to the creation of interests in land by parol –
(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;
(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by his agent thereunto lawfully authorised in writing or by will."
"All grants and assignments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning the same ..."
but that section had been materially amended by the Law of Property Act
"(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document, or where contracts are exchanged, in each ...
(5) ... nothing in this section affects the creation or operation of resulting, implied or constructive trusts."
Section 53(1)(a) of the 1925 Act
Lord Justice Neuberger:
"Plainly there are large areas where the two concepts do not overlap: when a landowner stands by while his neighbour mistakenly builds on the former's land the situation is far removed (except for the element of unconscionable conduct) from that of a fiduciary who derives an improper advantage from his client."
He then went on to explain at 176E that, in light of cases such as Gissing v Gissing  AC 886, it was well established that "the two concepts coincide" "in the area of a joint enterprise for the acquisition of land".
"I suggest that, in other cases of this kind, useful guidance may in the future be obtained from the principles underlying the law of proprietary estoppel which in my judgment are closely akin to those laid down in Gissing v Gissing. In both, the claimant must to the knowledge of the legal owner have acted in the belief that the claimant has or will obtain an interest in the property. In both, the claimant must have acted to his or her detriment in reliance on such belief. In both, equity acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention. The two principles have been developed separately without cross-fertilisation between them; but they rest on the same foundation and have on all other matters reached the same conclusions."
"To recapitulate briefly: the species of constructive trust based on 'common intention' is established by what Lord Bridge in Lloyds Bank plc v Rosset  1 AC 107 at 132 called an 'agreement, arrangement or understanding' actually reached between the parties, and relied on and acted on by the claimant. A constructive trust of that sort is closely akin to, if not indistinguishable from, proprietary estoppel. Equity enforces it because it would be unconscionable for the other party to disregard the claimant's rights. Section 2(5) expressly saves the creation and operation of a constructive trust."
Lord Justice Thorpe :
Appeal dismissed with the cross-appeal allowed. Respondent receive 80% of the costs of appeal. Permission to appeal refused; subject to a detailed assessment.