Litigation Recent Decisions 09/05/95

Tracing funds paid in property deal

Boscawen & Ors v Bajwa & Ors: Abbey National v Boscawen (1995). (CA (Stuart Smith LJ, Waite LJ, Millett LJ).

Summary: Entitlement to funds in court derived from a sale under a charging order and tracing funds paid to a chargee so as to create an

equitable charge over the property sold and a subrogated right to the funds in court.

Defendants appeal decision that Abbey National was entitled to a charge on 20 Windsor Road, Kew ('the property') by way of subrogation to the rights of the Halifax Building Society ('the Halifax') in priority to any interest of the appellants. The property was registered in the name of Bajwa with a registered charge in favour of the Halifax. This was discharged on 29/4/91 and Abbey National claimed to be entitled to the benefit of the charge by subrogation as it had provided the funds by which the money was repaid. The appellants were judgment creditors of Bajwa and had a charging order nisi on 4/11/91 which was made absolute on 2/1/92. An order for possession and sale was made and the proceeds of £105,311.83 paid into court.