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Boscawen V. Bajwa Notes

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BOSCAWEN V. BAJWA FACTS Contract for sale of Mr. Bajwa's property: On 3 August 1990 Mr. Bajwa exchanged contracts for the sale of the property for the sum of PS165,000. It is common ground before us that the documents did not conform to the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, with the result that neither party became contractually bound. Neither of them realised this. After allowing for the payment of the deposit and an agreed reduction in the purchase price the balance payable on completion was PS140,000. The purchasers had previously obtained an offer of a mortgage advance from the Abbey National of PS140,000 which was to be secured by a first legal charge on the property. On 9 August 1990, at the request of the purchasers' solicitors, B. Dave & Co. ("Dave"), the Abbey National sent PS140,000 by telegraphic transfer to Dave's client account. As is common, Dave were acting as solicitors both for the purchasers and for the Abbey National. They received the money on terms which obliged them to use the money for the completion of the purchase and to return the money if for any reason completion did not take place. Halifax, the previous holder of a charge on Mr. Bajwa's payment demanded payment: Meanwhile the Halifax was pressing for payment. It had some time previously obtained a suspended order for possession of the property for non-payment of the mortgage instalments but had agreed not to enforce it pending completion of a sale by Mr. Bajwa. On 15 August the Halifax's solicitors had written to Hill Lawson stating that the amount required to redeem the mortgage on 17 August was PS141,222.40. Mr. Bajwa paid off Halifax's charge from Abbey National's payment: After some months of argument the balance required to discharge the Halifax's legal charge was agreed at PS1,342.41. Mr. Bajwa paid this direct to the Halifax on 29 April 1991 and shortly afterwards the Halifax forwarded the title deeds to Hill Lawson together with a completed discharge in Land Registry Form 53. It has not been suggested that Mr. Bajwa, who throughout relied on his solicitors, was guilty of any impropriety or want of probity. Nor is it suggested that either firm of solicitors acted dishonestly or in bad faith. It may be doubted whether Hill Lawson did anything more reprehensible than act precipitately in anticipation of the clearance of Dave's cheque and the receipt of further funds from Mr. Bajwa to complete the redemption of the Halifax's charge. It is, however, beyond dispute that, as a result of their actions, money belonging to the Abbey National which was held by Dave in their client account as trust money for and on behalf of the Abbey

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