England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER HIGH COURT DISTRICT REGISTRY
(HIS HONOUR JUDGE HODGE QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd October 2012

Lord Justice Lloyd:

1. This is an appeal from an order of HHJ Hodge QC made on 2 November 2011, by which he dismissed a claim by the claimant, the Trustee in Bankruptcy of Mr Jonathan James Taylor, under section 423 of the Insolvency Act 1986, seeking to set aside a disposition by Mr Taylor in favour of himself and his wife, who I will call Dr Raines. Permission to appeal was refused on paper by Lewison LJ but was granted at an oral hearing by the Chancellor of the High Court, Sir Andrew Morritt. The disposition in question was made by two documents, a transfer by Mr Taylor into the joint names of himself and Dr Raines on 23 April 2003, and a Declaration of Trust made by him of the one part and Dr Raines of the other, dated 16 May 2003. They related to a property called 3 West Beach, Lytham St Anne's. Until the transfer this belonged to Mr Taylor, and it was subject to mortgages executed by him. The two documents followed hard upon the date when a company of which Mr Taylor was a shareholder and a creditor, and for which he was a guarantor, entered a creditor's voluntary liquidation on 3 April 2003. The Trustee in Bankruptcy's case was that this sequence of events was very far from coincidental.
2. I must, however, go farther back in the history before coming to the matters directly in issue. Mr Taylor married Dr Raines on 29 September 2001. It was for each of them a second marriage. Both had two children; both had been divorced from previous spouses, which, at any rate in the case of Dr Raines, had been a difficult process. At the time of the marriage of the two parties, Dr Raines' children were 14 and 11; Mr Taylor's children were adult, but as I understand it were still, at any rate to some extent, living at home with him. Each of Mr Taylor and Dr Raines owned a house; in Dr Raines' case, it was free from mortgage but in that of Mr Taylor, as I mentioned, it was subject to liabilities secured on it by way of mortgage. Mr Taylor was aged 50 at the time of the marriage. He was a qualified chartered accountant but had worked at the family firm, JR Taylor of St Anne's Limited, which like the judge I will call "JRT", from about 1975 until June 2001. At the end of that period he had been earning £85,000 a year from JRT as Managing Director, but at that time he ceased to receive a salary. He was entitled to a pension. He took a lump sum of £120,000 from his pension, and he lent £100,000 to JRT, which was repaid to him over a period by instalments of some £4,000 to £6,000 per month. He owned 38 per cent of the shares of the company, each of his three brothers owned 4 per cent, and another family, the Whitehead family, owned 50 per cent between them.
3. After June 2001, when he retired as a Director and employee, he did not take up any new employment, but was in no rush to do, as he was preparing first of all for the wedding, and secondly for the renovation, improvement and extension of 3 West Beach, which was agreed to be necessary, and indeed which Dr Raines insisted on before she was prepared to move into the property with her children. In early 2002 Mr Taylor was asked to return to JRT. According to his evidence, he agreed to come back in June or July 2002, and to inject further capital with a view to acquiring the balance of the shares at a nominal consideration. He did provide £120,000, but he said that the Whitehead family then repudiated the agreement with him, and he did not in fact return to JRT. As I have mentioned, in April 2003 JRT went under by way of a creditor's voluntary liquidation. Later in 2003, Mr Taylor became a consultant for another company, and later on a full-time employee, and in due course in 2007 a Director of that company, although yet later he was made redundant. He became bankrupt on 6 April 2009, we were told on his own petition.
4. Going back to April 2003, before the transfer into the joint names, 3 West Beach was subject to mortgages which secured some £310,000 or so, including the amount for which Mr Taylor would or might be liable by way of counter-indemnity in respect of a guarantee given by National Westminster Bank in favour of Lloyds of London, where Mr Taylor had been a Name until 2001. Of course, he remained liable under the run-off arrangements under Lloyds for at least three years after that date. At the time of the transfer, these liabilities, other than the liability in respect of the Lloyds guarantee, were refinanced by a mortgage loan from Manchester Building Society for some £310,000. That had priority to the security for the Lloyds guarantee.
5. The transfer, which was in the Land Registry form TR1, was expressed to be to the two parties to be held on trust for themselves as tenants in common in equal shares. Under the heading "consideration" at section 9 of the form a box was ticked to show that the transfer was not for money or anything which had monetary value. Miss Mary Glancy, the solicitor who had acted for Dr Raines on her divorce, acted for both parties on the remortgage and the transfer into joint names. The Declaration of Trust, dated some three weeks later, put the matter in a different light. It recorded that the transfer was to reflect Dr Raines' interest in the property, as later stated in the document. Dr Raines was recorded as having paid £120,000 after the marriage to pay for building work to extend and improve 3 West Beach, and having lent £120,000 to JRT, guaranteed by Mr Taylor, which was still outstanding.
6. The improvement works were stated to have increased the value of the property by more than the amount of their cost, and that was acknowledged to be at least one-third of the current value, which was put at £850,000, with the share being put at £305,000, somewhat more than one-third, which would be £283,000. Furthermore, the aggregate of the value of the property attributable to the improvement works, and the amount of the loan to the company, was recorded as equating to a half-share in the property. That, therefore, accounted for the transfer into joint names on trust to themselves in equal shares. Moreover, Mr Taylor accepted that the burden of the secured liability was to be borne by his half share, in priority to that of Dr Raines. It was also recited that Mr Taylor was able to pay his debts as they fell due and that his assets exceeded his liabilities. Miss Glancy acted for Dr Raines in relation to this document. Mr Taylor's brother, a solicitor on London, acted for him.
7. 3 West Beach was sold in 2007. In its place there was bought, in the sole name of Dr Raines, a property called 13 Hastings Place, Lytham. 3 West Beach was sold for a gross sum of £900,000, a net sum of just over £890,000, providing half shares of just over £445,000 each. The redemption of the Manchester Building Society mortgage and the National Westminster Bank's second charge absorbed all of Mr Taylor's half share and £8,500 of Dr Raines' half-share. 13 Hastings Place cost £350,000 plus costs. Dr Raines lent Mr Taylor £42,000 out of the balance, and received the rest of just over £31,500.
8. By the claim brought under section 423, the Trustee in Bankruptcy seeks to recover for the benefit of the creditors of Mr Taylor in effect 13 Hastings Place plus the £31,500. The claim is brought, as I say, under section 423, of which subsection (1) so far as relevant is as follows:

"This section relates to transactions entered into at an undervalue, and a person enters into such a transaction with another person if (a) he makes a gift to the other person or he otherwise enters into a transaction with the other, on terms that provide for him to receive no consideration.

[...]

"... or (c) he enters into a transaction with the other for a consideration of value of money or money's worth is significantly less than the value of money or money's worth of the consideration provided by himself."

Subsection (3) is as follows:

"In the case of a person entering into such a transaction, an order shall only be made if the court is satisfied that it was entered into by him for the purpose (a) of putting assets beyond the reach of a person who is making, or may at some time make, a claim against him or (b) of otherwise prejudicing the interests of such a person in relation to the claim which he is making or may make."

9. In Hashmi v The Commissioners for Inland Revenue [2002] EWCA Civ 981, [2002] BPIR 974, this court held that the purpose specified in subsection (3) does not have to be shown to be the sole or dominant purpose, but it must be a real, substantial purpose of the transaction. That is shown by passages which I need not cite but I refer to in the judgments of Arden LJ at paragraphs 23 to 25, of Laws LJ at paragraph 33, and of Simon Brown LJ at paragraphs 36 to 39. These passages were cited to the learned judge below, and are referred to him in paragraphs 68 to 70 of his judgment.
10. If the transfer were to be taken at face value, it would be, to say the very least, promising material for the Trustee in Bankruptcy. It was executed, so it was said, for no consideration in money or monetary value, but followed an event which exposed Mr Taylor to a risk from creditors, namely the creditors' voluntary liquidation of JRT. The Declaration of Trust puts the matter in a different perspective, if it can be taken on its own terms. First, it records that Dr Raines contributed £120,000 of her own money to the improvement of the property. That, it is not in dispute, took place in 2001 after the marriage. Digressing for a moment, that would give Dr Raines an entitlement to a share in the property under section 37 of the Matrimonial Proceedings and Property Act 1970 (see Re Nicholson [1974] 1 WLR 476). However, that is not a point of which anyone seems to have been aware in the case at the time or in the court below, so I ignore it as such. However, the statutory provision reflects the fact that it is very natural that a spouse contributing money to the improvement of a property belonging to the other spouse might very well regard herself, and be regarded, as entitled by agreement to a commensurate share of the value of the property corresponding either to the amount of the expenditure or to the increase in value thereby resulting.
11. Secondly, the declaration records that Dr Raines contributed a further £120,000 for the benefit of Mr Taylor by way of the loan to JRT which I have mentioned. There was some debate in evidence as to whether in truth it was a loan to Mr Taylor for which he was liable directly, which he then lent on to JRT, or a loan direct to JRT which he guaranteed. I do not see that anything turns on that. It is not in doubt that the loan was made in 2002. Unlike the contribution to the improvements to the property, the loan would not have any immediate impact on the beneficial interest in the property, but it plainly was made and was still outstanding in 2003 with no prospect of being repaid in full; indeed, it must have been clear well before the end of 2002, after Mr Taylor was in effect ejected from the company, that it would be difficult to recover to say the very least.
12. The Declaration of Trust contains some figures as to value, £375,000 being said to be the value of the property at the time of the marriage; £850,000 being said to be the value at the time of the Declaration of Trust itself; and as I have mentioned, £305,000 being said to be the value of the part of the property attributable to improvement works paid for by Dr Raines. The judge was satisfied that it was reasonable for the parties to take the view, and that they did take it, that the value in September 2001 had been £375,000. An expert had valued the property, if not improved, at £600,000 in April 2003, and the judge accepted that figure. He held that the improved value at that time was £750,000. It followed that the effect of the improvement works had been overestimated substantially by the parties. However, he also held that the parties did honestly and genuinely, and reasonably, believe that the £850,000 figure was correct, there being some independent support for that figure as to value.
13. The judge also held that at the time of the improvement embarked on in 2001, the parties agreed that Dr Raines would acquire an interest in the property proportionate to her expenditure as compared with the value of the property. He held that at the same time, that is to say in 2001, it was agreed that the mortgages should be borne as between the two of them by Mr Taylor's beneficial share. Furthermore, as regards the £120,000 loan made in 2002, the judge held at paragraph 49 of his judgment that it was expressly agreed that it should be secured on Mr Taylor's interest in the property. That would not be a legally enforceable agreement, since it was not in writing, but it is plainly relevant to the parties' understandings and intentions thereafter. If Mr Taylor had become bankrupt in early 2003 before the transactions in question, the legal position would have been that Dr Raines was entitled to a beneficial share in the property, quantified at, let us say, 20 per cent on the basis of the figures that I have mentioned, whether by agreement or under the 1970 Act, but on the basis that the secured liabilities would be discharged out of the balance of the beneficial share, out of Mr Taylor's portion, and she would have been an unsecured creditor of his for £120,000 in respect of the loan.
14. However, that is not what happened. The judge held at paragraph 62 that the trust deed was intended to give effect to the arrangements already made between the parties, that the process which led to the trust being declared was initiated before the creditors' voluntary liquidation, as early as January or February 2003, and that it was not a response to that liquidation. The liquidation of JRT was clearly bad news for Mr Taylor, to put it in the most general way. It put paid to any chance he might have of recovering any part of the £120,000 under the loan made in 2002. It also rendered him the more at risk under a guarantee which he had given jointly with his father for the liability of JRT to its landlord, a company called Longfield, under the lease of the relevant premises. He had known in 2002, and indeed earlier, that there were rent arrears under this lease; from the papers that were prepared for the creditors' meeting on 3 April 2003, he would have learned that the arrears were then said to be £99,000. On the basis of those findings by the judge, the judge held that no part of Mr Taylor's purpose in entering into the transfer and the deed of trust was to escape his liabilities; see paragraph 73, which continues as follows:

"I am satisfied that the real substantial purpose was to give effect to the transactions which Mr Taylor had already agreed to and promised that he would honour to Dr Raines. I am not satisfied that the idea of escaping his liabilities entered into Mr Taylor's mind at all at the time. I am satisfied that recital 6 was included in the Deed of Trust at the instigation of one or the other of the solicitors, and that it was not something introduced effectively by way of a whitewash. Accordingly, the Trustee-in-Bankruptcy had not proved the necessary purpose as required by section 423(3)."




15. At the outset of the appeal, the Trustee-in-Bankruptcy put forward a very short and simple ground of appeal, namely that the judge had failed to give adequate weight to the evidence from which an intention to defeat the interests of his creditors ought to be inferred. It was on the basis of this single ground that permission to appeal was granted by the Chancellor. Very recently, upon the instruction of Mr Davies QC for the appellant, new and more elaborate grounds of appeal have been put forward which seek to articulate in a more varied way the one basic point.
16. As deployed before us by Mr Davies in his powerful oral submissions, the essential challenge to the judge's judgment is that he approached the relevant material in the wrong way. He failed to analyse and to understand the implications of the Declaration of Trust in particular and its incompatibility with the account given by Mr Taylor and Dr Raines in their evidence, both written and oral, and that if he had done so properly, he could not have come to any other conclusion but that the statutory purpose was a substantial purpose of entering into the transfer and the Declaration of Trust. The judge dealt with the question of undervalue, and indeed points were taken as regards that on the appeal, but I accept, as the judge would have accepted, that objectively the transaction was at an undervalue, in that Dr Raines was not entitled to a beneficial interest of 50 per cent, apart from these transactions, and what she was entitled to by virtue of the improvements plus £120,000 repayable in respect of the 2002 loan would not amount to a value of a half share. But all that does is to show that the requirements of section 423(1) are satisfied, and it leaves the focus on the question whether the judge was right to find that the statutory purpose was no part of Mr Taylor's intentions when he entered into the two deeds.
17. The appeal is fairly and squarely a challenge to the judge's findings of fact. As such, it is an uphill task, and it is not surprising that permission to appeal was at first refused. The Chancellor when giving permission to appeal described it as a marginal case, but he identified two factors in relation to which he considered it arguable that the judge had given far less significance than might have been expected, giving rise to prospects of success. The first, and the most important from the point of view of the appellant, was the situation existing in early April 2003 after the creditors' voluntary liquidation resolution, when Mr Taylor faced not only the loss of substantial sums but also the prospect of his liability as guarantor being called upon. The second was an answer in Dr Raines' cross-examination in which she said that an agreement that the mortgage liabilities should be borne by Mr Taylor's share was made in 2003, not in 2001 as the judge held. The first of those lies at the heart of the case made by Mr Davies on appeal; the second did not feature at all in his submissions. They are, however, the points that led the Chancellor to give permission to appeal, although his grant of permission was not limited in terms of any aspect of the ground of appeal. As I say, there was at that time only one very short, simple and rather generally-expressed ground of appeal.
18. We were shown some authority, including recent cases in New Zealand and Hong Kong, on local legislation which is the equivalent of section 172 of the Law of Property Act 1925. That is the predecessor section of section 423 of the Insolvency Act, but it is in different terms and it cannot be assumed that authorities relevant to section 172 equally apply to section 423. The Court of Appeal of New Zealand made the obvious but pertinent point that the establishment of an intention to defraud, which was required under section 172, is not a matter for presumptions of law but a matter of fact to be determined in the circumstances of particular cases. That is so plainly correct, that I see no need to cite authority for it.
19. For the Trustee in Bankruptcy, Mr Davies, leading Mr McCulloch, who appeared alone below, contends that the judge's conclusions of fact as to the absence of the statutory purpose, as an intention on the part of Mr Taylor, cannot stand in the face of a number of objective indicators. He argued that the judge should have found that Mr Taylor knew that by making the transfer, and executing the Declaration of Trust, he was exposing his creditors to a significantly enhanced risk of not recovering the amounts owed to them, and that he did so for the purpose of achieving that result. The objective factors start with Mr Taylor's knowledge of the CVL, and of his liability under the guarantee which, as I say, was put at about £100,000 at the creditors' meeting, albeit that his father was also jointly liable. Both of those would be powerful factors in motivating a transfer of assets by Mr Taylor to his wife. In addition, he pointed out that Mr Taylor had not been employed for nine months; he said nine months, but in fact it was more than 21 months by then. JRT had been his sole source of regular funds, but those payments had ceased already in the middle of 2002. He had no capital assets to speak of except the property; accordingly, he would not be able to pay on the guarantee without recourse to the property, and the effect of the transaction was to deprive himself of that asset, or at any rate very markedly to attenuate his interest in it.
20. Mr Davies also refers to the absence of, or inadequacy of, consideration for the transfer. Since without that, the transaction would not be liable to challenge under section 423 at all, and the judge accepted that it could be, I do not see what this particular factor adds. The same goes for the fact that it was a family transaction not made at arm's length. Likewise, I see no added strength to Mr Davies's case from the fact that Mr Taylor continued to retain possession of the property, or that the Declaration of Trust was neither registrable nor registered.
21. Mr Davies criticised the judge for starting with his assessment of the position as regards the contentious aspects of the evidence of Mr Taylor and Dr Raines. He argued that the judge should have started with the contemporary and objective indicators, which were so clear and powerful as to shift the evidential burden to the respondents, and that only then, and from that standpoint, should he have considered the disputed aspects of the evidence. By proceeding in that way, it was said, he would have been addressing the evidence of Mr Taylor and Dr Raines in the correct context, namely that of the powerful inference which they needed to rebut, and he would have done so with a proper analysis or explanation, if he could, of why (a) he accepted their evidence and (b) on that basis he held that the statutory purpose was not the purpose, or one of the purposes, of Mr Taylor in entering into the transaction.
22. I accept Mr Davies's point that the objective factors in the case did shift the evidential burden, in the sense that if there had been no evidence in answer to that of the Trustee in Bankruptcy based on the documents and the objective contemporary circumstances, it would have been a legitimate inference that the statutory purpose was at least a substantial purpose of Mr Taylor in entering into the transaction. But the fact is that there was evidence adduced on the other side, and the question is therefore not to be analysed in the absence of such evidence; it comes to a question of the judge's treatment and assessment of that evidence in that context. Mr Davies's more substantial proposition is that the judge came to untenable, or at least unreasoned conclusions of fact, in considering the evidence of the witnesses. That I cannot accept. The inconsistencies on the one hand between the transfer and the Declaration of Trust which he submitted existed, and on the other hand between the Declaration of Trust and the evidence as to the prior oral agreements which was given by Mr Taylor and Dr Raines, was a central feature of the cross-examination over the first two days of the trial and, I have no doubt, of Mr McCulloch's submissions to the judge on the third day before he gave his judgment. That judgment he gave on the afternoon of the third day, so he had these points very well in mind throughout the process of preparing and articulating his judgment.
23. I do not see, therefore, that it can be said that the judge failed to understand that these were the primary points in the case, or that he had no regard to them in coming to the conclusions that he reached as to the acceptance of Mr Taylor's and Dr Raines' evidence of the prior agreements and otherwise. Mr Davies criticised the judge's statement in paragraph 17 of his judgment that recitals 1 to 4 of the Declaration of Trust were consistent with the terms of the transfer. He says that was not the case, because the transfer said that it was made for no consideration, whereas the Declaration of Trust shows that there was consideration. But it seems to me a legitimate view of the context of the recitals, and one which was accepted by the judge, is that they stated the pre-existing position as it was understood by the parties, and that the transfer only brought the legal and beneficial title in relation to the property and its registration, into line with the underlying position as it already existed as between the parties. On that basis no new consideration was given at the time of the transfer.
24. The appellant's case as against that is that the Declaration of Trust says nothing about prior agreements. The payments by Dr Raines were made earlier, but Mr Davies submits that the Declaration of Trust is consistent with the agreement having been made only in 2003, and indeed April 2003, not in 2001 and 2002. Point 2 was pursued in cross-examination, as was the absence of any reference in the witness statements to the earlier agreements. These were no doubt good forensic points which the judge had to consider in deciding whether he believed Mr Taylor and Dr Raines on this or not. He came to the conclusion that he did, as I have recorded.
25. Having read the transcripts of the oral evidence of both witnesses, I can see that the evidential process was not easy or straightforward. It may be that a different judge would have come to a different conclusion as to the credibility and reliability of the witnesses. But that is the job of the particular trial judge, to come to the conclusion that seems to be right, having read the evidence; having seen the witnesses giving their evidence; and having heard the submissions about it. That said, I do not myself find it surprising that the judge should have accepted that an oral agreement was made in 2001 in respect of Dr Raines' contribution to the improvements, including the proposition which Mr Davies sought to characterise as abnormal, that her commensurate share should take effect free from the burden of the existing mortgages which were to be borne by the share of Mr Taylor. It is not as if the existing mortgages were to secure an advance made for the purpose of purchasing the property; they were to secure Mr Taylor's own separate liabilities, from his divorce and from his business interests, including Lloyds. Nor do I find it surprising that the judge should accept that there was an agreement in 2002, whereby Mr Taylor agreed that in return for Dr Raines lending £120,000 on to the company, he would repay it, and that it would be secured on his share of the property.
26. As Mr Davies put the case, he focused particularly and necessarily on the Declaration of Trust. He argued that, except for one point, it was altogether unnecessary once the transfer was in place, because that got the legal and beneficial title into the position desired by the parties. The one exception, he accepted, was the incidence of the mortgage liabilities, which he said could have been dealt with much more simply, not even by a deed, but if by a deed by one that was much less elaborate. As for the rest, he pointed to what he called an obsession with consideration and with insolvency in the recitals to the Declaration of Trust. That, he said, should have been a very strong pointer towards a finding that the statutory purpose was at least one of the substantial purposes of the Declaration of Trust, and therefore of the whole transaction.
27. It is true that while the judge referred to inconsistencies as between the documents and the oral evidence, he did not spell them out, analyse them, or explain in any detail why he reconciled the documents with the evidence of the witnesses. He did not refer in terms to the lack of independent corroboration for the account of the earlier oral agreements; or to the fact that eight or ten years on, recollection is likely to have faded, so the contemporary documents may have greater force; or that that recollection, however honest, may have been influenced by a degree of wishful thinking. This experienced judge cannot be taken to have overlooked general points as obvious and pertinent as those, simply because he did not refer to them in terms in a judgment given well into the afternoon of the last day of the trial. The judge's explanation at paragraph 55 of his judgment is short and in rather general terms, but I do not accept Mr Davies' contention that it shows that he failed to grapple with the point, or to take it properly into account when evaluating the evidence.
28. Neither in terms of the structure of the judgment, nor as regards the details of its expression, can I accept that the judge erred in his approach. It seems to me that with the details of the evidence and the submissions very fresh in his mind, it was legitimate for him to deal with the disputes arising on the evidence first, before turning to the documents and the other contemporary factors. Another judge might have done it differently, but he chose his own approach. He addressed the issues of disputed fact with the full benefit of his knowledge of the objective indicators, and of how he assessed them, as he went on to explain. The fact that he did not go into detail as to his assessment of any discrepancies, and why despite them he accepted the evidence of the witnesses, is not a reason for regarding his judgment as either inadequate, unreasoned or wrong.
29. I mentioned earlier that one factor that had influenced the Chancellor in giving permission to appeal was a reference by Dr Raines to 2003 as the date of the agreement as to the incidence of the launch date (see the transcript, page 42). However, this single isolated reference is so clearly at odds with her evidence in the prolonged passage of cross-examination on this point recorded at pages 22 to 25 of the transcript, where, despite being pressed by Mr McCulloch, she always said that it was 2001 and not 2003, that it would be wrong to place reliance on the later reference, and that no doubt is why Mr Davies did not refer to it in his submissions today.
30. Ultimately, the appeal comes down to saying that the objective factors were so powerful that the judge could not properly have believed the respondents as to either (a) the existence of the prior agreements or (b) the absence of the statutory purpose from Mr Taylor's motivation in 2003. It was for the judge to consider whether he did believe them, having heard the evidence; he did so, and in my judgment his conclusion cannot be successfully challenged, despite the well-argued submissions of Mr Davies on behalf of the Trustee in Bankruptcy.
31. I would therefore dismiss this appeal.

Lady Justice Rafferty:

32. I agree.

Lord Justice Ward:

33. I also agree, so this appeal is dismissed.

Order: Appeal dismissed.