• In the case of Cuckmere brick co ltd v Mutual finance ltd 1971 ch 949, it was held that a mortgagee, when exercising his power of sale, owes a duty to the mortgagor to take reasonable care to obtain a proper price.

Facts of the Case

  • Cuckmere Brick co (C.Co) charged land with planning permission for 100 flats to Mutual finance (M Co) for £50,000.
  • Later, permission was given to erect 35 houses.
  • M Co’s power of sale became exercisable, and M Co advertised the land by reference to the planning permission for houses, but not to that for flats.
  • After being informed of their omission M Co. refused to postpone the sale.
  • The price obtained was £44,000.

Issues in Cuckmere brick co ltd v Mutual finance ltd 1971 ch 949

  • Did the mortgagee owe a duty to the mortgagees?

Held by Court of Appeal

  • Held that the mortgagee breached the duty it owed to the mortgagees by failing to obtain the true market value of the land at the time of sale.

Cairns L.J

  • It was found that a mortgagee is not a trustee of the power of sale for the mortgagor, they are entitled to exercise the power of sale for their own purposes, whenever they choose to do so.
  • “If the parties were to be held to their agreement I should feel bound to say that the plaintiffs had not established a probable selling price more than a little in excess of £44,000. The defendants have not, however, invited this court to assess the figure. They have been content to invite us, in the event of our being against them on liability, to direct an inquiry. Though the plaintiffs have resisted any such direction, that has been on the basis of their contention that the judge’s assessment of £65,000 must stand. In these circumstances I consider that the course which is fairest to both parties is that there should be an inquiry as to damages on the footing that the price at which the land could probably have been sold is at large. “pg 981

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