Crossley v Crossley
| Jurisdiction | England & Wales |
| Judge | Sir Peter Gibson |
| Judgment Date | 21 December 2005 |
| Neutral Citation | [2005] EWCA Civ 1581 |
| Docket Number | Case No: B2/2005/0279 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2005 |
[2005] EWCA Civ 1581
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
HER HONOUR JUDGE WAKEFIELD
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon Lord Justice May and
The Rt Hon Sir Peter Gibson
Case No: B2/2005/0279
Simon Calhaem (instructed by Messrs Lloyd Brennand) for the Appellant
Paul Steven Crossley, the Defendant, did not appear and was not represented
Sir Peter Gibson
This is the judgment of the court, to which we have each contributed.
This is an appeal by the claimant, Mrs Corinna Crossley, with permission of Chadwick LJ, against the decision and order of Her Honour Judge Wakefield in the Brentford County Court on 28 th January 2005. The judge decided that the beneficial interest in a property at 16 Epworth Road, Isleworth was held in equal shares between the claimant and the defendant, Paul Steven Crossley.
The defendant, who has acted in person in these proceedings, did not attend the hearing of the appeal. He twice sought an adjournment by letter very shortly before the hearing. He gave various reasons for wanting an adjournment, including that he was trying to arrange gratuitous representation. May LJ refused an adjournment. He considered that the defendant had had ample time to make arrangements for his representation and other matters. The defendant has, apparently, a history of failing to attend court hearings.
The appellant is the defendant's mother. She brought the proceedings under the Trusts of Land and Appointment of Trustees Act 1996. The legal title to the property at Isleworth is registered in the joint names of the appellant and the defendant. The appellant sought a declaration that she was the sole beneficial owner. That was resisted by the defendant. Mr Alan Crossley, now deceased, was the appellant's husband and the defendant's father, and the property was transferred to him, the appellant and the defendant when it was purchased in 1988.
Where property is conveyed into the names of two or more transferees but the beneficial interests in the property are not declared and the court is asked to determine the nature and extent of those interests, the court frequently faces a difficult task, as the cases in this area of the law amply demonstrate. The amendment in 1997 of the Land Registration Rules 1925 to require, in the case of a transfer to joint proprietors, a compulsory declaration of trust by the transferees, specifying the nature and extent of those interests, should obviate that difficulty, but the amendment has not affected earlier transfers such as that in the present case where the difficulty remains.
In this case the court's task has been rendered the more difficult by the absence of basic documents which ordinarily the court would expect to see, particularly when the transfer occurred less than 20 years ago, when the transferor was a local authority, when the transferees had solicitors acting for them, when a building society provided the major part of the consideration for the transfer by way of a mortgage loan and when an endowment policy was effected with another institution and was linked, the judge said, to the transfer (or, more accurately, as we would infer, linked to the mortgage) . And yet, despite the judge's request to see the transfer, no copy of it has been found, we are told, nor has the judge's request to see the policy been met. We have to say that these failures seem to us as surprising as they are unsatisfactory. We also find it surprising that the conveyancing file of the transferees' solicitors was also said to be unavailable. It is, we think, likely that those solicitors, whether or not aware of the advice of Bagnall J in Cowcher v Cowcher [1972] 1 WLR 425 at 442 to take the instructions of transferees as to the beneficial interests in the transferred property, would have done so when the defendant was at that time only 18 and was undertaking substantial liabilities under the mortgage as well as under the policy.
7. The difficulty for the judge was compounded by the fact that the defendant was not represented and that he appeared in person. It is unfortunate that the judge did not have legally qualified assistance from the defendant's side which would have been desirable in relation both to the evidence and to the law. The appellant did have the benefit of Counsel, Mr Calhaem, who appears before us as he did below, but he has complained of misunderstandings by the judge of his submissions. He has told us that the judge had no skeleton argument from him save for one limited to the presumption of advancement, which the judge requested. That presumption, applicable to a gift by a father (but not a mother) to his child, seems to us of little significance in this case. The absence of a skeleton may have contributed to those misunderstandings.
The judge set out the facts as follows:
"5. The claimant and her late husband occupied the property as tenants of the local authority. They made enquiries as to purchasing under the "Right to Buy" scheme and, on or about 14 th July 1988, the property was purchased and conveyed into the joint names of the claimant, Mr Alan Crossley and the defendant.
6. The Landlord's Offer Notice had been dated 10 th December 1986 and was addressed to Mr Alan Crossley, Mrs Corinna Crossley, Mr Thomas Frederick Crossley, who I understand to be the brother of the defendant, and Mr Paul Steven Crossley.
7. The market value as at 1 st July 1986 was stated to be £56,500 and a discount for an eight year period was set at 38 percent. The offer price was, therefore, £35,030 and the eventual purchase price was £35,051.28 at the time of the transfer two years later.
8. The transfer document did not apparently set out the purchasing parties' respective beneficial interests. I have asked to see a copy of the transfer, but it has not been forthcoming.
9. The purchase price was paid in part by a deposit of £10,022.80, supplied from the joint resources of the claimant and Mr Alan Crossley, with the balance being borrowed from Citi Bank Savings under the terms of an interest only mortgage loan, taken out in the names of the claimant, the defendant and Mr Alan Crossley. The present mortgagee is the Chelsea Building Society, but I have no further information as to the term of the loan or loans, or whether the difference simply reflects a change of name of the mortgagee rather than a new loan.
10. Apparently, an endowment insurance policy, linked to the mortgage, was taken out with Lincoln Financial Group on the life of the defendant. I have not seen a copy of the policy document and the policy may now have lapsed. The defendant has not responded to requests from the claimant to give authority to Lincoln Financial Group to release any details of the terms of the policy to the claimant's solicitors.
11. At the time of the purchase of the property, the defendant was aged 18 and was living at the property with his parents. Two older children lived elsewhere. The claimant was then aged 59 and is now 74. Mr Alan Crossley died in 1997, intestate.
12. In August 1998, the defendant married and took his wife to live at the property. They lived there with the claimant until the birth of their first child in August 2002. By that time, relations between the claimant and the defendant had seriously deteriorated. The defendant's wife also has a difficult relationship with the claimant. The claimant remains living on her own in the property, which is currently valued at £250,000. Sadly, hostility between the parties is now such that they would not even look at each other during the course of the proceedings in court."
The issues which the judge had to determine were (a) whether the defendant had any beneficial interest in the property; and (b) if so, what were the nature and extent of that interest. The judge said that the relevant principles of law were clear. She stated them as follows:
"Where property is purchased with money provided by A and B, but is conveyed into the names of A, B and C, a resulting trust would normally arise by which C would hold the share of the property on trust for A and B. That is, there is a presumption that A and B did not intend to make a gift to C. Where, however, there is contrary evidence of the intention of A and B, or where a presumption arises as to there being a gift to C, no such trust would automatically arise.
Between a father and a son there is a presumption of advancement if the former buys property and puts it into the name of the latter. That is to say, on the face of it the property would be a gift. But the presumption of a resulting trust and the presumption of advancement can be rebutted by evidence of the actual intention of the purchaser. The court should always strive to determine the intention of the purchaser rather than rely on any presumptions."
The judge referred to Pettitt v Pettitt [1970] A.C. 777 as to the presumption of advancement, and quoted from the judgment of Lord Phillips MR in Lavelle v Lavelle [2004] EWCA Civ 223 and from Kyriakides v Pippas [2004] EWHC (Ch.) 644. Lord Phillips in Lavelle said that where one person transfers the legal title of the property that he owns or purchases to another without receipt of any consideration, the effect will depend on his intention: "In these cases equity searches for the subjective intention of the transferor". In Kyriakides v Pippas, it was said that, where there is no declaration of trust, the court puts itself in the position of a jury and considers all the circumstances of the case, so as to arrive at the...
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