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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Calvert v Clydesdale Bank Plc & Ors [2012] EWCA Civ 962 (27 June 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/962.html Cite as: [2012] EWCA Civ 962 |
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ON APPEAL FROM LEEDS DISTRICT REGISTRY
(HIS HONOUR JUDGE BEHRENS)
Strand, London, WC2A 2LL |
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B e f o r e :
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DOLORES CALVERT | ||
(Personal Representative of Peter Robert Calvert - Deceased) | Applicant/Claimant | |
-v- | ||
(1) CLYDESDALE BANK PLC | ||
(2) BRIAN PARKINSON | ||
(3) DAVID ROBERT HEAP | ||
(4) WALKER SINGLETON (COMMERCIAL) LTD | ||
(5) WALKER SINGLETON (ASSET MANAGEMENT) LTD | Respondents/Defendants |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Respondents did not attend and were not represented
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Crown Copyright ©
LORD JUSTICE LLOYD:
i. "The property's rateable value in September 2000 was £10,000 per annum, representing the annual rental income that the property would be expected to achieve on the open market and that for sales purposes the open market value of a commercial investment property is calculated by multiplying rental income by around ten."
i. "It might have given Burmah Oil a cause of action ... but they would have had to have brought this claim a long time ago and their claim would now be statute barred."
i. "There is finally an allegation of dishonest appropriation of surplus interest. The sum involved is remarkably small, as I understand it is under £8. I would be most reluctant for a case to proceed on the basis of that. It seems to me, however, that even if there was £8 misappropriation by the Bank, it does not affect the claim against the Second to Fifth Defendants. Equally, in my view, it does not entitle Mrs Calvert to a claim because any surplus from the Bank should have gone not to Mr Calvert but to Burmah Oil, so that again if there is a claim for £8 it is Burmah Oil's claim and not Mr Calvert's."
i. "This guarantee shall not be affected or discharged by the death or incapacity of the Guarantor ... and shall continue in full force until the expiration of three calendar months after receipt by the Bank of notice in writing given by the Guarantor ... to determine the same..."
i. "This security shall not be affected or discharged by any change in any firm in which the Customer may be a partner and shall not be affected or discharged by the death or incapacity of the Owner..."
i. "(1) A mortgagee entitled to appoint a receiver under the power in that behalf conferred by this Act shall not appoint a receiver until he has become entitled to exercise the power of sale conferred by this Act, but may then, by writing under his hand, appoint such person as he thinks fit to be receiver.
ii. (2) A receiver appointed under the powers conferred by this Act, or any enactment replaced by this Act, shall be deemed to be the agent of the mortgagor; and the mortgagor shall be solely responsible for the receiver's acts or defaults unless the mortgage deed otherwise provides."
i. "Winding up deprives the receiver, under such a debenture as that now in suit, of power to bind the company personally by acting as its agent. It does not in the least affect his powers to hold and dispose of the company's property comprised in the debenture, including his power to use the company's name for that purpose, for such powers are given by the disposition of the company's property which it made (in equity) by the debenture itself. That disposition is binding on the company and those claiming through it, as well in liquidation as before liquidation, except of course where the debenture is vulnerable under [various sections of the Companies Act] or is otherwise invalidated by some provision more applicable to the winding up.
ii. The view of the authorities which I have just stated is also fatal, I think, to Mr Monckton's alternative submission that the sale by the receiver is a disposition of the company's property avoided by section 227 of the Companies Act 1948."
i. "In truth, the rights and powers given by the debenture are themselves property, but not property of the company, and if they are not extinguished by the fact of winding up, their enforcement or exercise is not within the scope of section 227 at all."