Kinane v Mackie-Conteh [2005] EWCA Civ 45 (01 February 2005)

Kinane v Mackie-Conteh [2005] EWCA Civ 45 (01 February 2005)

The security agreement was unenforceable under section 2(1) of the 1989 Act, and section 53(1)(c) of the 1925 Act did not apply as it concerns only subsisting equitable interests. However, a constructive trust arose because Mr Kinane made the loan in reliance on the security agreement, encouraged by Mr Mackie-Conteh, making it unconscionable for Mr Mackie-Conteh to deny the security. Section 2(5) of the 1989 Act preserves the operation of such a constructive trust, allowing enforcement of the equitable charge.

Citation
[2005] EWCA Civ 45
Parties
Respondent / Cross Appellant: David Kinane; Appellant / Cross Respondent: Alimamy Mackie-Conteh
Jurisdiction
England and Wales
Judgment Date
01 February 2005
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From High Court (chancery Division)
Outcome
Appeal dismissed; cross-appeal allowed in part.
Legal Topics
Equitable Charges, Constructive Trusts, Proprietary Estoppel, Formalities for Disposition of Interests in Land
Property Law Equity Equitable Charges Constructive Trusts Proprietary Estoppel Formalities for Disposition of Interests in Land

Case Brief

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Parties

David Kinane

Respondent / Cross Appellant

Alimamy Mackie-Conteh

Appellant / Cross Respondent

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From High Court (chancery Division)

Legal Issues

  1. 1 Whether the security agreement of 8 November 2001 was enforceable notwithstanding section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989
  2. 2 Whether a constructive trust arose to allow enforcement of the security agreement despite non-compliance with statutory formalities
  3. 3 Whether section 53(1)(c) of the Law of Property Act 1925 applied to the creation of the equitable charge

Ratio Decidendi

The security agreement was unenforceable under section 2(1) of the 1989 Act, and section 53(1)(c) of the 1925 Act did not apply as it concerns only subsisting equitable interests. However, a constructive trust arose because Mr Kinane made the loan in reliance on the security agreement, encouraged by Mr Mackie-Conteh, making it unconscionable for Mr Mackie-Conteh to deny the security. Section 2(5) of the 1989 Act preserves the operation of such a constructive trust, allowing enforcement of the equitable charge.

Court Disposition

Appeal dismissed; cross-appeal allowed in part.

Orders

  • Declaration that Mr Kinane is an equitable chargee under an equitable charge of 141 Willersley Avenue, Sidcup, Kent in the sum of £100,000.
  • Order for sale of the property.