The editor of this section of the site is Nigel Clayton of Kings Chambers, Leeds and Manchester. Nigel also maintains the specialist website dealing with mortgages at www.legalmortgage.co.uk
There are 3 cases this month:
- The Court held it was inappropriate to make an order for sale in favour of a judgment creditor
- There is power to order one party to use his or her best endeavours to obtain a release of the other from a mortgage, and to indemnify the other.
- Receivers had failed to establish their title to commence proceedings where they could not establish the validity of the execution a power of attorney
Validity and priority of other charges – whether to order sale
Amari Lifestyle Ltd v Warnes  EWHC 1891 (Ch)
The court determined the validity of prior charges and concluded that on the figures, it would not be appropriate to make an order for sale in favour of a judgment creditor with the benefit of a charging order.
A creditor (C) obtained a final charging order against D1’s interest in a residential property, to secure a judgment debt and costs totalling £312,000, and applied for an order for sale pursuant to Sections 14-15 Trust of Land and Appointment of Trustees Act 1996. The property was jointly owned with two other defendants who were the trustees of a discretionary trust (a personal injury settlement for D1). They held the property on trust for D1 and the trustees in equal shares. The property had an estimated value of circa £2 - £2.5M but was subject to two secured debts totalling around £1,317,000. Therefore there was sufficient equity due to D1 to pay the amount secured by the charging order.
The validity of a charge apparently executed by D1 in favour of the trust to secure a sum advanced to D1 on the purchase of the property.
The Court held that the charge was a valid charge but as there would be no net sale proceeds available to C it refused an order for sale.
C argued that the charge was not a valid equitable charg ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW
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