The Gazette 1967/71

Contract Where the owner of a damaged car takes it to a garage for repair on the basis that his insurance company will pay the cost of repair and the in surance company instructs the garage to proceed with the repairs in accordance with the garage's estimate, there are two concurrent contracts—one between the garage and the car owner, and the other between the garage and the insurance company; therefore, ii the garage fails to repair the car within a reasonable time, the car owner can sue the garage for damages. (Charnock v. Liverpool Corporation—Court of Appeal, June 18th 1968). Repayment of Loan The plaintiff brought proceedings which were heard in the county court claiming the return of a sum of money which she alleged she had lent to the defendant. The defendant by his defence ad mitted receipt of the money, but claimed that it had been a gift. There were no circumstances such as to give rise to a presumption of ad vancement. The case being called on for hearing, the plaintiff submitted that it was for the de fendant to begin, and the judge so ruled. The defendant appealed against that ruling, the plaintiff contending that it was not open to him to do so, the matter not coming within the words of section 108 of the County Courts Act, 1959. Held, that assuming, that an appeal lay from the judge's ruling, the payment of money prima facie imported an obligation to repay it, and that the judge was right in placing the onus on the defendant to prove the facts which he alleged showed that it was not re-ayable. (Seldon v. Davidson, [1968] 1 W.L.R. p. 1083). Profits of a solicitor In July, 1955, judgment in a High Court action for £28,521 was entered jointly against the tax payer, a solicitor, and X. Early in 1956 the judg ment creditor recovered £6,343 from certain companies associated with .X In July, 1956 X was declared bankrupt. In January 1957, the tax payer's accounts for the year to March, 1956 were prepared but without any entry in respect of the judgment debt, which was properly deductible in his accounts. When the accounts were being pre pared the taxpayer believed that the balance of the judgment would be enforced in full against him. In June, 1958, the judgment creditor by deed released the debt in consideration of a payment of £3,000 by the taxpayer and the taxpayer also 33

ance together with interest. The first defendant retained possession and the title deeds. By a debenture dated October 27th 1966 the second defendant charged all its undertakings, property, assets and rights to the plaintiff. Particulars of the legal charge in favour of the first defendant were not delivered to the Registrar of Companies as required by Section 95 of the Companies Act 1948 (corresponding to section 99 of the Irish Companies Act 1963). The plaintiff a debenture holder appointed a receiver of the undertaking in all the property of the second defendant and the receiver asked the first defendant to deliver up the title deeds of the property on the ground that the legal charge in his favour was void against the plaintiff for want of registration. The first defendant refused, claiming that as an unpaid vendor he had a lien on the property and was en titled to retain possession of the title deeds; and that alternatively, the legal charge fell within Section 97 (corresponding to Companies Act 1963 Section 101) and not section 95 of the Companies Act 1948 and was not void, notwith standing that it had not been registered. The Plaintiff issued a writ claiming a declara tion that a debenture charge had priority over (i) the legal charge in favour of the first de fendant and (ii) any lien of the first defendant as an unpaid vendor or otherwise. The plaintiff also sought an order that the first defendant should hand over the title deeds. Held (i) that the first defendant had not obtained an unpaid vendor's lien on the property because he had bargained for a legal charge which, being a higher interest than a lien, excluded the latter. His pro tection during the period between contract and completion being afforded by the equitable mort gage which arose on the signing of the contract to create the legal charge as security for part of the purchase money; that the equitable mortgage was capable of being registered under section 95 and since it had not been registered it was void against the liquidator and creditors of the com pany (ii) that following the normal conveyancing procedure where part of the purchase money for a property was left on mortgage, the whole pro perty had been conveyed to the purchaser who immediately afterwards charged it in favour of the vendor; that such a charge fell within section 95 of The Companies Act 1948 not section 97 and accordingly that it was void against the liquidator and creditors of the company for want of registration. (Capital Finance Company Limited v. Stokes and Another [1968] 1 W.L.R. 1158).