Cooke v Head
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE KARMINSKI,LORD JUSTICE ORR |
| Judgment Date | 19 January 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0119-2 |
| Date | 19 January 1972 |
| Court | Court of Appeal (Civil Division) |
[1972] EWCA Civ J0119-2
The Master of The Rolls (Lord Denning),
Lord Justice Karminski and
Lord Justice Orr.
In The Supreme Court of Judicature
Court of Appeal
Appeal by plaintiff from judgment of Mr. Justice Plowman on 21st December, 1970.
Mr. ANTHONY SCRIVENER (instructed by Messrs. Gregory Rowcliffe & Co. London agents of Messrs. Pead Ash Fynmore & Pembroke of Bexhill Sussex) appeared on behalf of the Appellant Plaintiff,
Mr. GEOFFREY DEARBERGH (instructed by Messrs. Blyth Dutton & Co. London agents for Messrs. Mennear Idle & Brackett of St. Leonards-on-Sea) appeared on behalf of the Respondent Defendant.
In most of these cases there is a dispute between husband and wife as to the shares in the matrimonial home. This case is different. It is a dispute between a man and his mistress about a house which never became the matrimonial home. The facts are unusual. In 1962 Miss Cooke was a young woman of 20 years of age. She met a Mr. Dennis Head. He was in a good way of business in Bexhill. He was a married man. He had a wife and two children. He took Miss Cooke out in his car to give her driving lessons. An attachment grew up between them. They started to have sexual intercourse. In October 1963 a child was born to her. She had it adopted.
During the first part of their relationship, in 1963, Mr. Head and Miss Cooke were living in the same guesthouse in Bexhill. They hoped that Mr. Head's wife would divorce him, and they, would be able to marry. In this hope in the beginning of 1964 they decided to acquire land and build a bungalow on it. They found a piece of land in Blacksmiths Lane, Catsfield, in Sussex. It was owned by a builder. Mr. Dennis Head made an agreement to buy the land and employ the builder for most of the work; but Mr. Head was to do some of it himself. Mr. Head paid a deposit of £390 in cash. He raised £3,000 by a mortgage from a building society, repayable by instalments of £19. 12s.6d. a month. The conveyance was taken in Mr. Head's name.
Mr. Head and Miss Cooke saw the architect. They together planned the bungalow; together they built it. Mr. Head did a great deal of work. He spent much money in materials and labour. It came to £915. Miss Cooke did not contribute anything in cash to the purchase price, but she did a lot of work. Mr. Head, before the Judge, disputed the amount of work she had done. He said she had only gone up there as a spectator, and played with a blue cat.The Judge did not accept his evidence. He accepted the evidence of Miss Cooke herself, and also of Mr. Head's sister, and others. He was satisfied that Miss Cooke did quite an unusual amount of work for a woman. She used a sledgehammer to demolish some old buildings. She filled the wheelbarrow with rubble and hard core and wheeled it up the bank. She worked the cement mixer, which was out of order and difficult to work. She did painting, and so forth. Miss Cooke did much more than most women would do.
Miss Cooke helped with the mortgage instalments also. She was a secretary to a dairy and earned money. Mr. Head had his business. They both saved all they could. Mr. Head made a money box. At the end of each week they put in whatever cash they could save. He put in more than she. The money accumulated in this money box by their joint contributions. Afterwards it was put into a trustee savings account. It was put into Miss Cooke's name. It was not put into Mr. Head's name, because he did not want his wife to know of it. Of these moneys £150 was used to get some furniture; and £294 was used for paying mortgage instalments over the fifteen months from September 1964 to November 1965.
Early in 1966 the bungalow was getting near completion; but then this couple separated. The bungalow was never occupied by them. Mr. Head went in by himself, and occupied it alone with some other companion. During his occupation he paid the remaining mortgage instalments as they became due. They came to some £421 over some two years. Then he decided to sell the bungalow. When Miss Cooke heard of this, she asked that any proceeds of sale should be paid into a Joint account. He did not agree. So she issued a writ on 4th May, 1967. She applied to the Judge to restrain Mr. Head from selling without providing for her share. By arrangement it was sold for some £5,300, which was, said Mr.Head, about £1,000 less than its real value. After paying the mortgage of £3,384 expenses, the net proceeds came to £1,946, which was put into a joint account of the solicitors. This action concerns the way in which the eventual proceeds of sale of the house, £1,946, are to be divided. The Judge held that she should have only one-twelfth of the proceeds. She appeals to this Court.
If this case had come up 20 or 30 years ago, I do not suppose that Miss Cooke would have had any claim to a share. It would be said that, when she did all this work on the house there was no contract to pay her anything for it. And when she put these moneys into the money box, he made no contract to repay it. So it was a gift. But that has all been altered now. At first the Courts changed the law by giving a wide interpretation to section 17 of the Married Women's Property Act, 1882. They took the words of that statute which gave a Judge power to make such order "as he thinks fit". That was held, however, to be erroneous because the section did not empower the Courts to alter property rights. So the Courts had recourse to another way. They said that shares in a home depended on the common intention of the parties; and they used considerable freedom to ascertain that common intention. This too has recently come into disfavour, because of the difficulty of ascertaining a common intention. So the Courts, under the guidance of the House of Lords, have had recourse to the final way, the law of trusts. It is now held that, whenever two parties by their joint efforts acquire property to be used for their joint benefit, the Courts may impose or impute a constructive or resulting trust. The legal owner is bound to hold the property on trust for them both. This trust does not need any writing. It can be enforced by an order for sale, but in a proper case the sale can be postponed indefinitely. It applies to husband and wife, to engaged couples, and to man and mistress, and may be toother relationships too.
The particular case of man and mistress came before the Court of Appeal in Diwell v. Barnes (1959) 1 W.L.R 622. The Court was divided in opinion. The majority thought that a mistress was not in the same position as a wife. She could recover her actual contributions to the purchase price, but would not claim any part of the windfall on resale. Lord Justice Willmer...
To continue reading
Request your trial
- Richards v Dove
- Liew Choy Hung v Fork Kian Seng
-
Lee Puey Hwa v Tay Cheow Seng
...party cited, and they were therefore jointly entitled to the beneficial interest in it to the exclusion of the appellant: Cooke v Head [1972 2 All ER 38 followed in Bernard v Josephs [1982] 3 All ER 162.As for a lump sum payment, counsel for the respondent cited Millward v Millward [1971] 1......
-
Marie Madeleine Francis Petitioner v Simon Peter Francis Respondent [ECSC]
... ... Therefore applying the principles ofGissing v Gissing 1971 A.C 886 Cooke v Head 1972 2ALLER, 38 Abdool Hack v Rahieman 27 WIR 109 the Petitioner held the land at Richfond on trust for herself and for the Respondent ... ...
-
Table of Cases
...61 TLR 167, [1945] WN 14, CA 197, 198, 200, 201, 207, 210 Consul Developments v DPC Estates (1975) 132 CLR 373, Aus HC 175 Cooke v Head [1972] 1 WLR 518, [1972] 2 All ER 38, 116 SJ 298, CA 223 xxiv Table of Cases Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374......
-
Taking a Witch's Brew and Making a Consommé Lord Neuberger's Dissent in Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432
...48 Championed, as it was, by Lord Denning as Master of the Rolls in a series of cases: Hussey v Palmer [1972] 1 WLR 1286, Cooke v Head [1972] 1 WLR 518, Eves v Eves [1975] 1 WLR 1338 and Hazell v Hazell [1972] 1 WLR 301. This is the idea that the beneficial interest is determined on the bas......
-
The non-marriage union in private international law
...73-77, 155-156, 212; New South Wales Law Reform Commission's Summary o f Issues Paper: De Facto Relationships , 1981. Cooke v. Head [1972] 1 W.L.R.518; Eves v.Eves [1975] 1 W.L.R. 133 \ Allen v. Snyder [ 1977] 2 N.S. W.L.R. 685; but see; Pettitt v. Pettitt [1970] A.C. 777; Gissing v. Gissin......