What should the Court of Justice then consider when deciding whether a decision should be made under section 90 APA 1925 with respect to the enforcement of the right to pledge? The master concluded that, in exercising his discretion, the Court had to consider all the circumstances of the case: in Menelaou, Master Matthews accepted the bank`s argument that the right to pledge to which the bank converted was a property interest related to the property to be surrendered and that the right of pawn therefore prevailed over the interests of the purchaser and all derivatives. What the buyer receives is a pledge of predation. Mr. Matthews explained the position (to ) as follows: this can happen. B for example, if the consideration is carried over in full or in part or if the buyer has no claim on the seller. If the lender has taken over the guarantee on the real estate or shares, the seller is in fact a competing secured creditor. In this scenario, the lender will either ensure that the lender waives its pawn or subordinates its right to pledge to the lender`s interests, in order to avoid any argument from the lender regarding priority and to avoid any difficulty for the lender to ensure its safety. A fair right to pledge is subject to all the usual conditions that affect fair rights, so that the exemption may be denied if the seller`s conduct has not been regular. This was important in Menelaou, because it was necessary that the right to pledge to which the bank was transferred would prevail over the interests of Melissa and her younger siblings.
The court assessed the extent to which a seller`s pledge right had been created during the transfer of the property and, if so, whether it was created, whether it was subsequently abandoned or extinguished. The court considered four documents – the remaining option, the DHI addendum, the Corporate Warranty Deed and the disclosure of alliances – based on the evidence of the origin and extent of a seller`s right to pledge, if that is the case. In particular, the Tribunal found that the sale rule of the dwelling unit alone had not created a seller`s pawn and that there was, as such, a question of fact as to whether a seller`s right to pledge had been established for Lefty s` benefit and, in the affirmative, whether it had been abandoned or extinguished before Wachovia borrowed his mortgages. Mr. Matthews then considered how an application for a sale order to enforce the pledge of an unpaid seller should be processed by the court. The bank sought an order under section 90 of the Property Act 1925 (`LPA 1925`) and Master Matthews.