Jean-Michel Canarapen v Marie Ginette Gauchenot

A deed is delivered when, assessed objectively, the maker’s conduct would lead a reasonable recipient to understand that the maker intended to be bound. Delivery may be conditional, but the condition must be objectively established. A maker’s undisclosed or subjective reservations do not prevent delivery.

A gift may be set aside for mistake only where there is a causative mistake of sufficient gravity and it would be unconscionable for the recipient to retain the benefit. A mistaken prediction about future events is not ordinarily a qualifying mistake.

A very late amendment may be refused where it raises new legal and factual issues, creates potential prejudice, and was reasonably available to the applicant earlier.

The claimant sought a declaration that a deed of variation transferring the defendant’s one-third interest in an estate was binding. The defendant argued that the deed had not been delivered and, alternatively, sought to set it aside for mistake. On the final day of trial she applied to amend her defence to allege that delivery had been conditional on probate and a sale of the property to the claimant.

The issues were whether the deed had been delivered, whether the defendant had made a qualifying mistake, and whether the late amendment should be permitted.

1. Delivery. The claim succeeded on the deed issue. Under Law of Property (Miscellaneous Provisions) Act 1989, section 1(3), delivery is an essential requirement for an individual’s deed. Applying Vincent v Premo, delivery means an act objectively evincing an intention to be bound. It need not mean physical handover. It may be conditional, or in escrow, as explained in Silver Queen Maritime Ltd v Persia Petroleum Services Ltd.
2. The deed was delivered unconditionally. Its wording, the covering email headed “Executed Deed of Variation”, and the surrounding circumstances objectively indicated immediate effect. The defendant knew that the claimant intended to rely on the deed to obtain mortgage finance. Her subjective view that further documents might be required was immaterial. The objective-reasonable-recipient approach in Umrish v Gill was applied.
3. Mistake. The counterclaim failed. Applying Pitt v Holt, the court considered whether there was a causative mistake of sufficient gravity and whether retention of the gift would be unconscionable. The alleged mistake shifted from preserving the property as a family home to the claimant providing the defendant with a home for life. The latter was not supported by the contemporaneous documents and was an after-the-event rationalisation.
4. In any event, the alleged mistake concerned what might happen in the future and was therefore a misprediction rather than a traditional mistake. Following the reasoning in Dextra Bank & Trust Co Ltd v Bank of Jamaica, that could not justify setting aside an otherwise effective deed.
5. Amendment. The application made on the last day of trial was dismissed. It was unjustifiably late and the proposed conditional-delivery case could have affected cross-examination, disclosure and further evidence. The approach to very late amendments discussed in Rolls-Royce Holdings PLC v Goodrich Corporation and Public Institution for Social Security v Al-Wazzan supported refusal. The proposed point was also not reasonably arguable because the deed had not been delivered subject to conditions.
6. The claim was allowed, the declarations sought by the claimant were granted, and the defendant’s counterclaim was dismissed.