Wallbank and Wallbank v Price

JurisdictionEngland & Wales
JudgeMr Justice Lewison
Judgment Date28 November 2007
Neutral Citation[2007] EWHC 3001 (Ch)
Docket NumberCase No: 7BM03148
CourtChancery Division
Date28 November 2007
Between:
(1) Jaime Wallbank
(2) Lynsey Wallbank
Claimants
and
Susan Joan Price
Defendant

[2007] EWHC 3001 (Ch)

Before:

The Honourable Mr Justice Lewison

Case No: 7BM03148

IN THE HIGH COURT OF JUSTICE

BIRMINGHAM DISTRICT REGISTRY

CHANCERY DIVISION

Priory Courts

33 Bull Street

Birmingham B4 6DS

Mr. William Hansen (instructed by Manby Steward Bowdler) for the Claimants.

Mr. Glenn Willetts (instructed by Foster Baxter Cooksey) for the Defendant.

Hearing dates: 19, 20 November 2007

Mr Justice Lewison

Introduction

1

On 8 December 1997 the late Mr Martin Wallbank and his then wife Susan took a transfer of a dwelling-house at 49 Hilton Road, Featherstone, Staffordshire. They had previously been secure tenants of the property and acquired the freehold, at a discount, under the right to buy scheme. The transfer stated that they were to hold the property as beneficial joint tenants. By the following summer the marriage had irretrievably broken down; and Mrs Wallbank left the matrimonial home. On 31 August 1998 Mrs Wallbank signed a handwritten document in the following terms:

“I Susan Joan Wallbank

Have voluntarily agreed to vacate the above premises and also to forfeit any monies or profit in anyway connected with this property, and by signing this declaration I revoke any rights in the disposal of the above property.

The only exception to this is that my Daughters Jaime and Lynsey Wallbank should receive my half share of the property on its disposal or at the discretion of my husband Martin Harry Wallbank.”

2

Mr Wallbank died intestate on 22 May 2005. His two daughters, Jaime and Lynsey, are the only beneficiaries of his estate. They say that the declaration of 31 August 1998 severed the beneficial joint tenancy on which their parents had held the property and also amounted to a declaration of trust of their mother's share in their favour. The result, on this analysis, is that they are entitled to the whole of the beneficial interest in the property. Their mother, now Mrs Susan Price, contests this claim. She says that the declaration of 31 August 1998 should be set aside as having been procured by duress or undue influence exerted by her late husband. The result, on this analysis, is that Mrs Price is entitled to the whole of the beneficial interest in the property by right of survivorship. However, despite the strict legal position, Mrs Price recognises her daughters' “moral claim to receive their father's half share in the property upon his death”. She is willing, therefore, after deducting her legal costs from Mr Wallbank's half share, to account for the remainder of that half share to her daughters.

3

Mr William Hansen argued the case for Miss Jaime Wallbank and her sister Lynsey, now Mrs Wallbank-Stubbs; and Mr Glenn Willetts argued the case for Mrs Price.

The facts

4

Mr Wallbank and Mrs Price were married on 6 July 197Mrs Price was then 22 years old. Their first daughter, Jaime, was born on 6 November 1977 and their second daughter, Lynsey, on 30 January 1979. Mrs Price was then working as a stylist at a hairdressing salon; and Mr Wallbank was working as a milkman. In the following year Mrs Price bought the hairdressing business and took a lease of the shop.

5

Mrs Price says that Mr Wallbank was demanding and physically abusive to her almost from the start of the marriage. There is little corroboration for her allegations of physical abuse. Mr Tony Humphries ran another hairdressing business in the same building. He knew Mrs Wallbank up to 1988. He says that he was aware that she was being bullied by her husband. He would overhear him shouting and swearing at her. He never saw any physical violence, but he said he often saw bruises on Mrs Price's arms, neck and face which she told him had been caused by her husband. Mr Tony Rea, Mrs Price's brother-in-law, also saw Mr Wallbank verbally abusing Mrs Price, although he too did not witness any physical violence or give evidence of any physical manifestations of violence. Mrs Rea, Mrs Price's sister gave evidence of some instances of hair pulling which took place at some time in the late 1960s and one instance when Mr Wallbank threw his dinner at Mrs Price, but missed. Miss Jaime Wallbank says that she was never a witness to any physical violence or aggressive behaviour from her father towards her mother. Mrs Lynsey Wallbank-Stubbs says the same thing. Both of them, however, agreed that merely because they never witnessed any physical abuse did not mean that no physical abuse actually took place. It was not put to them that they heard physical violence taking place; but Mrs Price, who gave evidence after them, said that they had. This allegation was not in either of her two witness statements. Mr Humphries lost contact with Mrs Price after 1988; and Mr and Mrs Rea emigrated to Canada in the same year. Mr Humphries and Mrs Rea, both of whom gave oral evidence, agreed that they could not speak to events after 1988.

6

There are four incidents in particular to which Mrs Price refers in her first witness statement. The first took place in the summer of 1979. She says that Mr Wallbank had begun hitting her; and that one Friday night he kicked her hard and said that she was stupid and pathetic. She became angry, which only made things worse. Mr Wallbank continued to hit her. On the following Saturday, after work, she says she picked up the children and took them to a womens' refuge in Lea Road that offered sanctuary for abused wives. Mr Wallbank turned up on the following day. He promised that if she returned to him the violence would stop and he would have counselling for his temper. She agreed and went back home on the following day. For a short while she says things improved. Miss Jaime Wallbank was only two at the time; and had no memory of this, if it happened.

7

According to Mrs Price about a year later, on Friday 6 September 1980, the second incident took place. Mr Wallbank told her that he did not love her and that their marriage had been a mistake. He said that he would be going out with a woman friend and that he did not think that he would be coming back home. Mrs Price told him to stay away and leave her and the children in peace. She said that they would be better off without him. At about 3.30 a.m. on the Saturday morning Mr Wallbank returned home and tried to unlock the front door, which Mrs Price had bolted. After he threatened to break down the door, she let him in. He hit her; and she went to bed. He slept downstairs. On the following day he shouted at her and, when she tried to reason with him, he banged her head against the pantry door in the kitchen. Her head was pounding and she took some paracetamol. He continued to be physically and verbally abusive. She took more tablets and tried to keep out of the way. That afternoon he threw his dinner against the wall and continued to shout. She took yet more paracetamol; but he came into the kitchen behind her and tried to push her head into a bucket of boiling water which was on the stove. Some time later that afternoon he grabbed her again, held her against the pantry door and aimed a punch at her. Although he missed, his fist went through the pantry door. She took yet more tablets. Then Mrs Price's sister Jennifer arrived with her boyfriend. Mrs Price collapsed and was admitted to hospital, where her stomach was pumped and she was sent for psychiatric evaluation.

8

Jennifer Rea and her husband Tony Rea confirm that they took Mrs Price to hospital. They do not, however, give independent accounts of the incidents on 7 September; and Mrs Price's witness statement does not allege that they actually witnessed any violence. Nor do they give any evidence about seeing damage to the pantry door. Nor do they say that Mrs Price told them either that her husband had banged her head or that he had tried to push her head into a bucket of boiling water.

9

Some of the medical records of the time have survived. Dr McInnes, a senior house physician records in a letter:

“This 28 year old lady was admitted on the 7 th of September 1980 having [taken] an overdose of eight paracetamol tablets [illegible] she was annoyed with her husband and was feeling under the weather with flu and heavy periods.”

10

This explanation of why she took an overdose is not consistent with Mrs Price's account. The medical notes of 7 September recording her history, which Mrs Price agreed must have come from what she told the medical staff, say:

“Took OD in effort to make husband listen to her. Hasn't worked –husband told her she was stupid.

Has had flu this week

Heavy period

Still gone to work

But husband has picked on her all week – always “stupid” and useless. Husband has problems at work….

Usually gets on with husband.

No previous ODs”

11

In her oral evidence Mrs Price said that the headaches were caused by her husband hitting her. However, the doctors found no signs of abnormality. She also said in her oral evidence that when she was admitted to hospital she was not conscious and confused which is one of the reasons why she did not tell the doctors about the abuse. But the notes record that on admission she was “fully conscious and orientated”.

12

Mrs Price discharged herself that day. In her witness statement she continues:

“Thereafter we settled into the pattern of the next 18 years. I did my best to bring up the girls whilst trying to earn as much money as possible to keep the family afloat. Martin moved between jobs. The verbal abuse continued as did the hitting and punching. There would be periods when there was less of it and there would be periods when there was more of it. It never in fact went away. I just learned to cope with it.”

13

Part of that pattern, according to Mrs Price, was that Mr Wallbank used to make unwanted sexual demands on her. On more than one occasion he insisted that she had sex...

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2 cases
  • Harvey and Others v Gateshead Investments Ltd and Others
    • New Zealand
    • High Court
    • 30 August 2013
    ...(HC) at 629. 24 Abela v Public Trustee [1983] 1 NSWLR 308. 25 At 315. 26 Refer Davis v Smith [2011] EWCA CIV 1603; Wallbank v Price [2007] EWHC 3001 (Ch), [2008] 2 FLR 501; and Abela v Public Trustee [1983] NSWLR 27 At 868. 28 Lord Denning MR observed (at page 439) that in distinguishing......
  • Harvey & ORS v Gateshead Investments Limited & ORS
    • New Zealand
    • High Court
    • 30 August 2013
    ...was thwarted by the charging order which I have referred to above. 26 Refer Davis v Smith [2011] EWCA CIV 1603; Wallbank v Price [2007] EWHC 3001 (Ch), [2008] 2 FLR 501; and Abela v Public Trustee [1983] NSWLR Obviously, to some extent, such evidence is self-serving. However, Mrs Harvey was......

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