Lowson v Coombes
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE HENRY,LORD JUSTICE ROBERT WALKER |
| Judgment Date | 26 November 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1126-19 |
| Docket Number | CCRTF 98/0112/2 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 November 1998 |
[1998] EWCA Civ J1126-19
Lord Justice Nourse
Lord Justice Henry and
Lord Justice Robert Walker
CCRTF 98/0112/2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DARTFORD COUNTY COURT
(His Honour Judge Russell Vick)
Royal Courts of Justice
Strand, London WC2
MR D READE (instructed by Messrs Watts & Leeding, London SE9) appeared on behalf of the Appellant Plaintiff.
MR A SHORT (instructed by Messrs Howarth Scott, Bexleyheath, Kent) appeared on behalf of the Respondent Defendant.
Thursday, 26th November 1998
This is a dispute between an unmarried couple as to the beneficial ownership of a house in which they formerly lived together. The appeal has made it necessary for us to review the decisions of this court in Tinker v. Tinker [1970] P. 136 and of Sir Anthony Plowman V-C in Cantor v. Cox (1975) 239 EG 121 in the light of the decision of the House of Lords in Tinsley v. Milligan [1994] 1 AC 340.
The man, the plaintiff in the action, is Douglas Hunter Lowson, who was born on 22nd August 1916 and is now aged 82. The woman, the defendant in the action, is Rebecca Caroline Coombes, who was born on 9th January 1919 and will be 80 in the new year. They met in 1973 and began a relationship together. Each of them was married and living in rented accommodation. The defendant had separated from her husband some five years before and was living in a one-roomed bed-sit in Blackheath. The plaintiff lived in Peckham. His wife suffered from a psychiatric condition and was from time to time in hospital, often for extended periods.
In 1980, the plaintiff being then about 64 and the defendant 61, they purchased a flat at 126 Burnt Ash Hill, Lee, London SE12 for £5,500, which was provided as to £3,000 by the plaintiff and as to £2,500 by the defendant. It was conveyed into the sole name of the defendant. The parties did not intend to live together at that time, but as events turned out the plaintiff would visit the defendant, who occupied the flat, and stay over from time to time. In 1981 the flat was sold and late that year or early in 1982 the parties travelled to Spain and agreed to purchase a villa which had yet to be built. It was after the move to Spain that they started to live together. However, the Spanish venture proved a disaster and the parties pulled out of the purchase at a loss. By the autumn of 1982 they had both returned to England. In June 1983 they purchased 29 Heron Way, Lower Stoke, Rochester, which was again conveyed into the sole name of the defendant. That property was sold in 1989. In its place was purchased 1 Queenswood Road, Blackfen, Sidcup, which once again was conveyed into the sole name of the defendant. It is with that property that this action is concerned.
In December 1991 the parties separated and the plaintiff left 1 Queenswood Road and went to live with one of his grown up sons. The defendant has stayed on at 1 Queenswood Road, which at the time of the trial had a net value of £60/61,000. At some time after the separation the defendant instructed solicitors to prepare a will for her leaving half her net estate to the plaintiff on her death. However, it was never executed and the draft was later destroyed. The defendant's husband died in about 1994. The plaintiff's wife died at some time towards the end of 1993.
Before that, on 23rd July 1993, the plaintiff had started this action by a writ issued in the Chancery Division claiming a declaration that 1 Queenswood Road was held by the defendant upon trust for sale for the plaintiff and defendant in equal shares, together with consequential relief, including an order for the sale of the property. The action was later transferred to the Dartford County Court. It came on for trial at Medway County Court before his Honour Judge Russell Vick QC who, on 4th December 1997, dismissed it.
In his careful reserved judgment the judge made the following important findings. First:
"It is … common ground that on the purchase of 126 it was conveyed into the sole name of the Defendant at her suggestion. This was because she pointed out that if it were in joint names and the Plaintiff should die, his wife would have a claim on the property and the Defendant could be homeless."
Later he said:
"The evidence discloses a common intention to purchase the original property (126) in, as I find, more or less equal shares and because of a potential claim by the Plaintiff's wife in the event that the Plaintiff died it was conveyed into the sole name of the Defendant and all subsequent conveyancing followed that decision. But for that fact I am satisfied that the properties would have been in joint names throughout and this litigation would not have been necessary save perhaps for the division of proceeds of sale."
Later in the same paragraph the judge said:
"The purpose of the several conveyances to the Defendant was to protect the Plaintiff against any claim by his wife in her own life time or, in the event of his death, the Defendant against any claim by the wife against his estate."
At the end of his judgment the judge said that, if his decision was wrong in law:
"… I would hold, taking into account the criteria in s. 15 of the [Trusts of Land and Appointment of Trustees Act 1996], that the property 1 Queenswood Road is held on trust for sale by the Defendant in equal shares with the Plaintiff and order a sale."
Having referred to Tinker v. Tinker and Cantor v. Cox, the judge expressed his decision thus:
"I find in this case, following Tinker, that although there was the eventual intention to cohabit and the initial purchase was seen by the parties as a joint venture, the Plaintiff, who is a shrewd and honest person, realised that the Defendant's advice was sound and that a conveyance in the Defendant's sole name would protect them both. I see no distinction between the present case and the facts in Tinker save that in this case there was no intention to put the property out of the reach of creditors only the Plaintiff's wife. It follows therefore that the claim fails and must be dismissed."
Mr Reade, for the plaintiff, submits that the judge's decision was wrong in law.
Before turning to the authorities, I think it necessary to determine exactly what the judge found. Mr Short, for the defendant, submits that he found that, because it was the common intention that each property should be put out of the reach of the plaintiff's wife and because the plaintiff was shrewd and honest, he must have intended that each property should belong beneficially to the defendant alone since that was the only honest intention he could have had. While that was the construction which the judge felt obliged by the authorities to put upon the intention of the parties, it was not his finding as to their actual intention. What he found was that the evidence disclosed a common intention to purchase the original property (and therefore the subsequent properties) in more or less equal shares and that, had it not been for the potential claim by the plaintiff's wife, the properties would have been in joint names throughout. In other words, the judge found that the parties' actual intention was that they should be joint beneficial owners of the properties.
I should add this. The case was not pleaded as one of illegality and, no doubt for that reason, Tinsley v. Milligan was not cited to the judge. Moreover, Mr Short has satisfied me that the judge did not treat it as a case of illegality. However, his finding as to the purpose of putting the properties into the sole name of the defendant has made it one of illegality by reason of section 37 of the Matrimonial Causes Act 1973. Shortly stated, subsection (2)(b) of that section provides that if the court is satisfied that one party to a marriage has, with the intention of defeating the other's claim to financial relief, made a reviewable disposition, then, subject to exceptions, it may make an order setting aside the disposition. That power can be exercised however many years beforehand the disposition was made. The disposition is therefore different from one made to protect the property disposed of against the disponor's creditors generally. Notwithstanding Mr Short's submissions to the contrary, I am satisfied that a disposition, such as the conveyances in the present case, whose purpose is to prevent the other party to the marriage from being able to look to the asset disposed of in any future financial proceedings and, in the process, from seeking an order under section 37(2)(b) of the 1973 Act is one made with an illegal purpose.
In Tinker v. Tinker a husband bought a garage business in Cornwall and found a house nearby for his family. He decided to buy the house in his wife's name so that, if his garage business was not a success, his creditors would not be able to take it. Shortly after the purchase the marriage broke up and the husband sought to recover the house from the wife. This court held that he was unable to do so. The factual basis on which the registrar had dismissed the wife's claim was stated by Lord Denning MR [1970] P. 136, 140F:
"He found that the husband was an honest business man intending and able to honour his financial commitments; that he intended this house to belong to him beneficially; and accordingly that the wife held the house in trust for her husband absolutely."
At p. 140H, the Master of the Rolls read from the notes of the husband's evidence:
"I was advised that should the business fail the house would be taken as part of the...
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