193 / 406
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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