National Westminster Bank Plc v Hunter & Anor

I will now give my reasons for the decision I expressed earlier today to dismiss Mr Hunter’s application under section 91 of the Law of Property Act 1925 and I will also give brief reasons in relation to the other application before me, the application by the bank for various heads of relief in support of its rights and its orders for possession that have previously been obtained.

This case concerns agricultural land and buildings at Manor Farm, Pitchcott, Aylesbury and at Kirkdene, Pitchcott, Aylesbury. At all material times the First Defendant, Mr Robert Hunter, has been the freehold owner of that land. The Second Defendant is his wife, Mrs Karen Hunter.

It is also relevant to refer to a limited company which is called K Hunter and Sons Limited. That company was acquired off-the-shelf in around February 2007. I do not have very much detail about the state of affairs in relation to the company, but Mr Hunter has told me at the hearing today that all of the shares are owned by Mrs Karen Hunter and that he believes that she is a director of that company. He says the company is controlled by his wife and he has no shareholding or other formal position in relation to it.

The bank, National Westminster Bank Plc, is involved with the land and buildings to which I have referred pursuant to two legal charges, one dated 6^th July 2006 and the second dated 12^th April 2007. They are in essentially the same terms, save that they relate to different parcels of land. The charge of 6^th July 2006 is in relation to property described as land and buildings at Manor Farm, Pitchcott, Aylesbury, Land Registry title number BM195811, and the charge dated 12^th April 2007 relates to land at Kirkdene, Pitchcott, Aylesbury, Land Registry title number BM126848.

As I will describe in due course, part of the land the subject of the charge of 12^th April 2007 has more recently been sold, but the remainder of that land remains subject to that charge. It is agreed that all of the land with which this case is concerned is subject to one or other of those two charges. As the charges are in the same terms it will suffice if I refer to one of them and I will refer to the charge of 6^th July 2006. Under the charge by way of legal mortgage the mortgagor was Mr Hunter and the bank was National Westminster Bank Plc. I have referred to the land which is the subject matter of the charge. By clause 1 of the charge Mr Hunter covenanted to discharge on demand the mortgagor’s obligations. The mortgagor’s obligations were defined earlier in the document as all of the mortgagor’s liability to the bank of any kind. The definition continues but it is not necessary for me to read it out.

By Clause 1.1 of the charge Mr Hunter charged by way of legal mortgage the property which I have described as the subject of the charge.

Clause 3 of the charge is headed “Restrictions on charging, leasing, disposing and parting with possession”. By Clause 3.1.3 in particular Mr Hunter agreed that he would not without the bank’s prior written consent dispose of the charged property. That certainly means that Mr Hunter is not able to convey title to the charged property to a third party. It may also mean -- I need not decide this -- that he is not able to contract to make such a disposal.

By Clause 4.3 the bank is given the power to appoint a Receiver. The clause provides that the Receiver shall be deemed to be the agent of the mortgagor. That is in accordance with the normal position in charges of this kind. The powers of the Receiver are spelt out in Clause 5 of the charge. These powers given by Clause 5 are in addition to all parts conferred on the Receiver under the general law.

By Clause 5.1.4 in particular a Receiver appointed by the bank under the charge has the power to sell the charged property. There are other provisions which may perhaps be useful in connection with a proposed sale by a Receiver but it is not necessary to refer to them in this judgment.

The bank appointed Receivers in relation to all of the charged property on 14^th January 2010. In the course of his submissions to me today Mr Hunter questioned the bank’s entitlement to appoint those Receivers. He referred to alternatives that might instead have been pursued.

There is no application before the Court today to have the appointment set aside or to have the Receivers removed. It is some considerable time since the Receivers have been appointed and they have acted as such during that period of time. It seems to me inevitable that I must proceed today on the basis that the Receivers have been validly appointed and have the powers vested in them by the legal charges.

The bank brought possession proceedings against Mr and Mrs Hunter. Those proceedings were started in the Aylesbury County Court by a claim form dated 29^th June 2010. Those proceedings were heard in the County Court on 10^th August 2010. Mr Hunter was represented by counsel; Mrs Hunter was not represented by a legal representative.

The District Judge on that hearing made an order that both Defendants give possession of the charged property on or before 5^th October 2010. He also ordered the First Defendant, Mr Hunter, to pay to the bank a sum of money which was a little under £3.5 million.

Since the making of the order for possession a number of things have happened, not all of which I need recite. In particular, part of Kirkdene has been sold. Mr Hunter has raised a number of questions today in argument as to the way in which the bank or the Receivers went about the sale of part of Kirkdene. There is no application before me today for any relief in relation to what happened in relation to Kirkdene and it is not necessary for me to go into that matter any further or say anything about it.

It is also the case that there have been further applications to the Court and eventually Mr and Mrs Hunter did leave the land, that is they ceased to reside on any part of the land or buildings. On the other hand, Mr Hunter, who is a stock farmer, has left upon the land a number of cattle, I think some 90 or so, although as a result of recent developments the number of cattle on the land today I understand is 3 cows.

Since the possession action began and since the possession order was made t here has rightly been a great deal of communication between the bank and Mr Hunter. The future of this land has had to be addressed. Plainly, the bank’s primary concern was to realise the value of its security so as to reduce the indebtedness owed to it. Accordingly, the question of selling the land has been one of the matters at the front of anyone’s consideration.

In that wa, Mr Hunter decided in February 2011 that he would sell the land which remained subject to the charges to the company K Hunter and Sons Limited to which I have referred. The way in which Mr Hunter went about assessing a suitable price for such a sale to the connected company was to take a valuation of the entirety of the charged property, to deduct from it the proceeds of sale on the sale of part of Kirkdene and to arrive at a resulting figure. The resulting figure was £930,000.

Having done that, Mr Hunter entered into two contracts of sale, one relating to a small area of land at Kirkdene for £7,500 and the other relating to the bulk of the land at a price of £922,500. Under these contracts Mr Hunter is the seller and K Hunter and Sons Limited, the company controlled by Mrs Hunter, is the buyer.

The contracts appear to be in essentially the same terms apart from the identity of the land and the price. I will refer to the contract in relation to the bulk of the land. That was made on 23^rd February 2011. It provided for payment of a deposit of £1. Whether that deposit was paid or not paid is not in the event material. The contract was to be completed six months from the date of the contract. The contracts of 23^rd February 2011 have not been completed.

Clause 8 of the contract is headed “Matters affecting the property”. Clause 8.1.A reads: “The seller will sell the property free from incumbencies other than any matters other than the charge contained in the land registry entries.” If one combines the two phrases “other than any matters other than the charge” what that is saying is that the sale will not be subject to the charge; the buyer under this contract is to take the property free from the charge. The charge is a defined phrase which enables one to see it is a reference to the charges in favour of National Westminster Bank, to which I have referred.

So under these contracts Mr Hunter on the face of it was contracting to sell land which was subject to a charge charging a liability to pay a sum of money well in excess of £2.5 million for a purchase price of £930,000.

As I have indicated the contracts of February 2011 were not completed. As the months went by the bank considered what course it should take and at some point it considered it should sell the land by auction in a conventional way. That is generally regarded as the appropriate action of a bank or a Receiver who has a duty to take steps to obtain a proper price for the security.

There have been further communications between Mr Hunter and the bank in the period from February 2011 to July 2011. The bank has prepared a detailed chronology of those communications for the purposes of this hearing. Mr Hunter has himself prepared a chronology which he has placed before me. It is fair to say that the impression given by the two chronologies is somewhat different. It is not necessary I think to go to every difference and attempt to resolve it.

What matters more are the events of the 14^th July of this year. I can see in detail what the parties said to each other because they said it in writing in documents sent by e-mail which have been produced in evidence. The 14^th July was a significant date because it was the date fixed for an auction of the charged property. On that date at around 12.18 pm, Mr Hunter sent an e-mail to the bank. The e-mail was in these terms: “Further to our recent correspondence, I am writing to you again to make an increased offer of £1.550 million to be paid in 12 months’ time. Part payment will be paid up-front with the remainder being paid in 12 months’ time, which would have to be on a second charge basis. The lot would obviously need to be withdrawn from the auction now if this offer is acceptable to you. I remain open to further negotiations.”

The bank replied in these terms: “Given the proximity of the property being offered for sale at auction, I do not propose to consider your proposal today. In the event that the property remains unsold following this afternoon’s auction I would invite you to write to me again tomorrow clearly stating the quantum of the part payment you would intend making now together with proof of funding from your new lender. I note that your letter is silent on these points.”

Mr Hunter replied by an e-mail received at 14.07 on that day. His e-mail stated: “I understand that I am not allowed to [refer to it] in open correspondence, however I will say that Manor Farm will not be auctioned before 4.30/5 p.m. today, which means there is plenty of time to withdraw it. My improved offer of £1.550 million to be paid in 12 months is clearly above the guide price set by Allsops and well in excess of the £1.375 million valuation by Savills. Also taking into account that I am still in possession of Manor Farm, Pitchcott, proof of funding can certainly be provided for a part payment up-front with a second charge in 12 months’ time and I am happy to negotiate a figure with yourself that would acceptable to the bank and to myself. This offer is open for acceptance until 4.30 p.m. today.”

The bank replied in these terms: “In my letters to you earlier this week I made it clear to you that as a condition of any proposals being accepted and for me to be able to ask the Receivers to withdraw the property from the auction the bank would require your solicitor (1) to pay a non-refundable deposit of 10 per cent of any agreed settlement figure prior to auction and (2) to provide proof of funding. I note that in earlier correspondence you stated quite categorically that you were unable to raise more than £1.31 million ‘now’. There is now insufficient time for the bank to be comfortable as to the terms of your proposals prior to the auction later this afternoon. Should the property remain unsold following the auction and you can provide proof of funding from your new lender I shall be happy to give further consideration to your refinancing proposals.”

The last letter to which I need refer on 14^th July 2011 came by way of reply from Mr Hunter where he said this: “I am most disappointed that you have refused my offer of £1.550 million, which clearly exceeds the valuation by Savills sanctioned by Allsops on 29^th June of this year and also exceeds by some way the guide price they had put on it at auction. You have done this with full knowledge that I am still in possession of Manor Farm, Pitchcott. You are also aware that there is waste contaminated by asbestos that has to be removed by 2^nd August 2011, which is a condition set by the enforcement notice served by Aylesbury Vale District Council. You will also now be aware of the two papers served at Aylesbury County Court on Monday, 11^th July 2011 by Mr Oldham and Mr Malt, who intend to establish their proprietal rights over Manor Farm, Pitchcott. Should they be successful in Court, which is likely to take six months or more, their tenancies on Manor Farm, Pitchcott will inevitably devalue the properties by up to 50 per cent. I assume any potential bidders are aware of the above information as they should be. My offer will remain open up to 5.30 p.m. today on a refinancing of the deal by yourselves for 12 months.”

That correspondence referred to the topic of potential funding for the intended purchase of the farm. It is not said that any evidence as to the availability of funding beyond what was stated in the letters was provided to the bank before or on 14^th July 2011. However, at the hearing Mr Hunter has referred to a subsequent letter dated 29^th July 2011 from UK Farm Finance Limited to K Hunter and Sons Limited. The letter is in these terms: “Further to our telephone conversation with your solicitor, we write in confirmation that prior to the auction relating to the properties at Manor Farm on 14^th July 2011 we had made a formal offer of finance to you to enable you to purchase Manor Farm, comprising the three residential units and the farm land, for a purchase price of £1,550,000. We confirm that the funds would be available to you pursuant to the loan facility offered to have enabled you to complete an agreement for the purchase of the property upon completion of the necessary conveyancing formalities. The funds were available for draw down as at 14^th July 2011.”

At this hearing that is the only document before the Court which gives any information about the possibility of funding to K Hunter and Sons Limited in relation to a possible purchase of the land for £1.55 million.

It is not clear from what I was told in the course of his submissions by Mr Hunter whether other formal documents exist. The letter does refer to “a formal offer of finance” which suggests that something in written form and in more detail did exist by 29^th July 2011. Nothing of that kind was put before the bank prior to the auction taking place and nothing of that kind has been put before the Court today.

Mr Hunter told me that the amount of money to be borrowed from UK Farm Finance Limited was not less than £1.55 million. In other words, UK Farm Finance Limited were at least advancing the full amount of the intended purchase price of the land. In that sense it was to be a 100 per cent mortgage. I have used the phrase not less than because Mr Hunter did not seem to quarrel with the suggestion I put to him that UK Farm Finance Limited would make various charges for fees and other matters in connection with the provision of finance. It is not said that those sums were available to K Hunter and Sons Limited, I was told K Hunter and Sons Limited had no assets apart possibly from the benefit of the contract to which I have referred.

The last statement in the letter from UK Farm Finance Limited was, I repeat, that funds were available for draw down as at 14^th July 2011. That statement fits very badly with the correspondence on 14^th July 2011. In that correspondence it seemed to be common ground that K Hunter and Sons Limited or Mr Hunter were not in a position to pay the full amount of the purchase price at or around that time, indeed it would be necessary for an unspecified part of the purchase price to remain outstanding on mortgage for 12 months. That causes me to be a little circumspect about the reliability of the general statements made, not supported by documents which really ought to exist, in the letter of 29^th July 2011.

I have referred to that letter on the question of funding because the question of funding was raised in the communications between the parties prior to the auction in this case. I can now pick up the chronology again by referring to what happened at that auction. During the afternoon of 14^th July 2011 the firm of Allsops, well-known surveyors and auctioneers, auctioned the land at The Park Lane Hotel, Piccadilly, London, W1. The particulars of sale referred to the land. There was some description of some matters in relation to the land which I have been shown as follows. It said: “The property is not vacant, there is a 60 strong beef cattle herd currently on the property. Completion will take place following confirmation from the seller that the cattle have been removed. A hearing took place on 13^th July 2011 at Aylesbury County Court to require the cattle to be removed. The judge adjourned the application to be relisted at the next available date after 20^th July 2011.”

The land which is the subject of the sale contract entered into at the auction is the land the subject of the charges. The sale memorandum records that the seller is Mr Hunter acting by his Receivers. The copy of the sale memorandum produced to the Court does not identify the buyer, although one can see that the signature on behalf of the buyer was that of a C Taylor. It seemed to emerge in the course of argument that Mr Taylor is known to Mr Hunter and it also seemed to emerge that the buyer is not Mr Taylor personally but is a company controlled by Mr Taylor. I will refer to the buyer as Mr Taylor’s company.

The purchase price under the auction contract was £1,505,000. The contact provides for a 10 per cent deposit, £150,500. The sale memorandum states that the deposit was paid, though the evidence is that it was paid the next day, 15^th July 2011. It was paid by cheque and the cheque has cleared.

The auction contract identifies further terms which apply to this sale. The agreed completion date is expressed to be five business days after a certain condition has been satisfied. That condition is in extra special condition 11 which is in these terms: “11.1, the condition will be satisfied on the date that the seller has informed the buyer that the cattle that were on the lot as at the date of the auction as shown on the sale of memorandum, the auction date, has been removed. 11.2, if the condition has not be satisfied within six months of the auction date then either the buyer or the seller can serve notice on the other to terminate this contract. 11.3, in the event that the contract is terminated pursuant to extra special condition 11.2, then the deposit will be returned to the buyer.”

There is one other matter relating to the contract to which I ought to refer. The contract provides for title to pass to the purchaser pursuant to a Land Registry transfer form, in form TR2, which is to be executed by National Westminster Bank Plc as transferor pursuant to the legal charges.

The position is that the contract which has come into existence following the auction is between Mr Hunter as seller, acting through the Receivers, and Mr Taylor’s company, but when it comes to the transfer of title pursuant to that contact title will not be transfered by a transfer executed by Mr Hunter as transferor, it will instead be transfered pursuant to a transfer executed by the bank as chargee.

The next matter to which I need to refer is the fact that the contracts made on 23^rd February 2011 have been amended in a way to which I will refer. The contracts of 23^rd February 2011 separately relating to land at Manor Farm and land at Kirkdene have had the dates of the contracts on the cover sheet and within the body of the contract changed from 23^rd February 2011 to 14^th July 2011. Those changes are initialled; the initials appears to be those of Mr Hunter and his wife, the latter acting on behalf of K Hunter and Sons Limited.

Apart from the change to the date there does not appear to be any other change to the contract relating to land at Kirkdene, the price there remains £7,500, the deposit remains £1. In relation to the contract relating to Manor Farm, in addition to the change of date there is one further change, that is the purchase price, which had previously been £922,500, has been revised to £1,542,500. If one adds the two figures in the two contracts together one gets the aggregate of £1.55 million.

It is not necessary for today’s purposes to decide when it was that Mr Hunter and K Hunter and Sons Limited altered the date on the February contracts to be 14^th July 2011. I say that because this case does not turn upon which contract is first in time. It is not a case where the contract which is first in time is valid and the contract which is second in time lacks legal effect. Prima facie, if the same person enters into two contracts for the sale of the same piece of land both contracts are binding in the law of contract, although there is a plain inconsistency between them and the Court may have to determine what remedies to give to which purchaser and in what circumstances. But for today’s purposes all I need to record is that it is not necessary for me to form a view whether the contracts with K Hunter and Sons Limited of 14^th July 2011 came into existence before the land was knocked down at auction or after that date.

Those are the principal matters of fact which are material to the application to which I next refer.

On 26^th August 2011 Mr Hunter applied in the Aylesbury Count Court for the following order -- I read from the application notice: “Application to permit me to complete a contract entered into in February 2011, varied on 14^th July 2011, to sell Maple Barn, two barn conversions, farm buildings and 104 acres of farmland to K Hunter and Sons Limited for £1.55 million.” That refers to a contract. It seems to have been intended that the reference should be to the two contracts originally entered into in February and varied on 14^th July 2011. It is only if one takes into account both contracts that one gets an aggregate price of £1.55 million.

Mr Hunter had said in correspondence and has made it clear at the hearing today that the application which he makes is pursuant to the Court’s power conferred by section 91(2) of the Law of Property Act 1925. Section 91(2) is in these terms: “In any action, whether for foreclosure or for redemption or for sale or for the raising and payment in any manner of mortgage money, the Court on the request of the mortgagee or of any person interested either in the mortgage money or in the right of redemption and notwithstanding that (a) any other person dissents or (b) the mortgagee or any person so interested does not appear in the action and without allowing any time for redemption or for payment of any mortgage money, may direct a sale of a mortgaged property on such terms as it thinks fit, including the deposit in court of a reasonable sum fixed by the Court to meet the expenses of sale and to secure performance of the terms.”

Dealing with the question of the Court’s jurisdiction, Miss Windsor of counsel, who appears on behalf of the bank, initially took the point that the court did not have jurisdiction under this sub-section because by reason of the auction contract or by reason of that and other matters Mr Hunter could not satisfy the Court that he was a person interested in the right of redemption. Mr Hunter has put before me a written argument prepared for him by solicitors whom he has consulted which puts forward the rival point of view.

In my judgment it is clear that Mr Hunter has been and remains a person interested in the right of redemption. He is the freeholder of the land, the land is subject to a mortgage and that mortgage on the face of it can be redeemed on payment of the full sum outstanding to the bank. Although Mr Hunter is not in a position to raise that money there still remains an equity of redemption in the event that he were able to raise that money.

What has happened, certainly so far as the bank’s submission goes, is that Mr Hunter, acting through the agency of Receivers, has contracted to sell the property. That of course does not take from him his equity of redemption. It may be that the auction contract was an involuntary contract on his part. The last thing he wanted to do was to contract at an auction to sell the property, but in law that is precisely what he has done. Making that contract, as I say, does not take from him his equity of redemption.

In this context Miss Windsor cited a passage from Fisher and Lightwood’s Law of Mortgage, 13^th edition, paragraph 30.38. That has the heading “Effect of contract for sale” but if one reads the passage it can be seen that is dealing with a contract made by a mortgagee acting under the mortgagee’s power of sale. There are well known authorities including Property & Bloodstock Limited v Emerton [1968] Ch.94, which say that when a mortgagee contracts to sell the mortgaged property the equity of redemption is suspended between the making of the contract and completion and is finally extinguished upon completion of that contract. It is not necessary to examine further the reason for that, that principle does not apply where the contract is made by the mortgagor as the auction contract in this case was made.

So in Mr Hunter’s favour I determine that he is a person interested in the right of redemption. It is therefore the case that the Court has jurisdiction notwithstanding the dissent of the bank to direct a sale of the mortgaged property. I will return to the circumstances in which the Court might or might not make such an order after I have considered the effect of the various contracts which have been entered into. I will consider the effect of these contracts without regard to the impact of section 91(2) and the I will consider the possible impact of the statutory provision.

For the sake of completeness I will start with the contracts of February 2011, although the position there is essentially the same as with the contracts of 14^th July 2011 in favour of K Hunter and Sons Limited. The contracts of February 2011 provided for Mr Hunter as seller to sell the land to K Hunter and Sons Limited for £930,000. The contracts provided for the buyer to take the land free from the bank’s charge. The immediate difficulty created by those contracts for Mr Hunter is that Mr Hunter was not then and has not since been in a position to redeem the bank’s charge. At the date of the order for possession in August 2010 the debt was approaching £3.5 million. When part of Kirkdene was sold, I understand that something of the order of £900,000 was realised. That would have left a balance of £2.5 million, which I am told in the course of argument has risen further by reason of fees and charges being added to the principal debt.

Miss Windsor in the course of her submissions said that the debt and charges etcetera amounted to some £3 million. So if the amount which remains charged on the property is between £2.5 million and £3 million it is clear that Mr Hunter would not be able to take advantage of a contract to sell for £930,000 without the intervention of the Court.

If Mr Hunter could not perform that contract, making title free from the charge, then he would be in breach of contract and would be liable to be sued in damages by the buyer. If the buyer sought specific performance the buyer would be entitled to take title to the property, but because the property is charged with a debt of £2.5 million or more the buyer would not pay the purchase price to Mr Hunter but would instead have a substantial claim for damages in addition to the remedy of specific performance.

Quite apart from that being the position between the seller and the buyer, Mr Hunter by entering into that contract would appear to have been in breach of the condition in the charge that he should not dispose of the property without the consent of the bank. There is no evidence before me that that consent was obtained or given. So although the contract exists or the pair of contracts exist, the legal position is as I have attempted to describe it.

I turn then to the contracts made on 14^th July 2011, if that is the correct date, in favour of K Hunter and Sons Limited. This time the contracts provide for the property to be sold for £1.55 million, but the debt secured by the charge over the properties is again, roughly speaking, £2.5 million to £3 million. So again absent intervention from the Court, Mr Hunter is not able to perform his obligations under that contract. He is not in practical terms able to redeem the charges so he is not able to convey free from the charges. If the buyer had sought specific performance the buyer would be entitled to take title subject to the charges, but would have a claim in damages against Mr Hunter.

The position under the auction contract is radically different. The seller there is again Mr Hunter. Mr Hunter has persistently said in the course of his submissions that he did not make that contract, he is not bound by it, he is not the seller. True it is that the auction is not something Mr Hunter took part in or has come about in accordance with his wishes, but when he signed the charge, when he permitted the bank to appoint Receivers, when he gave the Receivers the power to sell as agents for the mortgagor, Mr Hunter put in train a series of events which has led in law to the situation that Mr Hunter has contracted to sell to Mr Taylor’s company. The agreed price is £1.505 million. Title will be transferred by the mortgagee pursuant to the draft TR2 referred to in the contract. When the mortgagee executes that TR2 Mr Taylor’s company will take the title free from the charge. Mr Taylor will therefore get what he has contracted for, he will pay £1.505 million for a freehold free from the charge. Mr Hunter, of course, will not be released from his covenant to pay the remainder of the debt. So that is the position before one considers the possible application of section 91(2) of the Law of Property Act 1925.

Against that background, Mr Hunter asks the Court to order a sale of the property and in particular a sale which will be a sale by Mr Hunter to K Hunter and Sons Limited pursuant to the pair of contracts of 14^th July 2011. It would necessarily follow that if that order were to be made that Mr Hunter would be able to make title free from the charge to K Hunter and Sons Limited, so the intervention of the Court would free Mr Hunter from the legal difficulty he is otherwise under.

What Mr Hunter has not confronted in his application, nor indeed in the course of his submissions to me, is what the effect of that would be in relation to the contract which he has made with Mr Taylor’s company. There is an effective contract by Mr Hunter to sell to Mr Taylor’s company. Whether that came before the other contracts of 14^th July or after it in my judgment makes no difference. Mr Taylor’s company has acquired contractual rights. If it sued Mr Hunter for specific performance of that contract it would prima facie be entitled to it certainly so long as Mr Hunter remains the owner of the land.

Mr Hunter cannot apply to set aside the contract in favour of Mr Taylor’s company; there is no basis on which he is able to do so. If I made an order in Mr Hunter’s favour under section 91(2) whereby Mr Hunter sold the land to K Hunter and Sons Limited I would place Mr Hunter in breach of contract in favour of Mr Taylor’s company. I do not have any evidence to judge what the measure of damages might be, but that would be the legal consequence.

Nor can I change the position in Mr Hunter’s favour by granting some relief by way of injunction or otherwise against the Receivers. If the matter had come before the Court before the auction sale, in theory at any rate, the Court could consider an application to restrain the Receivers from selling the land. But the land has been sold by contract to Mr Taylor’s company. The Court cannot undo that contract.

It may be convenient at this point before considering the application of section 91(2) to that state of affairs to investigate a matter which has been very much in dispute in the course of argument. The argument is not about what the Receivers can do today but is instead what they should have done prior to the holding of the auction on 14^th July 2011. The Receivers submit that they did the right thing by putting the property up for auction and getting the best bid at auction. Mr Hunter conversely contends that the Receivers did the wrong thing by putting the property up for auction when he had made offers of the kind I have described to buy the property.

This involves a comparison of what the Receivers achieved by auctioning the property and the alternative of negotiating and perhaps concluding a contract with Mr Hunter or K Hunter and Sons Limited. Mr Hunter has one point in his favour in this comparison, he says that the price to be paid by K Hunter and Sons Limited is £1.55 million. As a matter of simple mathematics that is a higher figure than the price to be paid under the auction contract of £1.505 million. However, the comparison ceases to be favourable to Mr Hunter from that point.

The other differences between the two contracts favour the auction contract over the suggested position with K Hunter and Sons Limited. First of all, under the auction contract the Receivers were entitled to receive and have received a 10 per cent deposit. No such deposit was on offer from K Hunter and Sons Limited. Secondly, completion under the auction contract was to be very much earlier than completion in relation to the contracts of 14^th July 2011 or pursuant to the suggested position prior to the auction on that day.

It may be that by reason of what is happening on the land, completion with Mr Taylor’s company will not be in five days’ time, it may be it will happen in late December or January, but that has come about not because Mr Taylor’s company has required that and has only been prepared to bargain on that basis, but because Mr Hunter -- in breach I have to say of an order of the Court -- has manoeuvred himself to produce that adverse consequence.

The other matter concerns the way in which the payment was to be made. Under the auction contract the full balance of the purchase price is payable on completion. Pursuant to the negotiations with Mr Hunter on 14^th July 2011, some at least of the purchase price, perhaps a substantial part of the purchase price, was to be postponed for a 12 month period.

Then there is the question of funding. I will start the comparison by looking at the position of K Hunter and Sons Limited. I am very far from satisfied on the material before me today that K Hunter and Sons Limited has tied up satisfactorily the question of funding a purchase at a price of £1.55 million. Perhaps more relevantly, there was no evidence to support the suggested funding made available in the course of 14^th July 2011 even though the bank asked for such evidence in express terms.

Turning then to the position of Mr Taylor’s company, the Court has not been given evidence as to the position of that company or the people standing behind it. However, what one does know -- and it is a positive factor -- is that the purchaser was able to raise the 10 per cent deposit the day after the auction was concluded.

In these circumstances, if it is a relevant question to ask whether the Receivers did the right thing when they took the property to auction and sold it at auction, as compared with cancelling the auction and continuing to talk to Mr Hunter, my conclusion is that they plainly and unarguably took the better course.

Having considered the effect of the conflicting contracts which exist and the challenge which Mr Hunter has raised to the conduct of the Receivers, I can now go to the ultimate issue which is whether the Court should exercise the jurisdiction it has which would enable Mr Hunter to sell the land to K Hunter and Sons Limited free from the charge, placing himself in breach of the contract with Mr Taylor’s company, or whether the Court should make no such order. The consequence of that will be that the only contract that Mr Hunter is able to perform is the one in favour of Mr Taylor’s company. I have explained why he is not in a position to perform the other contracts in favour of K Hunter and Sons Limited.

What strikes one from reading section 91(2) of the Law of Property Act 1925 is that it gives the Court in appropriate circumstances a power to order the sale of property. What is unusual about the present case is that there is no dispute but that this property must be sold. The mortgagor does not need an order of the Court to force the mortgagee to sell the property, the mortgagee has been taking active steps to sell the property and has got the benefit of a contract under which it will sell the property. So just reading the section alone one questions what it is the Court would be doing if it was to interfere with the state of affairs that has come about out of court.

I have been shown a number of authorities on the operation of section 91(2). The leading authority which identified the potential of the sub-section is the decision of the Court of Appeal in Palk v. Mortgage Services Funding Plc [1993] Ch. 330. That was a case, different from the present case, where the mortgagor suffering from severe negative equity wished to see the property sold and bring to an end the ongoing liability to pay interest, but the mortgagee did not intend to exercise its power of sale and did not wish to see the property sold at that point in the market.

The Court of Appeal considered that it had jurisdiction to make an order in those circumstances. The matter then turned upon the way in which that jurisdiction should be exercised and in the somewhat special circumstances of that case it was decided that it would be unfair to leave the property unsold and it would be appropriate for the Court to assist the mortgagor by making an order for sale. That decision of the Court of Appeal was followed at first instance in Polonski v. Lloyds Bank Mortgages Limited (1997) 31 Housing Law Reports, 721.

I was referred to a further authority on the operation of the sub-section, namely Cheltenham and Gloucester Plc v. Krausz [1997] 1 WLR 1558. In that case both the mortgagor and the mortgagee wished to see the property sold. The battle was between which of the two of them should have conduct of the sale. The mortgagor put forward a number of reasons why the mortgagor should have conduct of the sale, one of those perceived benefits was that the mortgagor could remain in possession and resist an order for possession or the enforcement of an order for possession in favour of the mortgagee.

The Court of Appeal was in no doubt that in a case where everyone agreed the property should be sold that it was not appropriate to use the jurisdiction of section 91(2) to override the mortgagee’s exercise of its power of sale. Phillips LJ, as he then was, said at page 1567: “I recognise the principles of the inherent jurisdiction of the Court” -- I omit certain words -- “but I question whether that principle can justify the Court in exercising its power to order a sale of mortgaged property under section 91 in circumstances where the mortgagee is seeking to enter into possession in order to sell property in which there is negative equity and where the sole object with which the mortgagor seeks that order is to prevent the mortgagee exercising his right to possession so that the mortgagor can negotiate his own sale while in possession.

“Even if one assumes that the Chancery Court has the power to order sale of mortgaged property on terms that displaced the mortgagee’s right to possession, I do not consider that it follows from this that the County Court as part of its inherent jurisdiction can properly suspend an order or warrant for possession in order to enable the mortgagor to apply to the High Court for an order under section 91. It seems to me incumbent on the mortgagor to seek from the High Court any relief which that Court is empowered to give before the possession warrant takes effect.”

Millett LJ gave a short judgment agreeing with that of Phillips LJ and the third member of the court, Butler-Sloss LJ, agreed.

Having set out the relevant facts, having identified the legal position under the various contracts which have come into existence, having informed myself of the way in which the jurisdiction under section 91(2) has been and should be exercised, in my judgment this does not begin to be a case in which the Court should intervene and upset the arrangements which have been brought into existence.

The bank wishes to sell, the bank has taken steps to sell, the bank has gone about the matter in a way which cannot be undone, certainly not on the application of Mr Hunter as mortgagor. Rights have been acquired by Mr Taylor’s company, Mr Taylo’s compoany is on the face of it entitled to pursue those rights. It has not been served with notice of this application and has not had an opportunity to put forward its position. It does not seem to me to be necessary to adjourn this hearing to hear from Mr Taylor’s company. It seems to me self-evident that the way forward here is to allow the contract of sale which Mr Hunter has himself made through the agency of the Receivers to go forward to completion.

Although Mr Hunter has entered into conflicting contracts, it may very well be the case due to the connection with K Hunter and Sons Limited that it will not sue Mr Hunter for damages because he is unable to perform those contracts. Because he is unable to perform them they will not be performed and title will be available to be transferred to Mr Taylor’s company.

For all those reasons I reach the conclusion that this application under section 91(2) must be dismissed.

There is a second application before the Court----

It is clear that it is in Mr Hunter’s interest to decline to cooperate and to make life difficult to the bank, although it is not in Mr Hunter’s interest for him to break Court orders as he, on the face of it, has done, the Court orders to which I refer including an order made by the District Judge in the County Court on 31^st August 2011, which required Mr Hunter to remove his stock from the land. The difficulties of a practical kind which are being encountered are described in detail in the evidence which has been put in on behalf of the bank.

In the course of submissions today I asked Mr Hunter what his practical proposals might be to bring to an end the state of affairs whereby the bank was being prevented from having possession, as the Court has held it is entitled to do, by reason of his conduct. Mr Hunter had no proposals of a positive or constructive kind to put forward. It is plain to me that he will continue to be uncooperative and difficult in similar ways to those which he has manifested in recent times.

The bank has prepared a draft order which has been considered in the course of submissions today. There are one or two matters of suggested legal principle which are identified in a skeleton argument which has been prepared by or on behalf of Mr Hunter. I need to deal with those matters, albeit briefly. Insofar as the bank seeks an order for sale under section 13 of the Torts (Interference of goods) Act 1977 the point made by Mr Hunter is first that the cattle which are on the land and which might, in breach of the Court orders, in the future be brought onto the land are not “goods” for the purpose of the 1977 Act. I do not accept that submission. Section 14(1) defines “goods” to include all chattels personal other than things in action and money. The cattle are chattels personal and are therefore goods and therefore the statutory provisions apply to the cattle.

Mr Hunter’s second point is that section 12 of the 1977 Act in terms applies to goods “in the possession or under the control of a bailee”. Mr Hunter says that the cattle are in his possession, they are under his control, they are not in the possession of the bank, they are not under the control of the bank. True it is that Mr Hunter owns the cattle, the bank does not own the cattle and does not have a security interest in the cattle. At any rate, I proceed on that basis for today’s purposes. But possession and control do not turn upon ownership, one man can be the owner and another can be in possession and a third can have control.

Mr Hunter may be right that in the past and up to today he has been in control of the cattle because he has continued in breach of the Court orders to trespass on the relevant land and tend to the cattle. While he has tended to the cattle it may be that the bank has not done anything to interfere with or tend to the cattle itself. That state of affairs has come about because Mr Hunter has continued to act unlawfully by having his cattle on the land, no doubt seeking to make a nuisance of himself and no doubt hoping that he will interfere with the contract for sale in favour of Mr Taylor’s company.

However, pursuant to the draft order which is before the Court I am invited to order and I will order a number of restrictions of Mr Hunter’s future conduct. First of all, to bring the present unsatisfactory state of affairs to end I will make an specific order backed with a penal notice that Mr Hunter and anyone acting on his behalf must not enter upon any part of the property or move or bring any cattle or any livestock or other chattels onto the property.

Secondly, I will order that by a very early point, which will be 4 p.m. on Thursday, 24^th November 2011, that Mr Hunter deliver to the bank and/or the Receivers all existing cattle passports and all other relevant documentation spelt out in the draft order that relate to the cattle.

In those circumstances, the cattle being on the land in the possession of the bank under the control of the Receivers it seems to me that at that point in time, if not earlier -- and I decide nothing about the earlier period -- that the cattle will be under the control of the bank which seeks this order. That means section 12 applies. Further, under section 12(1)(a) Mr Hunter is already in breach of an obligation to take delivery of the cattle. He was ordered by the Aylesbury County Court to remove the cattle by a date in the past.

Under section 12(3) it is open to the bank to serve a particular notice which if it is not complied with will entitle them to sell the goods, namely the cattle. Under section 13 the Court has the power in relation to goods to which section 12 applies where it is shown that the bank would be entitled to sell the goods if it gave a notice in accordance with schedule 1 to the Act, the Court may then authorise the sale subject to such terms and conditions as may be specified in the order.

It seems to me to be an unnecessary step to require the bank to serve a notice on Mr Hunter requiring him to remove the cattle else they will be sold. Mr Hunter has been very well aware for a considerable period of months that the bank has wanted him to remove his cattle. He has deliberately, in breach of Court orders, refused to do so to gain an advantage by his unlawful conduct. The time has come for this state of affairs to be brought to an end by direct intervention by the bank assisted by the Court’s order and so I will make the order which I am asked to make.

I am also asked to make orders providing for service in connection with possible committal applications. I sincerely hope that Mr Hunter will see just how foolish he has been in the conduct on which he has embarked. He has, on the face of it -- although it is not for today for me to decide -- deliberately broken orders of the Court seeking to gain advantage by his breach. The Court will simply not tolerate that conduct continuing. If Mr Hunter seeks to continue the conduct he will place himself in very grave peril of being put in prison for a period of time which will bring home to him the consequences of his conduct.

Unfortunately, based on what I have seen, the possibility of contempt of Court and committal proceedings does appear to be a real one and in the circumstances I am persuaded that I should make the order making committal proceedings operate more smoothly than might otherwise be the case. I will hear the parties on any detailed points arising in relation to the order, but in principle it seems to me it is an appropriate order for the Court to make.