Kensington Mortgage Company Ltd v Mallon & Ors

Kensington Mortgage Company Ltd v Mallon & Ors

The appeal was dismissed because the trust argument was not properly pleaded and the judge was entitled to refuse a late amendment; even if a constructive trust or proprietary estoppel arose, any equitable interest would not have priority over the Respondent’s registered mortgage, as it arose after the mortgage was granted. There was no mistake in the register, and the proprietary estoppel claim failed on timing and priority grounds.

Parties
Claimant and Respondent: Kensington Mortgage Company Limited; First Defendant: Mr Cyril Eugene Mallon; Second Defendants and Appellants: Mr Ghulam Mustafa Zaman & Mrs Jamila Zaman; Defendant to Second Defendants’ Part 20 Claim: Louise Brittain (Trustee in bankruptcy of 1st Defendant)
Jurisdiction
England and Wales
Judgment Date
27 September 2019
Procedural Posture
Chancery Appeal / Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Constructive Trust, Proprietary Estoppel, Rectification of Register, Overriding Interests, Mortgage Priority, Pleading and Amendment, Section 2 Law of Property (miscellaneous Provisions) Act 1989, Land Registration Act 2002
Land Law Equity Trusts Property Law Constructive Trust Proprietary Estoppel Rectification of Register Overriding Interests +4 more

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Parties

Kensington Mortgage Company Limited

Claimant and Respondent

Mr Cyril Eugene Mallon

First Defendant

Mr Ghulam Mustafa Zaman & Mrs Jamila Zaman

Second Defendants and Appellants

Louise Brittain (Trustee in bankruptcy of 1st Defendant)

Defendant to Second Defendants’ Part 20 Claim

Procedural Posture

Chancery Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether a constructive or resulting trust arose in favour of the Zamans over the property
  2. 2 Whether proprietary estoppel entitled the Zamans to an interest in the property
  3. 3 Whether the Land Register should be rectified due to mistake

Ratio Decidendi

The appeal was dismissed because the trust argument was not properly pleaded and the judge was entitled to refuse a late amendment; even if a constructive trust or proprietary estoppel arose, any equitable interest would not have priority over the Respondent’s registered mortgage, as it arose after the mortgage was granted. There was no mistake in the register, and the proprietary estoppel claim failed on timing and priority grounds.

Court Disposition

Appeal dismissed

Orders

  • Permission to appeal granted on all grounds
  • Appeal dismissed in its entirety