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Portman Building Society V. Hamlyn Taylor Neck Notes

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PORTMAN BUILDING SOCIETY V. HAMLYN TAYLOR NECK FACTS The appellant is the Portman Building Society ( "the Society" ). The respondent is a firm of solicitors, Hamlyn Taylor Neck ("the firm" ). The case concerns a property in Torquay which was bought by a Mr Biggins with the assitance of a mortgage advance of PS93,000 by the Society. In his mortgage application Mr Biggins stated that it was his intention to use the property exclusively for residential purposes. He repeated this in a letter which he later wrote to the Society. The Society made it an express condition of its offer of a mortgage advance that the property should be used solely for Mr Biggins' own private occupation. Breach 1: In accordance with the usual practice the firm acted for both Mr Biggins and the Society in the transaction. In the proceedings the Society alleges that in fact the property was an established guest-house with some eight bedrooms and that to the firm's knowledge it was Mr Biggins' fixed intention throughout to continue to use it as a guest-house and not solely as a private residence for himself and his family. Breach 2: The firm did not tell the Society that part of the purchase price had been apportioned to the goodwill of the business, or that only PS87,250 of the purchase price had been apportioned to the property itself. In consequence, the Society alleges, it believed that the special condition regarding the residential use of the property had been complied with and that the full amount of the purchase price of PS98,000 was attributable to the property which was to be the subject of the proposed mortgage. Claim against the solicitor firm: The transaction was completed in March 1989, when in accordance with its instructions the firm paid the sum of PS92,100 to the vendor's solicitor and obtained a conveyance and mortgage of the property in favour of the Society in exchange. Mr Biggins afterwards defaulted in making payments due under the mortgage. The Society became aware that Mr Biggins was using the property as a guest-house. It brought proceedings against Mr Biggins for possession, recovered possession and sold the property, realising a substantial loss. It has not pursued Mr Biggins on his personal covenant for repayment, presumably on the ground that such an action would not be cost effective. Instead, in January 1996, it brought the present action against the firm... The last claim, however, is a straightforward claim in quasi contract for money had and received or, as we would now call it, restitution. Society's claim: The Society alleges that, in the events which happened, it paid the sum of PS92,100 to the firm in the mistaken belief induced by the firm (i) that the special conditions contained

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