England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2 Friday, 25th October 2002

1. LORD JUSTICE CHADWICK: This is a renewed application for permission to appeal from an order made on 12 April 2002 by His Honour Judge Barratt QC sitting in the Brighton County Court in relation to the beneficial interest in property known as 150 Heath Hill Avenue, Lower Bevendean. The applicants are four of the six surviving children of the late Mr Alfred Scott Williamson and his wife Madeleine. They were defendants to the proceedings in the County Court. The proposed respondents are the youngest daughter of Mr and Mrs Scott Williamson, Rachel now Mrs Beresford, and her husband, Mr George Beresford, who were the claimants in the proceedings. The remaining sibling, Mr John Williamson, was joined as a defendant to the proceedings; but his sympathies lie with Mr and Mrs Beresford and he has not joined in the application.
2. The underlying facts can be stated shortly. Mr and Mrs Alfred Scott Williamson had lived with their family for many years at 150 Heath Hill Avenue as tenants of the local authority. By the end of the 1980s the elder children, who were grown-up and some of whom (at least) were married, had moved out of that property. But the youngest, Rachel, was still living there with her parents. In 1987 she was joined there by George Beresford, by whom she had a child in 1988. They married in 1992; but after their marriage, they continued to live in 150 Heath Hill Avenue with Mrs Beresford's parents until they bought their own house together in 1997. That house, at Southall Avenue, was sold in 1999. During the course of that year each of them moved back into 150 Heath Hill Avenue to be with Mrs Beresford's father; her mother having died in early 1997.
3. In the meantime, in May 1991, the opportunity arose for Mr and Mrs Scott Williamson to purchase the property in which they had lived from the local authority under the Right to Buy scheme. Because they had lived there for a long time they were entitled to purchase at a substantial discount to market value; a discount of some 60 per cent. The purchase price was £21,600. The purchase was completed in June 1992 with the assistance of a mortgage advance from the Chelsea Building Society of £22,000. That was sufficient to meet the whole of the purchase price and the legal and other expenses. The property was transferred into the joint names of Mr and Mrs Scott Williamson, and the mortgage was taken in their names. On the death Mrs Scott Williamson in 1997, the registered title passed into the sole name of her husband.
4. At the time of the purchase in 1992, Mr and Mrs Scott Williamson were in their early 70s. The judge found that the purchase of the property had been encouraged by their daughter, Rachel; and, as he put it:

"Without her support aided by George it would never have happened."

He went on say this:

"I conclude that it was the parents' intention and purpose thereby to ensure that she would always have a roof over her head whatever the state of her marriage and whenever she needed one."

5. The judge found that it had been understood from the outset -- as between Mr and Mrs Scott Williamson, their daughter Rachel and George Beresford -- that George Beresford would assume financial responsibility for payments due under the mortgage, which had been the source of the whole of the funds for the purchase. As I have indicated, by the time the property was purchased George Beresford and Rachel were married and living at the house with their child. The arrangement, therefore, was in no way surprising. The judge found, also, that George Beresford did in fact honour the commitment to assume responsibility for the payments due under the mortgage -- even during the period that he and his wife Rachel were living in their own house at Southall Avenue and were committed to a mortgage of their own. George Beresford also maintained an endowment policy in the names of himself and his wife to secure repayment of the mortgage on 150 Heath Hill Avenue. There was clear evidence on which the judge could reach the conclusion which he did, that:

"... at no stage did the financial responsibility for paying the mortgage fall on the parents ..."

6. Mr Scott Williamson died on 1st February 2000 without having made a formal will. He had, however, left a holograph document dated 20th November 1997, addressed "to whom it may concern", on which he (or someone) had written "Alfred Scott Williamson. My will". The relevant passages are these:

"As you all know I have not been feeling too good so I thought it was about time I wrote down a few thoughts. First and most important is the house which I would like to leave to Rachel, with all the contents, except for the few things which I will mention ..."

Then a little later in the same document:

"I don't think there is anything much to worry about, and most important is the house which Rachel should have as you all agreed when she moved in and took over the guarantor agreement."

7. It is plain from that letter that Mr Scott Williamson was in no doubt as to what should happen to the house on his death. He never made a formal will. It is impossible to say whether he decided not to do so because he was satisfied that what he had stated in the letter would happen because that was what had been agreed; or whether he simply never got round to making a formal will. But at the least, so far as his wishes can be ascertained, he wanted his daughter to have the house.
8. The issue in these proceedings is whether 150 Heath Hill Avenue devolves on his intestacy to his six children pursuant to section 46(1)(ii) of the Administration of Estates Act 1925; or whether, as Mr and Mrs Beresford claim, it is held for them (or for one of them) as survivors or survivor under a beneficial joint tenancy created at the time when the property was purchased in 1992.
9. The judge directed himself, correctly, that the principle which he had to apply was to be found in the speech of Lord Bridge in Lloyds Bank Plc v Rosset [1991] AC 107. The passage at page 132 in that report is well-known, but I shall read it:

"The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made it will only be necessary for the partner asserting a claim to a beneficial interest against a partner entitled to the legal estate to show that he has or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive trust or a proprietary estoppel."

10. As Robert Walker LJ observed in Yaxley v Gotts [2000] Ch 162, at page 176D to 177F, there is a substantial overlap in this field between the concept of estoppel and the concept of constructive trust. In that case he held that an estoppel arose in circumstances where the arrangement or agreement between the parties was sufficiently definite to meet the test stated by Lord Bridge in Lloyds Bank v Rosset.
11. The judge was plainly entitled -- indeed, in my view, bound -- to take the view that there must have been some arrangement or agreement, before or at the time of the purchase of this property, as to the basis upon which George Beresford was going to meet the obligations under the mortgage. It is plain that those were obligations that Mr and Mrs Scott Williamson were not themselves in a position to meet; and that but for some assurance that Mr Beresford would meet them, it is unlikely that they would have been in a position to, or would have chosen to, purchase the house. It is necessary to keep in mind that they had a secure tenancy for the rest of their lives.
12. The question was: what was that arrangement? Was it an arrangement that George would pay the interest on the mortgage by way of an occupation rent; or that he would be entitled to be reimbursed for the payments which he had made out of the proceeds of sale? Or did the arrangement go further than that? It is important to have in mind that this was a mortgage which had funded the whole of the purchase price; this is not a case where the mortgage can be regarded as funding only a share in the purchase price. What more natural, in those circumstances, than that there should be some discussion and arrangement as to the interests which George Beresford and his wife should have in the property? As Mr Beresford put it in his witness statement, at paragraph 8:

"If I thought that Rachel and I would not own the property in due course, then I wouldn't have paid the mortgage or committed myself financially as guarantor. The only reason we paid the mortgage since inception, the endowment policy premiums and carry out improvements was in the firm belief that the house would eventually belong to both of us. However it wouldn't be a problem if the house was transferred into Rachel's name. My concern is that my family has a home and my children have security."

13. The judge found, against that background, that there was a clear agreement or arrangement between the claimants and Rachel's parents that the property would be jointly owned. Thus the property would become the claimants' property after their death. This was an understanding between them as to the position; and it arose from discussions which occurred between the claimants and the parents. If that finding of fact stands, then it is accepted, I think, that an appeal against the judge's conclusion in law would have no prospect of success.
14. The way in which equity gives effect to an arrangement or agreement that property will be jointly owned; and will continue to be jointly owned on the death of one or more of the joint owners -- which is the arrangement which the judge held had been agreed and discussed -- is by treating the arrangement as an agreement for a beneficial joint tenancy; that is to say, an agreement that the beneficial interest in the property shall devolve by survivorship on the surviving joint tenants: see section 36 of the Law of Property Act 1925. The central -- indeed the only -- issue on any appeal in this matter would be whether the judge was right to reach the conclusion which he did on the facts.
15. There was evidence on which he could reach that conclusion; albeit evidence of discussions imperfectly remembered and imprecise in their terms, as Lord Bridge envisaged in Lloyds Bank v Rosset. The fact that the discussions will be imperfectly remembered, and the evidence imprecise, is a common feature where the discussions have taken place informally between family members many years before the dispute arises; in this case, some 10 years or so.
16. The judge accepted the evidence of George Beresford and Mr John Williamson. He said this, at paragraph 34 in the revised version of his judgment:

"Whether or not Rachel now recalls what if anything was said between them at the time about these arrangements, I accept the evidence of George and John that there was never any doubt in the mind of either of them as to what had been agreed and arranged in discussions they had had with one or both parents. Certainly what happened in practice is on the probability in my judgement, what must have been agreed at the outset whether or not other children were present at that time when these matters must have been discussed."

17. I have referred already to the evidence of Mr Beresford at paragraph 8 in his witness statement. At paragraph 7 he said this:

"When the opportunity of buying 150 Heath Hill Avenue first arose Mr and Mrs Williamson asked us if we would guarantee their mortgage. It was made clear to us that although the house would be placed in their names, when they died it would come to me and Rachel. They made that very clear at the time that they purchased the property."

It is suggested that Mr Beresford was driven off that statement in the course of cross-examination. And, of course, when transcripts of cross-examination, skilfully done, are scrutinised some time after a trial, passages can be found in which the witness appears to resile from an assertion made in a witness statement. But the trial judge's task is to take the evidence as a whole, including the evidence in the witness statement given as evidence-in-chief; and to make his assessment of fact on the evidence as a whole after hearing all the witnesses.

18. Mr John Williamson said, first in paragraph 2 of his witness statement, that he had been asked if he would assist financially with the mortgage, but that he had been unable to do so. He went on:

"It was agreed that my sister Rachel would guarantee the mortgage and that on our parents' death the property would naturally pass to her. It was always their intention that whoever took up the offer to help them buy the property would inherit the house when they died. I used to see my parents about once a week on a Sunday. They told me that they were buying the house with Rachel acting as guarantor for the mortgage. They would have preferred to have Rachel as a joint owner because they wanted her to have the house at the end of the day. She spent most of her life there."

19. The reference there to his parents' preference to have Rachel "as a joint owner" is, plainly, to a preference to have her on the title at the Land Registry. That had been thought to be impossible; because it was thought when the Right to Buy first arose that she had not a sufficiently long residential qualification to be a purchaser. I do not read Mr Williamson's witness statement as indicating that his parents were directing their remarks to beneficial ownership. I doubt, myself, whether Mr and Mrs Scott Williamson would have appreciated that someone whose name was not on the register could be a beneficial owner in equity. But that is not to the point. The question is what has the effect of he arrangement which they had made.
20. The position, therefore, was that the judge had evidence, which he accepted, that there had been discussions and that the outcome of the discussions was that their daughter Rachel, or she and her husband together, were to have the property on their death. There is no doubt that Rachel and her husband acted on that basis by honouring the commitment to pay under the mortgage. In those circumstances, the requirements identified by Lord Bridge in Rosset are satisfied. In the circumstances that Mr George Beresford sets up no claim against that of his wife -- but is content for the whole beneficial interest to be held in her name -- the judge did not need to resolve the question whether the understanding was that the daughter and her husband, or only the daughter, should be joint owners or owner with the parents.
21. The appeal, in my view, would have no prospect of success and this application must be refused.
22. LORD JUSTICE LONGMORE: I agree.

ORDER: Application for permission to appeal refused.

(Order not part of approved judgment)

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