REF/2014/0779

 

PROPERTY CHAMBER, LAND REGISTRATION

FIRST-TIER TRIBUNAL

 

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

 

BETWEEN

COLIN WELLINGS

APPLICANT

 

And

 

CHRISTINE EVELYN EATON

 

RESPONDENT

 

 

 

Property Address:  11 Well Alley, Tewkesbury, GL20 5LG

Title Number: GR149426

 

 

Before: Judge Orr

 

Sitting at:  Kidderminster Magistrates Court

3rd and 4th November 2015

 

 

 

 

Applicant Representation:      Mr Blakemore of Counsel instructed by Gomer Williams & Co Limited

Respondent Representation:   Miss Lloyd of Counsel instructed by Norris & Miles

 

 

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DECISION

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Claim to a beneficial interest in property in reliance on an inferred common intention that all the property of the parties was to be shared – alternative claim to a beneficial interest in the property on the ground that an intention to share it should be inferred from the parties’ conduct

 

Cases referred to:

James v Thomas [2007] EWCA Civ 1212

Lloyds Bank v Rosset [1991] 1 AC 107

Morris v Morris [2008]

Pettit v Pettit [1970] AC 777 EWCA Civ 257

Stack v Dowden [2007] 2 AC 432

 

 

1.             For the reasons set out below I have directed the Chief Land Registrar to cancel the Applicant’s application in form RX1 dated 29 November 2013 to enter a restriction against the title to 11 Well Alley which is registered in the name of the Applicant.

Background

2.             The application arises out of a relationship between the parties who cohabited from about May or June 2007, although they had been acquainted for some years previously.  Both parties had a farming background and it appears that they met in the course of farming work being undertaken by them.  The parties lived together on a narrowboat owned by Mr Wellings which was kept initially at Bromsgrove and from November 2010 at Tewkesbury Marina.  Miss Eaton says that the relationship, ended in August 2012 and Mr Wellings that it ended in May 2013.  That is one of the many differences between the parties in this matter.

3.             At the commencement of the relationship Miss Eaton owned three properties, namely 11 Well Alley and a house in France having purchased those properties as the result of an inheritance from her parents and a field of about 5 acres known as Oxmoor, The Ramplings, Longdon, Tewkesbury, which she had purchased originally with her former husband.  Initially Miss Eaton worked as a nursing auxiliary and as a part-time relief milker but in 2010 she commenced training to be a nurse and is now qualified.  Mr Wellings owed his narrowboat and some tractors and agricultural machinery which he had used as a farmer or contractor.   During the period of the relationship Mr Wellings worked as a freelance lorry driver, apparently specialising in routes into Europe, and also undertook farm work, though probably not for payment.  In about 2008 three plots of land close to the French house were purchased in the joint names of the parties.  It is common ground that under French law Mr Wellings has a beneficial interest in the land.

The Applicant’s case

4.             The case has been put variously by Mr Wellings, as follows:

4.1.       In the form RX1 he stated that the parties lived together at Well Alley and had discussed renovating it together with other properties, there having been a common intention either expressed or to be inferred creating a constructive trust, and that he had also made a direct contribution to the mortgage;

4.2.       In paragraph 3 of his statement of case he identified the three properties owned by Miss Eaton and said that he had spent much money resources and effort in improving “for the benefit of [the parties] whilst living together”;

4.3.       His supplemental statement alleges that there was an agreement between the parties that their financial arrangements were in the way of a joint venture and that for all practical purposes they were treated as joint.  Subsequently in the same document it was accepted that there was no agreement as to joint ownership but submitted that it should be inferred;

4.4.       On several occasions in the course of his evidence Mr Wellings referred to the parties having treated their assets as a joint pot for the benefit of both of them.

5.             At the hearing it was confirmed that no form of express agreement was relied upon.  Indeed there is no suggestion that either party ever referred to his or her property being jointly owned.  Consequently the application proceeded before me entirely on the footing that a constructive trust should be inferred from the course of conduct between the parties.  The matters which were relied upon as warranting the inference of a constructive trust were not set out in terms in Mr Wellings’ statements of case but were identified by Mr Blakemore as being:

5.1.       The purchase of the three plots of land in France in the joint names of the parties;

5.2.       The frequent transfer of money between the parties during their relationship;

5.3.       The payment by Mr Wellings to Miss Eaton of the sum of £400 in January 2013; to enable her to pay the mortgage on 11 Well Alley; and

5.4.       Work done by Mr Wellings on the properties owned by Miss Eaton.

The Law

6.             Where a beneficial interest is claimed by a party in reliance on a constructive trust in a property purchased in the name of another party two questions arise.  The first is whether, before or after the purchase, there has been an agreement or understanding, sometimes referred to as a common intention, that the property is to be shared beneficially.  A party establishing that there is such an agreement or understanding will be entitled to a beneficial interest if he can show that he has acted to his detriment in reliance on it.  The second question concerns the quantification of the beneficial interest in which regard, in the absence of agreement between the parties, the party will be entitled a share which the court regards as fair having regard to the whole course of dealing between the parties in relation to the property.

7.             The question of the circumstances in which it may be inferred that, in the absence of any express statement,  an agreement or understanding of the kind referred to above has been reached between parties has been considered by the courts on a number of occasions, notably Pettit v Pettit [1970] AC 777 and Lloyds Bank v Rosset [1991] 1 AC 107, with differing views being expressed.  The view of Lord Bridge expressed obiter in the latter case was that, in the absence of evidence of an express agreement or understanding, a agreement or understanding could only be inferred from a contribution to the purchase price either initially or by payment of mortgage instalments.  That view, however, has been regarded as imposing too narrow an approach to the circumstances in which a constructive trust might be inferred, as in the judgment of Baroness Hale in Stack v Dowden [2007] 2 AC 432 at para 63. 

8.             In the Court of Appeal in James v Thomas [2007] EWCA Civ 1212 Sir John Chadwick, whose judgment was agreed by the other members of the Court, took a wider view of the circumstances in which a common intention could be inferred.  He said at para 19:

“It is said that, as a matter of law, the common intention may be formed at any time before, during or after the acquisition of the property and that the common intention may be inferred from evidence of the parties' conduct during the whole course of their dealings in relation to the property. For my part, I would accept each of those propositions of law.”     

At para 25, after referring to Gissing v Gissing [1971] AC 886 and Bernard v Joseph [1982] Ch 391 the judgment continued as follows:

“…as those cases show, in the absence of an express post-acquisition agreement, a court will be slow to infer from conduct alone that parties intended to vary existing beneficial interests established at the time of acquisition.”

9.             In James v Thomas the claimant relied on the facts that she had for several years worked without payment in the defendant’s business, latterly becoming a partner, and that extensive work of renovation had been undertaken on the property in which the claimant was involved on a hands on basis, the work being funded from the income of the business.  The inference which might be drawn from the parties’ conduct was dealt with at para 36 in the following terms:

“The true position, as it seems to me, is that she worked in the business, and contributed her labour to the improvements to the property, because she and Mr Thomas were making their life together as man and wife. The Cottage was their home: the business was their livelihood. It is a mistake to think that the motives which lead parties in such a relationship to act as they do are necessarily attributable to pecuniary self-interest.”

10.         The judgement of Sir John Chadwick in James v Thomas was adopted and applied by the Court of Appeal in Morris v Morris [2008] EWCA Civ 257 with emphasis being placed by Sir Peter Gibson at para 19 on the passage from para 25 quoted above.  At para 20 of his judgement Sir Peter said:

“Mrs Gowling was unable to tell us of any decision where it has been held that such a variation of beneficial interests has occurred in such circumstances. I cannot help but wonder whether the judge realised what a rare bird he had discerned in the unpromising factual circumstances of this case.”

11.         The above passages from James v Thomas and Morris v Morris were relied upon by Miss Lloyd and their applicability to the issues arising in this application was not challenged by Mr Blakemore for Mr Wellings.  They show firstly that there is a heavy burden on anyone who asks a court or tribunal to infer from conduct alone that the parties have formed a common intention to vary beneficial interests previously established and secondly that a party to a relationship is not to be taken to act out of self interest merely because he has acted to improve the other party’s property with his money or labour.

12.         The substantial issue in view of the way in which Mr Wellings’ case was put to me in the application is whether the conduct of Mr Wellings in relation to 11 Well Alley was sufficient to warrant the inference that it was the common intention of the parties that he should have a beneficial interest in the property.   In approaching that issue I am mindful that would involve an inferred common intention encompassing the property of both parties so as to include Mr Wellings’s narrowboat and agricultural machinery as well as the properties in Miss Eaton’s name. Miss Lloyd did not suggest that a constructive trust encompassing all the parties’ property could not be inferred.  I bear in mind, however, that what would be involved, effectively an inferred trust of family assets, would be an even rarer bird than that considered in Morris v Morris and for that reason would require to be established by the most cogent evidence.

13.         I am also concerned to consider the matter in relation to 11 Well Alley alone.  Miss Eaton’s case is in any event largely limited to answering an application whose ambit was limited to that property.  It appears to me that the two approaches to the creation of a constructive trust are not inconsistent.

The Evidence

14.         The parties gave evidence by reference to their original and supplemental statements of case.  Both were cross-examined at length, with particular reference to the date at which ceased to cohabit and to a lesser extent as to the work alleged to have been done by Mr Wellings on the properties.  The date at which the parties ceased to cohabit is, however, material for the purpose of these proceedings only to the extent that it is said that Miss Eaton’s evidence on this point is not reliable and that the same view should be taken of her other evidence.  My findings as to their evidence are set out below.

15.         Mr Wellings’s mother, Joyce, gave evidence inter alia as to what she claimed to have been told by Miss Eaton as to the parties’ wedding plans and by the parties as to their plans for the future.  She attended the hearing and was cross-examined.  I find I cannot rely on that evidence since it is not supported by anything said by either of the parties, neither of whom made any reference to an intention to marry or to an intended lifestyle as suggested by Mrs Wellings.  Indeed the unchallenged evidence of Miss Eaton is that Mr Wellings had always made it clear that he would not marry her.

16.         Clive and Kathleen Roberts made a brief statement referring to the fact that the narrowboat had been taken to their farm, Mythe Villa Farm, from Tewkesbury, having been taken out of the water on the 18th May 2013 when the parties moved into 11 Well Alley and to the relationship having ended due to Miss Eaton’s infidelity.  That evidence, in particular the alleged infidelity, appears to be based on what they were told by Mr Wellings.  I accept, however, Mrs Roberts’ evidence in cross-examination that in November 2012 the parties attended a combined christening party and birthday party for Mrs Roberts. 

17.         Clive Roberts gave rather more detailed evidence dealing with the parties’ intention to live in Well Alley, the work undertaken by Mr Wellings to an articulated trailer to enable the narrowboat to be brought to the Roberts’ farm and the fact that Miss Eaton had visited and seen that work being done.  He also dealt with his loan of a scaffold tower and the provision of bricks and tiles for work to be done by Mr Wellings at 11 Well Alley in return for which he had been helped on his farm by Mr Wellings, that being the way in which they were accustomed to help each other.  He accepted that his evidence that Mr Wellings had moved into the property was based on what he had been told by Mr Wellings.  He also said that he had erected a polytunnel at Oxmoor and dug out a ditch there in 2013.

18.         Joan Gwyn provided a letter and a statement but did not attend the hearing, being deaf.  Her understanding was that the relationship was continuing over Christmas 2013, although the parties were not to spend the holiday together, and she confirmed that improvements were being made to Oxmoor until mid 2013.

19.         Pauline Thomas, Mr Wellings’s sister, provided a letter but did not attend the hearing as she was unwell.  In it she referred to the intention of Miss Eaton to marry once she and Mr Wellings had completed all their projects.  Plainly that was something which had been relayed to her by Mrs Wellings.

20.         A statement by Neal Minchew, though lacking a statement of truth, was accepted as admissible in his absence.  In it he dealt with work which had been done at Oxmoor on his visits there.  It seems that Mr Minchew must at least have been confused as to what he saw on his visits since the clearing of the ditch, which Mr Minchew says he saw on his first visit, did not occur until 2013 on the other evidence I heard.

21.         The first witness called for Miss Eaton was Sandra Goodwin of Hollybeds Farm where Miss Eaton had been employed as a relief milker for many years.  She said that in July or August 2012 she had been shown a text message from Mr Wellings telling Miss Eaton to leave the narrowboat after which she had offered Miss Eaton a temporary bed and that she had subsequently permitted Miss Eaton to put a caravan at Dunstall Farm into which she had moved on 17 August 2012.  In October 2012 Mr Wellings had attended Hollybeds Farm looking for Miss Eaton.  Subsequent to that, as is admitted, Mr Wellings had removed the keys from Miss Eaton’s car to stop her driving away following which for her safety she was permitted to move her caravan to Hollybeds Farm where she stayed until May 2013.  In cross-examination Mrs Goodwin said that she had seen Miss Eaton daily to check on her while she was at Hollybeds Farm.  The dates she had given were taken from the farm diary.

22.         The other witness called for Miss Eaton was David Jones who said that he had discussed with Mr Wellings the removal of Miss Eaton’s documents from the shed at Oxmoor and that Mr Wellings had admitted that he had them.  When told by Mr Jones that he should return the documents Mr Wellings had said “Why should I?”.

When Did the Relationship End?

23.         Mr Wellings’ evidence in answer to Miss Eaton’s allegation that the relationship had ended in August 2012 and that she alone had moved into 11 Well Alley the following year was that the there had been no more than a “blip” in August 2012 which had been sorted out and that Miss Eaton had told him that she had been given a caravan by her college so that she would have a space to study in.  She had stayed in that caravan during the blip but had misinformed him as to where the caravan was.  He also relied on photographs he claimed to have taken of Miss Eaton and an invoice for the sale of lingerie which he said he had purchased for her in January 2013.

24.         In addition to those matters and the evidence of Mr and Mrs Roberts Mr Blakemore referred me to a number of matters in support of his submission that the evidence of Miss Eaton should not be believed on this and other matters.  They were the £400 payment made to Miss Eaton in January 2012, the erection by Mr Wellings of a gate at Well Alley which he said was needed to keep Miss Eaton’s dog in but which, he accepted in cross-examination, Miss Eaton did not know he was making, the continued payments made by Miss Eaton into the Capital One account of Mr Wellings which continued until August 2013, the fact that Mr Wellings took his narrowboat out of the water in May 2013 and the cancellation of the insurance on Mr Wellings’ tractor, which had been insured by Miss Eaton since December 2009 under her NFU Mutual policy in respect of Oxmoor, on the 17th June 2013.  To the above I would add the continued use by Mr Wellings of Oxmoor, which was not objected to.

25.         A number of matters fall to be taken into account in relation to Mr Blakemore’s submission.  They largely arise out of the evidence in relation to the caravan and the corroborative evidence of Mrs Goodwin whose evidence I found impressive, being based on events within her own knowledge, and the view I have formed of the reliability of Mr Wellings as an individual and as a witness.  The matters I have in mind are as follows:

25.1.   A college would not be providing a student with a caravan for study or otherwise.  If it was only used for study, there would have been no need to keep its location location a secret, as Miss Eaton appears to have done.  In the light of Mr Wellings’ conduct when he found her in her car at Hollybeds Farm her secrecy is understandable;

25.2.   On any view the supposed blip appears to have lasted at least from August to October 2012.  Following the incident when Mr Wellings removed Miss Eaton’s car keys to stop her driving her car, the caravan was, understandably, moved to Hollybeds Farm, in October as a less remote and safer place for her to be having regard to his conduct.  His conduct on that occasion was consistent with her evidence that his attempts to resolve issues between them amounted to further bullying;

25.3.   I am satisfied that, notwithstanding Mr Wellings’ denial, Mr Wellings after May 2013 removed Miss Eaton’s documents from the shed at Oxmoor and deliberately refused to return them.  In this regard I accept the evidence of Miss Eaton and Mr Jones.  It appears he still has them; and

25.4.   Between June and August 2013 Mr Wellings reported Miss Eaton to Capital One and the police for her allegedly fraudulent use of his credit card, although he accepted before me that he had permitted her to use the card and did not suggest that she had made any unauthorised use.  The alleged fraud covered the period from March 2011 to the 22nd June 2013, the latter date being after the termination of the relationship on any view.  His explanation was that he had reported her to the police because she had said that the parties were not in a relationship.

26.         In relation to moving into 11 Well Alley I accept the evidence of Miss Eaton that she alone moved into the property in late April or early May 2013, relying on her payment to Aardvark Locksmiths on 7 May 2013 after she had locked herself out. The above does not support Mr Wellings’s contention that the parties moved in together as a couple.  On his own account Mr Wellings did not move in until after the 19th May.  It seems likely that he was still there when he taxed the Toyota Hilux, which was owned by Miss Eaton but which he drove, on the 1st June at Tewkesbury Post Office. 

27.         In the circumstances I find that the relationship between the parties did not revert to what it had been before August 2012, though there seems to have been some improvement in their relations after October which, I find, fell short of Miss Eaton returning to live on the narrowboat.  I consider that in substance Miss Eaton was correct in saying that the relationship in terms of the parties living together as man and wife was at an end in August 2012. It is clear, however, that some form of friendship and possibly some intimacy were resumed after October, though I have no doubt that for his part Mr Wellings would have wanted a return to the earlier relationship of cohabitation.  I do not consider that that occurred.

28.         As to my estimation of the veracity of the evidence of the parties, for the most part I prefer the evidence of Miss Eaton, being satisfied that the evidence of Mr Wellings is not reliable on the issue of the parties’ relationship and that he exaggerated the work he undertook on the properties.  One issue on which I accept his evidence in preference to that of Miss Eaton is in relation to the £400 payment which, as it seems to me, was most likely to have been requested in order to enable Miss Eaton to pay the mortgage on 11 Well Alley.

The Properties

29.         11 Well Alley is a small house with a single bedroom built in the early 19th century.  It was purchased for £117,000, Miss Eaton paying a deposit of £21,000 and the balance being raised on a buy to let mortgage.  There has been a subsequent change (or changes) of mortgagee and in the amount of the monthly repayment.  Referring to the survey undertaken by Perry Bishop for Miss Eaton at the time of her purchase, Mr Wellings alleged that the property was structurally defective.  I do not consider that that is at all the effect of the report which concluded that there was nothing of sufficient seriousness to deter Miss Eaton from the purchase and that items such as dampness should be expected in older properties.  In substance there was nothing to suggest that substantial renovation was required. 

30.         11 Well Alley was let until 2008 when refurbishment work was undertaken, in part by the Applicant, although the cost of the work was borne by the Respondent who herself decorated the property.  Thereafter the property was let at a monthly rent of £450 to Sara Acton who remained at the property until January 2013.  In 2010 Miss Eaton paid £2,000 for the installation of a new boiler.  The property remains her postal address, although it appears that she lives elsewhere. All the rents from the letting of the property were received by Miss Eaton.  The mortgage, insurance and, for a period, council tax on the property were paid out of Miss Eaton’s bank account with no assistance from Mr Wellings other than the payment of £400 made by him to Miss Eaton in January 2013.  The monthly cost of the mortgage varied between £497 and £356.  After taking into account mortgage and the costs of insurance and maintenance, there could have been little, if any, surplus.  

31.         The French property is again a small house.  As described by Miss Eaton in cross-examination it has three rooms, a kitchen and living room combined, a bathroom and a bedroom and there is an attached barn.  Again all the outgoings were paid by Miss Eaton.  It was visited by the parties several times a year prior to 2013.  Their ferry fares were paid by Miss Eaton who appears to have bought bulk tickets on a yearly basis.  Having regard to the work which I find Mr Wellings to have undertaken the property appears to have been structurally sound.

32.         The three fields were purchased in the joint names of the parties in about March 2008, the purchase price of £15,487 being paid by Miss Eaton alone, though there were payments by Mr Wellings to her French bank account in late 2007 amounting to £835 which may have been connected with the purchase.  The unchallenged evidence of Miss Eaton is that it was her idea that the land should be put into the joint names of the parties.  She said that Mr Wellings in telling her about his earlier relationships had said that other women had not respected him.  She had decided to put the property into joint names in order to show him respect.

33.         One of the fields was planted with vines and the correspondence indicates that another was an orchard.  Miss Eaton said that she alone had gone to France every January in order to prune the vines and that she had made wine with the grapes, though with what success is not known.  Plainly the maintenance of the land together with the work on the house would have occupied a significant part of the time the parties spent in France.

34.         Oxmoor is a field on which there were and remain three buildings, a greenhouse and two buildings variously described as a barn, an office and a shed, one of which I infer to have been used as a stable for Miss Eaton’s pony.  Miss Eaton indicated that the buildings together with the drainage associated with them had been erected by herself and her former husband.  There is also a polytunnel which, I infer, was uncovered until it was recovered by Mr Wellings in about December 2012.  I have no evidence as to when or how Miss Eaton Eton acquired her former husband’s interest, though she did say that she was repaying a loan in connection with the field.  As with the other properties the outgoings were paid by Miss Eaton.

35.         Up to about 2009 Oxmoor was let to a Mr Hook.  It appears that after Mr Hook’s departure Mr Wellings gave up the tenancy of land he had rented at Castle Moreton (or perhaps Castlemorton) and was, as I find, permitted to move his tractors and machinery from there to Oxmoor, in doing so saving himself the rent he had been paying.  The machinery included three tractors, though only one is described as working, trailers, a plough, cultivators and other agricultural equipment.  There was also a shipping container which contained further tools and equipment and further tools which were kept in the shed.  It does not appear that any use was made of the machinery on Oxmoor or elsewhere after the commencement of the relationship. Miss Eaton also says that she moved her pony back to Oxmoor after Mr Hook left.  It is evident that after the narrowboat was moved to Tewkesbury Marina in November 2010 the parties would have been living much closer to Oxmoor and in a better position to make use of it.

36.         Mr Wellings gave evidence that the parties had discussed the possibility of using Oxmoor as a smallholding and applying for planning permission to erect a cabin on it.  That was denied by Miss Eaton and in any event there is no evidence of it having been used as a smallholding.

37.         I know little about Mr Wellings’s assets, namely his narrowboat and agricultural machinery.  In relation to the narrowboat Miss Eaton said that he made all decisions about how it was decorated and where it was moored and that he always referred to it as “My boat”.  I accept that evidence.  I have no doubt that his assets were of significantly less value than her properties.  If the parties created a joint pot which they shared equally, which I understand to be Mr Wellings’s contention, it would have involved a substantial element of gift on the part of Miss Eaton.

Work Done at 11 Well Alley

38.         In relation to the properties the greater part of the evidence I have heard was from the parties alone accompanied by some unclear photocopied photographs showing some of the work alleged to have been done at 11 Well Alley and Oxmoor.  There is no admissible expert or other independent evidence as to the value of the properties or as to the work claimed to have been done by Mr Wellings or as to any increase in value derived from such work.  I note that Mr Blakemore’s Skeleton Argument in dealing with Miss Eaton’s evidence on her expenditure on he properties points to her failure to have procured copies of invoices from those involved.  I can attach no real weight to that submission given that firstly Mr Wellings’s documentary evidence of his expenditure is far more limited than that provided by Miss Eaton and secondly her evidence is that the documents in question would have been with the documents I find to have been taken by Mr Wellings.  In any event Mr Wellings’s evidence at the hearing substantially accepted that the materials, save those used at Oxmoor, were paid for by Miss Eaton.

39.         Mr Wellings’s supplemental statement of case contained a lengthy list of the work he claimed to have done at 11 Well Alley as well as on the French house and Oxmoor.  Miss Eaton’s statement of case in response did not deal with the work other than that at Well Alley on the ground that it was irrelevant to the application.  There was little cross-examination of Mr Wellings other than in relation to 11 Well Alley, though Miss Williams was cross-examined at some length in relation to all of the properties.  The situation is far from ideal when it comes to my having to determine what work was done and in what circumstances.

40.         Not untypically, given his farming background, Mr Wellings was content to undertake building work.  It is also apparent that at the times he undertook work at Well Alley he had no work as a driver, enabling him to work without loss of income.  That was the subject of direct evidence from Miss Eaton and there was no suggestion from him that he lost earnings as the result of the work he undertook.

41.         I find that in 2007 Mr Wellings undertook repairs to the roof of Well Alley for which purpose he says that he hired a scaffold tower from Mr Roberts.  That was not a hire in strict terms but would have given rise to an expectation that he would do work for Mr Roberts in return.  The substantial work was the replacement of 12-14 roof tiles which, it is probable, were provided by Mr Roberts on the same understanding.  He claims also to have repointed the chimney, although the survey undertaken in 2006 observed that that had been completely rebuilt and that the pointing was in good condition.  I find that, if any pointing was done, it was very limited.  It is common ground that Miss Eaton paid Mr Wellings £250 for the work he undertook.

42.         In the summer of 2008 more work was undertaken prior to the letting to Sara Acton.  Mr Wellings refers to it as a renovation which he undertook alone.  I do not consider that either proposition is correct.  In particular I find that the property was internally redecorated by Miss Eaton, there being no suggestion that that work was undertaken by him.  I find that Mr Wellings did some tiling in the bathroom but that it was limited to two rows of tiles around the bath and sink and that the grouting was done by Miss Eaton.  The new shower was fitted by an electrician paid for by Miss Eaton with some plumbing being done by Mr Wellings.  The floor tiles in the bathroom did not need to be replaced nor the flooring in the bedroom, though there may have been some repair to them, as there was to the kitchen cupboard.  Other than the work in the bathroom Mr Wellings’s work appears to have been directed to repairing defects.  I find that the kitchen tiles were those purchased with the property and are not the result of his work.  At one point he suggested that he could have bought some materials but he also admitted that, if he had gone to B&Q, he would have taken Miss Eaton’s bank card.  I am satisfied that all materials used on Well Alley with the exception of the tiles and bricks provided by Mr Roberts and the gate for whose materials Mr Wellings paid £13.70 in February 2013 were paid for by her.

43.         In about 2009 further work was done by Mr Wellings to the other side of the roof he had previously repaired.  It is common ground that Miss Eaton had obtained an estimate for the work but there is a dispute as to whether he did the work because Miss Eaton was not happy with the quote, as he says, or because Mr Wellings did not want her to employ a roofer, as she says.  I prefer Miss Eaton’s evidence.  He accepted that on that occasion the scaffolding was arranged and paid for by Miss Eaton.  The work again appears to have involved the roof tiles and the creation of an effective seal between the tiles and the gable wall which the roof abutted but he also decided, apparently without reference to her, to reduce the height of the parapet wall bordering the roof and to finish it with engineering bricks provided by Mr Roberts.  I was shown a photograph of the work undertaken on the roof, although it is not in the bundle.  It looks like the work of a farmer rather than a tradesman.  If it was an effective repair, it was not attractive.  On the evidence of Miss Eaton the roof repaired in 2009 needed to be repaired again in 2014 and it is evident that the builder regarded Mr Wellings’s work as inadequate in particular in that it left the parapet wall unsupported as appeared from a photograph in the bundle. 

44.         In 2009 Mr Wellings also replaced some of the patio slabs in the yard of Well Alley and erected a fence 14 feet in length along part of the boundary between the patio and Well Alley.  In February 2013 he built and erected a gate in line with the fence, using materials for which he had paid £13.70.  He admitted, however, that Miss Eaton was not aware that he was building the gate.  Indeed it appears to have been the case that the work he was undertaking at about that time at Oxmoor was also done without reference to Miss Eaton.

Work on French House and Oxmoor

45.         Miss Eaton’s supplemental statement of case did not answer Mr Wellings’s case that he had carried out work at the French house and Oxmoor.  In relation to the French house Miss Eaton accepted in cross-examination that a significant amount of work was done but says that it was rather less than asserted and that she both assisted in the work and purchased the greater part of the materials, an admitted exception being the new door lock for which Mr Wellings paid £55.  As in other matters I prefer her evidence.  She says that there was no new door, no utility room, the washing machine being in the bathroom, no new inglenook fireplace, no new tiling or drainage in the bathroom, no fireplace exposed in the bathroom, no structural work to the chimney, no tiling, roofing or pointing to the exterior, no new hot air system, no repositioning of the staircase and no repair to the garage floor.  She says that she made the shutters, having paid for the materials and that she helped Mr Wellings in the work he did, always being there when he worked on the house, and points to the fact that she mixed cement and helped with the installation of the new stainless steel flue.  It is evident that the work done to the house has significantly changed the main downstairs room, no doubt to the taste of the parties, with the kitchen area being significantly modernised with a new gas hob and log burning cooker.  That is not surprising given that it is common ground that much of the parties’ time during their visits in the period 2008-2011 was spent working on the house or land.

46.         As in the case of the French house, Mr Wellings claims to have undertaken a considerable amount of work at Oxmoor.  Some of the work is disputed, including the erection of a post and rail fence with an electric wire around the property, the drainage work around the buildings, the provision of the irrigation system, the refurbishment of the greenhouse and the kickboarding in the stable.  A feature of the work actually undertaken is that, unlike the work on the other properties, the bulk of it was undertaken, as Mr Wellings put it, in the 12 months before the final end of the relationship.  More probably it was largely undertaken after Miss Eaton had started living in the caravan.  His explanation (given in re-examination) was that he had undertaken the work because Miss Eaton was distressed.   He did not say that it was something she had asked him to do or which they had planned together.  My clear understanding is that, while the work done at Oxmoor in that period was paid for by Mr Wellings, it was undertaken at his initiative, presumably motivated by a desire to repair the relationship.  Other parts of the work, the re-covering of the polytunnel, which was used to shelter his tractor and other equipment, and the installation of a generator were to enable him to store and use his machinery. The shipping container, for whose installation Mr Wellings claims credit, and its contents had simply been moved from Castle Moreton with his other machinery.

47.         While I accept that significant work was undertaken by Mr Wellings at Oxmoor he has provided no evidence of his actual expenditure other than an invoice for the new cover for the polytunnel.  It is common ground that, perhaps as early as 2011 according to Miss Eaton, he procured several semi-mature tree for the property which, he says, might have cost £16,000 if purchased from a nursery.  Miss Eaton’s evidence, which I accept, was that the trees came from the M5 tree nursery where Mr Wellings worked and which was being cleared.  In the event I do not know what, if anything, was paid.  I accept Miss Eaton’s evidence that she arranged for the planting of the trees.

Financial Arrangements

48.         The parties at all times kept their own bank accounts.  Indeed they had more than one each for various purposes.  Mr Wellings said that there was discussion about opening a joint bank account in France but that nothing came of it.

49.         Miss Eaton has provided detailed evidence of her expenditure, including her bank statements from 2007 until the end of 2013.  It is evident that in 2008 and 2009 she made significant payments for the mooring of the narrowboat and that from February 2009 to July 2010 she paid monthly sums by way of direct debit to British Waterways in respect of it.  In his supplemental statement of case Mr Wellings, referring to these payments, asks why they were made if the assets of the parties were not understood to be joined.  It does not seem to me that the payments point to any such understanding between the parties, being referable to the fact that Miss Eaton was living in the narrowboat and could be expected to pay a share in the outgoings.  In similar vein Mr Blakemore’s Skeleton Argument to the parties having contributed to one another’s living expenses as evidencing an intention of the parties to share all their resources.  I do not consider that there is any such inference to be drawn from a sharing of living expenses between a cohabiting couple.

50.         Miss Eaton’s permitted use of Mr Wellings’ Capital One card has been mentioned above.  In cross-examination Mr Wellings accepted that payments of £2,430 had been made by Miss Eaton into the Capital One account between January 2009 and December 2012.  His explanation was that Miss Eaton’s use of the Capital One account was on the understanding that she repaid what she had taken out of the account.  I note that the statements for 2013 produced at the hearing show that a further £965 was paid up to August 2013.  He evidently regarded that as evidencing a sharing of the parties’ assets. 

The £400 Payment

51.         I have previously indicated that I accept that the payment of £400 was made by Mr Wellings at the request of Miss Eaton and that the purpose was to enable the mortgage instalment due in February 2013 to be paid. The question which arises is whether Mr Wellings made the payment because it was the understanding of the parties that he had a responsibility for the mortgage or in order to enable Miss Eaton to meet her liability for it.  In this regard I note that this was the only occasion on which he appears to have been involved in any way in meeting outgoings in respect of respect of any of Miss Eaton’s properties.

52.         The evidence of Mr Wellings in cross-examination was that he spoke to Miss Eaton when he was in Italy driving and was told that the money was required for the mortgage which she would not otherwise be able to pay and that he had left signed cheques in his chequebook which she could use in any emergency.  Given the terms of the request and the fact that it only occurred once, it appears to be no more than a request on the part of Miss Eaton for money to be advanced to her in order to enable her to pay the mortgage instalment. 

53.         Additionally, as I have pointed out above, Miss Eaton paid the sum of £965 to Mr Wellings between January and August 2013.  What those payments related to was not explored before me save that Miss Eaton said that she continued her payments so as to repay what she owed.  I have seen nothing to suggest that the return of £400 was not included in those payments.  In that regard I bear in mind the schedule of allegedly fraudulent payments submitted by Mr Wellings to Capital One.  It shows no drawings by Miss Eaton in 2012 after the 15th March.  In 2013 sums amounting to £395.63 were allegedly paid out for her benefit.  My impression is that the payments made by her in 2013 would have discharged all that was due from her, including the sum of £400.

Conclusions

54.         The conduct which falls to be taken into account is conduct in relation to the property. In the context of the properties involved in this dispute I am doubtful that the purchase of the three plots of land in France in the joint names of the parties, involving an effective gift of a half share to Mr Wellings, can be regarded as relevant conduct in relation to any of the other properties.  I find it hard to regard an act of generosity as warranting the inference of further gifts.   That is all the more the case where Miss Eaton has given an explanation for the gift which I accept and which is inconsistent with the alleged common intention, namely that she put the property into joint names out of respect for Mr Wellings.  Mr Blakemore’s submission in relation to the three plots of land is that there is no reason for any distinction between them and the other properties.  The distinction appears to me to be obvious and lies in the fact that Miss Eaton put the three plots into joint names but had purchased her other properties in her sole name and did not transfer them into joint names.  In the circumstances I do not consider that the transaction affords any support for the application.

55.         In relation to the payments made by the parties to one another, I return to the proposition that it is conduct in relation to the property which is relevant.  Thus, even where parties shared their money, as cohabiting couples commonly do, it would not give rise to the inference of a constructive trust of property unless the use of the shared money was indicative of the relevant intention in relation to the property.  

56.         In the present case I do not consider that there was any pooling of the parties’ money, though the parties did use their money to meet their joint living expenses and Mr Wellings did provide temporary assistance to Miss Eaton, which she repaid.  The parties kept their finances separate by having separate bank accounts into which their respective incomes were paid and over which they had control.  The fact that Miss Lloyd paid outgoings in relation to Mr Wellings’s narrowboat does not indicate that she was sharing her money or regarded herself as having an interest in the narrowboat.  She was merely paying outgoings in relation to the place she was living with Mr Wellings. The fact that Mr Wellings allowed Miss Eaton to use his Capital One card did not involve a sharing of his money given that it was on the understanding that she would repay what she had taken out of his account for her benefit which I have found she did.

57.         In relation to the use of the parties’ money, the conduct which I consider material in the present context is the fact that Miss Eaton received the rent for 11 Well Alley, paid the mortgage and outgoings in respect of all her properties without and contribution from Mr Wellings and, with few exceptions largely in relation to Oxmoor, the cost of materials for their repair.  Far from leading to the inference that there was a common intention to share the properties, that conduct suggests or is consistent with there being no common intention to share them.  For the reasons given above I do not consider that Mr Wellings falls to be treated as having paid a mortgage instalment by reason of having paid the sum of £400 to Miss Eaton.  Her need to pay the mortgage was merely the occasion for an advance to her to enable her to pay the mortgage which, as I have found she repaid.  I would add that, even if Mr Wellings had directly paid a single mortgage instalment, the inference which could be drawn from it would be limited and a great deal more would be required to establish the relevant common intention.

58.         As to the contention that the parties treated their assets as a joint pot, I accept that work done by Mr Wellings on Miss Eaton’s properties could be said to provide support for the inference that he was intended to have an interest in them but it affords no evidence that Miss Eaton was intended to have an interest in his property.  Indeed I can find nothing to support such an inference.  Merely living in the narrowboat, paying some of its outgoings and permitting Mr Wellings to keep his machinery at Oxmoor would afford no evidence of such an intention in relation to those assets.  Moreover, for the reasons given, above the parties’ financial dealings do not point to there being a common intention to pool their property.  If anything they suggest the contrary.  Accordingly I conclude that the parties’ conduct does not warrant the inference that the parties had formed the intention to share their assets.  Far from there being such cogent evidence of such an intention as the authorities require I consider that the parties’ conduct was inconsistent with such a far-reaching intention.  Accordingly I do not accept the case as put to me on behalf of Mr Wellings.

59.         As to the claim to an interest in 11 Well Alley alone, it differs from those considered by the Courts in the cases referred to above in that for the most part it was let rather than occupied by the parties.  It seems to me therefore the relevant factors to be considered in relation to whether they reached a common intention as alleged are how the property was dealt with during the relationship and the effect of the work done on it by Mr Wellings.  I consider that throughout the relationship sole responsibility for the property remained in the hands of Miss Eaton who received the rent and was responsible for the mortgage, outgoings and the costs of repair.  I note that the largest such expense, the sum of £2,000 paid for the installation of a new boiler was paid by her alone.  For the reasons given above I do not regard Mr Wellings’s payment of £400 as materially affecting that responsibility.

60.         As to the work done by Mr Wellings on 1 Well Alley, it was not insignificant but it clearly did not amount to the renovation of the property, being in the nature of repair or maintenance.  It is notable that in relation to the first repair undertaken on the roof he was paid £250 by Miss Eaton, manifesting in my judgment an understanding that the property was her burden and not his.  The work undertaken in 2008 was minor work of the kind undertaken between tenancies.  The repair to the roof undertaken in 2009 was, I find, undertaken by Mr Wellings despite Miss Eaton’s preference to employ a roofer.  The work undertaken then was extended by his decision to lower the parapet wall without any request from Miss Eaton for that to be done and in any event was not successful in the long term.  The laying of flags in the patio and the erection of the fence in 2009 can also be regarded as minor.

61.         All of the above work was undertaken while the parties were living together as husband and wife.  I can see nothing in the work that went beyond a desire on the part of Mr Wellings to assist Miss Eaton or to indicate that, in the words of Sir John Chadwick, his motives were “necessarily attributable to pecuniary self-interest”.  Certainly I can see nothing which would overcome the inference to be drawn from Miss Eaton’s ongoing responsibility for the property.  In my judgment the evidence falls a long way short of what would be required to justify the inference of a constructive trust in respect of 11 Well Alley.

62.         No submission was made on behalf of Mr Wellings that the parties should be inferred to have formed the intention that Miss Eaton was to share all of her properties with Mr Wellings in return for his work on them.  That would obviously be an unattractive argument given that it would involve the retention by Mr Wellings of his property and the sharing of Miss Eaton’s.  Indeed it seems to me that any such claim would be better dealt with on a property by property basis.  On the evidence I have heard I would not in any event be prepared to conclude that Mr Wellings could meet the burden of showing that his work was undertaken in the belief that the properties or any of them were shared between the parties.  In relation to 11 Well Alley my reasons are set out above.  In relation to Oxmoor I consider that, in the light of what Mr Wellings said, he did not act on an understanding that he was to have an interest in the property but for an entirely different reason.  In relation to he French house the work was more substantial than in relation to 11 Well Alley but again I do not consider it was such as to establish a motive other than the maintenance of his relationship with Miss Eaton. 

63.         In view of the conclusion I have reached it is unnecessary for me to consider the issue of the size of any beneficial interest as claimed by Mr Wellings.  Indeed my knowledge of the value of the properties or of any increase in their value is such that it is unlikely that it would have been appropriate for me to consider the issue of quantification.

64.         In the light of my decision that the application should be dismissed Miss Eaton is prima facie entitled to her costs.  Consequently as indicated at the haring the substantive order directs that Mr Wellings should, if he thinks fit, lodge his submissions as to why he should not be ordered to pay costs, with provisions for a reply thereto.  It is not necessary at this stage for a schedule of costs to be served.

 

Dated this 17th day of November 2015

 

 

 

By Order of The Tribunal