England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM RHYL COUNTY COURT
(HIS HONOUR JUDGE MOSELEY QC)

		Royal Courts of Justice Strand London WC2 Friday, 8th June 2001

Friday, 8th June 2001

1. LORD JUSTICE THORPE: These are applications for extension and permission brought by Mr Maitland Jones on behalf of Irene Maddison who was defendant in proceedings in the Rhyl County Court which came before Judge Moseley on 15th January 2001.
2. It was a sad case because the parties had cohabited without marrying for many years and had then fallen out. At the date of judgment they were both in their sixties. The dispute related to two properties which they had bought during happier times; one is a property at Kensington Avenue and the other property at Llysvaen Road. Kensington Avenue was occupied by Miss Maddison and had some equity of redemption. The property at Llysvaen Road, which had been bought as an investment property, was at the time of judgment unoccupied and was said to have a negative equity. The judge concluded that both purchases were joint ventures and that the parties were joint owners.
3. That conclusion is not challenged by Mr Maitland Jones. He only challenges the judge's consequential order that both properties should be sold and the proceeds of sale equally divided. He points to the terms of section 15 of the Trusts of Land and Appointment of Trustees Act 1996 which provides that:

"... the matters to which the court is to have regard in determining an application for an order under section 14 include (a) the intentions of the person or persons if any who created the trust and (b) the purposes for which the property subject to the trust is held."

4. Mr Maitland Jones's first submission really relates to subsection (a) of that section. He points to evidence given by the claimant which was summarised by the judge at page 15 of his judgment as follows:

"I agree I would have said in 1985 that she could live at the property if we split up. A few years later my answer would have been different."

5. There is no doubt that the judge took that evidence into account. Mr Maitland Jones's submission is that he did not take it sufficiently into account. The submission does not impress me since this was only, no doubt, a candid response to a hypothetical question. It seems to me very difficult to build much of an edifice on the foundation of one of these hypothetical questions in which lawyers delight and which often confuse witnesses.
6. The judge had to carry out what was a balance to arrive at the fairness between the elderly couple. Mr Maitland Jones's second submission is that the judge gave insufficient weight to the hardship that his conclusion would result on the defendant. She has but a small pension; she is not in good health. The proceeds of the sale of both properties after Kensington Avenue has made good the deficit on Llysvaen Road are unlikely to enable her to re-house herself. When asked what she would do in the event of sale she had said she simply had no idea. So says Mr Maitland Jones plainly the fairer order would have been to have postponed the sale until her demise or her volunteering to leave on condition that in any interim she met the outgoings on the property.
7. That submission seems to me to ignore the position of the claimant. His evidence that he could not afford to live in Llysvaen Road was accepted by the judge and at the date of judgment he was living in a caravan. It seems to me that the conclusion that the judge reached on the disposal of these jointly-owned properties was a conclusion that was plainly within the discretionary range. I remain of the view that I expressed on paper on 2nd April 2001 that there do not appear to me to be sufficient prospects of success to justify the granting of permission. I would therefore dismiss both applications.
8. LORD JUSTICE ROBERT WALKER: I agree.
(Application for permission to appeal dismissed) (Order does not form part of approved Judgment)