Mrs Bennett's appeal to the House challenges this conclusion.
It is to be noted that Mr Parkyn did not receive instructions to act in connection with the guarantee to be given by Mr and Mrs Bennett. It appears that he knew nothing about that transaction. Nor did he know anything about the financial arrangements between the company, the bank and SWIFT.
nature of those liabilities. The letter said, also, this:
Nothing at all was "noted below".
and, at p 835:
I agree with both those statements.
but held, at pp 1142-1143:
A surety who pays off the creditor is entitled to be subrogated to the rights of the creditor in respect of the debt in question. And if the creditor, in order to discharge the debt, has recourse to security provided by the surety, the same applies. So, in the present case, if Mrs Bennett had paid the bank the £150,000, or if the bank had obtained payment by realising its security over 15, Elthiron Road, Mrs Bennett would have been entitled to the benefit of the Bank's rights against the company in respect of the £150,000. These rights would have included the bank's rights under its fixed and floating charges. But those rights were subject to the ranking agreement.
Kenyon-Brown v Desmond Banks & Co
She pleaded that Mr Banks had failed to give her advice in respect of these matters, or any advice about the proposed mortgage, and that in consequence she had suffered loss.
He recorded, however, that she said that she could not contradict Mr Banks' attendance note of the 12 January 1993 meeting. He expressed his conclusions in the following passage: