[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Thomas v Fuller-Brown [1987] EWCA Civ 10 (17 June 1987) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1987/10.html Cite as: [1987] EWCA Civ 10, [1988] 1 FLR 237, (1988) 18 Fam Law 53

[New search] [Help]

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL CIVIL DIVISION)
ON APPEAL FROM THE CHICHESTER COUNTY COURT
Her Honour Judge Patricia Coles.

		Royal Courts of Justice
		17th June 1987

LORD JUSTICE SLADE: This is an appeal by Mr. Harry Fuller-Brown from a judgment of Her Honour Judge Patricia Coles, Q.C., delivered in the Chichester County Court on 10th October 1986. The judge had before her two consolidated actions. The first action, 8602394, was brought by Mrs. Pamela Ivy Thomas as plaintiff against Mr. Fuller-Brown as defendant seeking a non-molestation order under the Domestic Violence & Matrimonial Proceedings Act 1976, and also an order that he be required to vacate a house known as 1 School Lane, Bosham, Sussex. The second action, 8505569, was brought by the same plaintiff against the same defendant seeking possession of that house and also a declaration that the defendant had no interest in it. In the second action, 8505569, the defendant counter-claimed for a declaration that the plaintiff holds the property on trust for herself and him in the proportions one-third to two-thirds respectively. Alternatively, he sought a declaration that he was entitled to some other interest in the property or an equitable lien on it. In the event the plaintiff did not proceed with the first action and so the judge was concerned solely with the second action, 8505569, and the counterclaim in those proceedings.

By her judgment the judge dismissed the defendant's counterclaim and ordered that he should give possession of the house to the plaintiff on 10th October 1986. Subsequently, however, on 20th October 1986, she gave the defendant leave to appeal from her judgment and he now appeals to this court. In the court below he was represented by counsel, but he appears before us in person. Though he has not been in a position to make any submissions on the law, he has helped us by clear submissions on the facts, which he has made with great care. We are indebted to him for his argument, as we are to Miss Brann, who has appeared as counsel for the plaintiff.

I take the history of the matter largely from the findings of fact made by the learned judge in her judgment. The plaintiff and the defendant first met in February 1983. The defendant at that time had been in the building trade as a bricklayer for some 12 years. He was about 39. He had been divorced for some two years, having two children who had been born in 1978 and 1979 and who were in the care of his ex-wife.

The plaintiff was then aged about 42. She had been divorced for a number of years and had two adult children. She was at that time employed in the Finance Department of the Chichester District Council and was living at 17 Fontwell Road, Selsey, West Sussex, which was the former matrimonial home.

The judge found that the plaintiff is "a lady of a nervous disposition and, despite her job, not at all of a businesslike turn of mind and easily subject to pressure". She found that the defendant is "a person whose personality could be overbearing and certainly far more worldly-wise than Mrs. Thomas". The plaintiff became emotionally involved with him and within a month of their meeting he moved into her house. He came with few possessions and had no assets. Indeed he seems to have been indebted in sums of between £3,000 and £4,000 at that time. The judge accepted the plaintiff's evidence that the defendant moved into her house at Selsey at his suggestion.

After a few months, because the plaintiff's former husband required the equity from the matrimonial home, she had to sell it. In the summer of" 1983 17 Fontwell Road was accordingly sold. After a mortgage on the house and various other debts had been paid off she was left with about £14,500. A friend of hers living in Bosham told her of a house at No.1 School Lane, Bosham that might be suitable for purchase by her. She and the defendant looked at the house and she decided to buy it. It cost £23,500. She raised that purchase price with £13,500 left over from the sale of her former matrimonial home together with a sum of £10,000 raised on mortgage from Barclays Bank. She paid the entirety of the purchase price and the defendant made no contribution to it. That is a point of some importance in this appeal.

The completion of the purchase took place on 2nd September 1983 and the house was conveyed into the plaintiff's sole name. She and the defendant then moved into No.l School Lane which, for the rest of this judgment, I will call "the house". It needed a considerable amount of repair and improvement. The plaintiff accordingly, with the assistance of the defendant, who did the paperwork, applied for a grant for the improvements from the Chichester District Council. Throughout the summer of 1983, as the learned judge found, with the exception of perhaps two weeks or thereabouts, the defendant had effectively been unemployed and was kept by the plaintiff in every respect.

At the time when they moved into the house the plaintiff was earning about £6,000 a year. The judge accepted her evidence that at no time did the defendant give her any money or pay for anything save really trivial items. In the judge's view the plaintiff was afraid that if she accepted money from him it could be construed as rent and was concerned that he did not become a tenant. He went on to unemployment benefit from November 1983 to January 1984 but, for reasons which I have mentioned, the plaintiff refused to let him submit to the Department of Health & Social Security that he was paying rent for the house; and indeed he was not paying any rent.

During the period before the grant from the local authority came through, the defendant, while drawing unemployment benefit, did some work on the house over the winter of 1983 to 1984, which was not connected with the work scheduled for the grant. However, by the spring of 1984 there had been a serious quarrel between the two parties, as a result of which for the time being the defendant left the house.

In April 1984 the grant came through. Subsequently and, as the plaintiff told the court, foolishly, she took the defendant back. During this intervening period he had been living in lodgings. Then, according to her evidence, which the judge accepted, an agreement was reached that he should carry out the work provided for by the council grant and organise it, in return for her keeping him. Her evidence was that there was no agreement whatsoever as to his having any share in the house itself. Her evidence, as summarised by the judge, was: "He had full use of my car, and after that, he could have the full use of my home and start advertising to use my phone number to start off business on his own." That arrangement, as the judge found, was made before June 1984, but there was never any discussion as to how long it was to last.

The application for the grant was made on behalf of the plaintiff by the defendant. In due course, in April 1984, the grant came through, in a sum of about £7,650. It is common ground that he did indeed do the work that is set out in accordance with the terms of the grant. I do not think that we are concerned with the details of the work that he did, but in fairness to him it should be said that the work was obviously quite substantial. He himself summarised features of the work which he did in an affidavit . (This is to be found at page 72 and onwards in our bundle). In it he said that, (inter alia), he designed and constructed a two-storey extension, created a through lounge, carried out minor electrical and plumbing works, re-plastered and re-decorated the property throughout, landscaped and reorganised the garden, laid a driveway, carried out repairs to the chimney and the roof and re-pointed the gable end of the property, constructed an internal entry hall at the property, re-built the kitchen and installed a new stairway.

Miss Brann on behalf of the plaintiff, while not accepting that the list of items was by any means entirely accurate, accepted that in broad terms it represented the nature of the work which the defendant had done. As I have said, it must have been quite substantial. There is considerable dispute between the parties as to the quality of the work. The defendant says it is good. The plaintiff says that in a number of respects it is not good. But I do not think we are concerned with the quality of the work for present purposes.

Messrs. Whiteheads, estate agents of whom a representative gave evidence before the learned judge, accepted the value of the net labour put into the house by the defendant at a figure of £7,185 and the materials used at a figure of £5,263. An additional sum of £3,187 was also spent on subcontracted work, organised apparently by the defendant, but I do not think we are concerned with that.

After the works had been completed and the money had run out, the relationship between the parties seems unfortunately to have deteriorated. On about 12th July 1985 the plaintiff left the house, because as the judge found, she was pushed around by the defendant and due to his intolerable behaviour. She served a notice terminating what was stated to be his licence to occupy the property on 18th July 1985. He did not vacate the property. Thereafter she herself lived elsewhere in rented accommodation for the time being. On 6th November 1985 she issued the proceedings seeking possession which are now before this court and which led to the judgment of 10th October 1986 which is the subject of this appeal.

At this point I interpose a brief reference to the law. It is perhaps understandable that the defendant, having devoted a substantial amount of labour to the house, though no money, and having seen it correspondingly increase in value, should consider that he should be entitled in law to claim some interest in it. However, it must be said that under English law the mere fact that A expends money or labour on B's property does not by itself entitle A to an interest in the property. In the absence of express agreement or a common intention to be inferred from all the circumstances or any question of estoppel, A will normally have no claim whatever on the property in such circumstances. The decision of the House of Lords in Pettitt v. Pettitt (1970) AC, 777 makes this clear. That was a case in which a husband claimed to be beneficially entitled to a share in the proceeds of sale of the former matrimonial home. The house in question had been purchased out of the proceeds of sale of a previous house belonging to the wife, and had been conveyed into her name alone. The husband's claim was based on his having done work on the house by way of re-decoration and improvement which he said had enhanced its value by £1,000. Apart from the fact that the parties were in that case husband and wife, the case therefore bears some similarities to the present case.

The House of Lords held (I quote again from the headnote) that "upon the facts disclosed by the evidence it was not possible to infer any common intention of the parties that the husband by doing work and expending money on materials for the house should acquire any beneficial proprietary interest therein; and that, accordingly, in the circumstances the husband's claim failed".

I would refer further only to a passage from the speech of Lord Upjohn (at page 818 of the report) where he said: "My lords, the facts of this case depend not upon the acquisition of property but upon the expenditure of money and labour by the husband in the way of improvement upon the property of the wife which admittedly is her own beneficial property. Upon this it is quite clearly established that by the law of England the expenditure of money by A upon the property of B stands in quite a different category from the acquisition of property by A and B".

I pause there to say that the present case likewise is not a case where the defendant had made any direct contribution to the purchase price of the acquisition of the property.

Lord Upjohn continued: "It has been well settled in your Lordships' House (Ramsden v. Dyson (1865) L.R. 1 H.L.129) that if A expends money on the property of B, prima facie he. has no claim on such property. And this, as Sir William Grant, MR., held as long ago as 1810 in Campion v. Cotton (1810) 17 Ves.263, is equally applicable as between husband and wife. If by reason of estoppel or because the expenditure was incurred by the encouragement of the owner that such expenditure would be rewarded, the person expending the money may have' some claim for monetary reimbursement in a purely monetary sense from the owner or even, if explicitly promised to him by the owner, an interest in the land (see Plimmer v. Wellington Corpn. (1884) 9 App.Cas.699). But the resondent's claim here is to a share of the property and his money claim in his plaint is only a qualification of that. Plainly, in the absence of agreement with his wife (and none is suggested) he could have no monetary claim against her and no estoppel or mistake is suggested so, in my opinion, he can have no charge upon or interest in the wife's property."

In my judgment, with respect, this passage in Lord Upjohn's speech accurately states the law, save that I think that an implicit as well as an explicit, promise by the owner might suffice to confer on the other party an interest in the land in the circumstances which Lord Upjohn was discussing.

The learned judge at the trial in the present case heard oral evidence from two expert witnesses called on behalf of the respective parties and from the defendant and the plaintiff themselves and also, I think, from the plaintiff's daughter. This included a substantial amount of evidence as to what had happened to the house after the parties moved in, the sums spent on the property and as to the subsequent disputes between the parties. The judge dealt with 'the law very succinctly, but I think correctly, in saying (at page 8 of the notes of her judgment): "In my view, what is important is what the agreement or common intent was when they moved in, if there was an agreement or common intent and whether there was any subsequent agreement or common intent."

The defendant in his oral evidence put forward a case which I think had not been presented in his pleadings. This was that there had been an express agreement that he and the plaintiff would share the ownership of the house. His evidence as recorded by the learned judge in her judgment was to the following effect: "We decided to get married — I was going to improve the house. We discussed improvements; we discussed the ownership of the house. She suggested we went 50/50. Neither of us wanted any hassle if we got divorced. We wanted it agreed from the start. She suggested 50 per cent of the house as it was then. I said I would accept 50 per cent if I equalled what she put in. She had got a mortgage of £10,000

and put down £13,500. If I could produce £13,000 or £18,000 I would have accepted 50 per cent. She was being generous. I had no savings. I would have 50 per cent and we would have equal rights; I would improve the property and saw no reason why it could not be doubled in two years. I declined the 50 per cent. I explained I did not think it was fair to her. She was not bothered, we were getting married ... My interest would be from the improvements, then I would have 50 per cent. It was agreed and also that we should marry."

The defendant therefore, as I understand the judge's summary of his evidence, not only claimed that there was an agreement they would marry, but that there was an agreement that, if and when he had done the projected improvements, he would take a 50 per cent beneficial share in the ownership of the property.

There was, however, an acute conflict of evidence between the defendant and the plaintiff on this point. The plaintiff's evidence was to a quite different effect. Though she accepted that the defendant had frequently asked her to marry him and that she had refused him, her evidence was that she had never agreed to marry him and never offered him a 50 per cent interest in the house. Her account was that when they moved into the house there was no agreement that he was going to do up the house or receive any interest in it; subsequently, however, after the grant had been received, he said he would like to do the work on the house and that she agreed to his doing the work. She said — I take this from the judge's summary of the evidence at pages 4 and 5 of the notes of her judgment — "I was unsure, but as a result of the pressure I permitted him the following summer so to do."

The learned judge, having heard the evidence and seen the witnesses, accepted the plaintiff's evidence on all points where it conflicted with that of the defendant. She did not find him a credible witness. She was quite sure that there had been no discussion between them and no offer by the plaintiff of a 50 per cent interest in the house. She thus rejected the claim based on an express agreement.

The judge also dealt with and rejected a contention put forward on behalf of the defendant that there was a common intention that the defendant should have an interest in the house. As to this she made the following findings (see pages 6 and 7 of the notes of her judgment): "Both the defendant and the plaintiff have said that Mrs. Thomas wanted only and has always wanted to own her own house exclusively. That would be totally inconsistent with her agreeing to his becoming a part owner at any time. I am sure that he went to Bosham with her on the same terms as he was living at Selsey, namely a licensee, doing the odd job here and there and being quite satisfied to use her car and to be a kept man. After the parting of the ways in April 1984 and his return then, according to her, he agreed to use no further violence, (which evidence I accept) I have no doubt at all that he prevailed upon her to utilise him to do the work rather than using the firms whose estimates had been submitted to the district council for the purpose of obtaining this grant. He was fully aware by the summer of 1984 that (i) she would not marry him, (ii) she had left this house to her children equally in her will. I am sure that he continued on the same basis to do the work scheduled under the grant save that she gave him additionally £20 to £25 a week pocket-money. Nor do I accept his evidence that he worked such extensive hours; I believe her when she says frequently he was not out of bed when she went to work in the mornings. I am sure that by implication as far as she was concerned he accepted the terms that she put forward and had stated them and indeed part of the deal was that he should be able to advertise his services from her house which indeed he did."

In parenthesis I should perhaps say a word about the question of the so-called pocket-money, even though I think it has no real bearing on the ultimate decision which we have to reach. First of all, Miss Brann on behalf of the plaintiff has accepted that the judge's reference to £20 to £25 a week is an erroneous reference to £15 to £20 a week. Secondly, it appears that the arrangement was not so much that the plaintiff actually handed over sums of money to the defendant as that she had control over what I may colloquially call the "kitty" and permitted him to draw out sums, in roughly the amounts stated, each week.

The judge accepted the submission made on behalf of the plaintiff that the defendant, whom the judge considered well versed in these matters, had an ulterior motive in doing what he did to the house and was covertly seeking to establish a beneficial title to it, without letting the plaintiff understand what he sought to achieve. She said (at page 8 of the notes of her judgment): "Mrs. Thomas was emotionally involved, but she is not so stupid in my view that she would ever have agreed, having worked all her life and finally got a house that was in her sole name, to have handed over any interest in her property. Furthermore, she may have been stupid in this instance in the way in which she dealt with Mr.Fuller-Brown but she is not so stupid that she would have agreed to any of the propositions that Fuller-Brown alleges. Above all she had no need to. She put up the deposit, it was her mortgage serviced by her. The grant was allocated to her. It was she who was able to borrow the additional £3,000 from the bank. She had no need whatsoever to use Mr. Fuller-Brown to do the work and could have had it all done by a firm of builders for the price submitted to the local council and retained the full interest in the property without any aggravation. This could have been at little or no additional cost. (I accept Mr. Fuller-Brown did more than the specification, but on the other hand there are queries over his workmanship). He persuaded her to let him do the work in my view so that he could subsequently say he had an equitable interest."

The judge accepted the plaintiff's evidence that the question of the defendant's alleged interest in the house only arose when the plaintiff was about to leave in July 1985 and he, as the judge put it, thrust under the plaintiff's nose a document which purported to give him a 50 per cent interest in the equity. Having rejected his account of the event and accepted the plaintiff's account, she found that he was a licensee and that his licence was terminated on 18th July 1985. She accordingly made the order for possession to which I referred earlier in my judgment.

The defendant in his notice of appeal has raised a number of grounds. However, the main thrust of his oral argument before this court has been that the judge was wrong to prefer the plaintiff's evidence to his own and that her findings were contrary to the weight of the evidence.

In respect of the contention that the plaintiff should not have been believed, he sought leave to adduce before this court certain further evidence. We felt bound to reject that application for reasons which were explained in a short judgment given at the time. I would, however, say that even if admitted, I cannot see how that additional evidence could have affected the outcome of this appeal.

For the same purpose of submitting that the plaintiff was not a credible witness, the defendant took us on a careful journey through certain passages in the notes of the plaintiff's oral evidence, which he submitted were inconsistent either with other passages in her oral evidence or with the content of an earlier affidavit sworn by her or with certain diary entries of his own. In any case where after a long trial — and the evidence in the present case, I understand, extended over three to four days — this court has only the judge's copious notes of evidence as opposed to a transcript of it, it may well be possible to point to certain apparent discrepancies in the evidence as recorded. However, the defendant was represented by counsel at the trial and I think we can reasonably assume that, if there were indeed clear discrepancies of any moment, these would have been drawn to the attention of the judge. The full significance of the alleged discrepancies on which the defendant now relies would have been assessed far better by the judge than we can do. Miss Brann has submitted — and I think it may well be the case — that a number of passages on which the defendant has relied have been taken out of their proper context.

As it was, the judge had the great advantage, which we have not had, of seeing both the plaintiff and the defendant in the witness-box, of seeing both of them strenuously cross-examined and of forming her own assessment of their reliability as witnesses. Having done so she formed the clear impression that the plaintiff was a reliable witness, that the defendant was not, and that, where the plaintiff's evidence conflicted with that of the defendant, hers was to be preferred. In all the circumstances I do not see how we can properly interfere with that assessment or with her explicit finding that contrary to the defendant's evidence, there was no discussion between them or offer by the plaintiff of a 50 per cent interest in the property. In so far therefore as the defendant's case is based on an express agreement or express understanding, I think it must inevitably fail in this court, as it failed in the court below.

However, as I have already indicated, the learned judge in addition to considering the existence or not of an alleged express agreement or understanding, also went on to consider whether or not a common intention could be inferred that the defendant should have an interest in the house, even though he did not contribute anything to the cost of its acquisition. Having regard to the principles established by cases such as Pettitt v. Pettitt, she was in my view quite right to do this.

In this context certain observations by members of this court in the recent case of Grant v. Edwards & Anr. (1986) 3 WLR, 114 are in my judgment pertinent. The effect of the decision is summarised in the headnote as follows: "... where a couple chose to set up home together and a house was purchased in the name of one of the parties, equity would infer a trust if there was a common intention that both should have a beneficial interest in the property and the non-proprietary owner had acted to his or her detriment upon that intention; that there had to be conduct from which the common intention could be inferred and conduct on the part of the non-proprietary owner, whether directly or indirectly referable to the purchase of the property, that could only be explained by reference to a person acting on the basis of having a beneficial interest in that property". I stress the word "only".

Lord Justice Nourse at page 120 said this at G: "In a case such as the present, where there has been no written declaration or agreement, nor any direct provision by the plaintiff of part of the purchase price so as to give rise to a resulting trust in her favour, she must establish a common intention between her and the defendant, acted upon by her, that she should have a beneficial interest in the property. If she can do that, equity will not allow the defendant to deny that interest and will construct a trust to give effect to it."

Sir Nicolas Browne-Wilkinson at page 127 referred to the celebrated speech of Lord Diplock in Gissing v. Gissing (1971) AC, 886 and drew attention to the fact that Lord Diplock (at page 906 A to 908 D) had pointed out that even where parties have not used express words to communicate their intention (and therefore there is no direct evidence), the court can infer from their actions an intention that they shall both have an interest in the house.

That, I think, is the remaining point in the present case. Can such an inference of any common intention properly be made in the present case? I emphasise the word "common" in that phrase "common intention". The learned judge thought not but the defendant has submitted to us that she was quite wrong in declining to make the inference. I think his strongest point was this. He submitted that it is not realistic to suppose that he would have designed and constructed what he described in his notice of appeal as a valuable two-storey extension, made major alterations and other improvements in return for meals, lodgings on site, pocket-money and cohabitation. He vigorously rejected the suggestion that he did all this work with any covert ulterior motive such as that suggested by the judge. Translated into legal terms, his submission is that the only reasonable inference from the parties' conduct is that they both intended that, in exchange for what he was doing for the plaintiff and for the house, he should have a beneficial interest in it.

I see the force of that submission but for my part I am not able to accept it. The defendant in the course of his argument strongly attacked the judge's finding (at page 8 of the notes of judgment) that the plaintiff had no financial need to use the defendant to do the work. He pointed out that he did quite a bit of work beyond that provided for by the grant . By a careful analysis of her financial situation he sought to persuade us that the plaintiff could not possibly have had all that work done if she had had to employ and pay for outside labour for the purpose of doing it. That may be so. I see the force of his submissions on this point too.

Nevertheless, even if it be so, in my judgment the conduct of both parties was still perfectly capable of being rationally explained in the manner in which the judge thought it was to be explained . And this was the explanation which she preferred after seeing both parties and hearing all the evidence. She was sure that the defendant went to Bosham with the plaintiff on the same terms as those on which he had been living with her at Selsey, namely, as a licensee doing the odd job here and there and being, as she put it, a kept man provided by the plaintiff with board and lodging. As Miss Brann pointed out, the financial benefit of board and lodging in this day and age is very considerable in itself. The learned judge was sure that after the arrangement had been made that he would do the work covered by the council grant, the arrangement between them continued on exactly the same basis as before, save that he was to receive some additional money by way of what he called weekly pocket-money. I see nothing inherently incredible or irrational in such a continuing arrangement. I have no doubt that the defendant for his part hoped and may well have expected that the plaintiff would in due course marry him and that he would receive a beneficial interest in the house. But as I have already emphasised, it is the common intention of the parties that is relevant. It takes two parties to make an agreement or form a common intention, not merely one. On the basis of the judge's findings of primary fact, which I think we cannot disturb, the plaintiff never did agree to marry him and never did lead him to suppose that by doing these improvements he would ever acquire an interest in the house.

In the circumstances I can see no room on the evidence, or on the judge's findings of primary fact, for differing from her conclusion that there was no common intention that the defendant would acquire an interest in the house.

For the same or similar reasons I likewise see no room for applying in the defendant's favour what is commonly known as the equitable doctrine of proprietary estoppel.

The defendant may perhaps feel himself harshly treated by the plaintiff or by the law of this country, or both, if the conclusion which I have reached is the correct one. However, I am afraid that this case illustrates, as many previous cases have done, that a man who does work by way of improvement to his co-habitee's property without a clear understanding as to the financial basis on which the work is to be done does so at his own risk.

For the reasons which I have sought to give I would dismiss this appeal.

SIR DENYS BUCKLEY: I agree with the judgment which Lord Justice Slade has just delivered. I do not think I can usefully add to or elaborate upon it in any way. I agree with the conclusion at which he has arrived.

(Appeal dismissed with costs. Legal aid taxation of the Respondent's costs.)