Q v Q
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE BLACK |
| Judgment Date | 31 July 2008 |
| Neutral Citation | [2008] EWHC 1874 (Fam) |
| Docket Number | Case No: FD05D01461 & FD07F00840 |
| Court | Family Division |
| Date | 31 July 2008 |
[2008] EWHC 1874 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Black
Case No: FD05D01461 & FD07F00840
Mr. Nicholas Carden (instructed by Messrs Sears Tooth) for the Petitioner
Mr. Isaac Jacob (instructed by Messrs Avetoom & Co) for the 1 st Respondent/Claimant
Ms. Philomena Harrison (instructed by Messrs RadcliffesLeBrasseur) for the 2 nd Respondent/1 st Defendant
Mr. Nigel Thomas (instructed by Messrs Thackray Williams) for the 2 nd Defendant
Approved Judgment
Hearing dates: 29 th November 2007, 9 th, 23 rd, 24 th April 2008, 15 th May 2008, 9 th—11 th, 18 th, 19 th June 2008, 31 st July 2008
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 31 st July 2008. It consists of 49 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Black J:
M (W) and R (H) Q were married on 19 December 1998 and have one child, Theodore (T) who was born on 2 November 2001. W began divorce proceedings against H in February 2005. She claimed ancillary relief.
There was an issue over the ownership of the matrimonial home, 36 Bathgate Road, Wimbledon (36 BR), which is worth approximately £2 million. H's brother, M Q (M) is the registered owner of the property but W and H both asserted that it belonged beneficially either to them jointly or to H solely. This was disputed by M and by the father of M and H, F Q (F).
H began proceedings in relation to 36 BR in the Chancery Division against M on 27 October 2006 in which he claimed, on various alternative grounds, that he was entitled to an order vesting the premises in his name or the joint names of himself and W. The property register at the Land Registry presently shows M as the proprietor of the property.
On 2 November 2006, M was joined as a party in the ancillary relief proceedings.
By sequential orders in March and April 2007 in the ancillary relief proceedings and the Chancery proceedings, the Chancery proceedings were transferred to the Family Division. The ancillary relief proceedings were also transferred to the High Court and the two sets of proceedings consolidated.
On 29 November 2007, F was joined as a party in the consolidated proceedings.
The ancillary relief proceedings could not be resolved until the question of the ownership of 36 BR was determined. It is with that issue that this judgment is concerned. It was clear in advance of the hearing before me that there would be insufficient time to conclude the ancillary relief proceedings in full and I directed that any remaining issues between H and W should be adjourned to a later date when, the parties agreed, they could be resolved by a District Judge.
F is now 98 years old, having been born in December 1909. He spent his working life as a chartered accountant. He appears to have accumulated sufficient means to meet all his reasonable needs for the rest of his life. M and H are in their 50s. M is also a chartered accountant. His expertise is tax though he is now partially retired, extremely comfortably off and living in Monaco. R is a solicitor. His career has not been attended by the same success as M's. He has had an intermittent problem with alcohol and has struggled at times to live within his means, requiring assistance in the past from F. I will set out later the impressions that I have gained of F, M and H from the papers and from their oral evidence but it is necessary first to set out something of the history that created the present issue.
The 1986 transactions
F and his wife Mabel were married in about 1948. In 1949, M was born and in 1952, H. In 1954, F became the registered owner of 36 BR which became the family home. On 19 June 1986, Mabel Q died, aged 65. Her estate included a property in Suffolk called Sunnydene which had been used for family holidays, some shares owned solely by her and some shares owned jointly with F. She left everything to F who became her executor.
Mabel's death was a shock to F. Being significantly older than his wife, he had expected that he would die first and his property would pass to her. It provoked him to look at the question of inheritance tax. As a result, certain transactions took place later in 1986 involving 36 BR and assets from Mabel's estate. There is a divergence of evidence as to the precise nature of these transactions with F and M on one side of the divide and H on the other.
Some features of arrangements in 1986 following Mabel Q's death are beyond argument:
i) On 17 August 1986, “in consideration of my natural love and affection for my sons”, F transferred 36 BR to M and H as tenants in common in equal shares. F executed this document, his signature being witnessed by H. The transfer shows stamps confirming that 50 pence was adjudged due in relation to it. M and H were registered as proprietors of 36 BR on 31 October 1986.
ii) By a deed of gift also dated 17 August 1986, F gave his beneficial interest in Sunnydene to H and M as tenants in common in equal shares. F, H and M all executed the deed. F's signature is witnessed by M, H's by Sergio Celant and M's by no one. The deed of gift shows stamps confirming that 50 pence was adjudged due in relation to it.
iii) By two further deeds of gift dated the same day, F gave to H and M, as tenants in common in equal shares, certain of Mabel's shares (some solely owned by her and some owned jointly with him) and certain of his own shares (some solely owned by him and some owned jointly with Mabel). F, H and M all executed these two deeds and their signatures were witnessed by someone employed in the firm at which H was then working. The two deeds of gift were sent by H to the Inland Revenue for adjudication on 15 September 1986. Their stamps confirm that 50 pence was adjudged due in relation to each. No steps were taken, however, for many years to transfer the title to any shares to H and M.
iv) F was to continue to live in 36 BR following the transfer of the property to M and H. A tenancy agreement (of which I have only seen an unsigned and undated copy) was drawn up under which M and H let 36 BR to F. The figure for the rent was established by a device which involved applying to the Rent Officer in the name of a third party who never actually intended to occupy the property for a registered rent. There is a notification from the Rent Officer dated 5 November 1986 of a proposal to issue a certificate that £1,500 per quarter would be a fair rent. That seems to have been the figure upon which the parties settled for the tenancy to F although a different figure appears for some reason in the tenancy agreement.
v) It appears that in about September 1986, M and H both made wills. The copies in the bundle seem to be the drafts; they are unsigned and do not show a precise date. Each draft contains a preamble acknowledging the testator's responsibilities to F “who has given to me a half share in the dwellinghouse known as [36 BR] which is let to him” and each brother bequeaths to F “all that my half interest in [36 BR]” provided F should survive him for 28 days, failing which the half interest goes to the other brother.
There is a deed of variation in the bundle dated June 1988 in relation to certain shares left by Mabel to F which were to be given instead to M and H. I am not entirely sure how this deed of variation came into existence and how it ties in with the other transactions relating to Mabel's estate but I do not think that anything turns on those issues. The copy in the bundle seems to be a draft. It does not specify an exact date in June and is not signed. H's evidence is that he believes the deed was executed and he speculates that the shares were omitted from the deeds of gift of 1986 and were being brought into line by means of the deed of variation. F's evidence is that he needed a capital gains tax calculation before he decided which of Mabel's shares he would transfer to H and M and for that reason, the deed of variation was not executed until 1988; M gave a similar account in oral evidence.
Precisely what has become of Sunnydene is not entirely clear. Despite the 1986 deed of gift, it had remained in Mabel Q's name. F's oral evidence is that he sold it and the money went into his bank. M and H seem to accept that this is so. M said the sale was to a neighbour. From the documents, it is plain that the sale must have been some time after the start of 2005. Preceding the sale, various options had been discussed and, in particular, the issue of who would pay the CGT which might arise and for which H might technically be responsible. F seems ultimately to have agreed that he would pay it. H's evidence is that the sale was against his wishes and in breach of his property rights but, whilst Sunnydene is an important part of the background to these proceedings, it is not my remit to determine issues in relation to that property.
What has happened in relation to the shares which were ostensibly given to H and M is not particularly in dispute; it too is simply unclear. In one way or another, M seems ultimately to have acquired de facto control of...
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