- [2007] 2 All ER (Comm) 305.
- The contract also covered the transport of the modules to Nigeria and their offshore installation, and hook-up/commissioning on the relevant platform (such agreements are sometimes referred to as engineering, procurement, installation and commissioning or EPIC contracts).
- Halsbury's Laws of England, 4th edn reissue (2007 Supp), Vol 28, para 754. The description of an equitable lien as a form of equitable charge has been criticised as, strictly speaking, it is distinct from an equitable charge because, unlike the latter, it does not arise from a consensual agreement between the parties. See Palmer and McKendrick, Interests in Goods, 2nd edn (London: Lloyds of London, 1998), p 976.
- However, in keeping with general equitable principles, it does not bind a bona fide purchaser for value; Snell's Equity, 31st edn (London: Sweet & Maxwell, 2005), p 890 at para 42–03.
- Halsbury's Laws of England, Vol 28, para 754.
- Snell's Equity, 31st edn (London: Sweet & Maxwell, 2005), p 898 at para 42–25.
- Ibid, p 901 at para 42–32.
- Imperial Ottoman Bank v Trustees, Executors and Securities Insurance Corporation (1895) 13 R 287.
- Davies v Thomas [1900] 2 Ch 462.
- Re Stucley [1906] 1 Ch 67. In this case, Cozens Hardy LJ stated (at p 84): ‘I see no reason in principle why the doctrine should not apply to every case of personal property in which the Court of Equity assumes jurisdiction over the subject-matter of the sale.’
- Palmer and McKendrick, Interests in Goods, 2nd edn (London: Lloyds of London, 1998), states (at p 980): ‘But, despite no dearth of authority on purchaser's and vendor's liens in the nineteenth century, there has been little exposition of principle. It is true that there has been a recognition that the existence of equitable liens should not be confined within narrow established categories and that “the list” may not be a closed one. But if this is so, it is unacceptable in determining the existence of an equitable lien that the court proceeds “on general notions of justice without regard to settled principles”.’
- S Worthington, ‘Equitable Liens in Commercial Transactions’ (1994) 53 CLJ 263.
- Halsbury's Laws of England states that ‘there is lack of agreement as to the theoretical basis of the most common equitable liens, those of the vendor and purchaser under a contract of sale, let alone equitable liens generally’ (Vol 28, para 754).
- (1864) 10HLC671 at 684.
- [1902] 1 Ch 835 at 838.
- D Waters, in ‘Where is Equity going? Remedying unconscionable conduct’ (1988) 18 WALR 3, described the list of circumstances in which they can arise as ‘something of a themeless rag-bag’ (at p 24).
- Bourn v Bolland (1839) 41 ER 138.
- RePumfrey (1882) 22 ChD 255.
- Farmers & Merchants Bank v Commissioner of Internal Finance (1949) 175 F 2d 846.
- (1983) 149 CLR 639.
- Starke, ‘The High Court of Australia and Equitable Liens’ (1983) 57 ALJ 434 at 436.
- The precise trigger for the transfer of title was the payment of the final instalment but this only fell due following installation: (1983) 149 CLR 639 at 644.
- Ibid, at 647.
- Gibbs CJ pointed to the fact that the contract referred to construction of the ‘home’ and that this was to be carried out within 60 days from commencement (at p 647). Deane J commented that ‘the design of the home accorded with the plans and specifications which had been agreed between the company and the appellants and which, to some extent, were the product of their joint intellectual activity’ (at p 662).
- Ibid, at 647.
- Ibid, at 649.
- Ibid, at 668.
- Ibid, per Wilson and Dawson JJ, at 658.
- Ibid, per Deane J at 670.
- Ibid, at 665.
- See D Waters, ‘Where is Equity going? Remedying unconscionable conduct’ (1988) 18 WALR 3. Professor Waters states that, so far as Australia is concerned, Deane J ‘has undoubtedly put the equitable lien in the case of contract on the base of “unconscionability”, divorced from the need of showing that some other equitable remedy might or might not be obtainable’ (at p 35).
- (1983) 149 CLR 639, per Wilson and Dawson JJ, at p 658.
- Ibid, at 658.
- Ibid, at 659.
- (1983) 57 ALJ 434.
- Some of these objections have focused on the comments of Atkin LJ in the English case of In Re Wait [1927] 1 Ch 606. These have been used to suggest that equitable liens should never arise in transactions for goods, especially where these were not unique. Where such a transaction is governed by the Sale of Goods Act 1979, it is argued that the possibility of an equitable lien arising is precluded because the Act is a complete code. However, the contracts in both Hewett v Court and IFC v DSNL did not concern the sale of goods and it is submitted that this particular point therefore has no relevance in these cases.
- Bestland Development Pte Ltd v Manit Udomkunnatum [1997] 2 SLR 42.
- See I Hardingham, ‘Equitable liens for the recovery of purchase money’ (1985) 15 MULR 65; S Worthington, ‘Equitable liens in commercial transactions’ (1994) 53(2) CLJ 263; and M Christie, ‘The Equitable lien in a commercial context: some recent Australian developments’(1986) Dec ABLR 435.
- (1996) 75 P & CR 298.
- See n 25 above.
- [2007] 2 All ER (Comm) 305 at 327.
- Ibid, at 327.
- Ibid, at 321. See also n 11 above.
- Ibid, at 324. ColmanJ also cited Morritt LJ in Chattey v Farndale (1996) 75 P & CR 298 in support of the contention that, where a purchaser has the right to call for the legal estate, albeit future and conditional, which the vendor has no right to refuse, an equitable lien can arise even if the contract is not specifically enforceable.
- Ibid, at 327.
Journal of Energy & Natural Resources Law
Volume 25, 2007 - Issue 4