Kyriakides v Pippas
| Jurisdiction | England & Wales |
| Judge | G. Moss QC |
| Judgment Date | 18 March 2004 |
| Neutral Citation | [2004] EWHC 646 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No. HC02C01989 |
| Date | 18 March 2004 |
[2004] EWHC 646 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr G. Moss QC (sitting as a Deputy High Court Judge)
Claim No. HC02C01989
Robert Bailey-King, instructed by RFB Solicitors for the Claimant
Nigel Hood, instructed by Alexandrou & Co for the Defendant
The Part 20 Defendants appeared in person but made no claim and took no part save as witnesses
Judgment: Approved by the court for handing down (subject to editorial corrections)
This is the official judgment of the court and I direct that no further note or transcript be made.
(signed)
Introduction
This is my reserved Judgment after the hearing of the trial of this matter for 5 days between 26 and 30 January 2004. I have delayed handing down judgment until I had sight of transcripts of two recent unreported cases which looked as if they might have an important bearing on this case, namely Kelly v Hammersmith [2004] EWHC 435 (Admin) and Lavelle v Lavelle [2004] EWCA Civ 223 (CA). Having seen the transcripts, they essentially follow previous cases and do not necessitate any further argument. I have however made brief references to the two cases in this judgment because they contain recent summaries of the case-law in two relevant areas.
The proceedings concern a dispute as to title in the family home at 8 Colbert Avenue, Bancroft Estate, London E1 ("the Property").
The Claimant ("Mrs Kyriakides") is the widow of Mr Spyros Kyriakides, who died in 1996. The Defendant is the daughter and eldest child of the couple. The Part 20 Defendants are her brothers.
The dispute over the family home has ripped the previously happy family apart. At various stages of the proceedings I have stressed the desirability of mediation. I have pointed out that English law rarely admits of a compromise solution and that the losing side is bound to feel aggrieved and the victim of injustice. Nevertheless, the parties have not managed to settle their dispute. Accordingly, it is my unpleasant duty to give a ruling as to the beneficial interest in the Property.
The undisputed facts
The undisputed facts are few and can easily be stated The Kyriakides family are Greek Cypriots. The potential significance of this will be dealt with in due course. The parents had limited education. The father worked as a barber for the army and had a modest income. Part of that income was in cash tips. He retired in 1986 but continued to work on a part-time basis, receiving his pension and also certain payments in cash.
Prior to November 1983 the Property was a council property of which Mr Kyriakides was the council tenant. He paid the rent.
As a result of statutory changes which brought about a right to buy council property, Mr Kyriakides exercised the right to buy, employing the statutory discount. He and the Defendant received a 100% mortgage and a transfer of the property into the joint names of himself and the Defendant by a Transfer dated 21st November 1983, which was registered by the Land Registry on 29th November 1983. That Transfer is silent as to the beneficial interest or interests in the Property.
The Defendant herself had met her future husband, George Pippas, in July 1983 and as a result of a brief courtship became betrothed or espoused on the August Bank Holiday 1983, when there was a meeting of Mr & Mrs Kyriakides with the couple and the prospective groom's mother, Mrs Pippas. (I shall have to revert to this meeting later).
On or about 15th or 16th October 1983 there was a civil marriage of the couple followed by a religious engagement service. On 18th March 1984 there was a Greek Orthodox church wedding.
After her father's death in 1996, the Defendant procured the transfer of the Property into her sole name.
The Property is the residence of the Claimant, who has continued to reside in the Property since her husband's death. The Defendant has since her marriage essentially resided with her husband in Cambridge. The sons now have their own homes elsewhere. At the time of the purchase in November 1983, the Defendant and the first two Part 20 Defendants ("Costa" and "Michael") either already had other residencies or were in the process of acquiring them. The third Part 20 Defendant ("George") was a schoolboy and was still resident at the Property and was likely to reside there for a further period of years.
The dispute
Put simply, the Claimant claims that notwithstanding the registration of the Property in the name of the Defendant, the Claimant is the true beneficial owner. The Defendant claims that she is the sole beneficial owner. The Part 20 Defendants make no claim to ownership but support their mother's claim to ownership. It seems likely that, if the Claimant is successful in asserting beneficial title, she will provide for the division of the property equally amongst the four children. However, the choice would be hers and she might decide to take another course. I mention these possibilities because the Part 20 Defendants thus have a potential financial interest in the outcome.
The solutions claimed by the parties are not the only possibilities. Other possible solutions include a half share to the Claimant and a half share to the Defendant. A further possible solution is for the Claimant and the Defendant to share the property in proportion to the contributions provided to the purchase, treating the right to buy discount and the mortgage liability as contributions: see the summary of the case-law in Kelly v Hammersmith [2004] EWHC 435 (Admin).
The correct legal analysis of the situation appears to depend on three fundamental areas of factual dispute. The first fundamental area of dispute between the parties concerns the existence or otherwise of a "family meeting" at which the proposed purchase was discussed in or about the Spring or Summer of 1983. The second fundamental area of factual dispute concerns the subject of "dowry" or "gift". There is also the third fundamental factual dispute as to who it was who actually purchased the property.
Outline of the rival contentions
In essence, the Claimant's case is that Mr Kyriakides agreed at the family meeting to purchase the property, using his right to buy, with the assistance of the Defendant as a surety and/or nominee. The result of this was that the property, although put in joint names, was held for Mr Kyriakides alone. On that basis, it seems accepted that on his death the property would have passed by the rules governing intestacy to the Claimant. The Defendant's case appears to be that the property was a gift by Mr Kyriakides to the Defendant and that it was purchased by the Defendant herself with Mr Kyriakides joining in so as to exploit the right-to-buy discount. (The two approaches seemed to me to be in conflict with each other and I will have to revert to this later.) The Defendant asserts that there was a joint beneficial interest which passed to the Defendant on Mr Kyriakides' death.
Impressions of the witnesses
Given the fundamental divergence of the evidence at key points, the assessment of the credibility of the witnesses assumes considerable importance.
The Claimant is a widow in her 70's who has little or no understanding of English. At first she was plainly confused in the witness box and although she recognised her signature at the end of her witness statement, appeared to reject her witness statement. As a result of a discussion with Counsel it was agreed that the interpreter would read over her witness statement to her in Greek before she continued giving evidence. Once that had been done, her confusion appeared to evaporate. Her manner of giving evidence, however, was not wholly satisfactory. Whenever a witness statement made by another party with which she disagreed was put to her she made no attempt to deal with the substance of the evidence but dismissed it as "all lies". She was, however, clear and spontaneous on the subject of the family meeting.
With regard to George Kyriakides, I found him to be a candid and open witness. He was emotional about the subject matter of the evidence but that was understandable in the context of a very bitter family dispute. He was plainly riled by implications in cross examination that his witness statement was fabricated but his upset seemed quite genuine.
I find Michael Kyriakides also to be a frank and open witness. Costa Kyriakides likewise was frank and vivid in his evidence and was, like George, emotional in his description of events.
I found Mr Antoni, who was called for the Defendant, to be completely unsatisfactory and vague in his evidence. It seemed upon cross-examination that he had signed his name to words and to the address that he mentions on the basis of words provided by a Cypriot barrister. I am not satisfied that the words in his witness statement reflect his real evidence.
I found the Defendant to be evasive and self-contradictory in her evidence and to give emphasis to her feelings about events rather than to the facts. I would not be inclined to accept her evidence on any material point unless it was independently corroborated.
Mr Gregory, the brother of George Pippas, the Defendant's husband, and therefore the brother-in-law of the Defendant, was called to give evidence on the Defendant's behalf. I found him to be an unsatisfactory witness. He was evasive in his answers and not careful about the truth.
Mr Savva, another witness called for the Defendant, was plainly trying to give helpful evidence but his testimony was vague. He had plainly discussed the matter over a long period with the Defendant and his evidence may unconsciously have been influenced...
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