Day v Shaw & Anor [2014] EWHC 36 (Ch) (17 January 2014)

Day v Shaw & Anor [2014] EWHC 36 (Ch) (17 January 2014)

Mrs Shaw is entitled to be indemnified by Mr Shaw in relation to the Barclays debt, and her right to indemnity gives her a proprietary right over Mr Shaw's share in the property, which takes priority over Mr Day's charging order. The liability of Mr and Mrs Shaw under the mortgage is by way of sub-surety for the liability of Mr Shaw and Mrs Shergold under the guarantee, entitling Mrs Shaw to the equity of exoneration.

Citation
[2014] EWHC 36 (Ch)
Parties
Claimant/appellant: Andrew James Day; Defendant/respondent: Jeffrey Graham Shaw; Defendant/respondent: Patricia Ann Shaw
Jurisdiction
England and Wales
Judgment Date
17 January 2014
Procedural Posture
Appeal / Judgment on Appeal From Order of Deputy District Judge
Outcome
Appeal dismissed
Legal Topics
Equity of Exoneration, Indemnity Between Co Mortgagors, Priority of Proprietary Rights, Charging Orders, Beneficial Interests in Property
Equity Property Law Insolvency Equity of Exoneration Indemnity Between Co Mortgagors Priority of Proprietary Rights Charging Orders Beneficial Interests in Property

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Parties

Andrew James Day

Claimant/appellant

Jeffrey Graham Shaw

Defendant/respondent

Patricia Ann Shaw

Defendant/respondent

Procedural Posture

Appeal / Judgment on Appeal From Order of Deputy District Judge

Legal Issues

  1. 1 Whether Mrs Shaw is entitled to be indemnified by Mr Shaw in relation to liability under the second charge to Barclays
  2. 2 Whether Mrs Shaw's right to indemnity is the subject of an equity of exoneration giving her a proprietary interest in Mr Shaw's share of the property
  3. 3 Whether Mr Day's charging order can attach to any proceeds of sale given the equity of exoneration

Ratio Decidendi

Mrs Shaw is entitled to be indemnified by Mr Shaw in relation to the Barclays debt, and her right to indemnity gives her a proprietary right over Mr Shaw's share in the property, which takes priority over Mr Day's charging order. The liability of Mr and Mrs Shaw under the mortgage is by way of sub-surety for the liability of Mr Shaw and Mrs Shergold under the guarantee, entitling Mrs Shaw to the equity of exoneration.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs
  • Any consequential matters to be raised in writing within 14 days