Passee v Passee
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WOOLF,LORD JUSTICE NICHOLLS |
| Judgment Date | 08 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0708-8 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0741 |
| Date | 08 July 1987 |
[1987] EWCA Civ J0708-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRENTFORD COUNTY COURT
(His Honour Judge Main Q.C.)
Royal Courts of Justice
Lord Justice Woolf
and
Lord Justice Nicholls
87/0741
MR. MARTIN WYNNE JONES (instructed by Messrs Darlington & Parkinson) appeared on behalf of the Appellant/Defendant.
MR. DONALD G. LAMBIE (instructed by Bird & Lovibond, Brentford) appeared on behalf of the Respondent/Plaintiff.
I will ask Lord Justice Nicholls to give the first judgment.
This is an appeal from a decision of His Honour Judge Main Q.C. sitting at the Brentford County Court on 30th March 1987. The plaintiff in the action is Mr. Selwyn Passee and the defendant is Leda Passee. She is his aunt. In the action the defendant acts for herself and also as personal representative of her daughter Claudia, who unhappily died in 1972.
The action concerns a house at 24 Bedford Road, Ealing, London w.13, which is registered in the sole name of the plain tiff. In the action the plaintiff claimed possession and mesne profits. At the trial the defendant did not resist the order for possession and the only substantive issue which arose was on the defendant's counterclaim. In short the counterclaim raised the issue of whether the defendant personally and also as personal representative of Claudia had any beneficial interest in the house, and if so the extent of that interest. The learned judge held in paragraph 2 of his order that the plaintiff held the house on trust for himself, the defendant and the estate of Claudia in the proportions of one/tenth of the net proceeds of sale for the defendant, one/twentieth of the net proceeds of sale for the estate of Claudia and the remainder for himself. Thus, according to the judge's decision the plaintiff is entitled to seventeen/twentieths of the net proceeds of sale. In paragraph 5 of his order "net proceeds of sale" were defined as meaning the money remaining after sale at the best available market price after discharge of the balance due at the date of sale or valuation under the legal charge in respect of the house in favour of the Greater London Council dated 30th June 1980.
The house was bought in 1965. The plaintiff put down a deposit of £355 in the autumn of 1964 and completion took place the following April. The house is a terraced dwelling, consisting of a living room and bedroom on the ground floor, two bedrooms on the first floor and an attic on the second floor which from time to time has been used as additional bedroom accommodation.
The plaintiff's case, in support of which he gave evidence, was, as succinctly summarised by the judge in the notes of his judgment, that the decision to buy the house was his alone, kept secret from the rest of the family and that when the plaintiff found, contrary to his expectation, that he could not afford to complete the purchase from his own resources he borrowed £300 from the defendant and £150 from her sister Reta. Thereafter he invited the defendant and other members of his family to share the house, sharing expenses, and repaid the loans. On this footing the plaintiff claimed that the house was his at law and in equity.
The defendant's case and her evidence were that the decision to buy the house was a joint decision made by the plaintiff, the defendant and her daughter Claudia. She said that all of them participated in the process of finding a house to buy. The plaintiff was nominal owner to avoid complications with the mortage. She contributed £500 and Claudia contributed £250 and neither of those sums had been repaid. After completion all three moved in together with other members of the family, and the defendant and Claudia paid a weekly contribution, worked out by Claudia, which covered outgoings including the mortgage. Initially, at any rate, the defendant continued to provide domestic services for the plaintiff. It is in those circumstances that the defendant claims that she is in equity part-owner of the house.
The judge's conclusion on this conflict of fact was that he preferred the evidence of the defendant. In paragraph 7 of the notes of his judgment he said this:
"Again, I prefer the evidence of the Defendant about these matters to that of the Plaintiff. Applying the test laid down in Gissing v. Gissing [1970] 2 All E.R.780 I have little difficulty in reaching the conclusion that there is here a resulting or constructive trust in favour of the Defendant."
In reaching that conclusion it is clear that the judge accepted that the defendant and Claudia were part owners of the house with the plaintiff, the house being put in his name to facilitate, as it was thought, the obtaining of a mortgage. On this appeal Mr. Lambie, for the plaintiff, rightly accepted that that conclusion was based on a finding of fact which he could not hope to disturb in this court.
From there the judge proceeded to consider the quantification of the respective beneficial interests. He said this:
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8. "The problem of quantification is always difficult in these cases but in this instance it is complicated by a major change of circumstances in 1972. Sadly, Claudia died on 7th October 1972. The defendant was devastated. She stayed on in the house until quarrels with the Plaintiff's wife, and the steps taken by the Plaintiff to terminate her alleged licence, led to her effective removal in November 1985; but she handed over the financial responsibility to the Plaintiff. She continued to pay her way, but she left the calculation of the sums paid to him. He has carried out a good deal of work to maintain and improve the property with the aid of further loans and a Local Authority improvement grant and she has played no part in any of the relevant decisions. The house was valued at £67,500 on 18th May 1986.
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9. A relevant consideration in quantifying the Defendant's interest is the question of contributions to the mortgage. I do not know how Claudia initially did her sums but there are two obvious points. One is that in the early stages the mortgage repayments would have been mainly interest; the other is that other resident members of the family (such as Alastair, whose evidence I had) not claiming to be part owners paid similar weekly contributions. I am minded therefore to take the view that the Defendant's share in the equity derives from her initial contribution and that in any event it in effect crystallised in October 1972. This view has the advantage that it facilitates the giving of effect to the claim also advanced by the Defendant as Claudia's administratrix.
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10. However, I have no evidence at all as to the value of the house in October 1972 and there remains a considerable problem of quantification. I do not find any assistance with this point either from Gissing or from the cases of Burns v. Burns [1984] 1 All E.R. 244 and Grant v. Edwards [1986] 2 All E.R. 426 cited to me.
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11. Doing the best I can, I find that the Defendant now has an equitable interest in 24 Bedford Road amounting to one-tenth of the net proceeds of sale, and that Claudia's estate has a one-twentieth interest."
On this appeal Mr. Jones, for the appellant, submitted that the defendant personally ought to be entitled to two/ fifths of the property beneficially and, as administratrix of Claudia, to a further one/fifth share. He arrived at those shares as follows. Of the sum of £1,265 paid on completion, that is to say the purchase price of £3,550 plus the costs less the amount of the mortgage of £2,550, the defendant provided £500, Claudia £250 and the plaintiff just over £500. The plaintiff paid £515 if one includes as part of his contribution, in addition to the deposit of £355, the sum of £150 borrowed by him from Reta. The appellant's primary argument is that the judge ought to have found that at the time of acquisition the parties' presumed intention was that the property would belong to them in proportions corresponding to the amount of their respective initial contributions to the cost of purchase: further that they accepted liability for repayment of the mortgage in like proportions. Hence, the liability for the mortgage of the plaintiff alone was not to be regarded as part of the initial contribution by the plaintiff for the purposes of this calculation. In the event the three of them made contributions to the repayment of the mortgage, not altogether out of line with the proportions in which they had originally contributed to the price, save, of course, that Claudia made no contributions after her death.
What happened was this. Both the defendant and Claudia were working and they shared the upstairs front room. Initially they each contributed £2.10s. per week to the kitty, the amount of which was worked out by Claudia. That kitty covered the outgoings including mortgage repayments. The defendant's son, Alastair, lived in the bedroom at the rear of the first floor until he left in about 1970. he paid £3 weekly into the same kitty. He claimed no beneficial interest in the property. The plaintiff paid £3 per week. He was a bus conductor and he lived in the bedroom on the ground floor. Other relations lived in the house for periods. Reta was there from about 1966 to 1974. The plaintiff's evidence was that she paid about £2 per week. Montcalm came in about 1968 and left around 1969. Neither of those two claimed any interest in the property. Their payments were in the nature of rent for use of the accommodation. The defendant's contribution increased after some time. According to the plaintiff it...
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