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Creswell v Potter

[1978] 1 WLR 255

Case summary last updated at 04/01/2020 19:14 by the Oxbridge Notes in-house law team.

Judgement for the case Creswell v Potter

P allowed her ex-husband, D, to have the home, provided she was released from liability on the mortgage. D then sold the house for a very large amount, and P sued to set aside the release. Megarry J allowed her claim. 

 Megarry J: Following Kay J’s judgment, there are 3 requirements for equity to be invoked and the presumption of fraud to be invoked: (1) P is “poor and ignorant”; (2) the sale was at a “considerable undervalue”; and (3) P had no “independent advise”. There are other circumstances that could operate instead of, say, requirement 1 e.g. oppression or abuse. However here, these three apply. In a modern context, “poor and ignorant” really means a low-income earner and “less highly educated”. In this case P is a telephonist and satisfies the criteria. She got no advice and her inerest in the property was of a considerably higher value than merely her liability for the mortgage. It doesn’t matter whether P “could have” got legal advice, but whether in fact she did get any. 

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