Andrew Constandas v Mrs Adriana Lysandrou (a protected party by her litigation friend and son Mr Michael Lysandrou)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin,Mrs Justice Rose |
| Judgment Date | 27 March 2018 |
| Neutral Citation | [2018] EWCA Civ 613 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2016/3746 & 3762 |
| Date | 27 March 2018 |
[2018] EWCA Civ 613
Lord Justice Kitchin
and
Mrs Justice Rose
Case No: A3/2016/3746 & 3762
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HH JUDGE FABER
CASE B10CL476
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms S Steinhardt (instructed by Hodge Jones & Allen LLP) for the Appellant
Mr C Jacobs (instructed under the Bar Direct Access Scheme) for the Respondents
Hearing date: 6 March 2018
Judgment Approved
Introduction
This claim was brought by the Claimant, Mr Constandas, against the First Respondent, his sister Mrs Lysandrou, the Second Respondent his brother-in-law, Mr Lysandrou and the Third Respondent his nephew Michael Lysandrou. The claim concerns the beneficial ownership of the house in Mackeson Road, London NW3 in which all the parties lived for many years. Since 2007 the legal title to the house has been vested in Mr and Mrs Lysandrou. Mr Constandas claimed that he was entitled to a half share in the house on the grounds that when it was bought in 1959 he paid a deposit of £100 and a further £500 as a down payment. That comprised half the purchase price of £1,200, the other half being funded by a mortgage taken out in the sole name of Mrs Lysandrou.
The claim was brought under the Trusts of Land and Appointment of Trustees Act 1996 for a declaration regarding Mr Constandas' right of ownership of and occupation at the property and for an injunction and damages for unlawful eviction and trespass. It was common ground at the trial that the claim was based on a resulting trust said to arise in accordance with the principles established by the House of Lords in Stack v Dowden [2007] UKHL 17, [2007] 2 AC 43 It was agreed that there was a presumption that the beneficial ownership of a property was the same as the legal ownership. The case turned on whether Mr Constandas could show that he had contributed the down payment of £600 in June 1959 when the house was bought. The Respondents denied that Mr Constandas had made any such contribution to the purchase price or that he was entitled for any other reason to an interest in the house.
The trial took place before HHJ Faber on 27 and 28 October 2015. Any investigation into the source of money used to buy a house in 1959 was always likely to be challenging. The additional difficulty arose from the fact that Mr Constandas was 86 at the time of the trial and Mr and Mrs Lysandrou were also in their 80s. Mr Constandas gave evidence at the trial as did his solicitor Mr Sharp. Unfortunately both Mr and Mrs Lysandrou suffer from dementia and could not give evidence. Evidence for the Respondents resisting Mr Constandas' claim was given by Michael Lysandrou, by a tenant in the property Mr Newsham and by Avghi Constandas, Mr Constandas' former wife.
The evidence in the trial concluded over the two days of court time that had been allotted to it. At the end of the trial it was expected that there would be a further hearing where more evidence and closing submissions would be dealt with. In fact the parties agreed that there should be no further evidence and the closing submissions should be in writing. Those submissions had been served by February 2016. For reasons which were nobody's fault, handing down of judgment was delayed until 7 September 2016. In her judgment HHJ Faber concluded that on the evidence available to her she could not arrive at any findings as to who had paid the £600 down payment in 1959. She therefore held that Mr Constandas had not discharged the burden of proof that lay upon him as the claimant in the proceedings. She therefore dismissed the claim, other than awarding Mr Constandas a small amount of money in respect of damage caused to his property by the Respondents. However, although the Respondent successfully resisted the claim, the Judge made no order as to costs because she disapproved strongly of the conduct of Michael Lysandrou as I describe later.
Mr Constandas appeals against the dismissal of his claim with the permission of Henderson LJ. He argues that the Judge was wrong to fall back on the burden of proof to dispose of the case and that she did not apply the correct test as laid down in the authorities. The Respondents also with the permission of Henderson LJ appeal against the Judge's decision not to award them their costs.
The main appeal
In her judgment, HHJ Faber first set out those facts which were not controversial. Mr Constandas came to the United Kingdom from Cyprus in 1951. He acquired a property in Agincourt Road nearby the Mackeson Road house in 1954 and lived there with his wife and the Respondents for about four years. In 1959 the house in Mackeson Road was acquired and registered in the sole name of Mrs Lysandrou. Mrs Lysandrou moved in there with her husband and her parents and Michael Lysandrou, who was born in 1957, lived there with them.
In 1973 Mr Constandas' marriage broke down and he also moved into the house and has lived there ever since. In about 2007 the house was transferred into the names of Mr and Mrs Lysandrou. The Judge noted at [9] that the parties were agreed that Mr Constandas had paid nothing towards the mortgage on the property and nothing towards its upkeep over the years.
By 2015 Mrs Lysandrou was suffering from dementia. Michael Lysandrou was granted power of attorney in respect of her welfare and financial affairs at the beginning of that year. In June 2015 Michael Lysandrou acting under that power of attorney served notice to quit on Mr Constandas. In July 2015 the Respondents evicted Mr Constandas from the house and refused to allow him to re-enter. On 28 July 2015 Mr Constandas issued this claim and made an urgent application for injunctive relief to reinstate him in the property pending trial. On 6 August 2015 that injunction application was granted by DJ Langley who also gave directions for an expedited trial.
Having set out those facts, HHJ Faber then reviewed the documentary evidence before her to see whether or not it assisted her in determining the case. She examined the incomings and outgoings between 1955 and 1959 in the following accounts:
i) a post office account and a Bank of Cyprus account belonging to Mrs Lysandrou;
ii) a post office account and a Bank of Cyprus account belonging to Mr Lysandrou;
iii) a Bank of Cyprus account belonging to Mr Constandas.
The most significant information derived from that analysis for the purposes of the issues before her was as follows:
i) £500 was withdrawn by crossed warrant by Mrs Lysandrou from her post office account on 17 May 1957;
ii) there had been no transactions in Mr Lysandrou's Bank of Cyprus account in 1959 before October (that is after the house was acquired);
iii) in January 1959 Mrs Lysandrou withdrew £280 from her Bank of Cyprus account leaving a balance of about £108;
iv) in February 1959 there was a payment into Mrs Lysandrou's Bank of Cyprus account of £1,290 with reference to Elena Aroti who was Mr Constandas' mother-in-law and a payment out of the same amount in June 1959 to Mr Constandas' wife;
v) on 12 May 1959 Mr Constandas had paid out £645 from his Bank of Cyprus account to Elena Aroti;
vi) on 19 May 1959, that is shortly before the purchase of the house, Mr Constandas received into his Bank of Cyprus account £643 from Mrs Aroti in Cyprus.
The Judge also noted in her chronology of events that an attendance note dated 21 July 2015 recorded that Michael Lysandrou had said he remembered his parents telling him that they had bought the property with money from his grandfather, that is to say the father of Mr Constandas and Mrs Lysandrou.
The Judge then went on to make her findings on the two key issues; first whether there was evidence to show that either or both of Mr Constandas and Mr and Mrs Lysandrou had had the money available to them in June 1959 to make the down payment of £600 and secondly whether there was evidence to show that, if they had had that money available, they had in fact used that money to make the down payment.
She was satisfied that Mr Constandas had £643 in his Bank of Cyprus account in London as from 19 May 1959. However, there was no evidence of a withdrawal of that money to be used as the down payment because the London branch of the Bank had no record at all of Mr Constandas. She took the view that the lack of a record of withdrawal did not undermine his case. The Judge concluded that neither Mr or Mrs Lysandrou had sufficient cash in their respective accounts in May or June 1959 to pay £600. However, over the previous two years they had made a series of withdrawals from their bank accounts amounting to £924. That sum included the crossed warrant for £500. There was a dispute between the parties as to whether that was equivalent to cash or whether the warrant would have been made out to a third party payee in which case it would not have been available to pay for the house.
The Judge then considered whether the £600 could have been funded by Mrs Lysandrou by putting aside money out of her weekly earnings as a seamstress after she arrived in this country 1954. This was the explanation put forward in Mrs Lysandrou's witness statement and Mr Lysandrou had said the same thing. The Judge noted that these witness statements were made some considerable time after Mrs Lysandrou's dementia had become advanced. Further, as Mr and Mrs Lysandrou had not been able to give oral evidence confirming their witness statements, their witness statements were hearsay. The Judge set out the evidence given by Mr Constandas when...
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