Man and mistress buy house in contemplation of marriage–Parties subsequently separate without marrying–House in substance purchased by man–Conveyance to parties ‘as beneficial joint tenants’ not conclusive–Transfer not executed by man, not an effective declaration of trust by him–Mistress entitled on facts to a share of one-fifth
This was a
summons by Phyllis Gertrude Robinson seeking a determination of the extent of
her beneficial interest in 14 Alexandra Road, Sheerness, occupied by the
defendant, Albert John Robinson.
M Thorpe
(instructed by Vanderpump & Sykes, of Enfield) appeared for the plaintiff,
and Clarissa Dickson Wright (instructed by Weld & Beavan, of Enfield)
represented the defendant.
Giving
judgment, JUDGE THOMAS said that in February 1970 the plaintiff left her
husband and set up home in a flat at Enfield with the defendant. They lived
there as man and wife with the intention of marrying when her marriage was
dissolved, and she changed her name to Robinson by deed poll. The defendant was
a bachelor now aged 62; the plaintiff was somewhat younger. In August 1970 they
decided to move from Enfield, and on August 14 1970 they jointly contracted to
buy 14 Alexandra Road, Sheerness, for £2,500. It was transferred to them by a
land registry transfer dated August 28 1970, and subsequently registered in
their joint names. The major part of the purchase-price came from the sale of
the Enfield flat, which belonged to the defendant. The net proceeds of that
sale were £3,284. In 1972 the relationship between the parties deteriorated. At
the end of May 1972 the plaintiff left the defendant, and there were
proceedings before the magistrates in which the defendant was bound over to
keep the peace. In August 1972 there was a reconciliation, and the parties resumed
cohabitation at 14 Alexandra Road, but at the beginning of 1973 there was
further strife, caused partly by divorce proceedings involving the plaintiff,
her husband and the defendant. There was a hearing of those proceedings in
February 1973, and relations between the plaintiff and the defendant then
deteriorated to the point where they decided to separate. She finally left 14
Alexandra Road on May 2 1973.
The transfer
of the property to the parties was expressed to be to them ‘as beneficial joint
tenants.’ It was executed by the
transferor, but not by the plaintiff or by the defendant. It appeared that
before signature of the contract to purchase the house, the plaintiff expressed
fears to the defendant as to what might happen to her if he died before they
were able to marry. He too was concerned that she should be provided for if
anything happened to him. He therefore instructed the solicitors who acted for
them in that purchase to have the house transferred to them jointly. No thought
was given as to what should happen if they did not marry. Of the purchase-price
of £2,500 and costs amounting to £42 the plaintiff provided £140. The couple
borrowed £110 from Barclays Bank on a joint loan account, but as between the
parties the defendant was considered to be liable to repay this loan and in due
course he did so. The balance of £2,292 required for the purchase was provided
by the defendant; thus in all he provided £2,402. It was not necessary to raise
any part of the purchase-price by means of a mortgage. When the parties moved
to Sheerness neither was employed. The defendant drew social security benefits
and was in receipt of a disability pension from the GPO. In September 1970 a
joint general account was opened at the bank. The opening balance was £837, which
was provided by the defendant. In August 1971 the defendant got a job which
lasted for six weeks or so, and then from November 1971 until November 1972 he
was fully employed. The plaintiff was not employed for the period of some 2 1/2
years during which they lived together at 14 Alexandra Road. Thus the outgoings
and living expenses were paid directly by the defendant or out of the joint
current account, although no doubt the plaintiff did the housekeeping.
After moving
into the house the parties carried out substantial works of improvement and
modernisation of the property. The plaintiff stripped off wall-paper and paint
and painted a large part of the interior, and she helped the defendant to hang
new wall-paper. She also helped him to remove fireplaces from the three
bedrooms. He bricked up the fireplaces and she carried bricks and mortar up a
ladder to one of the bedroom windows. She also painted the frames of new
windows which were installed. Together they made one large room out of two
small ones on the ground floor. He put false ceilings in the lobby and
passageway, did carpentry work to the stairs and landing and treated the house
for woodworm. He pointed the outside brickwork and built a summer-house. In
short, the parties set about improving their intended matrimonial home by their
joint efforts. The raw materials appeared to have been paid for partly out of
the joint current account. The parties also together carried out works of
painting and redecoration at a neighbour’s house for which they were paid about
£120, and this money went towards the purchase of raw materials for no 14.
Since the plaintiff left the defendant had carried out further improvements to
the house. The parties agreed that the house would now sell for something
between £8,000 and £9,000. There was no expert evidence either as to this or as
to what the value was when they separated. He (his Lordship) could only assume
that the value was then something near that figure. How much of the increase
was attributable to the improvements, and how much to inflation, he did not
know.
The primary
question he (Judge Thomas) had to resolve was what were the respective
beneficial interests of the parties in the house. Mr Thorpe, on behalf of the
plaintiff, argued that the case was determined by the form of the registered
transfer to the parties, which was declaratory of
go. This, he said, meant that the parties were in the end entitled in equal
shares. In support of his argument Mr Thorpe cited what Lord Upjohn had to say
in Pettit v Pettit [1970] AC 777 at 813. He (his Lordship) did
not accept counsel’s argument. Lord Upjohn was concerned to state what the
position would be where a document contained an effective declaration of trust
of beneficial interests by someone with a title to declare those interests.
That was not the case here. Neither the plaintiff nor the defendant executed
the transfer, and therefore neither effectively declared or settled their
respective beneficial interests in the property. In other words, neither the
plaintiff nor (in particular, for the purposes of Mr Thorpe’s argument) the
defendant was estopped by the deed of transfer from going behind it. In his
(Judge Thomas’s) view, this let in evidence as to circumstances which dictated
how the beneficial interests should be determined, and the proper approach to
this problem was that adopted by the Court of Appeal in Cooke v Head
[1972] 1 WLR 518, where the court followed the guidelines laid down by Lord
Diplock in Gissing v Gissing [1971] AC 886 at 909.
In Cooke
v Head the court, in the light of the circumstances there present,
concluded that the mistress’s equity merited evaluation at one-third. In the
present case Mr Thorpe had submitted that even if the approach in Cooke
v Head was the proper approach the plaintiff should have an equal
one-half share. That was too much. Miss Dickson Wright, on behalf of the
defendant, said that the plaintiff should have no more than one-sixth. That he
(his Lordship) felt was too little. Making the best assessment that he could in
the circumstances of the present case, he valued the plaintiff’s share in the
equity at one-fifth. It had been agreed that he should take the matter no
further than that, so that the parties should have an opportunity to try to
reach agreement as to how those interests should be satisfied. If they were
unable to reach an agreement, then the case could come back and he would deal
with the position as he then found it.
