The Gazette 1985

GAZETTE

JUNE 1985

envisaged "real knowledge which would involve a wilful act on the part of the party who has done the building" 32 and the County Council could not be said to have acted wilfully. But Finlay P. continued and sought to establish "the real underlying principle" of the passage from Ramsden -v- Dyson. He believed that while it was an enunciation of a principle of equity referable to the conduct of the plaintiff: "the principles of equity stated in this passage depend not exclusively on the action or inaction of the plaintiff or on the state of his knowledge but have regard also to the action of the defendant. . . If a court applying equitable principles is truly to act as a court of conscience then it seems to me unavoidable that it should consider not only conduct on the part of the plaintiff with particular regard to whether it is wrong or wilful but also conduct on the part of the defendant and further- more the consequences and the justice of the consequences both from the point of view of the plaintiff and of the defendant". 33 On the facts of the case the judge considered that there were six factors which led him to the conclusion that it would "truly be unconscionable and unjust" that the McMahons should recover possession of this land with the houses built upon it. The factors considered were: (i) the plaintiffs secured possession of the site for the building of a school something which was of "general public benefit", but this project never materialised; (ii) the site was enclosed within the boundary wall of the

adjoining housing estate and nothing had been done by the McMahons to identify it as a separate unit; (iii) it had no intrinsic value for the McMahons; (iv) the mistake by the County Council was excusable in that the site was neither maintained nor demarcated by the McMahons (although the judge admitted that a careful examination of the records by the authority would have indicated the ownership of the site); (v) the McMahons would have made a sizeable profit without any effort or expenditure on their part (£40 outlay in 1960 would have realised £18,000 at the time of the judgment being handed down); and (vi) the houses were being occupied by "needy persons" and it was an area in particular need of housing for such people. In the light of these factors, the judge considered that equity should restrain the full operation of the McMahons' legal right to recover possession of the lands. The judge, however, considered that the McMahons were by no means in the same position as a person who has wilfully stood by and allowed a stranger to improve his land. There was therefore no question of them being deprived of their legal right without ample and adequate compensation. The form of order which the judge made was to grant the McMahons a decree for possession but with "a stay on that decree for a period of three mon t h s .. providing that if within that period of three months the (Council) pay to the (McMahons) the sum of £2,000 the stay will be permanent". 34 The sum of £2,000 was calculated upon the basis of the market value of the vacant site with a sum of £500 added to cover the expenses which might be involved in the purchase of an alternative site. Finlay P. was thus in effect ordering a forced sale by

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