Laskar v Laskar

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Neuberger,Lord Justice Rimer,Lord Justice Tuckey
Judgment Date07 Feb 2008
Neutral Citation[2008] EWCA Civ 347
Docket NumberCase No: B2/2007/0581

[2008] EWCA Civ 347

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE

(HIS HONOUR JUDGE LEVY QC)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Tuckey

Lord Justice Neuberger and

Lord Justice Rimer

Case No: B2/2007/0581

Between
Laskar
Appellant
and
Laskar
Respondent

Mr S Thrower and Mr A Veen appeared on behalf of the Appellant.

Mr R Colby appeared on behalf of the Respondent.

Lord Justice Neuberger
1

This is an appeal from the decision of HHJ Dennis Levy QC given in the Central London County Court on 7 February 2007. His decision principally concerned the beneficial ownership of a property, 70 Wood Close Hatfield, registered in the joint names of the appellant, Miss Rini Laskar, and the respondent, her mother Mrs Zubera Laskar. The application for permission to appeal sought to challenge many of the primary findings of fact made by the judge, but Chadwick LJ refused permission to appeal against those findings. However, he permitted an appeal on the conclusion reached by the judge on those facts, namely:

“…that the appellant who was named as a joint tenant of the property at law did not have a joint or beneficial interest in the proceeds of sale.”

The relevant facts

2

There were substantial disputes at the trial as to the source of the purchase price for the property, as to what was said about the beneficial ownership of the property, and as to what happened after the property was purchased. For reasons that he fully explained, the judge found neither party a satisfactory witness but he managed to reach conclusions that can be summarised as follows.

3

The respondent and her husband, the appellant's father, had been tenants of the property since before the appellant was born in 1977. Their landlord was the Welwyn Hatfield Council (“the council”). In 1996, the year the appellant went away to study at university, the respondent applied successfully to the council for the tenancy to be transferred into the respondent's sole name as her husband had left her. Accordingly, she and her husband having been secure tenants under the Housing Act 1985, with effect from 1996 the respondent became the sole secure tenant.

4

A secure tenant who has been in possession of a property for more than two years is entitled to buy the property, pursuant to part V of the 1985 Act —see sections 118 and 119. That right is to be exercised by serving a notice under section 122. Section 123(1) entitles a secure tenant to nominate up to three members of his or her family to join in the purchase in certain circumstances. Section 123(3) provides that where a tenant does make such a nomination:

“…the right to buy belongs to the tenant and those members jointly and he and they shall be treated for the purposes of this power during the tenancy.”

5

The purchase price payable is the fair market value of the property concerned, on certain assumptions —see section 127 —subject to a discount under section 129, which is based on the number of years the secure tenant concerned has occupied the property.

6

Following a previous unsuccessful attempt to do so, the respondent applied to the council in October 1997 to exercise her right to buy the property at a discount. In or about February 1998, apparently after she had realised that she could not fund the proposed purchase alone (the judge said that she was earning £11,000 a year at the time), the respondent agreed with the appellant that they would purchase the property together, and the application to buy proceeded in the name of both parties.

7

The property was duly transferred by the council to the respondent and the appellant on 6 July 1998 pursuant to a transfer which sheds no light on the beneficial ownership of the property. The parties became the registered proprietors 17 days later. The purchase price (£50,085) was £29,415 less than the value of the property (£79,500) because of the discount under section 129. The £50,085 was partly funded by a loan made jointly to the partner by Barclays Bank Plc in the sum of £43,000, which was secured on the property by way of mortgage. The balance of the purchase price (about £7,000) was funded as to about £3,400 by the appellant, and £3,600 by the respondent. As one would expect, these were costs and expenses in relation to the purchase, and they amounted to some £1,000, which was, it appears, paid the respondent.

8

Despite evidence to the contrary from the appellant, the judge found that there were no discussions between the parties as to the ownership of the beneficial content in the property. The judge also found that while that while the appellant was jointly liable on the mortgage, the liability “was one which in fact she was never likely to be asked to meet”. It appears that this was on the basis that it was anticipated that the property would be let out, and that the rental income would be applied to service the mortgage. At the time of the purchase the respondent was in occupation of the property as her home with, I think one of her children; the appellant was at university and her room was occupied by a lodger. There were probably other tenants there at the time.

9

Shortly after the property was purchased, as was anticipated at the time of the purchase, another of the respondent's daughters, Jessie, purchased a house in St Albans, and the mother moved to the St Albans house. Thereafter, the property was let to successive tenants, and it seems clear that there were a number of tenants in the property at any one time. All the lettings were affected by the respondent, who kept the rents. She paid for the repairs and other outgoings in relation to the property, and met the instalments on the mortgage.

10

In 2003 there was a serious falling-out between the parties and in September of that year the appellant sought to realise her interest in the property and an account of the rental income from it. After some discussion the respondent severed the joint tenancy in June 2004 and the appellant then began these proceedings. Meanwhile, there were other proceedings on foot between the appellant and Jessie in relation to the St Albans house. In those proceedings the respondent supported Jessie's case. Some of the evidence at the hearing before HHJ Cowell in relation to the St Albans house proceedings related to the property. On 30 November 2004 HHJ Cowell gave a full judgment in which he concluded that the appellant's case in those proceedings was “wholly fabricated”. Not surprisingly HHJ Levy relied on some of HHJ Cowell's findings in that judgment.

11

In the present case, HHJ Levy concluded that the appellant had an equitable interest in the property based on – and solely based on – her contribution of £3,400 towards the purchase price, which he took as the undiscounted value at the time of purchase of £79,500. Accordingly he decided that the appellant owned 4.28% of the beneficial interest in the property. He also concluded that the appellant should not be according to count in respect of the rent received on the property.

The issues to be resolved

12

The arguments which the appellant advances as to the beneficial ownership of the property are threefold. First, that the judge should not have concluded that the presumption that a house which is jointly owned in law is beneficially owned in equal shares was rebutted on the facts of this case. In other words it is said that there is a presumption that the beneficial interests were the same as the legal interests, and that that presumption was not rebutted in this case. If that is wrong, then two further points are made. It is said that the judge should have held that, insofar as it was treated as a contribution to the purchase price, the discount of £29, 415 should have been apportioned equally between the parties. Similarly it is said that the judge should have treated each party's joint liability under the mortgage of £43,000 as a contribution of £21,500 towards the purchase price.

13

As to the rejection of her claim for an account, the appellant says that the judge ought to have ordered an account. Even on his findings as to the beneficial ownership of the property, she says she was entitled to a share of the income; if she is right on any of her three points on the issue of beneficial ownership, she says her case for an account is even stronger.

14

I will take these four arguments in turn.

The presumption of joint ownership

15

The appellant contends that the reasoning of the majority of the House of Lords in Stack v Dowden [2007] UKHL 17 [2007] AC 432 compels a finding in the present case that the beneficial ownership of the property was held in equal shares by the parties. As Chadwick LJ pointed out when giving permission to appeal, Stack was decided after HHJ Levy gave his decision in this case. In Stack the two parties who purchased the house in question were living together in a long-term sexual relationship, and had children when they purchased the house, which they intended to be, and indeed was occupied as, their family home. It is by no means clear to me that the approach laid down by Baroness Hale of Richmond in that case was intended to apply in a case such as this. In this case, although the parties were mother and daughter and not in that sense in an arm's length commercial relationship, they had independent lives, and, as I have already indicated, the purchase of the property was not really for the purpose of providing a home for them. The daughter hardly lived there at the time it was purchased, and did not live there much if at all afterwards, and the mother did not live there for long....

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