Quaintance v Tandan [2012] EWHC 4416 (Ch)

Analysis

Mr Quaintance (the defendant) appealed against the decision of HHJ Ellis granted on 24 May 2012. The original decision had been made in a contested application made by Miss Tandan (the claimant) under the Trusts of Land and Trustees Act 1996 for a determination of shares in a property (the property). The outcome of the decision was that the net proceeds of sale following the discharge of the mortgage currently being held by the mortgagee should all be paid to the claimant. Half of these had been paid to the claimant following the decision. The defendant appealed in respect of the other half and payment was postponed.

The judge recited the findings of the judge below. The parties had lived together since 1992. The property had been bought in April 1999. The defendant made no financial contribution to the purchase. Completion was in April that year and the property had been registered in joint names. The defendant lived there for only between six and 12 weeks. There was a declaration of trust stating that the parties held the property on trust for themselves as tenants in common in equal shares. However, it was unexecuted. Following cross-examination the judge below held that this was evidence of the parties’ intentions at the time.

Relying on Stack v Dowden [2007] WTLR 1053 the judge below held that this was an unusual case where the intention had changed within a very short period as the relationship broke up and the defendant moved elsewhere, making no financial contribution of any kind. The judge below accepted the claimant’s evidence that the break up of the relationship had had a devastating effect on her. Ultimately the mortgagee took possession of the property and it was sold. During the whole period the defendant’s whereabouts where unknown to the claimant. It was only when the mortgagee traced him that he asserted any claim to the equity in the property. The judge below held that the defendant’s behaviour demonstrated that he no longer wished to be subject to the trust and directed that the entirety of the proceeds of sale go to the claimant.

The defendant appealed on various grounds of fact and law:

1. 1. The defendant submitted that judge below was wrong to find that the defendant made no contribution to the property. Between 1992 and the purchase of the property in 1999 the claimant and defendant had lived together and the defendant had paid some outgoings. There was also a period where they had lived in accommodation tied to the defendant’s employment.
2. 2. The defendant submitted that the judge below had been wrong to hold that there was no significant contribution to the parties’ outgoings during the short time that they lived together. It was submitted that the judge below had not resolved a conflict in the evidence.
3. 3. The defendant submitted that there was in fact no change of intention from the common intention that had been established at the outset. It was wrong to conclude that the defendant had abandoned his interest. The defendant submitted that as both parties had ultimately failed to pay the mortgage his own failure should not be held against him. The defendant also submitted that that the fact that he remained liable on the mortgage was evidence of a continued intention to retain a share of the property, relying on Carlton v Goodman [2002] EWCA 545.
4. 4. The defendant submitted that fairness in the context of Jones v Kernott [2012] WTLR 125 had not been explicitly addressed by the judge.

Held:

1. 1) The parties’ dealings between themselves at the relevant period were balanced. In addition and in any case such considerations were irrelevant where the actual purchase money had come from distinct savings accounts owned by the claimant. The judge held that the judge below had been well entitled to find that the defendant made no contribution to the purchase price.
2. 2) Any conflict in the evidence on the defendant’s contribution to the outgoings had been resolved satisfactorily and there was no conceivable basis for upsetting the judge below’s findings.
3. 3) The judge had found an actual change in intention had occurred and there were no grounds for challenging that finding. The defendant’s submission that his failure to pay the mortgage should not be held against him was utterly unrealistic. Such failure was part and parcel of his abandonment of the property. The submission based on Carlton v Goodman failed. The current case was not a resulting trust case as was that one. In any event, the defendant’s actions in relation to the mortgagee made it clear that his intention had changed over time.
4. 4) It was true that the judge below had not explicitly addressed fairness. However, this was likely to be because on the facts of the case the only only logical inference is for an abandonment of an interest in the property. Even if fairness should have been considered, the same result would have applied. Each case will turn on its own facts and it is dangerous to draw too greatly on the facts of a particular case.
5. 5) Appeal dismissed for the reasons above.

JUDGMENT HHJ WAKSMAN QC [1] This is an appeal brought with the permission of Proudman J granted on 24 May 2012 against an order made by HHJ Ellis after a trial, the order being made on 27 February 2012. What he had before him was a contested application by the claimant, Miss Tandan, and the …

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