The bona fide purchase defence is generally applicable in respect of restitutionary proprietary claims which are brought in Equity, regardless of the nature of the property which the defendant received. Consequently, where the defendant has purchased a legal estate for value without notice of the claimant’s equitable proprietary right, that right will be extinguished, regardless of the nature of the property which the defendant has purchased.[1] Where, however, the defendant has purchased an equitable proprietary interest for value the defence will not be available, because of the rule that the first equitable interest in time takes priority.[2] Also the defence will not be available to a defendant who is sued for unconscionable receipt. This is because the claimant will already have had to prove that the defendant’s receipt was unconscionable in order to establish the claim. Proof of such fault will negate the defendant’s good faith, so that the defendant will not be able to plead the defence successfully.

  • [1] Cave v Cave (1880) 15 Ch D 639; Re Diplock [1948] Ch 465, 537.
  • [2] Macmillan Inc v Bishopsgate Investment Trust pic [1995] 1 WLR 978,1000 (Millett J). But the defence willdefeat an earlier mere equity, such as the equity to rescind a contract. See generally D O’Sullivan, ‘The Rule inPhillips v Phillips (2002) 118 LQR 296.
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