175 / 736
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).
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