Walker v Hall
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE LAWTON,LORD JUSTICE KERR |
| Judgment Date | 30 June 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0630-4 |
| Docket Number | 83/0300 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 June 1983 |
In the Matter of the Property at 33, Foxberry Road London Se4
and
In the Matter of Section 30 of the Law of Property Act 1925
[1983] EWCA Civ J0630-4
Lord Justice Lawton,
Lord Justice Kerr
and
Lord Justice Dillon
83/0300
1979 W. No. 1381
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (Civil Division)
(On appeal from Mr. John Mowbray QC sitting as a deputy judge of the High Court in the Chancery Division)
Royal Courts of Justice
Mr. STEVEN WHITAKER (instructed by Messrs. Straker Holford & Co., London, SE13) appeared on behalf of the Appellant (Defendant).
Mr. RICHARD JENKINS (instructed by Messrs. James & Charles Dodd, London, SE13) appeared on behalf of the Respondent (Plaintiff).
( )
The Court has before it an appeal by the defendant, Mr. Hall, and a cross-appeal by the plaintiff, Mrs. Walker, against a decision of Mr. John Mowbray Q.C. sitting as a deputy High Court judge in the Chancery Division, given on the 19th November 1981.
The case is concerned with a property, No. 33 Foxberry Road in Lewisham, which was acquired in the joint names of Mrs. Walker and Mr. Hall at a time when they were living together as if man and wife and were known as Mr. and Mrs. Hall although in truth they were never married, to each other.
In the court below the evidence of the parties as to the course of their relationship was very much, in conflict, but the findings of fact by the learned judge are not challenged in this court and so I can summarise the salient facts quite shortly for the purposes of this judgment.
Mrs. Walker met Mr. Hall in 1964. At that time she was married to somebody else. She had a daughter, Lomel. Her marriage was not dissolved until 1974. On the 16th December 1967 Mrs. Walker and Mr. Hall began living together. To this end Mrs. Walker and her daughter moved into a house, 115 Tressillian Road, London S.E.4 where Mr. Hall lived. This was a house which Mr. Hall had bought in his own name some years before with the assistance of a mortgage from the Greater London Council. Mr. Hall was the sole owner of 115 Tressillian Road. The judge found that the payments made by Mrs. Walker while she was living at 115 Tressillian Road did not give her any beneficial interest in 115 Tressillian Road, and that finding is not challenged in this court.
On the 15th March 1971 Mrs. Walker had a daughter Beverlyn of whom Mr. Hall was the father. Mrs. Walker had a job until January 1971 and again from June 1972. While she and Mr. Hall were living at 115 Tressillian Road they pooled their earnings every week; from this pool their living expenses and outgoings were paid including payments under the mortgage to the Greater London Council and certain savings were made. In addition certain rooms at 115 Tressillian Road were let by Mr. Hall and rents were received from them.
At the end of 1971 Mrs. Walker and Mr. Hall decided that 115 Tressillian Road should be sold and another house should be purchased as a family home for themselves, Beverlyn, and Mrs. Walker's daughter Lomel. 33 Foxberry Road was found as the house to be purchased. Mrs. Walker's evidence which the judge accepted as to her relationship with Mr. Hall was that when she moved into 115 Tressillian Road to live with him she expected that she and he would live together until she died, also that they would go ahead and get wed when her divorce came through and they could finance a marriage. It is clear on the judge's findings that this remained her attitude at the time 33 Foxberry Road was bought.
The contract for the purchase of 33 Foxberry Road is dated the 27th March 1972. The price was £3,200. Mrs. Walker was not a party to that contract and at that stage it seems to have been envisaged that the purchase might largely be financed by Mr. Hall raising a first mortgage for £2,750 on 33 Foxberry Road from the Lewisham London Borough Council. In April 1972, however, it was decided that 33 Foxberry Road should be acquired in the joint names of Mrs. Walker and Mr. Hall and that she should be a party to any mortgage. The judge held that Mr. Hall intended that Mrs. Walker should take a beneficial interest in 33 Foxberry Road when it was acquired in joint names; that finding is not challenged.
In the event, the mortgage from the Lewisham Council was not required, as it proved possible to arrange for completion of the purchase of 33 Foxberry Road to coincide with completion of the sale of 115 Tressillian Road. Completion took place on or about the 17th May 1972. Mr. Hall and Mrs. Walker were duly registered at H.M. Land Registry as the joint proprietors of 33 Foxberry Road—Mrs. Walker being of course then known as Mrs. Hall.
The transfer of 33 Foxberry Road to Mr. Hall and Mrs. Walker is in the common form of a Land Registry Transfer. It transfers the property to Mr. Hall and Mrs. Walker as joint tenants, but contains no statement of what their respective beneficial interests are to be. Ten years ago Bagnall J. in Cowcher v. Cowcher [1972] 1 WLR 425 at 442 drew attention to the desirability that solicitors should take steps to find out and declare what the beneficial interests are to be, when the legal estate in a house is acquired by two persons in their joint names. The difficulties which otherwise arise, and which can so easily be avoided by a little care on the part of the solicitors, were emphasised recently by Griffiths L.J. in Bernard v. Josephs [1982] Ch. 391. I would wish to underline the point as strongly as I can, and to suggest that the courts may soon have to consider whether a solicitor acting for joint purchasers is not guilty of negligence if he fails to find out and record what the joint purchasers' beneficial interests in the relevant property are to be.
The price of 33 Foxberry Road was £3,200 but in addition certain costs of purchase and incidental expenses had to be met, and certain improvements, the details of which do not matter, were carried out. The total outlay can be taken as £3,580. This was provided as to £390—£195 each—out of savings made by Mrs. Walker and Mr. Hall out of their pooled resources during the Tressillian Road period, as to £1,000 by a bank loan for which Mrs. Walker and Mr. Hall were equally liable, raised in July 1972 from Barclays Bank on the security of a first legal charge on the property, and as to the balance out of the proceeds of sale of 115 Tressillian Road. In fact before the bank loan was raised there had been certain bridging advances from friends and relations to enable completion to take place, but these were repaid out of the bank loan and do not have to be considered further.
Mrs. Walker and Mr. Hall moved into 33 Foxberry Road on completion of its purchase, but little more than a year later, in July 1973, Mrs. Walker left, taking Beverlyn and Lomel with her. There is some mention of violence in the evidence but there is no finding of fact by the learned deputy judge that Mrs. Walker was driven to leave by Mr. Hall's conduct. Mr. Hall has continued to live in 33 Foxberry Road, and still does so. Certain capital repayments of the bank loan had been made before Mrs. Walker left, but only £270 of the loan had by then been repaid. Mr. Hall continued to make the repayments and the bank loan was finally repaid in 1975. On the 30th August 1973 Mrs. Walker's solicitors warned Barclays Bank of Mrs. Walker's interest, or claim to an interest, in 33 Foxberry Road. The judge accepted Mrs. Walker's evidence that when she quitted it she left her money in the house, 33 Foxberry Road, as an investment. No claim was made against Mr. Hall, however, until 1977. These proceedings were commenced on the 31st May 1979 and came on for trial in November 1981 before Mr. Mowbray.
In his judgment the learned judge sought to apply the law as laid down by Russell L.J. in giving the judgment of this Court in Crisp v. Mullings (1976) 139 Estate Gazette 119. The basis of that approach is that where a house has been acquired in the joint names of a man and his mistress, the court will find out how much of the total outlay has been provided by each of them, either directly or by assuming a mortgage commitment, and will hold that the house belongs to them beneficially in the proportions of their respective financial contributions. There is no claim in this case by either party to rely on physical work in improving the property as conferring on him or her a beneficial interest or additional beneficial interest in the property.
The learned judge held that Mrs. Walker's contributions to the purchase of 33 Foxberry Road comprised (i) £500 being half the Barclays Bank loan and (ii) £195, being half the £390 savings—and as to these sums there is no issue before this court—and (iii) £139, being one half of the payments in reduction of the principal outstanding on the Greater London Council mortgage on 115 Tressillian Road made out of pooled moneys while Mrs. Walker was living with Mr. Hall at 115 Tressillian Road. The total of these payments, £834, the learned judge regarded as roughly equivalent to one quarter of the total outlay. He accordingly declared that the net proceeds of sale of 33 Foxberry Road are held on trust for the parties in the proportions of one quarter for Mrs. Walker and three quarters for Mr. Hall, and he directed that unless within 3 months Mr. Hall paid Mrs. Walker a sum equal to her one quarter share in the value—i.e. current value—of 33 Foxberry Road, that property should be sold in execution of the trust for sale on which it is held.
In this court three points are taken for Mr. Hall on the appeal and one is taken for Mrs. Walker on the cross-appeal.
For Mr. Hall it is...
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