“169I. Material Disposal of business assets (1) There is a material disposal of business assets where – (a) an individual makes a disposal of business assets (see subsection (2)), and (b) the disposal of business assets is a material disposal (see subsections (3) to (7)). (2) For the purposes of this Chapter a disposal of business assets is – … (c) a disposal of one or more assets consisting of (or of interests in) shares in or securities of a company. … (5) A disposal within paragraph (c) of subsection (2) is a material disposal if condition A, B, C or D is met. (6) Condition A is that, throughout the period of 1 year ending with the date of the disposal – (a) the company is the individual’s personal company and is either a trading company or the holding company of a trading group, and (b) the individual is an officer or employee of the company or (if the company is a member of a trading group) of one or more companies which are members of the trading group. …”
“169S. Interpretation of Chapter … (3) For the purposes of this Chapter ‘personal company’, in relation to an individual, menas a company – (a) at least 5% of the ordinary share capital of which is held by the individual, and (b) at least 5% of the voting rights in which are exercisable by the individual by virtue of that holding.”
“’ordinary share capital’, in relation to a company, means all the company’s issued share capital (however described), other than capital the holders of which have a right to a dividend at a fixed rate but have no other right to share in the company’s profits.”
“60. Nominees and bare trustees (1) In relation to property held by a person as nominee for another person, or as trustee for another person absolutely entitled as against the trustee, or for any person who would be so entitled but for being an infant or other person under disability or for 2 or more persons who are or would be jointly so entitled), this Act shall apply as if the property were vested in, and the acts of the nominee or trustee in relation to the property were the acts of, the person or persons for whom he is the nominee or trustee (acquisitions from or disposals to him by that person or persons being disregarded accordingly). (2) It is hereby declared that references in this Act to any property held by a person as trustee for another person absolutely entitled as against the trustee are references to a case where that other person has the exclusive right, subject only to satisfying any outstanding charge, lien or other right of the trustees to resort to the property for payment of duty, taxes, costs or other outgoings, to direct how that property shall be dealt with.”
“In line with the medium term strategy of maximising the value for the various stakeholders, it is considered to be in the interests of the shareholders of Townends Group (Holdings) Limited and Townends (Egham) Limited to integrate Townends (Egham) into the group. This could be particularly beneficial given the senior role played by Seamus Kavanagh who is a 50% shareholder and principal director or Townends (Egham) Limited as well as group sales director. Given the imprecise nature of the inter-company relationship, turnover would seem to be the appropriate measure of the value of the respective entities to the enlarged Group. We would therefore propose to integrate Townends Egham on the basis of the relationship to which its 2005 turnover bears to the enlarged group. …”
“Townends Group Holdings Limited Shareholdings Shares % Step 2 Subtotal AAA 14,211 42.86% 42.86% 789 15,000 40.72% RJG 14,211 42.86% 42.86% 789 15,000 40.72% JDS 4,736 14.28% 14.28% 264 5,000 13.57% SK 1,842 1,842 5.0000% 33,158 100.00% 100.00% 3,684 36,842 100.00% Merge Egham on the basis of turnover producing 3,684 shares.”
““Commercial Background … The shareholders of the two companies have decided between themselves that a fair ratio for such an exchange would be to issue such number of shares in the parent company as would recognise Egham as representing 10% of the enlarged group thereby giving S Kavanagh a 5% interest in the group after the share exchange. Transaction 1. On or after30 April 2006 (“the Effective Date”) the shareholders of Townends (Egham) Limited will exchange their shares in Townends (Egham) Limited for the number of shares in Badger Holdings Limited as indicated below: Name Number of£1 ordinary shares in Townends (Egham) Limited Number of 1p shares in Badger Holdings Limited AA Addinall 214 789 RJ Gray 214 789 JD Stevens 72 264 S Kavanagh 500 1,842 i.e. such number of shares in Badger Holdings Limited as once issued will represent 10% of the then issued share capital of the company.”
“Background … (B) Each Shareholder is the registered and beneficial owner of the following ordinary shares of£0.01 each in the Company, for which each Shareholder has paid consideration at par value: 1. Anthony Albert Addinall 15,000 ordinary shares of£0.01 each 2. Richard John Gray 15,000 ordinary shares of£0.01 each 3. John Derek Stevens 5,000 ordinary shares of£0.01 each 4. Seamus Kavanagh 1,842 ordinary shares … 16. Assignment 16.1. None of the Shareholders shall assign or transfer or purport to assign or transfer any rights or obstacles hereunder without the prior written consent of other Shareholders. 16.2. For the avoidance of doubt, the Shareholders acknowledge that they may not transfer, mortgage, charge, assign or otherwise dispose or encumber directly or indirectly any of their shares.”
“There is no doubt about the so-called “three certainties” of a trust. The subject-matter to be held on trust is clear, and so are the beneficial interests therein, as well as the beneficiaries. As for the requisite certainty of words, it is well settled that a trust can be created without using the words “trust” or “confidence” or the like: the question is whether in substance a sufficient intention to create a trust has been manifested.”
“[58] In my view, therefore, if he were provided with the correspondence passing between Mr Hyde and Madam Lim up to and including the letter dated14 April 1986 , the reasonable person would have no hesitation in concluding from it that, when she signed the settlement, Madam Lim understood and intended that the house should thereupon become subject to its trusts. No doubt she made no express oral declaration of trust in such terms, nor was there any evidence that she uttered words to like effect. But the utterance of such words is not an essential pre-requisite to the creation of a trust by way of a declaration. In Paul v. Constance[1977] 1 WLR 527 , at 531, Scarman LJ said that for there to be a clear declaration of trust ‘means that there must be clear evidence from what is said or done of an intention to create a trust’ (my emphasis). Bridge and Cairns LJJ both agreed with his judgment, although Bridge LJ identified the requirements of a valid declaration of trust without reference to the declarer’s conduct.”
“It is plain that a bequest by the defendant to the plaintiff of 50 of his ordinary shares in M.E.L. would be a valid bequest on the defendant's death which his executors or administrators would be bound to carry into effect. Mr. Hartman sought to dispute that and to say that if, for instance, a shareholder had 200 ordinary shares in I.C.I, and wanted to give them to A, B, C and D equally he could do it by giving 200 shares to A, B, C and D as tenants in common, but he could not validly do it by giving 50 shares to A, 50 shares to B, 50 shares to C and 50 shares to A D, because he has not indicated which of the identical shares A is to have and which B is to have. I do not accept that. That such a testamentary bequest is valid, appears sufficiently from In re Clifford[1912] 1 Ch. 29 and In re Cheadle[1900] 2 Ch. 620 . It seems to me, again, that if a person holds, say, 200 ordinary shares in I.C.I, and he executes a transfer of 50 ordinary shares in I.C.I, either to an individual donee or to trustees, and hands over the certificate for his 200 shares and the transfer to the transferees or to brokers to give effect to the transfer, there is a valid gift to the individual or trustees/transferees of the 50 shares without any further identification of their numbers. It would be a completed gift without waiting for registration of the transfer: see In re Rose[1952] Ch. 499 . In the ordinary way a new certificate would be issued for the 50 shares to the transferee and the transferor would receive Q a balance certificate in respect of the rest of his holding. I see no uncertainty at all in those circumstances.”
“To recapitulate briefly: the species of constructive trust based on “common intention” is established by what Lord Bridge in Lloyds Bank Plc v Rosset[1991] 1 AC 107 , 132, called an “agreement, arrangement or understanding” actually reached between the parties, and relied on an acted on by the claimant. A constructive trust of that sort is closely akin to, if not indistinguishable from, proprietary estoppel. Equity enforces it because it would be unconscionable for the other party to disregard the claimant’s rights. Section 2(5) expressly saves the creation and operation of a constructive trust.”
“[78] First, this was a case of commercial parties, advised by lawyers, working at arms’ length towards the conclusion of an agreement for a purely commercial enterprise the terms of which were never agreed. Indeed, on many of the important terms the parties were far apart. The application of the principles underpinning the Pallant v Morgan equity, in so far as they rest on the doctrine of common intention constructive trust, operate quite differently in a commercial context from the way in which they operate in a domestic context. The principles as expounded by Chadwick LJ are firmly based on the supposed congruence between the principles of proprietary estoppel and the doctrine of common intention constructive trust. But we have seen from Cobbe that the House of Lords firmly denied the applicability of proprietary estoppel in a commercial case like this one where each party knows that they are not legally bound. In this case, as in Cobbe, there can have been no expectation on either side that the parties were legally bound to each other. If the principles underpinning the Pallant v Morgan equity are the same as those underpinning proprietary estoppel (as Chadwick LJ considered them to be) it follows logically that if a proprietary estoppel claim cannot succeed, nor can a claim based on the Pallant v Morgan equity. Moreover, in this case there was no common intention, because the parties were still in disagreement about the terms of the proposed enterprise.”
“(iii) In order to establish a trust there must be identifiable trust property. The only apparent exception to this rule is a constructive trust imposed on a person who dishonestly assists in a breach of trust who may come under fiduciary duties even if he does not receive identifiable trust property.”
“Under existing law a resulting trust arises in two sets of circumstances: (A) where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions. It is important to stress that this is only a presumption, which presumption is easily rebutted either by the counter-presumption of advancement or by direct evidence of A's intention to make an outright transfer: see Underhill and Hayton, Law of Trusts and Trustees, pp. 317 et seq.; Vandervell v. Inland Revenue Commissioners [1967] 2 A.C. 291, 312 et seq.; In re Vandervell's Trusts (No. 2)[1974] Ch. 269 , 288 et seq. (B) Where A transfers property to B on express trusts, but the trusts declared do not exhaust the whole beneficial interest: ibid, and Quistclose Investments Ltd. v. Rolls Razor Ltd (In Liquidation) [1970] A.C. 567. Both types of resulting trust are traditionally regarded as examples of trusts giving effect to the common intention of the parties. A resulting trust is not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his presumed intention. Megarry J. in In re Vandervell's Trusts (No. 2) suggests that a resulting trust of type (B) does not depend on intention but operates automatically. I am not convinced that this is right. If the settlor has expressly, or by necessary implication, abandoned any beneficial interest in the trust property, there is in my view no resulting trust: the undisposed-of equitable interest vests in the Crown as bona vacantia: see In re West Sussex Constabulary's Widows, Children and Benevolent (1930) Fund Trusts[1971] Ch. 1 .”