Crystall v Crystall
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE HARMAN,LORD JUSTICE DAVIES |
| Judgment Date | 31 October 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J1031-3 |
| Court | Court of Appeal |
| Date | 31 October 1962 |
[1962] EWCA Civ J1031-3
In The Supreme Court of Judicature
Court of Appeal
(From Mr. Registrar Long)
Lord Justice Willmer
Lord Justice Harman and
Lord Justice Davies
Mr. . P. Picard (instructed by Messrs. W. R. Miliar & Sons) appeared on behalf of the Appellant.
Mr. A. J. Pkelak (instructed by Messrs. Ronald Brooke & Co.) appeared on behalf of the Respondent.
This is an Appeal from an Order made by Mr. Registrar Long on the 15th December, 1961, on a claim made by a wife under Section 17 of the Mrried Women's Property Act, 1882. The proceedings resulted before the learned Registrar in a partial finding in favour of the wife. The husband has now appealed to this Court asking for the Order of the learned Registrar to be discharged and for a declaration that the wife has no interest in the property in respect of which the claim was made.
The claim as put forward was under five separate headings. The first related to a house, 28 Strafford Avenue, Barkingside, which had been the matrimonial home. Secondly, there was a claim for a sum of money said to represent part of the proceeds of sale of a motor-car. Thirdly, there was a claim in respect of certain items of household furniture. Fourthly, there was a claim in respect of a loan of £90 said to have been made by the wife to the husband. Lastly, there was a claim in respect of the assets, or profits, of a printing, firm in which the parties had been interested.
The learned Registrar dismissed the wife's claim uncer the headings numbered 2, 5 and 5. In respect of headings 1 and 4 he came to the conclusion that the wife was entitled, in the event, to a sum of money of £24C, representing her interest in the matrimonial home coupled with the loan of £90 to which I have referred.
The house had been bought; about the year 1956, on mortgage, and was taken in the husband's name. It has now been sold, and after discharge of the mortgage the balance remaining is said to be some £707. that £707, as I understand the position, no longer exists as an identifiable sum; for when recovered it was paid by the husband into the account of the business he was running, and that businesshas since failed. The claim in respect of the loan of £90 was put forward on the basis that that was a contribution made by the wife towards the legal costs incurred in connection with the purchase of the home in 1956.
The learned Registrar, having determined the matter in favour of the wife to the extent of £24C, then had to deal with the question of costs. The husband was a legally assisted person, and his ccnLribution was assessed at il. The learned registrar, however, took the view that he ought to pay oart of che costs of his wife and, in discharge of his duty under the Legal Aid and Advice Act, to quantify the amount of such costs, he ordered the husband to pay 75 guineas.
In those circumstances the husband has put forward three really severalle grounds of appeal. First, he has contended that the learned Registrar was wrong in all the circumstances of the case in finding that the wife had any interest it. the house at all; secondly, it has been contended that he was wrong in making any order in respect of the £90, which, being; a loan, did not constitute property recoverable in proceedings under the Carried women's Property Act; thirdly, it has been contended that the learned Registrar exercised his discretion wrongly in the matter of costs, and that the order for costs ought to be discharged.
I should, at this stage, remark thot this case came before this Court - although a differently constituted Court - some time during the Spring of this year, and after the arguiuentyaad been proceeding for some time those of us who were then sitting found that we could go no further, because we had not been furnished with any findings of factor any reasons for his decision, by the learned Registrar. It was certainly far from clear at that stage on what basis the learned Registrar had come to his conclusion that the wife had an interest in the house, the house being, as I have already said, a house taken solely in the husband's name. Our attention was drawn to the case of Allen v. Allen, (1961, 5, All England Reports, at page 385), where this Court ran into a similar difficulty and took the course of remitting the case to the court of first instance for further findings of fact. We followed the same course in relation to this case, and remitted the matter to the learnod Registrar for his findings of fact. These have now been furnished to us and are included in the bundle we have before us. I will do my best to summarise them without reading them in full.
The learned registrar says that he found that the parties regarded the management of their affairs, including the matter of the house, as a joint venture. They both earned and both contributed to the general household expenses, and the money was used indifferently for paying instalments on the house and for other household expenses. He found that there was an intention to acquire the house jointly, and that they contributed to the joint venture in proportion to their respective earnings, which were approximately in the proportion of three for the husband to one for the wife. So far as the £90 was concerned, he found that that was a loan by the wife to the husband made in 1956, and that it was not a contribution to the joint venture. He found that that loan had never been repaid. Having so found, he then went on to find that the proceeds of sale, viz. £707, included the £90 lent by the wife, which he described as "forming an identifiable and severable fund" which "remained part of the property in dispute". Having sofound, he then apportioned the shares in the proceeds as to £150 to the wife, to which he added the £90, making the total of £240 to which I have already referred.
On the first point, as to the wife's interest in the house, it was contended before us in the first instance that there was no evidence to support the finding of the learned Registrar. As to that contention, quite clearly it was one that would not bear examination. I would refer only to three passages in the evidence that was before the learned Registrar. In the original Affidavit of the wife it was stated in paragraph 7, with reference to a period between 1950 and 1952, when the parties were living in a different house (the sale of which was used to help purchase the final matrimonial home) that the instalments came out of the common fund to which both her husband and she contributed from their respective wages. In her second Affidavit, dealing with a later period, viz. 1953 to 1956, she said this (I pause to remark that I hope I quote correctly, because the material passage was unhappily omitted from the typescript furnished to us, and I have only got my own pencilled note taken down at Counsel's dictation as to what the wife is supposed to have said): "To enable husband to meet the mortgage repayments of about £5 10s. weekly I paid for all food and clothing, and submit that in this joint endeavour I contributed one quarter to the value of any assets acquired. In particular I say that over three years I contributed at the rate of £3 10s. every four weeks to the mortgage repayments." The third passage to which I would refer occurs in the oral evidence of the wife, of which, of course, we have only got the learned Registrar's note; but she is recorded as having said this, again referring to the period 1955-1956 during which she was working: "Verbal agreement iC I carried on working would be able to buy house".
In these circumstances it seems to me quite idle to contend that there was no evidence on which the learned Registrar could come to his conclusion that this was regarded as a joint venture. Cn these passages of evidence being referred to, however, Counsel for the husband shifted his ground and invited us to find thct the learned Registrar's finding was against the weight of the evidence. That, it seems to me, was very much a matter for the learned Registrar himself to assess; for it is not to be forgotten that he had the advantage, denied us, of seeing the parties himself and hearing them give their evidence orally...
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