S mortgaged his house to Plaintiff with the necessary deed, registration etc., and sought a declaration that it had priority over Defendant who had agreed a mortgage informally, without writing etc.
CA held that Plaintiff’s interest took priority, because s.2 of the LP(MP)A 1989 stated that mortgage contracts had to be written down to be valid. In the absence of a written contract, Defendant’s mortgage is invalid and there was no basis on which any estoppel or constructive trust could operate to defeat or take priority over the plaintiff's charging order.
Peter Gibson LJ
Proprietary estoppel might apply between S and Defendant, but cannot be used between Defendant and Plaintiff.
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