Thompson v Hurst
| Jurisdiction | England & Wales |
| Judge | Lord Justice Etherton,Lord Justice Lewison,Lord Justice Thorpe |
| Judgment Date | 30 March 2012 |
| Neutral Citation | [2012] EWCA Civ 1752 |
| Docket Number | Case No: B2/2010/2299 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 March 2012 |
[2012] EWCA Civ 1752
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
(DISTRICT JUDGE SPENCER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Etherton
and
Lord Justice Lewison
Case No: B2/2010/2299
Mr William Josling QC (instructed by Watson Woodhouse) appeared on behalf of the Appellant.
Ms Nicola Shaw (instructed by Paul J Watson) appeared on behalf of the Respondent.
This is an appeal from a decision of District Judge Spencer in the Middlesbrough County Court on 9 September 2010, by which she declared that the appellant has a 10 per cent beneficial interest in 21 Bradhope Road, Berwick Hills, Middlesbrough ("the Property"), and the respondent has a 90 per cent beneficial interest in the Property.
The appellant claims that the judgment of the District Judge should be set aside because she made errors of law in her approach to the quantification of the appellant's beneficial interest in the Property and, in any event, the District Judge's finding that the extent of the appellant's beneficial interest was 10 per cent was plainly wrong on the evidence. The appellant claims that he should have been acknowledged to be entitled to a 50 per cent beneficial interest. The appellant claims that the District Judge failed properly to apply the principles in Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53.
Background
The Property was formerly owned by a local authority. The respondent entered into occupation as a tenant of the local authority in 198In 1985 the appellant joined the respondent in occupying the Property. They lived there as a couple. In 2001 the respondent purchased the Property from the local authority at a discount under the right-to-buy scheme. The purchase price was £15,000. They had two children, with whom they lived in the Property as a family. Their relationship broke down in 2005, but, because he had nowhere else to go, the appellant remained in the Property until 2009.
In November 2009 the appellant commenced these proceedings for, among other things, a declaration that he had acquired a beneficial interest in the Property. In his Particulars of Claim he stated that the purchase of the Property was a joint venture so that the parties would have a future together and raise children.
The District Judge made the following findings of fact. The appellant worked in various jobs throughout his relationship with the respondent, mostly labouring. There were periods when he was out of work. The appellant contributed towards the housekeeping. When he was in work he sometimes contributed as much as £100 a week. When he was out of work he sometimes contributed less. His money went on housekeeping, keeping the children, treating the children and occasional extras.
The District Judge described the respondent (in [11]) as "running the home show" throughout. She had two jobs in order to pay the rent when the Property was rented and the mortgage payments after the Property was purchased. Her name alone was on the rent account and then the mortgage account, the electricity account, and the gas account. She had sole responsibility for all the outgoings from the beginning of her relationship with the appellant until its end, except for the council tax, which was put into joint names in 2003.
Both the appellant and the respondent wanted to purchase the Property when the opportunity arose to purchase it at a discount, so as to provide something for the children. That was their express agreed purpose. At that time the respondent had two jobs, but the appellant had been out of work and had not had a regular income for at least the previous six months. They both consulted a mortgage adviser, but, because the appellant had not been in work for a continuous period of six months, he was considered to be unsuitable for a mortgage loan. The mortgage application was, therefore, made in the respondent's sole name, and the Property was purchased in her sole name.
The District Judge's judgment
The District Judge referred to Oxley v Hiscock [2005] EWCA Civ 546, [2005] Fam 2011, and Stack. She said that the case was unusual, particularly in the way that the parties kept their finances entirely separate. She said (at [14]) that there was a common intention on the part of the appellant and the respondent, communicated to each other in 2001, that they would buy the Property jointly. When, however, they sat down with the mortgage adviser, they were advised that in order to get a good mortgage, or indeed possibly any mortgage, the appellant's work record would not help them and therefore the respondent alone should apply for the mortgage. That was the reason why the purchase proceeded in the name of the respondent alone. The District Judge said (at [15]) that she was satisfied, in those circumstances, that there was a common intention that the appellant was to have a beneficial share in the Property.
The District Judge said (at [16]), however, that "…there was no common intention about the beneficial aspect because neither of them thought about it." Neither of them thought about how the beneficial interest might fall if they broke up or if it did not go to the children.
In deciding what beneficial interest should be attributed to the appellant, the District Judge took her guidance from the principles in Oxley. In particular, she considered that her task was to attribute to the appellant a beneficial interest that was fair, having regard to the whole history of the parties' relationship. In reaching her conclusion that a 10 per cent beneficial interest to the appellant would be fair, the District Judge was guided by the following matters. Firstly, she found (at [18]) that "… the only person who brought any financial contribution to the table of the purchase was [the respondent]." She said that the respondent had brought the discount by virtue of her occupation and consistent payment of rent since before the appellant took up occupation at the Property. As a result of the discount the Property was purchased for £15,000, even though it was valued at £28,000. The mortgage was arranged by the respondent, who spoke to different potential lenders and worked out how much she could afford as the only reliable earner in the household. She alone paid the mortgage.
Secondly, the only subsequent major capital contribution throughout the rest of the time when they were both together in the Property was £8,000, which the respondent had received from an Equal Pay award, and which was largely applied in improvements to the Property. It had been applied in alterations to the kitchen, for a fire, for guttering, fascia boards, French windows, a front door and a garden wall.
Thirdly, so far as concerned household contributions, the District Judge described (at [21]) the appellant's contributions towards housekeeping of £100 or less per week, depending on his employment situation, as "perfectly reasonable amounts". The appellant also contributed to the council tax from 2003. The District Judge said (at [22]) that "…the reality is that the basics and the ability to keep their house and live in their house, was provided by [the respondent's] jobs and her financial discipline and order."
Fourthly, both the appellant and the respondent were responsible for improvements, repairs and renewals. The District Judge took into account three specific items on which the appellant relied. They were: helping a tradesman friend to divide a bedroom into two, at a time when the Property was still rented; taking the lead within the family in levelling out the garden, including the rockery area; and some painting and decorating in addition to...
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