![]() |
[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 >> Woodman v Tracey [2002] EWCA Civ 1335 (10 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1335.html Cite as: [2002] EWCA Civ 1335 |
[New search] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CANTERBURY COUNTY COURT
(His Honour Judge Poulton)
Strand London WC2 Friday, 10th May 2002 |
||
B e f o r e :
and
SIR MARTIN NOURSE
____________________
ANNE WOODMAN | Claimant/Respondent | |
-v- | ||
DAVID TRACEY | Defendant/Applicant |
____________________
Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondent Claimant did not appear and was not represented.
____________________
Crown Copyright ©
"Property: 45 St David's Road, All Hallows, Rochester, between Mr R D Woodman and Mr D G Tracey. I, David George Tracey, hereby on this September 26, 1997, will take over all assets belonging to Mr R D Woodman on the above-mentioned property. I, David George Tracey, hereby on this day September 26, 1997, will be responsible for mortgage payments, insurance payments and the upkeep interior and exterior of the above-mentioned property."
"The money advanced on the mortgage was £38,000. The Abbey National were only prepared to advance that on the basis that the sale price was £45,000. In actual fact what was contemplated was not the payment to the Woodmans or either of them by the Defendant of £45,000, that is to say, having raised the mortgage, the payment of £7,000. He did not contemplate paying anything either to Mrs Woodman or indeed to Mr Woodman. As far as he was concerned and as far as Mrs Woodman was concerned, the transfer was to be simply a question of relieving them from their obligation under the mortgage."
"It is perfectly plain, and indeed was not disputed in this case, that the whole arrangement about the £7,000 was a fraud on the Abbey National. Mr Tracey, the Defendant, did not pay £7,000, or indeed anything, either to Mrs Woodman, the Claimant, or to Mr Woodman or to anyone on their behalf. It was a complete fiction. The Defendant said that he had been advised by a money broker to do it this way. He said he knew it was wrong but it was the only way it could be done.
The result of that is that there was a transfer which was achieved only by means of perpetrating a fraud upon the Abbey National. The consequences of that are something which I will have to turn to consider."
"On this case coming to this court for the Defendant to say why his application for an extension of time in which to set down an appeal from the decision of His Honour Judge Poulton dated 3rd February 2000 should not be dismissed for failure to follow the directions of the court."
"Mrs Woodman has advised us that due to what she sees as Mr Tracey's volatile nature, she cannot bring herself to attend Court on 10th May 2002. She does however strongly oppose Mr Tracey's application that he should be granted leave to appeal and in the event that that application is successful Mrs Woodman still wishes to oppose the appeal itself.
Mrs Woodman advises us that the Judgment was obtained against Mr Tracey after lengthy evidence was heard in Court. Both parties were represented by Counsel and Mr Tracey had every opportunity to present his case in full at the time. As far as she is concerned there is no justification for appeal and she asks that this letter be taken into account when a decision is made on 10th May."
"The Defendant says that this was not the agreement once it was clear that the Defendant would not be liable on the mortgage."
"As I understood his evidence, his position was that so long as the original agreement was alive and if that had been put into effect with the result that the Claimant would also have been liable on the mortgage and the Defendant would have stood in the shoes of Mr Woodman, then he would acknowledge that they would own the property jointly. However, as this was not put into effect, he says that is not the case, because he certainly would not become solely liable on the mortgage (which is what happened) and hold the property in part on trust for the Claimant."
"Can I infer it from the conduct of the parties? The first thing to recognise is that they were engaged and they are now in effect former partners. Secondly, the Claimant was certainly making a contribution in the sense that she was arranging that the house be transferred from the name of herself and her ex-husband to the name of the Defendant. What is said about that is that that was not actually any contribution in money terms. Indeed, what was put to her, and what was argued on behalf of the Defendant, was that she was being relieved of the difficult obligation of having to pay the existing mortgage and far from her making a financial contribution, she was gaining."
"That seems to me to be the time at which one has to look at it. Up until the transfer, there was no binding contract. It would have been open to Mrs Woodman, the Claimant, to say that she did not want to transfer this property. She and her ex-husband could have remained its owners. She was the owner and in carrying out the transfer, she was not only in effect transferring to the Defendant her share of some £7,000, but she was ensuring that her ex-husband's share was also transferred to him, so that the whole of the equity was her contribution. If the Claimant had backed out at the last minute, it would seem to me probable that the Defendant would have had a claim for the work he had done on the house, but that does not alter the fact that there was an equity which was transferred and that was valuable.
In those circumstances I consider that the claim for a constructive trust is made out and in principle it should be a half share but there must be some adjustment in respect of the amount of money which ought to be paid for the work done."
"The work I consider to be worth some £4,000 but I take into account that money was raised for this purpose and all of that money was paid over to the Defendant. He used it all. Whether he used it all on the improvements or not does not really matter. He certainly had it all and in my judgment he is fully compensated for the work he has done. It follows that what has to be deducted is £3,230."