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Creswell v Potter [1978] 1 WLR 255

By Oxbridge Law TeamUpdated 04/01/2024 07:00

Judgement for the case Creswell v Potter

Table Of Contents

  • Plaintiff allowed her ex-husband, Defendant, to have the home, provided she was released from liability on the mortgage.

  • Defendant then sold the house for a very large amount, and Plaintiff 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. Plaintiff is “poor and ignorant”;

    2. The sale was at a “considerable undervalue”; and

    3. Plaintiff 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 Plaintiff is a telephonist and satisfies the criteria. She got no advice and her interest in the property was of a considerably higher value than merely her liability for the mortgage.

  • It doesn’t matter whether Plaintiff “could have” got legal advice, but whether in fact she did get any. 

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