Therese Margaret Mcauley Or Chalmers V Chris John Williams Chalmers (otherwise Christopher Chalmers)
Jurisdiction | Scotland |
Judge | Lord Boyd of Duncansby |
Neutral Citation | [2014] CSOH 161 |
Date | 07 November 2014 |
Docket Number | A532/12 |
Court | Court of Session |
Published date | 07 November 2014 |
OUTER HOUSE, COURT OF SESSION
[2014] CSOH 161
A532/12
OPINION OF LORD BOYD OF DUNCANSBY
In the cause
THERESE MARGARET McAULEY or CHALMERS
Pursuer;
against
CHRIS JOHN WILLIAMS CHALMERS (otherwise CHRISTOPHER CHALMERS)
Defender:
Pursuer: Tariq; Harper Macleod LLP
Defender: Logan; Murphy Robb Sutherland
7 November 2014
Introduction
[1] This is an action of reduction of a disposition. The property to which it refers is a flat at 38 Hotspur Street, Glasgow. The disposition purports to convey the property from the pursuer to the defender for love, favour and affection. It purports to have been signed and executed by the pursuer in the defender’s favour on 16 March 2006. It was recorded in the Land Register on 9 April 2008. It is a matter of concession that the signature which purports to be that of the pursuer was forged.
[2] The pursuer is the defender’s mother. She was married to Paul Chalmers, the defender’s father for about 30 years. There are two children of the relationship, the defender Chris (otherwise Christopher) Chalmers and a daughter, Natalie. Therese Chalmers and Paul Chalmers were divorced by decree of the Court of Session in February 2013. The financial issues between the parties were settled with the signing of a minute of agreement dated 12 November and registered in the Books of Council and Session on 15 November 2012.
[3] The pursuer and Paul Chalmers were formerly the sole partners in a firm called Rentier Property. (In many documents the firm is known as Rentier Properties. However the name used by Inland Revenue/HMRC and in the minute of agreement is Rentier Property). The firm rented out a number of properties. It was in effect a family business. It was not a matter of dispute that although Mrs Chalmers was a partner in the firm the business was handled by Paul Chalmers. The partnership was dissolved with the signing of the minute of agreement and Paul Chalmers continued on with the business.
[4] One of the main issues in the case is whether or not 38 Hotspur Street was part of the Rentier Property portfolio.
Witnesses
[5] Evidence was led for the pursuer from the pursuer herself, Janice Jones, a solicitor with Harper Macleod and Anne Moore, accountant. Evidence for the defender came from the defender and Paul Chalmers. Excepting Ms Jones and Ms Moore none of the main witnesses in this case emerge with any great credit.
[6] Mrs Chalmers has initiated this action against her son. She told the court that at one point the relationship between them had been very good; he was always loving and protective. As a result of this case it was now very bad. While she appeared to regret the present state of their relationship her attitude appeared to be one of cold detachment. Her case against her son is not just that he is a passive recipient of a windfall to which he is not entitled but that he was an active participant in a fraud perpetrated on her. For reasons given below, I am satisfied that the evidence does not support this allegation.
[7] Mrs Chalmers was justifiably indignant that her signature had been forged but there appeared to be no similar sentiment that a property had, according to her, been put into her name without her consent. I was not clear why she thought that she was any more entitled to the property than her son. She accepted that it was not intended as a gift to her. Mrs Chalmers was clearly unhappy with the terms of the divorce settlement; she said that was unhappy at the time she signed the minute of agreement because her husband had not given any information about the property at Hotspur Street. It seems clear that Mrs Chalmers has brought this action as a means of redressing what she sees as an imbalance in the divorce settlement.
[8] While I questioned Mrs Chalmers’ motivation in this action I considered that the evidence she gave was on the whole truthful.
[9] Chris Chalmers is 26 years old and the son of Therese and Paul Chalmers. He is a property manager at D.J. Alexander. He is by virtue of the disposition which is the subject of this action the proprietor of 38 Hotspur Street, Glasgow. He has lived there “for 2 months”. He became quite angry during his evidence when discussing his mother. I thought that this was understandable. At times his evidence lacked candour particularly when dealing with questions regarding the income from Hotspur Street during his ownership and before he commenced living there.
[10] It appeared to me that Chris Chalmers has been placed in an invidious position by the actions of his parents. He had to accept service of the divorce summons on the part of his father. That appears to have brought him into the heart of the dispute between them. He finds himself as the ostensible owner of the property but, until he moved into the property the benefit of the rental income went to his father or latterly to Rentier Property. He is the defender in an action raised by his mother which must be an unpleasant experience. I formed the view that a possible reason for some of his vague and evasive answers was a misguided attempt to protect his father from possible investigation by HMRC.
[11] Paul Chalmers is the former husband of the pursuer and father of the defender. Mr Chalmers was shown the disposition conveying the title in 38 Hotspur Street to Christopher. He accepted that he witnessed what purports to be Therese Chalmers signature. He was asked if he had forged his wife’s signature. Before answering I warned him that he was not obliged to answer the question if the answer might incriminate him in the commission of a criminal offence. In the event he did answer with the words, “I cannot recollect.” I did not consider that was a convincing answer and I did not believe him. Apart from Paul Chalmers no one presents themselves as a possible candidate to having forged Mrs Chalmers’s signature other than perhaps the defender, Chris Chalmers. I am satisfied that he did not do it. From my findings it appears that, at the very least, Paul Chalmers was engaged in tax avoidance by not declaring income from Hotspur Street. He also appears not to have disclosed that income in the course of the divorce proceedings. On the whole I did not find him a credible or reliable witness and I looked for supporting evidence when considering his version of events.
Purchase of 38 Hotspur Street
[12] The property at 38 Hotspur Street was purchased in 1998. The solicitors who acted in that purchase were Hennesy Bowie & Co, Bishopbriggs, Glasgow. They were the family solicitors. On this occasion the solicitor who dealt with the purchase was Christine Muirhead who has since died. All the correspondence is with Paul Chalmers and it is clear that he instructed the purchase and dealt with all the correspondence relating to it. There is no record of an instruction to put the property in Mrs Chalmers’ name.
[13] There was no clear explanation as to why the title was taken in the name of Mrs Chalmers. I am satisfied that this was done on the instructions of Paul Chalmers. Paul Chalmers was asked why it was put in his wife’s name. The question was objected to by Mr Tariq on the basis that there was no record. I allowed the question under reservation but I am satisfied having regard to the terms of Answers 2 and 3 that the question was appropriate.
[14] However Paul Chalmers answer was vague and unconvincing. He said that in 1995 property had been put in his wife’s name and that he had been standing as guarantor. I was not clear on the relevance of this answer.
[15] He said that 38 Hotspur Street had been bought as a Rentier Property flat for rental. Other properties had been bought in his sole name. One had been bought in his name trading as “Rentier Properties”. Another had been purchased in joint names.
[16] Hennessy Bowie corresponded with Paul Chalmers at the matrimonial home. The letters produced to the court make no mention of who should be shown on the title as the owner of the property. Mrs Chalmers is not mentioned in any of the letters. Nor does the name Rentier Property appear on the face of the correspondence. However on 23 October 1998 the solicitors wrote to Paul Chalmers and included an invoice made out to “Rentier Properties” with the address given as the matrimonial home. A cash statement shows “the intromissions of Hennessy Bowie & Company, Solicitors, Bishopbriggs on behalf of Rentier Properties in connection with purchase of flat 1/1, 38 Hotspur Street, Glasgow.” This shows a purchase price of £37, 575. The firm’s fees and outlays amounted to £440.50 making a total of £38,015.50. From that is deducted a payment to account of £16,233.69. The payment to account left the sum of £21,781.81. From that is deducted an item referred to as “Loan proceeds from Garioch Road, Glasgow” in the sum of £21,429.31 leaving a sum due of £352.50. The invoice was paid by two cheques and acknowledged in a letter addressed to Paul Chalmers on 4 December 1998.
[17] Paul Chalmers told the court that the payment to account was money from his savings. He said that this was money he was putting into the business to build it up. The “Loan proceeds from Garioch Road, Glasgow” refers to a loan from National Westminster Home Loans Limited. The title to Garioch Road is in the name of Paul Chalmers. However his position was that Garioch Road belonged to Rentier Property. It is shown in the accounts as a Rentier Property property.
[18] Mrs Chalmers said that she did not know the source of funds for Hotspur Street. She accepted that the properties which formed the Rentier Property portfolio were held sometimes in Paul Chalmers name and sometimes in joint names but in each case they were held in trust for the firm. She accepted that it was not intended that the purchase of 38 Hotspur Street was a gift to her.
Mrs Chalmers’ knowledge of 38 Hotspur Street
[19] Mrs Chalmers told the court that she did not know about the purchase of the property and that she only found out about...
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Is there an Equitable Exception to Reduction for Forgery?
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