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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kaur v Matharu & Anor [2010] EWCA Civ 930 (23 June 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/930.html Cite as: [2010] Fam Law 1165, [2010] 3 FCR 164, [2010] EWCA Civ 930 |
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ON APPEAL FROM THE BIRMINGHAM CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE RODGERS)
Strand, London, WC2A 2LL |
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B e f o r e :
(SIR NICHOLAS WALL)
LORD JUSTICE THORPE
and
LADY JUSTICE BLACK
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KAUR |
Appellant |
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- and - |
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MATHARU & ANR |
Respondents |
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Mr Nick Starks & Miss Nergis Matthews (instructed by Clark Brooks) appeared on behalf of the Respondents.
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Crown Copyright ©
Lord Justice Thorpe:
"The brother redeemed the mortgage in December 2005, having been sent the money by his sister in order to do so."
"My assessment of the evidence of the husband, as set out in the preceding paragraph, includes the evidence to which I have referred in paragraph 29. Much of the evidence to which I have referred in that paragraph are supported by documents that show that the various payments referred to were apparently made by the brother. For the avoidance of doubt it is my view that the husband was, in reality, funding the purchase and refurbishment of No 14, and that it was a useful device, for the husband's own purposes, to make it appear that the payments were being made by the brother. I repeat my view, already given in paragraph 39 above, that the evidence of the husband in this case cannot be relied on."
The additional paragraph 56 reads:
"For the avoidance of doubt I also find that there is no question of any resulting trust in relation to No 14 arising out of the activities of the parties to this litigation."
"(f) He said that he borrowed over £60 thousand pounds from his sister in order to pay off the mortgage on No 14. He further said that he borrowed the money at the rate of 8% per annum although he said that he had done so because he could not afford the contractual mortgage rate of 5.5%. He further said that he was due to repay this loan 6 months after it was paid to him, but produced no documents to support that contention. It was notable that there was no evidence adduced from the sister and neither had she started any proceedings to recover this loan, despite the fact, based on the evidence of the brother, that it was very considerably overdue for payment.
49. I accept the submission made by the wife that the evidence of both the husband and the brother should be entirely rejected. Both of them make unsustainable assertions about their income, savings and financial dealings. Both of them have lied in formal documents. There is no cogent compelling evidence to support the case made by the husband and the brother that No 14 was owned by the brother. On the contrary, all the controvertible evidence adduced in this case, mainly in documentary form, supports the proposition that both the legal and beneficial estate in No 14 is vested in the husband."
"It is, therefore, plain to me that Thorpe LJ's reference to 'more liberal rules' has to be read correctly, and the test is that set out in the rule, namely that oral evidence is to be admitted with the clear test of 'the interests of justice'."
"I entirely agree with Lord Justice Thorpe that any additional evidence sought to be adduced on appeal from District Judge to Circuit Judge in ancillary relief applications should be under the normal appellate principles appropriate to the more liberal traditions of family proceedings, giving the judge discretion to admit evidence if he thinks it appropriate. I would only add that such exercise of discretion to admit additional evidence should be used sparingly."
The rule itself in its essential paragraph, reads thus:
"…oral evidence or evidence which was not before the District Judge may be admitted if, in all the circumstances of the case, it would be in the interests of justice to do so, irrespective of whether the appeal be by way of review or re-hearing."
"It was necessary to do justice to the case for it to be resolved, and although Ladd v Marshall is a persuasive authority, it is not one which is automatically followed in family matters, as indeed Thorpe LJ himself pointed out in paragraph 32 of Cordle itself. "
Lady Justice Black:
"….oral evidence or evidence which was not before the District Judge may be admitted if, in all the circumstances of the case, it would be in the interests of justice to do so, irrespective of whether the appeal be by way of review or re-hearing."
The important words there are:
"... if, in all the circumstances of the case, it would be in the interests of justice to do so..."
Sir Nicholas Wall P
Order: Application granted. Appeal allowed.