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Cressman V. Coys Of Kensington Notes

BCL Law Notes > Restitution of Unjust Enrichment BCL Notes

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CRESSMAN V. COYS

OF

KENSINGTON [2004]

FACTS The late Mr Thomas Ashley Cressman owned a Mercedes 280SL car carrying the registration TAC 1. Mr and Mrs Cressman are his personal representatives. Coys are car auctioneers. Mr Cressman, no doubt for Mrs Cressman also, instructed Coys to sell the car without its personalised registration mark... These proceedings arise from Coys' failure to retain the mark, when the car was paid for by and delivered to Mr McDonald on 12 December 2000, and from Mr McDonald's subsequent refusal to re-transfer the mark. Under regulations 3 and 4, if a seller is to sell a car but retain the right under the legislative scheme to its personalised registration mark, the seller needs to apply for and obtain a right of retention while still owner of the car. Coys failed to do this on behalf of the Cressmans.... However, Coys had made it clear prior to the auction that the vehicle was being sold without its existing registration number. Mr McDonald had, prior to the auction, carefully inspected the car. He admitted that he observed that the car had no number plates. On 12 December 2000, Mr McDonald paid for and, under the relevant auction conditions, obtained title to the car. He collected it by trailer, still without any number plate, and unusable for this reason (and it appears probably also on other grounds) on a public road... The consequence of Coys' failure to obtain for the Cressmans a right of retention in respect of the registration mark was that, under the legislative scheme: (i) the mark remained assigned to the car upon and after its sale to Mr McDonald; and (ii) Mr McDonald was (unless he applied for its "retention" with a view to transferring it to another car) entitled to have the car registered in his name with that mark. The judge also dealt with an unpleaded point that was raised in the light of Mr McDonald's evidence. This was that Mr McDonald had given the car to his partner. At the trial, Mr McDonald said that he was no longer the owner of the car, but precisely when and how it became his partner's was not directly addressed. But the judge clearly considered, and I agree, that, as soon as Mr McDonald knew that the car had brought with it an entitlement to the mark, he knew that this was something that he was not supposed to have. The course of conversation on 13 December 2000 (as noted by Mr. McDonald himself) and his immediate pursuit of the registration of the car in his name under its old registration mark also suggest that he chose at once to take advantage of the evident mistake and to obtain the mark contrary to the bargain, rather than to investigate and take any step

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