Juliette Malisz Wodzicki v Monique Wodzicki
| Jurisdiction | England & Wales |
| Judge | David Richards LJ,Sir Stephen Tomlinson,Lady Justice Gloster |
| Judgment Date | 24 February 2017 |
| Neutral Citation | [2017] EWCA Civ 95 |
| Docket Number | Case No: B2/2015/0751 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 February 2017 |
[2017] EWCA Civ 95
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HHJ Faber
3LB00212
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Gloster
Vice President of the Court of Appeal, Civil Division
Lord Justice David Richards
The Rt. Hon. Sir Stephen Tomlinson
Case No: B2/2015/0751
Michael Paget (instructed by Fisher Meredith) for the Appellant
The Respondent did not appear and was not represented
Hearing dates: 3 November 2016
Judgment Approved
This appeal arises out of a claim by the appellant to be the sole beneficial owner of a house (the property) registered in the joint names of the appellant's late father and his second wife, the respondent, but occupied since its purchase in 1988 exclusively by the appellant and her children.
Following a trial with oral evidence from the appellant and other witnesses called by her, HH Judge Faber, sitting in the County Court at Central London, held that, following the death of the appellant's father (George), the respondent held the property on trust for the appellant and herself as beneficial owners. Paragraph 5 of the judge's order provides that "[t]o determine the extent of the parties' beneficial interest[s] there be an account taken at a further hearing before a District Judge." Although not stated in the order, the basis of the account was set out in the judgment:
"that there should be an accounting process to determine the extent of the parties' beneficial interests to be carried out by a District Judge who must determine as best as can be done the respective contributions invested by the Claimant in mortgage payments and the amount invested by the Defendant in maintenance and utilities and any other equitable payments due to the Claimant by way, for example, of occupation rent. To that end the Defendant will probably have to spend time and money on getting her full bank statements to show the extent of her investment over the years and the Claimant will have to produce hers to evidence the extent of her contribution to the mortgage payments."
The appellant appeals with leave granted by Arden LJ against the order as to beneficial ownership. She seeks an order that she is the sole beneficial owner of the property. The judge also declared that, in addition to her beneficial interest in the reversion, the appellant has a life interest in the property and is entitled to occupation of it. There is no appeal against that part of the order.
The appellant was born in 1962. After her parents (George and his first wife) were divorced in 1971, she had a somewhat disrupted childhood, living first with her mother in Mexico until 1974, when she was sent to Switzerland to live with her father shortly after his marriage to the respondent. However, the respondent did not accept this arrangement and from 1975 the appellant lived in Poland with her paternal grandparents until they died in 1978–79. She continued to live in Poland, marrying in 1983 and having two children, in 1983 and 1984. She left Poland in 1985 and her husband and children left Poland for Italy in 1986 where the appellant joined them. Her marriage broke down in 1987 and after living for a short time in Switzerland in a flat owned by her father, the appellant moved to the UK with her two children in 1987. She has lived in this country since then and has four further children, born in 1988, 1990, 1992 and 2000.
Meanwhile, George and the respondent had moved from Switzerland to France, where they lived until George's death in 2010 and where the respondent still lives. George was a successful theatre designer and his work brought him to the UK from time to time.
The property was purchased in 1988. George was named as the sole purchaser in the contract but the property was registered in the joint names of George and the respondent. The funds for the purchase were provided by an eight-year term loan by a bank in France to George and the respondent, secured by a mortgage on their jointly-owned house in France. The mortgage stated that the purpose of the loan was "to partially finance the purchase of a house located in England….to be occupied as a primary residence by the daughter of the borrower: Ms Malisz born Juliette Wodzicki". Repayment was due in eight annual instalments, and the respondent said in her witness statement that she and George repaid the loan over its term.
The appellant was actively involved in the process of purchasing the house. The survey report was addressed to her, and the solicitors instructed on the purchase reported to her as well as to George.
The appellant provided evidence that between 2001 and 2007 she spent some £5,000 on improvements to the property. She also provided evidence of loans totalling a larger amount taken out for the stated purpose of home improvements. She paid the outgoings for the property, such as council tax, service charges and utility bills.
George visited the appellant and his grandchildren at the property from time to time but never stayed there, while the respondent never visited the property at all. In her witness statement, the respondent described her contact with the appellant as sporadic.
George died intestate in France in 2010. The appellant was informed by the respondent in a letter dated 26 August 2010. In that letter, the respondent suggested that if the appellant gave up any entitlement under French inheritance law, "I could gift the London house to you through a solicitor (without declaring it in France). You would have the house for yourself alone without sharing it." This suggestion was not pursued by the appellant.
The proceedings were commenced in 2013 by the respondent for possession of the property. The appellant defended and counterclaimed on the basis that she was the sole beneficial owner of the property and was in any event, by reason of an agreement made when the property was purchased, entitled to occupy it indefinitely. As to her claim to beneficial ownership, the appellant's pleaded case was that George had promised her that when he had finished repaying the loan and when he thought she was "ready", he would transfer the property to her and in return she would pay for the upkeep, maintenance and outgoings. But for this promise she would have obtained other accommodation and would not have spent money on the property. The claim was put on the basis of either a common intention constructive trust or proprietary estoppel.
The respondent's solicitors came off the record in March 2014 and thereafter the respondent has played no part in the proceedings. Her claim was subsequently struck out for non-payment of court fees. The claim proceeded on the counterclaim only and came on for trial before Judge Faber in July 2014, with judgment given on 24 September 2014.
The judge heard oral evidence from the appellant and three other witnesses called by her. The respondent had filed a witness statement in August 2013, which the judge read and dealt with in her judgment, but the respondent did not attend the trial and did not give oral evidence, nor was she represented.
The judge rejected the respondent's evidence that the property had been bought as a pied-a-terre for George when he was in England, that the appellant's name had been inserted in the mortgage simply because they needed to name an occupier in order to obtain the loan, and that they let the appellant live in the property provisionally as they had no immediate plans to live there. The judge found that George, the respondent and the appellant intended the property to be the appellant's long-term home.
The judge did not, however, accept that the appellant was the sole beneficial owner of the property. She said in her judgment at [30]–[31]:
"30. The fact that it was put in joint names of George and the Claimant militates against that intention because it was not necessary to put it in their joint names to secure the mortgage. The loan was secured on the house which they had built in France. The fact that George put the English house in joint names is evidence that he intended his wife to be the joint owner and never made known to...
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