Hunter v. Moss

Hunter v. Moss

COURT OF APPEAL (CIVIL DIVISION)

[1993] 3 All ER 215, [1994] 1 WLR 452, noted Hayton (1994) 110 L.Q.R. 335; Sealy [1994] C.L.J. 443.

The defendant declared himself to be a trustee for the plaintiff of five per cent of the issued share capital of a company, the total being 1,000 (identical) ordinary shares. When the defendant later sold the entire share capital, the plaintiff was held to be entitled to a five per cent share. The main point (unsuccessfully) taken on the appeal was that the 50 shares had not been identified, so that there was no certainty of subject matter.

The case was decided after the arguments but before the decision in Re Goldcorp Exchange Limited (in Receivership) [1995] 1 AC 74, [1994] 2 All ER 806 (PC), and there is no reference to Hunter v. Moss in Goldcorp. The cases are not easy to reconcile, and strong arguments have been voiced (e.g., by Professor Hayton, e.g., in the above note) that Hunter v. Moss is wrong.

In Re Harvard Securities, Neuberger J (following Hunter) attempted to reconcile Goldcorp and Hunter, drawing a distinction between shares (Hunter) and chattels (Goldcorp). Other (more convincing?) possible distinctions might be that even the totality of the gold bullion was uncertain in Goldcorp, since it continually varied, and that special considerations might apply to sales of goods, since the courts are traditionally reluctant to allow equitable principles to impinge too much into commercial transactions.

There was also an express declaration of trust in Hunter, but not in Goldcorp (or indeed in any of the other cases relied on in Goldcorp). However, there was no express declaration of trust in Harvard, where Hunter was followed, so there is at least Chancery Division authority against this being a relevant distinction.

He also observed that he was bound to follow Hunter anyway, since decisions of the CA but not those of the PC were binding on him.

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