816014037

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[Issue a]
[Rule]: The general requirement according to the Statute of Frauds is that a sale of interests in
land must be evidenced in writing in order to be enforceable. Equity has provided an exception
in allowing specific performance (SP) where there was a sufficient act of part performance (PP)
of an oral contract of the sale of land.
The act of PP must however satisfy certain requirements:
× Must provide evidence of the agreement between the parties.
This was demonstrated in McCollin v. Carter (1974) where Carter entered possession of
McCollin’s land as a license while the land was for his daughter as a gift. McCollin, knowing
that there was no enforceable agreement to transfer the land to Carter, acquiesced in Carter’s
carrying out substantial improvements on the land. The court held that Carter was entitled to
compensation for his expenditure. In Mathew ‘s case, his PP does provide evidence that there
was an agreement between himself and Mark. Matthew would have spent at least 18 years on the
land and sharing the profits if any of the said business directly because of the agreement.
Matthew’s action was not because he randomly decided but was encouraged in a sense as was
the case in McCollin.
× The court must also be satisfied the acts must of themselves on a balance of probabilities
establish the existence of an oral contract.
It would be Sufficient that it proved a contract and need not refer to the precise terms of the
contract on which the plaintiff relied. In Steadman v. Steadman it was held that the payment of
arrears of maintenance constitutes PP of an agreement between husband and wife with respect to
maintenance and the transfer of the matrimonial home the part of the agreement relating to
transfer of the matrimonial home was rendered enforceable. As it pertains to Matthew, the
paying of profits up until the heated argument is indicative that Matthew was paying in relation
to the agreement albeit not to Mark’s satisfaction nevertheless the agreement was just that, there
was no requirement of satisfactory profits as it stipulated “if any”. The facts also show Matthew
opened his business in accordance with the agreement and it would have satisfied the
requirement as was the case in Steadman, where the part of the agreement relating to transfer of
the matrimonial home was rendered enforceable.
× The acts must be performed by or on behalf of the plaintiff
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In Kingswood Estate Co. Ltd. v. Anderson entry into possession of a flat was a sufficient act of
PP to enforce an oral contract of tenancy. While Alterations and improvements effected on the
property of another is sufficient for the purpose of the rule and also payment of money can be a
sufficient act of PP as was the case in Steadman. Matthew would have also satisfied this
requirement. The facts reveal that he not only entered into possession as was in Kingswood
Estate Matthew clearly payed money in accordance with the agreement. Matthew’s could also be
distinguished from that found in McLean v Espeut where the payment of electricity bills and the
cutting of grass by P on the property allegedly agreed to be sold to P was deemed to be done for
security or to bolster his claim, Matthew is clearly paying profits to Mark because is was in
pursuant of the agreement and so was his act of entering into the property.

Given the fact that Matthew would have satisfied the requirement of PP, the oral agreement for
the transferral of the interest in Treadstone may be specifically enforceable because it is a
separate agreement from that concerning the home.

[Issue b]
[Introduction]: Matthew may seek to rely on common intention constructive trust to determine
whether he has an interest in the family home. This may arise independently of the intention of
any of the parties to an agreement and may be imposed by courts because of the conduct of the
trustee Mark.
[Rule]: Lloyds Bank plc v. Rosset [1991] listed the requirements:
1. Common intention (CI)
2. Detrimental reliance (DR)
[CI]: In Lloyds Bank, the court made a distinction between express common intension (ECI) and
inferred common intention (ICI).
[ECI]: An ECI requires evidence of express discussions between the parties which may be
informal and may have taken place prior to acquisition, or at a later date. It must demonstrate
that the property is to be shared beneficially. This was the case in Eves v. Eves where the
claimant was told she was too young for her name to go on the title and accordingly did
extensive decorative work and heavy gardening. The court found ECI. These principles were
also applied in Grant v Edwards where the defendant registered the title in his name and told the
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claimant that placing her name on the deed would prejudice her divorce proceedings,
nevertheless she made substantial indirect contributions to the mortgage by applying earnings to
household expenses and running the home.The also found ECI.
[ICI]: However, where there is an express agreement may be absent, a CI may be inferred from
the conduct of the parties. In Lloyds Bank it was believed only a substantial contribution to the
purchase price would suffice. In Stack v Dowden, it was established that the parties CI (actual,
inferred, or imputed) may be determined by looking at their whole course of conduct and not
solely their respective financial contributions to the purchase of the shared home.
[Analysis]: In this current situation, Mark specifically arranged to get the mortgage because he
was working with the government. His conduct and rationale mirror the excuse situation in
Grant when the D advised against putting C’s because it would prejudice her divorce. Mark
similarly showed strong indication he may have wanted to share the beneficial interest but
wanted to make the processes faster because of his governmental employment. Secondly the
court will look at the fact that the parties agreed that Mark would pay the instalments and
Matthew would take care of the home since his time was more flexible. Similarly, as in Eves
where the C did all the household work, the fact that such an agreement was made shows that
given the circumstances Matthew’s contribution is to be measured in the context. Matthew would
have also done substantial domestic work and general maintenance of the home for sixteen years
based on that agreement which is indicative of ECI. However, even if the Matthew find difficulty
in showing ECI, the may infer ICI. Applying and distinguishing Burns v Burns [1984] because
there was no clear arrangement made between the parties in Matthews case it was the agreement
that it would be flexible for them to have the said arrangement and Matthew contributed
substantially with that context.
[DR]: Once CI is established the person seeking to assert a beneficial interest must show that
there is a link showing the parties acted to their detriment. In Lloyds Bank it was indicated direct
contribution to the purchase price will count as detriment, but also factors and conducts will be
considered especially as it relates to ICI. The courts will look as factors such as home
improvements as was in Eves, where there was extensive decorative work and heavy gardening
done by the claimant, the courts would also consider monies spent and the taking care of children
as DR as was the case with Mrs. Michael in Michael v Michael and lastly other factors such as
financial contribution to household expenses as in Grant, where the claimant made substantial
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indirect contributions to the mortgage and applied earnings to household expenses, plus running
the home.
Matthew did all the cooking and cleaning as was the case in Eves and Michael. Also, on the
other hand, like in Grant, he did general maintenance of the home. The court would also look to
the fact that Matthew acted precisely on what he and Mark agreed that would be flexible for the
parties. There is a clear link showing Matthew acted to his detriment.
[Quantification of beneficial interest]: Where there is an ECI, the claimant should be entitled
to share of the equitable ownership based on what share was intended. However, in Eves the
court held in view of the defendant’s conduct it would be inequitable to deny the claimant a
share in the house. As it pertained to the shares the court also noted one half would be too much
and suggested one quarter of the equity. While in Michael where a wife was given 30 % of an
interest because she not only did domestic work but the fact that they had a shared bank account
and the husband would use it.
As it relates to ICI the court may ascertain shares by assessing the entire course of dealing as was
the case in Le Foe v Le Foe where the wife’s contributions supported the inference that it was
intended for her to have a 50 % share in the matrimonial home
Applying the principles to Matthew’s case, viewing Mark’s conduct the court may likely hold
that it would be inequitable to deny Matthew a share given he acted to his detriment. As it
pertains to shares, given that this was based on an agreement made between the two men also
considering the entire course of dealings and conduct one would suggest ECI or ICI, a 30%
interest would be equitable.
[Issue c]
[Introduction]: An interim injunction is one whereby the defendant is restrained, until a named
date or further order, from performing a specific act in question. Generally an application may be
on notice or without notice where the matter is urgent and must disclose of all material facts
within his knowledge to the fullest as was the case in Bank Mellat v. Nikpour.
[Rule]: In deciding whether to exercise its discretion to grant an interim prohibitory injunction to
prevent Mark from evicting Matthew from the family home, the court will apply the American
Cyanamid Co. v Ethicon Ltd guidelines and consider:
× Whether a serious question is to be tried?
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Claims that are frivolous or vexatious will fail at the initial stage. Matthew’s claim is neither
futile nor is it to harass Mark but there is a serious question concerning the interest in the
apartment and for Mark to potentially evict on the basis that he thinks Matthew has no interest
would be an encroachment on his equitable interest.
× Whether damages would be an adequate remedy?
The question the courts would ask is would the Matthew be adequately compensated by damages
for any loss caused by the Mark’s eviction prior to the trial? If so, injunction is refused. Matthew
may be adequately compensated by damages as if he must find another place to rent the money
could always be repaid.
The second question is Would the Mark if he wins the trial be adequately compensated by the
Matthew’s undertakings in damages for any loss caused by the granting of an interim inunction?
If so, injunction is granted. Mark may also be compensated by the undertaking by the period in
which Matthew stays could be quantified.
× Whether the balance of convenience lies in favour of granting or refusing the interim
injunction?
The court would consider whether either party could be adequately compensated by an award of
damages. Where the balance of convenience does not clearly favour either party, the preservation
of the status quo will be decisive. Neither Mathew nor Mark would be harmed irreparable by the
granting of the injunction and so the court may likely grant it.
× Other factors
The court will consider other relevant matters affecting the balance of convenience in deciding
whether to grant an interim injunction such as Loss of employment as in Fellows and son v
fisher and Damage to goodwill of a business as in Associated Newspaper Plc v Insert Media
Ltd
The courts may be able to look at the fact that Matthew may be without dwelling for a significant
period, but that too may be easily rebutted.
[Advice]: After going through the relevant requirements Matthew would be advised to seek the
injunction on notice although only favourable, the likelihood of it been granted is dependent on
the discretion of the Judge.

[Issue d]
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[Introduction]: There is a general overarching Maxim of equity in that delay defeats equities.
The general understanding is that equity aids the vigilant and not the indolent.
[Rule]: The specific principle linked to an interim injunction is that delay or laches by the
claimant may disentitle him from this equitable relief where there is an infringement of his rights
particularly if the defendant has incurred expenditure. Courts are also cognizant that if a claim is
dismissed, the claimant is not unduly prejudiced, as he may still seek a perpetual injunction. A
claimant must therefore act promptly in the case of an injunction without notice because a delay
is evidence of unurgency and the claimant is unlikely to establish that it would be unreasonable
to make him wait until trial. This was the case in Shepherd Homes Ltd. v. Sandham [1971]
concerning a mandatory injunction to demolish a fence which was constructed by a resident. An
unexplained delay of five months prevented the grant of an interlocutory injunction. It was
further explained that if there is a delay by the claimant a mandatory injunction would disturb
rather than preserve the status quo.
In Matthew’s case a delay would most likely minimize chances of success of him being granted
an interim injunction especially if it is a long period of time given the subject matter. What
Matthew would be seeking to prove to the court is that his matter is urgent and of a significant
nature. Given the already difficulty in proving the need for an injunction any delay would
increase the difficulty in proving and give it is discretionary the courts would not hesitate in
refusing. There in Shepherd Homes Ltd indicates promptness is of utmost importance.

[Issue e]
.
[Rule]: He who comes to equity must come with clean hands. This principle would look to the
previous conduct of the applicant, and if there are misconducts, he would be deemed to have
unclean hands. In Argyll (Duchess) v. Argyll (Duke) [1967] it was established that the
misconduct condemned must be a part of the transaction that is the subject of the lawsuit.
Furthermore, Shiloh Spinners Lt d v Harding [1973] , showed flagrant breaches and a disregard
of the plaintiffs’ rights was tantamount to unclean hands however the illegal action must be
committed and attempts wont suffice as was seen in Tribe v. Tribe
Seeking a claim for an interest under equity would require Matthew’s conduct be in accordance
with the principles and maxims of equity. Falsely claiming to have spent $100,000 would be
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tantamount a misconduct. The court would then look to see whether the conduct is part of the
transaction that is subject to the lawsuit. Distinguishing Argyll, where a wife's adultery was not
unclean hands, this action which Matthew is planning to do would be directly connected to the
lawsuit, because if he lies he would be more likely to get an ECI interest as his contributions are
taken into account in this proceedings. Having established that his conduct is directly connected
to the proceedings the court would likely find him to have unclean hands and accordingly not
grant an equitable relief as was the case in Shiloh.
It would be advisable that Matthew should go before the court with clean hands as he has a better
chance of succeeding if he does. Any unclean hand such as false statements and false
representations would likely prejudice his case not withstanding Tribe suggest that the action
must be committed.

I declare that the response submitted for the LAW2810 examination question constitutes my
work, except where duly acknowledged and referenced and does not contain any plagiarised
material.