Gordon v Douce
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE FOX,MR. JUSTICE BUSH |
| Judgment Date | 17 January 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0117-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 83/0011 |
| Date | 17 January 1983 |
[1983] EWCA Civ J0117-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM DERBY COUNTY COURT
(His Honour Judge Paul Hughes)
Royal Courts of Justice
Lord Justice Fox
and
Mr. Justice Bush
83/0011
81 10335
MR. STEPHEN A. HOCKMAN (instructed by Messrs Barrs, Derby) appeared on behalf of the Appellant (Plaintiff).
MR. GILES A. HARRISON-HALL (instructed by Messrs Partridge, Haldenby & Cawdron, Derby) appeared on behalf of the Respondent (Defendant).
This is an appeal from a decision of His Honour Judge Paul Hughes at Derby County Court.
The parties met in 1962. They have two children, born in 1963 and 1966 but they never married. They lived together from 1964 from time to time and from 1968 to 1980 on a permanent basis, though they parted now and again resulting in a temporary separation. For a time they lived at a property called 94 Stanhope Street, Derby where the plaintiff had a tenancy of some rooms.
In 1977 the defendant bought the property with which this case is concerned—121 St. Giles Road, Derby (I will call it St. Giles Road"). It was conveyed into his name alone. The plaintiff gave up her tenancy at Stanhope Street at the same time. She has lived at St. Giles Road ever since with the two children. The defendant lived there with them until the relationship broke up in September 1980. The house cost £4,500. The defendant borrowed £2,000 from a bank and probably about £1,500 or so from relatives—an uncle and a brother—and £1,000 was provided from savings, which were described by the judge as a pool. Over a substantial period the plaintiff was in employment. She paid for certain repairs and improvements to St. Giles Road, and various outgoings. In the present proceedings she claimed a declaration that she was entitled to a half share in the property which, at the time of the hearing before the judge, was of the value of about £9,250. The value is increasing.
The mortgage has been paid off, as has the defendant's debt to his brother. At the time of the trial a comparatively small sum of £500 was still due to the uncle but is being paid off at £15 a week.
After a full review of the evidence the judge held that the plaintiff was entitled to a 25 per cent share in St. Giles Road. He ordered that the property be transferred into joint names on trust for sale "in the ratio of 25% of the value of the equity of the property on 30th September 1980 to the Plaintiff and the balance of the equity to the Defendant."
The plaintiff appeals from that part of the order which provides that her share of the equity be valued at 30th September 1980, which was the date of the termination of the relationship between her and the defendant. There is no appeal by the defendant as to the finding of the plaintiff's entitlement to a 25 per cent share.
The judge does not deal with the matter concerning the date of valuation in the notes of judgment, which are with the court papers, but it is common ground that he made a statement in the following terms or to the following effect.
"I declare the plaintiff to be beneficially entitled to a 25% share. I declare that that share is to be valued on 30th September 1980. That is the date when they separated. That is an area where, on authority, it is quite clear this point is different between a husband and wife case and a mistress case".
The judge evidently thought he was bound to make the order which he did because this is a case between a man and his mistress. I think in considering the matter it is necessary to distinguish between the question, first in what shares is the property held in equity, and secondly is there a need for any special direction as to the date of valuation about the share?
As to the first question, what the court is concerned with in such a case as this is whether, by reason of an implied or resulting trust the applicant is entitled to a share in property vested in the other party. That is dependant on whether the parties have so conducted themselves that it would be inequitable to permit the party in whom the property is vested in law to deny that the other party has a beneficial interest. In deciding that matter, it seems to me that exactly the same principles would apply, whatever the relationship between the parties. As Lord Dilhorne observed in Gissing -v- Gissing [1971] A.C. 886,899 there is not one law of property applicable where a dispute as to property is between spouses or former spouses and another law of property where the dispute is between others.
I refer also to the observations of Lord Denning in Bernard -v- Josephs [1982] 2 WLR 1952 at 1059 where he says:
"In my opinion in ascertaining respective shares, the court should normally apply the same consideration to couples living together as if married, as they do to couples who are truly married."
The court may, in drawing inferences as to the intentions of the parties, be influenced by the relationship. What might be sensible between husband and wife might not be so between two brothers, but in general the principles applicable must be the same, whatever the relationship.
I now come to the second question, the date at which the shares are to be valued. Prima facie if persons are entitled to property in aliquot shares as tenants in common under a trust for sale, the value of their respective shares must be determined at the date when the property is sold, but that may have to give way to circumstances. For example, one of the parties may buy out the other, in which case the value of that party's share may have to be determined at a different date. Thus, in Bernard -v- Josephs, to which I have referred, the Master of the Rolls at page 1059 said this:
"After ascertaining the shares, the next problem arises when it is to be turned into money....
To continue reading
Request your trial
-
Turton v Turton
... ... 780 , H.L.(E.) ... Goodman v. Gallant [ 1986 ] Fam. 106 ; [ 1986 ] 2 W.L.R. 236 ; [ 1986 ] 1 All E.R. 311 , C.A ... Gordon v. Douce [ 1983 ] 1 W.L.R. 563 ; [ 1983 ] 2 All E.R. 228 , C.A ... Hall v. Hall ( 1981 ) 3 F.L.R. 379 , C.A ... Munday v ... ...
-
Walker v Hall
...truly married. The choice of the word "normally" suggests that he considered the question to be one for the court's discretion. 23 In Gordon v. Douce [1983] 2 All ER 228, this court had to examine Hall v. Hall. Fox L.J. who gave the leading judgment noticed that Lord Denning had treated the......
-
SJ CCS 1184 2010
...the court accepted that the purpose of the trust had come to an end, this was not the view taken by the court in Gordon v. Douce (CA) [1983] 1 WLR 563. In the words of Fox LJ (at p. ‘… there were children and the woman (the plaintiff) is still living in the house with the children. Further,......
-
CCS 11591 1995
...the court accepted that the purpose of the trust had come to an end, this was not the view taken by the court in Gordon v. Douce (CA) [1983] 1 WLR 563. In the words of Fox LJ (at p. “... there were children and the woman (the plaintiff) is still living in the house with the children. Furthe......