Dennis v McDonald
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE O'CONNOR,MR. JUSTICE STEPHEN BROWN |
| Judgment Date | 01 December 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J1201-1 |
| Docket Number | 81/0475 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 December 1981 |
In the Matter of the Trusts Affecting the Freehold Property Known as 125/127 Strathleven Road, London SW2.
And in the Matter of the Law of Property Act 1925
[1981] EWCA Civ J1201-1
The President
(Sir John Arnold)
Lord Justice O'Connor
and
Mr. Justice Stephen Brown
81/0475
478 1981
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr. Justice Purchas)
Royal Courts of Justice
MR. DAVID W. VAN HEE (instructed by Messrs Robert Thompson & Partners, solicitors, London) appeared on behalf of the Appellant (Defendant).
MR. ANDREW G. WALKER (instructed by Messrs Eric Hauser & Co., solicitors, London) appeared on behalf of the Respondent (Plaintiff).
This is an appeal from an order of Mr. Justice Purchas on 15th June this year, his judgment being reported at 1981 1 WLR,810.
The matter concerns a house which belongs to the plaintiff and the defendant as tenants in common in equal shares, subject to such variation of those shares as the law relating to such matters may direct having regard to the facts of the case. The house is known as 125/127 Strathleven Road, London SW2.
It was occupied by the plaintiff and the defendant, and five children. Of those five children four are unquestionably the children biologically of the plaintiff and the defendant who lived together for many years without ever having been married. As regards the fifth and youngest child the plaintiff has contended that he is a child of the plaintiff and the defendant but the defendant has disputed this. That issue has never been resolved by any court.
In 1974, after some ups and downs, the plaintiff finally left. She took all the children with her and under various vicissitudes three of them have come back to live with the defendant who, ever since 1974, has lived at the house and the plaintiff has not. The reason for that state of things, as the learned judge found and as has to be accepted for the purposes of the appeal, was that owing to violence exercised upon her by the defendant in the past, the plaintiff was afraid to go back. The learned judge came to the conclusion that, in those circumstances, the case was equivalent to what, in the reported cases, is called an 'ouster' by one tenant in common of another and it is plain on the authorities that in such a case there is an exception from the general rule that each tenant in common has the right of occupation of the property in respect of which the tenancy subsists, while if one of them occupies that property to the exclusion of the other that does not give rise to any right of compensation. In the exceptional case of an ouster it plainly, in my view, does. That matter is not contested in this court.
What is contested in this court is what such a payment should amount to and upon that matter there appears to be no authority. The rival contentions are that the appellant (the defendant) says that, in fixing the amount, the court should have regard to the ultimate consequences in terms of obligation and expenditure of the respective parties due to, or observably connected with, the circumstances of the defendant's occupation. To put it in a more informative way it comes to this, that the appellant says that because he is giving a home to three of the five children in the property owned by the two of them in equity as tenants in common and the plaintiff is giving a home to two or, as it might be, one depending upon the paternity of the youngest child, so there should be an unequal enjoyment of the notional rental proceeds of the matrimonial home so that he has to pay correspondingly less because he is undertaking a heavier burden in housing the children. That is the way the case is put.
The matter upon analysis is not quite so simple. The eldest child certainly seems to be sufficiently independent financially to make the argument quite unrealistic.. The child is almost 18 (she was 17 1/2 when the judge dealt with the case). She is working as a trainee nurse and in receipt of some form of remuneration, quite sufficient apparently to make it not less than feasible for that child to pay something for rent or the privilege of the occupation with her father of the matrimonial home.
The second child has attained the age of 16. He is undergoing some sort of training consistent with a degree of disability which he has, but he is plainly entitled to some form of state subvention. The third child is still at school. As regards the two children with the mother, one is still at school and is plainly and indisputably a child of the two of them. The other child is still at school and is the subject of the unresolved dispute to which I have referred.
Therefore it is not clear, if one were to adopt the principle contended for by the appellant, how one would apply it in the circumstances of this case. But, in my judgment, the principle is not relevant or applicable. The nature of the payment, in my judgment, is that of some sort of compensation to be paid by a trustee, for they are trustees for each other in the circumstances of this case, to a beneficiary (for they are both...
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