Flora Moses (administratrix pendente lite of the estate of Jude Moses aka Julie Moses, deceased) v Selwyn Moses (Trinidad and Tobago)

A transfer of land by deed may be set aside in equity where the transferor acted under a sufficiently serious mistake, making it unconscionable and unjust to leave the transaction uncorrected. Where rescission is barred because a bona fide purchaser for value without notice has acquired title, a personal remedy in unjust enrichment may still be available. For a mistaken transfer, enrichment is measured by the value of the benefit originally received. Profits from later, distinct arm’s-length transactions are not necessarily enrichment at the claimant’s expense in the required direct sense. An appellate court may reassess inferences from undisputed primary facts, although it should be slow to reverse a trial judge’s factual finding and do so only where the judge was plainly wrong.

Jude Moses, acting as personal representative of her late husband, executed a 1984 deed of assent conveying land to her son Selwyn as though the land had been bequeathed to him. The land was in fact part of the residuary estate left to Jude. A later deed, mortgage and attempted sale treated Jude as owner. The first-instance judge found that mistake had not been proved and dismissed the claim. The Court of Appeal reversed that finding, set aside the deed in equity and ordered Selwyn to pay $620,000 for unjust enrichment. Selwyn appealed to the Privy Council, challenging the appellate intervention, the finding of mistake, the availability of relief and the valuation of the enrichment.

Majority: Lord Sales, with Lord Kitchin and Lord Lloyd-Jones agreeing, allowed the appeal only to reduce the recoverable sum from $620,000 to $300,000.

1. The Court of Appeal was entitled to intervene. An appellate court must be slow to reverse a factual finding and should do so only where the trial judge was plainly wrong. That caution is relevant where the issue depends on the trial judge’s evaluation of primary evidence. Where the primary facts are undisputed and the issue is the inference to be drawn from them, the appellate court may make its own assessment and need not remit the matter for retrial. The trial judge had misread the 1984 deed, assumed that Jude had elected to make a gift, failed to weigh relevant evidence and placed undue weight on the absence of testimony from a witness whose incapacity he had accepted. Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21 and Biogen Inc v Medeva plc [1997] RPC 1 were applied.
2. The evidence supported the inference that Jude had acted under a mistake as to the contents of the will. The mistake was sufficiently serious to justify equitable setting aside where leaving the deed uncorrected would be unconscionable and unjust, applying the doctrine explained in Ogilvie v Littleboy (1897) 13 TLR 399, CA and Pitt v Holt [2013] UKSC 26.
3. The intervention of bona fide purchasers for value without notice prevented rescission of the conveyance. The claim could nevertheless proceed as a personal claim in unjust enrichment. The claimant had to establish enrichment, enrichment at the claimant’s expense and unjustness, subject to available defences.
4. Selwyn’s enrichment from the original transfer was valued at $300,000, the arm’s-length sale price. The later $320,000 profit arose from distinct arm’s-length transactions involving property acquired as Selwyn’s own. It was not enrichment at Jude’s expense in the required direct sense. Defences of undue delay and adverse possession could not be raised before the Board because Selwyn had lost on them at first instance and had not preserved them by respondent’s notice.

Dissent: Lord Burrows and Lady Rose would have allowed the appeal and restored the first-instance judgment. They considered that the Court of Appeal had not shown that the trial judge was plainly wrong on a pure question of fact. The clarity of the will and surrounding circumstances made mistake unlikely; later conduct was neutral; and the absence of direct evidence left an evidential gap rather than justifying appellate reversal. Alternatively, they agreed that any restitution would have been limited to $300,000.

• Privy Council: The majority reduced the unjust-enrichment award to $300,000 and otherwise dismissed the appeal. Lord Burrows and Lady Rose would have allowed the appeal and restored the first-instance judgment.
• Court of Appeal of the Republic of Trinidad and Tobago: Allowed Jude’s appeal, set aside the first-instance factual finding, found that the 1984 deed was made under mistake and ordered Selwyn to pay $620,000.
• First instance: Seepersad J dismissed the mistake claim and declared that the 1984 deed vested the interest in the land in Selwyn.