Dunbar Bank Plc v Nadeem & Anor [1998] EWCA Civ 1027 (18 June 1998)

Dunbar Bank Plc v Nadeem & Anor [1998] EWCA Civ 1027 (18 June 1998)

Mrs Nadeem failed to establish that the transaction was manifestly disadvantageous to her, as she obtained a beneficial interest in the property for the first time and the Bank's security was not enforced beyond the intended bridging finance. The legal charge could not be set aside as against her, and even if undue influence had been established, rescission would not be available as she could not restore the benefit (her beneficial interest) due to the subsequent charge to National Westminster Bank.

Citation
[1998] EWCA Civ 1027
Parties
Plaintiff/respondent: Dunbar Bank Plc; First Defendant: Maurice Nadeem; Second Defendant/appellant: Zubaida Nadeem
Jurisdiction
England and Wales
Judgment Date
18 June 1998
Procedural Posture
Appeal (civil) / Court of Appeal Judgment on Appeal and Cross Appeal From Chancery Division
Outcome
Bank's cross-appeal allowed; Mrs Nadeem's appeal dismissed; order for possession granted to the Bank; counterclaim dismissed; leave to appeal refused.
Legal Topics
Undue Influence, Mortgages, Rescission, Restitution, Possession Proceedings
Equity Banking Law Family Law Undue Influence Mortgages Rescission Restitution Possession Proceedings

Case Brief

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Parties

Dunbar Bank Plc

Plaintiff/respondent

Maurice Nadeem

First Defendant

Zubaida Nadeem

Second Defendant/appellant

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Appeal and Cross Appeal From Chancery Division

Legal Issues

  1. 1 Whether the legal charge over matrimonial home should be set aside as against Mrs Nadeem for undue influence
  2. 2 Whether Mrs Nadeem was required to make restitution as a condition of rescission
  3. 3 Whether the transaction was manifestly disadvantageous to Mrs Nadeem

Ratio Decidendi

Mrs Nadeem failed to establish that the transaction was manifestly disadvantageous to her, as she obtained a beneficial interest in the property for the first time and the Bank's security was not enforced beyond the intended bridging finance. The legal charge could not be set aside as against her, and even if undue influence had been established, rescission would not be available as she could not restore the benefit (her beneficial interest) due to the subsequent charge to National Westminster Bank.

Court Disposition

Bank's cross-appeal allowed; Mrs Nadeem's appeal dismissed; order for possession granted to the Bank; counterclaim dismissed; leave to appeal refused.

Orders

  • Order for possession within 56 days to Dunbar Bank Plc
  • Counterclaim by Mrs Nadeem dismissed