Mr Justice Lindsay :
- This action is concerned with the always-vexed questions which arise when the relationship between parties who have lived together as if man and wife has broken down; where, sadly, only bitterness has proved to have flourished in the soil in which once hope and love had briefly seemed viable and where obligations and accounting between the parties relating to the acquisition and enjoyment of the quasi-matrimonial home cannot be agreed. The Claimant, Mr Barry Young, in his Claim Form and Particulars of Claim of September 2006 asks for declarations as to the quasi-matrimonial home, 20 South Road, Twickenham ("South Road"), as to an alleged obligation on the Defendant, Miss Rebecca Lauretani, to bring in proceeds of sale of a property, 44 Sedgeford Road, Shepherd's Bush ("Sedgeford Road") in which she had a beneficial interest and for an equitable account. He asked also for rectification of a Trust Deed which regulated beneficial ownership of South Road between them but that claim was, ultimately, not pressed. Mr Young wishes to buy out Miss Lauretani's interest in South Road.
- In her Defence and Counterclaim Miss Lauretani alleges that, in terms of contribution, she has done all that was required of her; that she was under no obligation to bring in any of the net proceeds of Sedgeford Road; that, if anything, she is owed money by, rather than owes money to, Mr Young and that she now wishes to buy out his interest in South Road.
- That is a bald outline of what is before me; I shall first say something of the parties, who both gave oral evidence, then turn to a chronology and finally state the agreed issues and reach a conclusion upon them.
- Mr Young, who was born on 2nd July 1958, is, by trade, a carpenter. He, either as a partner or as a shareholder and director, carries on with another or others what I take to be a successful small builders' business in which he deploys his skills. He was not long since earning of the order of £70-80,000 per annum, greatly more than Miss Lauretani's £8,400-£9,600 per annum. He is not, I would think, a man either of much education or of even temper; the papers before me include inarticulate, angry and often coarse notes that he has written. Whilst he is a practical man and, no doubt, familiar with such business matters as come his way in his trade and is not unfamiliar with dealings with property, at the material times he lacked familiarity with, understanding of or confidence as to the use of trusts. He gave his oral evidence, despite its weaknesses at points, in an uncalculating, direct and spontaneous manner, at times readily accepting points which might tell against him. He had been married before when he met Miss Lauretani in late 2001.
- Miss Lauretani, some eight or nine years younger than Mr Young, would, I would expect, be fairly seen by Mr Young (an older and far less educated or polished figure) to be a very attractive "catch" for him. She, too, had been involved in an earlier relationship and there is reason to believe that it ended very sourly so far as finance was concerned. Perhaps for that reason, she was very desirous of being safe and protected in her dealings with property and was hesitant and anxious in her financial arrangements in relation to the acquisition of South Road. That carried over, too, into her oral evidence; at some points she could almost be seen to be trying to assess in her mind where the questions being put to her were intended to lead and what, accordingly, might helpfully be said in answer. She has a son, Joshua, by her earlier relationship. When she met Mr Young in 2002 Joshua was 11 years old; she was then living with Joshua and Mrs Nelly Hill, her already-then-elderly grandmother, at Sedgeford Road. Miss Lauretani already had some experience of trusts in relation to property because in February 2000 (leaving aside any dealings with her former partner, as to which I know nothing) she had entered into a Declaration of Trust which concerned the beneficial ownership of Sedgeford Road, putting two-thirds to the grandmother, Mrs Nelly Hill, and one-third to herself. That suffices to introduce the main players and I now turn to the chronology.
- In late 2001 Mr Young's firm carried out some building work at Sedgeford Road and he thus met Miss Lauretani. At the time Mr Young was living at his own house, 28 Laurel Avenue, Twickenham ("Laurel Avenue"). It was then subject to a mortgage securing some £110,000. Mr Young and Miss Lauretani formed a full relationship. He says, and there is no reason to disbelieve him, that he was soon in love with her. He was then frequently visiting Sedgeford Road and would sometimes stay overnight. Sedgeford Road was subject to a mortgage of some £80,000. A plan began to emerge for Mr Young and Miss Lauretani to buy a house, larger than either Laurel Avenue or Sedgeford Road, in which they would live together with Joshua and (as I shall come on to, either temporarily or more permanently) with Miss Lauretani's grandmother. South Road was spotted as a possibility for this venture and Mr Young was especially enthused about it as a house for all of them. But it was expensive. Could it be afforded? The first thought of Mr Young, if only in his mind and no one else's, was that he would sell Laurel Avenue and with the whole of its net proceeds together with a mortgage of South Road (which mortgage was to be in his sole name) South Road would be bought and, as part of that first thought, it would be put into the joint names and equal beneficial ownership of him and of Miss Lauretani. He was already often staying at Sedgeford Road and they were then in some respects living as if a couple. He was in love and at that time willing so to act without any agreed or required financial contribution from Miss Lauretani; he was then content that South Road would be in joint names and held beneficially jointly, regardless, he said, of who paid what. Laurel Avenue was to be put on the market. It is not clear to me that Miss Lauretani was ever aware that, at any rate at this juncture, the prospect or possibility was that she would acquire a half interest in South Road without any contribution on her part at all. This first thought, if implemented, would leave Sedgeford Road capable of being let or sold but at this stage there does not seem to have been anything agreed as to that.
- That first thought, were it to be carried into effect, would depend in part on the price required to be paid on the purchase of South Road, the price achievable on the sale of Laurel Avenue by the time that South Road would have to be paid for and the extent to which Mr Young could obtain a mortgage on the purchase of South Road. The co-operation, of course, of Mrs Hill would also be needed if she was to move to South Road; would she be willing to move out of Sedgeford Road and would she, either temporarily or for longer, be content to live together with the others in South Road were it to be purchased?
- By about this time, late 2002 and early 2003, South Road was available at or around at £655,000 and Mr Young obtained a mortgage offer from Northern Rock Building Society in his sole name of £491,250 but on the basis that, before the purchase of South Road, he would have to sell Laurel Avenue (a condition later lifted). That lifting was, I think, later sought because world events (this was the evidence) had caused a real dip in the property market such that Laurel Avenue was found not to be likely to be able to achieve the sale price that had earlier been expected of it. Laurel Avenue, said Mr Young, "wouldn't sell" and he was well short of the funds which would be needed to buy South Road.
- That dip in the prospective sale price of Laurel Avenue might have occasioned departure from Mr Young's first thoughts and, if there had been discussions in relation to those first thoughts between him and Miss Lauretani, might have occasioned an agreed departure from implementation of them but, for whatever reason, the parties began to discuss some form of contribution by Miss Lauretani to the price of South Road. The plan became one in which a further mortgage on Sedgeford Road would be applied for (by Miss Lauretani and Mrs Hill) and the money thus raised would be made available towards the purchase of South Road. Plainly, again, the co-operation of Mrs Hill would be needed. A solicitor was instructed in February 2003 by Miss Lauretani and Mr Young, namely Mr Geoffrey Warren of the firm Owen White & Catlin. He was sent a completed purchase questionnaire by the Estate Agents who had been dealing with Mr Young and Miss Lauretani in relation to the offer they had made for South Road and he understood from that that they were purchasing South Road jointly. He learned of the mortgage offer from the Northern Rock Building Society in relation to the purchase of South Road, the mortgage being proposed, as I have said, in the sole name of Mr Young. He wrote to both parties together in one letter, addressed to Sedgeford Road, on 31st March 2003. He took the view that if the mortgage on South Road was to be in Mr Young's sole name then the property would also need to be put into his sole name upon the purchase unless a new mortgage offer was to be obtained by the two of them in joint names. He added that if they did purchase the property in Mr Young's sole name but with a substantial contribution from Miss Lauretani then Miss Lauretani's interest in it would have to be protected and that the best method in which to do that was by way of a Declaration of Trust. He told them that if they wished to have a Declaration of Trust prepared then he should be told and that he could then draft it.
- On 1st April 2003 Mr Warren was told by Miss Lauretani that a legal document would be required and, after he had been so instructed, he reached down a very simple precedent which he then altered; the first draft was merely a declaration that, notwithstanding that the property was to be in Mr Young's sole name, it should beneficially be held for the two of them in equal shares. Presumably, therefore, at that stage that represented the limit of what he had been asked to do and what, presumably also, then represented the agreement between the parties at that stage save, as the draft recited, that there was already to be some (but, by then, unspecified) contribution from Miss Lauretani to the purchase of South Road as it was the fact that there was to be such contribution that had generated the advice that she needed protection and that a Trust Deed would afford it to her.
- On 9th April Mr Warren met both Mr Young and Miss Lauretani at his office. It was one of the few occasions – two or three at most – when all three met. At that stage it looked as if South Road was unachievable but the idea, as I have mentioned, had already emerged that Sedgeford Road could be remortgaged to raise funds. Later Miss Lauretani telephoned Mr Warren to say that she was reluctant to do that. Only a little later, Mr Young's mortgagees lifted the condition about his repaying the loans on Laurel Avenue before he could take the mortgage on South Road and on 15th May contracts were exchanged for the purchase by him of South Road. Completion was fixed for 27th June. Mr Young was frequently concerned that the vendors of South Road might pull out.
- On 16th May Mr Warren sent a copy of the simple draft Trust Deed to Mr Young and Miss Lauretani addressed to Sedgeford Road. Mr Warren raised no questions as to what Miss Lauretani's contribution to the price was to be or how or when it was to be provided. He did not write that the parties should be sure that everything they agreed (either by then or thereafter) should find its way into the Deed.
- On 19th May, now that South Road was contracted for and it had become necessary to focus in more detail on its financing, Miss Lauretani faxed to Mr Warren a note that said:
"Mr Barry Young has agreed (which you will be able to establish) that upon sale of [Laurel Avenue] the £165,000 that was needed for the "extra" to complete purchase will be paid straight back to bring my mortgage back to its original amount. The rental of my home will be covering most of the new mortgage repayments. The remainder amounts upon sale of [Laurel Avenue] (after costs) will then be paid to the new mortgage to reduce the actual amount and of course repayments. Also upon the sale of my property in approximately one year I too will pay the monies from the sale to the new mortgage (after costs) again to reduce mortgage amount and repayments. Please call me if you have any queries and of course if you need to be more specific that will be fine – I thought it best to give you this beforehand so that you have this in mind".
- Thus at 19th May the contemplation of the parties, intended to be carried into writing ("… if you need to be more specific…") was, if Miss Lauretani's version of it was correct, that the mortgage on Sedgeford Road would be increased, that money from that would be used to complete the purchase of South Road, that Sedgeford Road would be let and its rental income used to pay the mortgage on South Road, that when Laurel Avenue was sold by Mr Young she would be repaid the £165,000, as it then was, to be used in the purchase of South Road (thus restoring the Sedgeford Road mortgage to the status quo ante), that Sedgeford Road would be sold in about a year and that "the monies from the sale" would go to reduce the South Road mortgage.
- On 13th June Miss Lauretani re-faxed to Mr Warren four pages of her fax to him of 19th May but added another nine new pages. Commenting on her sending by refax her fax of 19th May, she said:
"Only sending for reference as few points as you know are different now from our telephone conversation 11.6.03".
Her style is such that "few points" can be taken to mean "a few points". A little later in her fax of 13th June she writes: "Further to our conversation 11.6.03 the changes are as follows". It transpires from the fresh part of the fax of 13th June that it was still agreed by her that Sedgeford Road was to be let and that the rental income would be paid towards the new Northern Rock mortgage on South Road, that the increased mortgage on Sedgeford Road would, as to its periodic repayments, need to be covered by Mr Young and, most importantly so far as concerns the present dispute between the parties, that, after the sale of Sedgeford Road, which was first to be rented for one to two years – and after its mortgage was thus paid off – "monies [or it might be "money"] to go into the Northern Rock mortgage", in other words, in paying off part of the cost of South Road. It is plain from her fax that Miss Lauretani had discussed this arrangement with Mr Young; she recognised that this arrangement could represent a considerable burden upon him but she said that he had indicated that he would not enter into a financial commitment which he would be unable to meet and that he was content to go ahead with the system which she described.
- There is no attendance note by Mr Warren of the conversation of 11th June or which relates to his receipt of the long faxes of 13th June, nor of any oral follow-up of his with Miss Lauretani or with Mr Young. He was plainly content to accept instructions from Miss Lauretani as representing the instructions both of herself and of Mr Young. Crucially, the draft Trust Deed was not modified by Mr Warren to include any obligation upon Miss Lauretani to let or procure the letting or to sell or procure the sale of Sedgeford Road or to pay any part of its net proceeds in paying off the mortgage on South Road.
- On 21st June 2003 Miss Lauretani received a revised draft Trust Deed from Mr Warren. In her typed but undated response to its receipt, as sent to Mr Warren, she suggested possible amendments but did not make any reference at all to Sedgeford Road either, as would have been possible, for example, to refer to some past oral or past written indication by her that there were, after all, to be no obligations upon her with respect to that property or its proceeds, despite her earlier faxes of 13th June, or to confirm, for example, that Mr Young had agreed with her that there were now to be no obligations upon her in that respect. Her response is devoid of either any email or fax header, nor does it appear in letter form. The copy I have bears Mr Warren's writing on it but not anything to indicate that, by way of a change or otherwise, he understood there were, after all, to be no obligations on her as to or contributions from the proceeds of Sedgeford Road.
- Mr Warren, it seems, then spoke to Miss Lauretani and on 25th June enclosed to both her and Mr Young (both addressed as at Sedgeford Road) what was described (with my emphasis) as "A further revision of the Declaration of Trust to include what is now clause 4(b)" (which I shall cite in full below). He also explained that he had added a provision by which Miss Lauretani consented to registration of Mr Young's mortgage upon South Road in favour of Northern Rock.
- Why was it, then, that the Trust Deed never contained any obligations upon Miss Lauretani as to Sedgeford Road? Mr Warren says in his witness statement that he had sent a further draft to the parties having liaised with them as to the new terms on 20th June 2003. But his letter of that day makes no reference to the fact that he had already received the message countermanding what was plainly a most important obligation and that hence it had not been mentioned in the Trust Deed and there is no attendance note of any conversation between him and either Mr Young or Miss Lauretani indicating an awareness upon his part or instruction to him that no longer was there to be any obligation upon Miss Lauretani to bring in either rent or proceeds of sale from Sedgeford Road. His witness statement makes no reference, either, to there having been some change of instructions received by him with respect to obligations as to Sedgeford Road between the 13th June, when Miss Lauretani faxed him with such an indication, and the 27th June, when the purchase of South Road was completed and when the Trust Deed was completed. It was on that day, too, on which Mr Young completed his mortgage to the Northern Rock by which he borrowed some £491,250, to the registration of which mortgage against South Road Miss Lauretani, implementing her undertaking in that behalf, also then agreed.
- Mr Warren was at that time acting for both Mr Young and Miss Lauretani. Had he received an instruction from either that, despite her faxes to him, there was to be no obligation upon Miss Lauretani as to Sedgeford Road or its proceeds he would, surely, have recognised it to be a departure of great significance from what Miss Lauretani had told him on 19th May and 13th June and, had such a new instruction come only from Miss Lauretani, it would surely have been recognised that it was to Mr Young's disadvantage and needed to be confirmed by him by a confirmation, of which, if only oral, a clear note would be needed.
- The form in which the Trust Deed was executed on 27th June 2003 was such that, although it was said to be made by Mr Young, it was also signed as a deed by Miss Lauretani. It was, wrongly, said to be supplemental to a Transfer of South Road to Mr Young of 27th March 2003; the true date was 27th June 2003. That, of itself, casts a little doubt on the care with which either its signatories or its draftsman had read it. It recites that: "Part of the purchase price has been or will be provided by" Miss Lauretani. In the sense that she and Mrs Hill had further charged Sedgeford Road with a view to one or both paying some £167,000 of the money thus raised towards the purchase of South Road, that was correct but, given that Mr Young, as I shall come on to, obliged himself under the Deed to repay £168,000 to Miss Lauretani, the nature of the provision was more accurately one by way of a loan to Mr Young than one such as would generally be regarded as a co-owner's provision of part of the purchase price. In the deed Mr Young declared that, although South Road was in his sole name, it was to be held in equal shares beneficially by him and by Miss Lauretani. There were brief formal parts to which I do not need to refer but then the Deed continues:-
"4. I undertake with Rebecca to use my best endeavours to complete the sale of my property at 28 Laurel Avenue, Twickenham, Middlesex… as soon as possible and immediately following completion of that sale to pay the net said proceeds as follows:- "
(a) The sum of £168,000 to Rebecca;
(b) To Rebecca a sum equal to the amount that she will have paid towards payments to Northern Rock in respect of the mortgage secured against the Property from 27th June 2003 until completion of the sale of my property at 28 Laurel Avenue aforesaid
(c) The balance towards repayment of the mortgage with Northern Rock plc secured on the Property
5. Pending completion of the sale of my property at 28 Laurel Avenue aforesaid I undertake to let my property for a maximum period of 12 months from 28th June 2003 at a rental of £1,200 per calendar month and undertake to pay the rental income to Rebecca towards her mortgage payments relating to her own property.
6. I, Rebecca Lauretani hereby consent to the registration of the mortgage in favour of Northern Rock plc dated 27th June 2003."
It was signed as a deed by both Mr Young and Miss Lauretani.
- What had begun as a simple deed poll had become an inter partes instrument that did far more than simply declare that because, as was implicit in the first draft, Miss Lauretani was to pay or had paid part of the purchase price, the sole legal title owner should declare the simple trusts which the first draft proposed. At this time and generally, communication with Mr Warren as to beneficial ownership and the way in which South Road was to be paid for came wholly or chiefly from Miss Lauretani and frequently in writing by way of fax. It was she who, on the 1st April 2003, had indicated that some form of legal document did need to be drawn up, for her own protection. There had been quite frequent telephone communication between Mr Young and Mr Warren but not, I hold, on the question of beneficial ownership of South Road and how the property was to be paid for. Mr Young had been in frequent contact with Mr Warren to find how arrangements for completion of South Road were going and there had been many other questions that needed attention if the purchase of South Road was to be completed, many of which, such as questions as to water outlets, wiring and roof works, would naturally fall into Mr Young's practical builder's province rather than into Miss Lauretani's. Miss Lauretani was not only, of the two, the person more concerned with protection for herself and with the nature of the deed but also the person, of the two, with whom a solicitor would find it easier to deal and to whom any explanation given as to trusts or deeds would be more readily and accurately digested. I have no evidence of any specifically identified telephone conversations between Mr Young and Mr Warren on the subject of the Trust Deed or that it should or should not contain any particular amendments and there is no attendance note by Mr Warren of any such, nor of advice given to Mr Young on the subject.
- Contracts for the purchase of South Road had been exchanged, as I have mentioned, on the 15th May with a view to completion on 27th June 2003. The deposit of £32,500 had been paid by Mr Young.
- On 27th June 2003 Mr Young, as I have said, completed the purchase of South Road, at £655,000. Together with associated outgoings, a total of £682,673.50 was required to complete and of that total £491,250 was borrowed by Mr Young on an interest-only mortgage from Northern Rock plc, about £167,000 was provided by Miss Lauretani (or by her and Mrs Hill, with provision of repayment of £168,000 to Miss Lauretani as I have explained) and Mr Young had provided the remainder in cash (which included the deposit). Mr Young and Miss Lauretani executed the Trust Deed, as I have said, and then, or shortly thereafter, Miss Lauretani, Joshua, Mrs Hill and Mr Young moved into South Road. Miss Lauretani and Mrs Hill had re-mortgaged Sedgeford Road to raise the £167,000 or so then put to the acquisition of South Road.
- So far as concerns direct payment to the mortgagee in respect of the mortgage on South Road, Mr Young alone has made those repayments. Although I am not, at this stage, concerned with figures, I am told that the amount so paid is only a little short of £88,000.
- Mr Young was able to let Laurel Avenue and Miss Lauretani was able to let Sedgeford Road, although there was at least one "void" when no paying tenant was in occupation.
- It is Mr Young's case, which I accept, that by December 2003, if not earlier, the relationship between him and Miss Lauretani was in poor shape, though not altogether broken down. His view was that things began to deteriorate almost as soon as they all moved into South Road. But even as late as 2005 he and Miss Lauretani spent a holiday together.
- In May 2005 Mr Young sold Laurel Avenue for £358,000, leaving net proceeds of sale of some £242,600. In June 2005 Miss Lauretani and her grandmother sold Sedgeford Road for £460,000, paying off the increased mortgage and leaving net proceeds of some £199,000 (of which Mrs Hill's two-thirds would thus have been £132,666). In October 2005 Mr Young remortgaged South Road on an interest only basis with Abbey National and, at the same time, paid £6,900 odd to reduce the then indebtedness on the mortgage of South Road to roughly £488,000.
- For some time Mr Young and Miss Lauretani had been communicating at South Road only by way of notes, even though they were wholly or for most of the time living under the same roof. On 19th November 2006 Mr Young left South Road for good. Proceedings had been begun by Miss Lauretani for an Order by which he would be excluded but I have not understood them to have been pursued to a hearing as Mr Young left. Since then Mr Young has in part stayed at his sister's house and in part in small rented accommodation.
- Despite his sale of Laurel Avenue, Mr Young has not paid the £168,000 to Miss Lauretani as required by the Trust Deed, nor any sum in respect of payments by Miss Lauretani towards the Northern Rock mortgage on South Road in the period between the 27th June 2003 and the sale of Laurel Avenue (in May 2005). Although he has kept down the instalment payments falling due under the mortgages on South Road and, as I have mentioned, has paid £6,900 to reduce the principal money owing under them, he did not, I apprehend, pay the balance of the net proceeds of sale of Laurel Avenue to reduce any mortgage on South Road. He has retained that on deposit but has made inroads into it. Although he let Laurel Avenue, he did not pay the rental income to Miss Lauretani either towards her meeting her increased mortgage payments on Sedgeford Road or at all. Accordingly, he has very plainly not honoured obligations cast upon him by the Trust Deed. His moral and legal reason given for not honouring the Trust Deed, as it has eventually emerged (and I shall need to say something about the lateness of its emergence) has been that Miss Lauretani had repeatedly declined to bring in any of the net proceeds of sale of Sedgeford Road and that only upon a full and equitable and other accounting between the parties could it be ascertained what should be paid by whom to whom.
- That the parties have attempted, over no short a period, to come to terms is stated by both sides and there has been correspondence, to which I have not been taken, on the subject. But there is one particular attempt at framing an acceptable compromise or assisting by way of mediation between the parties that I do need to refer to in more detail. Miss Lauretani has a brother, Andrew, and Mr Andrew Lauretani offered to help. He gave oral evidence by video-link from Canada. He had got on well with Mr Young and he agreed to help but only if the three of them met in some neutral venue. They met on 7th January 2006 at a quiet public house in Twickenham. As they met, Mr Lauretani laid down the ground rules for the meeting; the discussions were to be open and both protagonists were to remain calm and controlled. At the meeting Mr Young accepted that he intended to honour the Trust Deed in full. He accepted that the payment under the Trust Deed of £168,000 to Miss Lauretani was overdue; it would be paid, he said, during the course of the legal arrangements made upon their separation. He acknowledged that Miss Lauretani had contributed to the costs of decorating South Road, to utilities and household outgoings. Miss Lauretani then either produced or said she had documents which, she said, indicated that she had laid out some £10,000 or so in that way and that it was a contribution to the acquisition of South Road. Her assertion as to that was seen to upset and annoy Mr Young.
- Mr Andrew Lauretani has, in his witness statement, a confusing sentence that says, of Mr Young, that Mr Young "confirmed" at the meeting that, upon the sale of Sedgeford Road, the monies owed to Mrs Hill would be repaid and she would move into her own property nearby. I do not accept that that was said. By the time of the meeting on 7th January 2006 Sedgeford Road had long since been sold, on 16th June 2005. Nor was the distribution of the net proceeds of sale of Sedgeford Road a matter for Mr Young, rather than for Miss Lauretani and Mrs Hill, to "confirm". Nor could Mr Young "confirm" that Mrs Hill would "move into her own property nearby". That would be a matter for Mrs Hill. But Mr Andrew Lauretani's written and oral evidence makes the important points, firstly, that the only thing which seemed to upset Mr Young in the course of the meeting was Miss Lauretani's assertion that her decorating, utility and household outgoings of some £10,000 were being claimed by her as if a contribution to the cost of ownership of South Road and, secondly, that during the meeting Mr Young did not at any point complain that no part of the proceeds of sale of Sedgeford Road had been or had been agreed to be applied in the reduction of the South Road mortgage. I shall need to refer to those points. What became, I think, Mr Young's main complaint, the failure of Miss Lauretani to bring in net proceeds from Sedgeford Road, may have already been in Mr Young's mind but, if it was, it had not yet emerged as a complaint actually raised by him in terms either as a justification for his not performing his obligations or at all.
- It is against that background that there fall to be answered seven issues as framed by Mr Tom Weekes for Mr Young but which I do not understand Mr David Burles, for Miss Lauretani, to disagree with as being the issues that need to be answered at this hearing. They are these:-
[1] Was it orally agreed that Miss Lauretani would pay out of the net proceeds of sale of Sedgeford Road towards reduction of the South Road mortgage? That issue recognises, as is the case, that there is no written agreement to such effect.
[2] If so, is that agreement unenforceable for lack of formality? Here Mr Burles relies upon section 53(1)(b) and 53(1)(c) of the Law of Property Act 1925 and section 2 of the Law Reform (Miscellaneous Provisions) Act 1989.
[3] If there was an oral agreement as in [1] above, should not the Trust Deed be rectified to include its terms on the basis of there having been a common mistake which had led to its omission from the Deed? As I have already mentioned and as I shall return to, rectification ultimately fell away as an issue between the parties.
[4] If Miss Lauretani was obliged to Mr Young to make contribution to the reduction of the mortgage on South Road out of proceeds of sale of Sedgeford Road, did that obligation extend to the entirety of the net proceeds of sale of Sedgeford Road or only to Miss Lauretani's one-third beneficial share of those proceeds?
[5] What general equitable accounting or accounting under the Trusts of Land etc. Act 1996 between the parties is in outline appropriate generally and in particular in relation, firstly, to payments made to or to be taken as if to or towards payments of mortgage instalments, secondly, in relation to payments of rentals received from Laurel Avenue or, thirdly, from Sedgeford Road and from their respective net proceeds?
[6] What, if any, occupation rents need to be taken into account, the chief possibility there being as to the occupation of South Road from 19th November 2006 when Mr Young left it?
It is not contemplated, under issues [5] and [6], that I should descend to the arithmetic and to the vast and detailed documentary evidence; it is, rather, hoped that, if the outline can be indicated, the parties, assisted by their advisers, should be capable of agreeing the outcome.
[7] As a result of a late amendment by Miss Lauretani to her Defence and Counterclaim, a further issue emerges; is it appropriate that either of the parties should be enabled, by order, to buy out the other's interest in South Road, and, if so, who is to buy out whom?
I shall now attempt to deal with those issues.
[1] Contribution from Sedgeford Road proceeds
- In his written evidence Mr Young says that he would never have taken on the large mortgage commitment as to South Road if it had not been (inter alia) that Sedgeford Road was to be sold. That assertion makes sense only if he understood that the sale of Sedgeford Road would lead to some easing of the mortgage burden that he had undertaken as to South Road. He sets out the two important references on the subject in the faxes of 19th May and 13th June to which I have referred. He asserts that Miss Lauretani had agreed to sell Sedgeford Road and put the net proceeds to reduce the mortgage on South Road.
- In his cross-examination he asserted that there had been an oral agreement that Miss Lauretani would sell Sedgeford Road and contribute the proceeds to South Road. He knew that Miss Lauretani had only a part beneficial interest in Sedgeford Road, only later learning that it was a one-third interest. The sale of Sedgeford Road had always been part of the plan, he said; that was why they had bought a house as large as South Road, but the sale of Sedgeford Road was agreed not necessarily to be immediate as Miss Lauretani thought that the area was going up in value and hence that she should not sell it straightaway.
- He was asked (a subject I shall return to) why he had not promptly complained that Sedgeford Road had not been sold. His answer was that, after about six months, his relationship with Miss Lauretani had so deteriorated that it was plain that she would not put any money into South Road; "The whole plan had gone out of the window, basically". Miss Lauretani, he said, had earlier said that she would contribute all the [net] proceeds of Sedgeford Road and he had said to her that she should match anything that he had put in so that it should be "50/50 right down the middle". However, Miss Lauretani did not contribute; he knew that she would not and it was a waste of time asking her to as the relationship between them had gone.
- He agreed that, at the meeting with Andrew Lauretani, he had not mentioned a complaint about the proceeds of sale of Sedgeford Road. He wanted, he said, to get to an early settlement with her, to buy her out and that he knew that it would be pointless to bring the subject up. It was put to him, he having gone to solicitors in February 2006, that it was not until June 2006 that his solicitors had complained that proceeds of sale had not come in from the sale of Sedgeford Road. He had no explanation for that, although it was asserted that such a complaint had been made in a Calderbank letter in April 2006. However, I was not shown the letter and attach no weight to that assertion, if, indeed, it was intended. He agreed that it was only after his solicitors had seen the crucial faxes that a complaint about the injection of proceeds of sale from Sedgeford Road into South Road was mentioned by them. It was put to him that the true reason why no complaint had been made earlier was that there had been no obligation upon Miss Lauretani to make some contribution to South Road out of the proceeds of Sedgeford Road. His answer was that he had merely tried to settle matters amicably. He accepted, of course, that the Trust Deed said nothing at all about Sedgeford Road; that, he asserted, was a matter orally agreed with Miss Lauretani. He knew that Mrs Hill had a beneficial interest in Sedgeford Road. Mrs Hill had told him that she and Miss Lauretani had bought Sedgeford Road together but he did not know the shares in which they had bought it or in which it was held. He had never heard, he said, that there was a plan that Mrs Hill would, out of the proceeds of Sedgeford Road, buy her own property. She would then, he said, have been about 87 years of age. There had been no question of it being agreed that she would try and buy another house; rather the intention was that part of the ground floor of the larger house at South Road would be further adapted to be a "granny flat" for her to occupy. There would have been no sense in substantially adapting part of South Road for her (and there has undoubtedly been a considerable degree of adaptation to suit Mrs Hill) but then for her to move out. It was at that stage in his cross-examination that one of the notes by which Miss Lauretani and Mr Young communicated, once their relationship had thoroughly broken down, was put to him. The note, which is undated but plainly was written before the sale of Sedgeford Road, says this:
"Spoke to nan [Mrs Hill] and your mum – your nan wants to sell – yours and her house – get her own [flat] as soon as asap. After that is done and dusted hopefully soon we can sell this place and all be happy, ok.
Either way you have to sell Sedgeford as your nan wants out, and, [about] time too, before she dies here because looking at her, that wont be far off".
It was put to Mr Young that an intention in Mrs Hill to buy her own flat was utterly inconsistent with his assertion that there had been an agreement by Miss Lauretani with him that all the proceeds of sale of Sedgeford Road would be put into the reduction of the South Road mortgage. It was also put to him that the apparent intention of Mrs Hill to get her own flat was inconsistent with there ever having been a plan that she would be accommodated at length by an adaptation of part of the ground floor of South Road being made available to her. I am far from sure that there are such inconsistencies. Mr Young said that by the time of this note Mrs Hill was unhappy at South Road; there were arguments there between her and Miss Lauretani. He got on well, he said, with Mrs Hill and that was not contradicted. Mrs Hill, he said, wanted out of the relationship with Miss Lauretani. In other words, Mrs Hill's later wish to have her own flat was generated by factors that had not existed at the time of the purchase of South Road and when the Trust Deed was entered into. Moreover, Mr Young's reference to "either way you have to sell Sedgeford" suggests that there was a reason for the sale of Sedgeford Road beyond Mrs Hill "wanting out". His note is thus not inconsistent with his case that Miss Lauretani was under an obligation to sell Sedgeford Road irrespective, as it would seem, of Mrs Hill's later wish to get her own flat. He resisted that the purpose of the Trust Deed was to set out all of their mutual obligations. He felt that all obligations between them "went out of the window" when the relationship between them broke down. He was happy, he said, for Mrs Hill to take any of the proceeds of sale of Sedgeford Road if she wanted to.
- Plainly there are weaknesses and implausibilities in Mr Young's evidence on this point. If his first thought (whether or not developed into a mention to or an agreement with Miss Lauretani) was that he was content for her to take a half of the beneficial interest in South Road without any financial contribution from her, was not a later agreement requiring and binding her substantially to contribute somewhat improbable? Why did he not complain at the meeting with Andrew Lauretani that there was a substantial omission on Miss Lauretani's part, namely that she had not and would not pay proceeds of sale from Sedgeford Road towards the South Road mortgage? If he had then been upset about Miss Lauretani's assertions that she had put £10,000 of contribution into South Road by way of decorating, utilities and household expenses, surely he could be expected to have then retorted with a complaint about what would (in his eyes) have been a very much more substantial default? Was it not to be inferred, as his solicitors had raised no complaint on this score until they had seen the conveyancing file and the crucial faxes within it, that Mr Young had not even complained to his solicitors of this very substantial dishonouring of what he said had been agreed? If he had known all along of Mrs Hill's beneficial interest in Sedgeford Road, would he not have spoken to her to confirm that she was content not only to sell Sedgeford Road but to do so in such a way that its proceeds would be put into South Road and would thus be likely to deny her a prospect of obtaining her own separate accommodation were she ever to wish to acquire such? There is no suggestion that he had any such conversation with her. How, consistently with the agreement with Miss Lauretani which he was asserting, could he say that he was happy, albeit long after the purchase of South Road and the Trust Deed, for Mrs Hill to take any of the proceeds of sale of Sedgeford Road if she wanted to? He could hardly expect Miss Lauretani to find the necessary equivalent if Mrs Hill was to take any significant part of the proceeds. Were there not significant variations in the way in which the agreement on the subject was put; was it an agreement that all of the net proceeds of Sedgeford Road or only Miss Lauretani's one-third would be put into South Road or was it merely that Miss Lauretani should match whatever Mr Young put in? If there had been some agreement, surely that would have been gone into and established? Why did the Trust Deed say nothing at all as to Sedgeford Road? Mr Burles adds that Mr Young had even lied about his address as given in his witness statement and as at first given orally to the Court. Hoping, as it transpired, to hide his address from Miss Lauretani, he had, in March 2007, given his address in his witness statement as South Road and gave his sister's address rather than his own when orally examined. It was, of course, long before March 2007 that he had left South Road forever but that false evidence as to South Road cannot have deceived Miss Lauretani or her advisers into thinking that he was still at South Road. However, there was no investigation of whether he had good reason to conceal his real address from Miss Lauretani and I am not prepared to treat the incident as an indication of a general willingness in him to deceive the Court. If anything, I would think that he was chastened, having been so caught out and so rebuked at the very start of his evidence, into an awareness, had it not otherwise been the case, that he had to tell the truth.
- There are, as I have said, very substantial shortcomings and weaknesses in his evidence but not, in my view, such that I should reject his evidence as to Sedgeford Road without a comparative look at Miss Lauretani's evidence on the point.
- In her witness statement Miss Lauretani accepts that it was agreed between her and Mr Young that Sedgeford Road would be rented out with a view to selling it in a few years' time. Her evidence is that Mrs Hill would then take her share of the net proceeds and purchase a house for herself in Twickenham. She says that both before and after a meeting with Mr Warren, Mr Young had said that he "had no problem in me not applying the sale proceeds to which I was entitled from [Sedgeford Road] to reduce the mortgage against [South Road] as we were entering the transaction as a couple and he would not treat me in the same way as my ex-partner had done financially. The final Trust Deed executed by us both accurately reflects the discussions that took place directly between us and at the meeting with Geoffrey Warren". She denied that the final agreement between her and Mr Young provided for her to pay any money from the sale of Sedgeford Road to reduce the South Road mortgage. When Sedgeford Road was sold, she said, all the net proceeds were in fact paid to Mrs Hill; Miss Lauretani's share would have been £121,930. In her oral evidence Miss Lauretani (in supplementary evidence-in-chief) had had put to her by Mr Burles a witness statement put in on Mr Young's behalf from a Mr Stephen Savvas, a mortgage processer (who was not called), whom both Mr Young and Miss Lauretani had consulted together in February 2003. In it Mr Savvas says:
"I do recall Miss Lauretani telling me that in three or four years' time she may sell Sedgeford Road and to pay the equity into 20 South Road to reduce the mortgage on that property".
- Mr Savvas also produced a contemporary note to the same effect. Miss Lauretani thought that it had been Mr Young who had said as Mr Savvas recorded but, even if that was the case, contrary to Mr Savvas' statement, the assertion that proceeds from Sedgeford Road would be used to reduce the mortgage on South Road was not then denied, as it would seem, by Miss Lauretani. Speaking of the arrangements for her grandmother's accommodation at South Road, a subject plainly closely bound up with the destination of net proceeds from Sedgeford Road, she said that the accommodation for Mrs Hill at South Road was always to have been only short-term. Mrs Hill wanted a little cottage or an apartment close by as she loved the Twickenham area. In cross-examination she denied that one of the reasons for choosing South Road was that its size and lay-out made it convenient to provide a self-contained area for Mrs Hill on the ground floor. When it was put to her that some £10,000 had been spent on installing a kitchenette for Mrs Hill she said that it was she who had paid it and that she had done some of the work herself. Mrs Hill, she said, was only to be in South Road in the short-term. Mrs Hill, she said, was not too old or infirm to be able to arrange to buy her own house; she was tired but not a great deal worse than that. She had spoken to her grandmother who had wanted to help both Mr Young and her in the purchase of South Road. There was no agreement, she said, that rent from Sedgeford Road would go to the South Road mortgage; that, she said, would be money for property development; plans were changing all the time.
- At and around this passage in her evidence I found her demeanour not to be that of a reliable witness and that threw her evidence more widely into doubt. Things were always changing she said and the use of rent from Sedgeford Road to pay the South Road mortgage was one of the points discussed. But when asked whether it was agreed she accepted that it was. Moreover, she accepted, it was agreed with Mrs Hill, too. She accepted that before the final arrangements were agreed between Mr Young and herself she had, without being happy about it, agreed to bring in proceeds from Sedgeford Road but, she said, at all times after a meeting with Mr Warren, probably in May to discuss a Trust Deed, that was no longer agreed. She had had possibly three meetings with Mr Warren and by late June, close to the completion date of 27th June, it was agreed, she said, that no part of the Sedgeford Road proceeds would be going into South Road. She had been worried on that score and that, she said, was why Mr Young agreed as she said he did. There had been a change, she said, after her fax of 13th June and before completion on 27th June. She could not give an exact date for the change. She said she informed Mr Warren of this change by telephone. She had, in any event, never contemplated that all the net proceeds of Sedgeford Road would be going into South Road. When it was put to her that if no proceeds of Sedgeford Road were to be brought in and if Mr Young repaid the £168,000 and met the other payments required under the Trust Deed she would be acquiring a half share in South Road without making any financial contribution, she denied that, emphasising that she had paid the £168,000 and was paying, she said, for virtually everything in the house including utilities. She had, she said, paid more than half of the mortgage on South Road. Later she had to accept that she had not herself paid the mortgagee, Northern Rock, directly, rather that she was paying "everything to do with the house".
- Here, too, there are great implausibilities. Central to her case is that there was, after 13th June, an important change between the faxes of 19th May and 13th June and completion on 27th June and that she informed Mr Warren of that change by telephone. But there is no description of that telephone call in her witness statement nor in Mr Warren's witness statement, nor is there any attendance note of it in the correspondence file, nor is there any suggestion that Mr Warren, who would surely have recognised it to be an important provision, took the matter up with Mr Young or, before the change, drafted anything in relation to the proceeds of Sedgeford Road for inclusion in the Trust Deed which had already begun to have functions other than as a mere declaration as to beneficial interest. If, from May 2003, a contribution from Sedgeford Road to South Road had no longer been contemplated, her fax of 13th June could not be explained. It was, moreover, absurd for her to say that she was paying more than half of the South Road mortgage; she was paying none of that mortgage and it was not said by either her or Mr Young that there had been any express agreement before or on 27th June that she should bear all household expenses or that that would count as if a payment by her towards the South Road mortgage.
- Although Mr Warren's written evidence indicated that he had explained the Trust Deed to Mr Young, it transpired in the course of his own evidence, perhaps unsurprisingly, that he had very little actual recollection of his communications with Mr Young. He accepted that, in terms of drafting the Trust Deed, he had appeared to have forgotten Miss Lauretani's message, in her fax of 13th June 2003, that, after the sale of Sedgeford Road, money was to go towards the mortgage on South Road. He had no recollection of that being subsequently changed between 13th and 27th June and his evidence was that if it had been, he would have expected to have made an attendance note of it. None was made. In the circumstances that he received the fax of 13th June but had no recollection or record of subsequent change, his confidence that the Trust Deed reflected the instructions given to him on all matters was, in my judgment, entirely misplaced.
- The evidence thus requires me to choose between two different versions, each of which is, in terms of weaknesses or implausibilities, heavily flawed. On the balance of probabilities I prefer Mr Young's version. What chiefly tells against Miss Lauretani and in Mr Young's favour is, of course, the contemporary writings by Miss Lauretani, the faxes of 19th May and 13th June. They can only be explained away by suggesting that there had been an agreed change between the parties between 13th June and 27th June and, moreover, telephone communication of that change to Mr Warren. Yet there is no evidence, save for her bald assertion, of the change being agreed and no evidence whatsoever, despite it being something of which a record or other evidence could reasonably be expected, of communication of the change to Mr Warren. The only evidence of that is her oral evidence, emerging only at a very late stage of the proceedings.
- Added to that is the notable absence of her calling her grandmother. If Miss Lauretani's version is correct then her grandmother's evidence would likely to have been helpful on the issue of whether there had been discussion between granddaughter and grandmother as to the deployment of proceeds of Sedgeford Road towards the South Road mortgage, as to whether, all along, it had been intended that Mrs Hill's occupation of South Road should be only temporary and that her intention had been that her share of the proceeds of Sedgeford Road was to be taken out by her upon its sale for her use in the purchase for herself of some cottage or apartment of her own? She would have been able to speak to the related question of adaptation of parts of the ground floor of South Road in order to provide separate accommodation for her as a "granny flat". I have no evidence that Mrs Hill was unable to attend to give evidence and no evidence, either, from which, having regard to her great age, that can be inferred. As I have noted, Miss Lauretani had said that her grandmother was no more than tired. More importantly, Mr Andrew Lauretani's evidence was that she was an independent and highly intelligent old lady who was able intelligibly and intelligently to communicate. To that extent, even if (which I would doubt) she had been physically too frail to be expected to endure a cross-examination, there would seem to have been no reason why she should not have provided to her granddaughter one or more witness statements. The person naturally, so to speak, to be expected to call Mrs Hill, if anyone did, was her granddaughter, with whom she lives. I believe I am entitled to attach some weight, in assessment of Miss Lauretani's evidence, to the absence of evidence from someone who, if Miss Lauretani's evidence was accurate, should have been in a good position to corroborate many important parts of it. I have already commented on the somewhat calculating manner in which Miss Lauretani gave her evidence and to one particular passage of it during which she was, in my view, ill at ease.
- In the absence of evidence from Mrs Hill I prefer Mr Young's evidence that, so far from it being proposed that Mrs Hill would only briefly live there, South Road had deliberately been picked as large enough and suitable to accommodate her and to do so beyond any short term. In addition to a large ground floor which included two lobbies, a kitchen, four living rooms and two WCs (one with a shower within a utility room), it had four bedrooms and two bathrooms above. The Agents' report described work to the ground floor as having been undertaken to create a separate annex.
- I have already referred to the weaknesses and implausibilities in Mr Young's evidence. By no means all of them were fully examined in evidence but his original willingness to do without financial contribution from Miss Lauretani could well have changed once he found that Laurel Avenue could not be sold for as much as he had first hoped. The daunting size of the mortgage he was going to have to take out and the emerging formality and cost, once they both went to the solicitors, could, equally, have led him to require financial receipt from her beyond the provision of the £168,000 which, in any case, he was going to have to repay. His failure earlier to raise a complaint as to Miss Lauretani's refusal to bring in monies from Sedgeford Road, whilst he was complaining about the far less significant allegation that she made against £10,000's worth of decorating and other expenses paid by her and her allegation as to how that contribution should be treated, could be understood as the response of a man who felt he had been generous, who wanted to diminish the differences between them so as to cut through all problems and buy her out but yet who found her allegations as to the £10,000 and how it was to be treated as the very last straw. My impression of Mr Young is such that I would not be surprised at him snapping over relative trifles whilst overlooking greater issues. He had wanted to get matters settled early, without the need for solicitors' further involvement. I have in mind the matters to which I referred in paragraph 38 and I do find it remarkable that, as I think may be inferred, he made no complaint to his solicitors as to Miss Lauretani's refusal to bring in proceeds of sale from Sedgeford Road until after they had seen the crucial faxes; I would have thought that even for a man totally unversed in property trusts and unconfident in the area, some assertion to his solicitors such that, for example, she had agreed to bring in such proceeds could have been expected of him and it is hard to see why, by that stage, it would have conduced to an early overall settlement between the two of them being made more difficult to achieve for the allegation to be raised. But that point does depend to some extent on inference whereas Miss Lauretani's difficulties over the crucial faxes require none. In my assessment of the comparative strengths of the two parties, I am also entitled to have regard to the more direct and unhesitating manner in which Mr Young gave his evidence; to the extent that demeanour can play a part, his conduced more than Miss Lauretani's to acceptance of the evidence given being reliable, despite the weaknesses and implausibilities to which I have referred.
- Accordingly, for the reasons I have given, my conclusion on this first issue is that it was orally agreed that Miss Lauretani would pay out of the net proceeds of sale of Sedgeford Road towards reduction of the South Road mortgage. I add that, in so concluding, I have taken into account arguments, about the implausibility or otherwise of there being any agreement in this area, to which I refer under the heading "One-third, all, or to match" below.
[2] Want of formality
- The agreement here in issue is one made between a man and woman who were already, to a greater or lesser degree, cohabiting and was made in connection with the acquisition, with the assistance of a mortgage in only the man's name, of a property which was intended to be and did become the quasi-matrimonial home. The agreement was that the woman, when her other property was sold, would bring in proceeds of sale of that other property, in which she was beneficially interested, to reduce the principal money owing on the quasi-matrimonial home. The agreement neither created nor disposed of an interest in land nor declared a trust with respect to any land or interest in land, nor represents the disposition of an equitable interest or trust subsisting at the time of the disposition. Despite Mr Burles' argument on the point, I fail to see how the formalities required by section 53 of the Law of Property Act 1925 were required of the agreement of which I am speaking. Nor, as the contract was not for the sale or other disposition of an interest in land, need it have satisfied the formal requirements of the Law of Property (Miscellaneous Provisions) Act 1989 section 2.
[3] Rectification
- After the evidence had been heard Mr Weekes, during the course of Mr Burles' final speech, indicated that the claim for rectification was abandoned. He was, in my view, right to do so. Whilst, as I have found, there was an agreement as I have described under the heading of the first issue, it could not be said on the evidence that Mr Young had ever intended or agreed that that agreement should be carried into the Trust Deed. I do not hold, as I shall mention, that he had been advised by Mr Warren that everything for the time being agreed which could in any way affect South Road and its acquisition should be carried into the Trust Deed; Mr Young regarded the agreement as a private matter between him and Miss Lauretani and, unsurprisingly, failed to notice the logic of the position in which, if she was having carried into the Deed matters beyond a mere declaration of trust, so might he. It is, in principle, possible for parties simultaneously to enter into a Trust Deed and yet also to leave as a merely oral agreement a subject which could have been embodied into the Deed. That, I apprehend, is the way in which Mr Weekes' case was ultimately put. The abandonment of rectification is thus no desertion of a main plank in Mr Young's case.
- Here I should comment on whether Mr Warren ever advised Mr Young (or Miss Lauretani) that everything agreed between him and Miss Lauretani that touched or concerned South Road should be embodied in the Trust Deed. Mr Warren had no record or direct identifying recollection of that being said to Mr Young on any of the two or three times they met or by telephone. If Mr Warren had himself acted on that view he would have been likely, after the fax of 19th May, to have prepared a draft trust deed containing the provisions described to him in Miss Lauretani's crucial fax but none, it seems, was ever prepared. Nor did either Miss Lauretani or Mr Young ever complain to him as might have been expected, especially of Miss Lauretani, that the deed had failed to include everything agreed.
- Indeed, that is not the only reservation that I have as to Mr Warren's evidence. Whilst I would accept his evidence that Mr Young had appeared to understand the Trust Deed as far as it went, there is no sufficient reason to believe that Mr Warren had explained to him that everything that was agreed should find its way into the Deed. Mr Warren had no record of his giving that advice and his witness statement had not made the point. He was sometimes, in my view, speaking more of what he hoped had been the case than what he could remember had been the case. He was, perhaps, being defensive, bearing in mind he had acted for both parties together and in the further circumstance that for a while his firm thereafter acted in the dispute for Miss Lauretani alone. He asserted that all his instructions came from both of them which, in the light of the crucial faxes, cannot be accepted. As for Sedgeford Road, he veered between its never having been discussed at all (save as being the address to which he should write) to his finally accepting in cross-examination that there had been some "arrangement or proposal" made as to the proceeds of Sedgeford Road but that "I'd put it no more strongly than that and I had no further instructions as to that". There was no evidence that he had explored with Mr Young what the "arrangement or proposal" was or whether it should find its way into the Trust Deed. He accepted, as I have mentioned, that he had, it seemed, forgotten the faxes of 19th May and 13th June.
- I cannot accept his evidence in his witness statement that the loan of £165,000 was to be the limit of Miss Lauretani's contribution to South Road. That may have been the only contribution by her that he had in mind but he could only have safely concluded as his witness statement suggests if he had remembered rather than had forgotten the crucial faxes and had at least examined what the "arrangement or proposal" as to Sedgeford Road was with both parties, something there is no hint that he ever did.
[4] One–third, all, or to match
- Mr Burles rightly points to the various ways in which at various times the obligation (if any) upon Miss Lauretani to bring in net proceeds of sale of Sedgeford Road has been expressed by Mr Young or his advisers. Sometimes it has been said that she had to bring in all the net proceeds and sometimes that she was to match what Mr Young brought in. To those possibilities (albeit denied by Miss Lauretani) Mr Burles suggested (but also denied) that another possibility was that she should bring only her one-third share of the net proceeds into reduction of the South Road mortgage. It might be added, too, that if the parties were to match one another then some thought would have needed to have been given and could expected to have been discussed and agreed as to at what point the match was to be required and how, at that stage, respective contributions were to be calculated. Mr Burles (whilst denying all forms of agreement on this subject) argued that the very fact that there are at least three possibilities and doubts as to which was agreed and how, if there was to be a match, it was to be calculated all militates against there being any agreement at all. However, of the three possibilities, there is no evidence to support the one-third only solution; Mr Burles might have argued for that but no one gave evidence that that had ever been agreed. Mr Young's pleaded case is that the net proceeds were to be used to reduce the South Road mortgage. Of course, if Miss Lauretani obliged herself to put in more than her own one-third share she would have exposed herself to having to find money from some other source than the net proceeds of sale if she failed to obtain Mrs Hill's consent to the use of the grandmother's two-thirds' share. That, again, is an issue as to which Mrs Hill's evidence would have been very important. Mrs Hill's consent would be naturally more likely to have been given if South Road was intended permanently to be her home. In the absence of Mrs Hill's evidence I am unwilling to assess the existence or not and the content of the alleged agreement as to the use of the proceeds of Sedgeford Road on the basis that it would have been inherently improbable for Miss Lauretani to have obliged herself beyond her own one-third share. It would have been easy enough for the crucial faxes to have been expressed by her in that way but they are not so expressed.
- As for whether the agreement was that Miss Lauretani should match what Mr Young had put in, I am not prepared to discount the existence of such an agreement simply on the ground that, without further detail, the content of the agreement would be unclear. The natural time for the match to be computed would be when the net proceeds of sale of Sedgeford Road had become available. Nor is it the least surprising that Mr Young, in particular, should, with Miss Lauretani, enter into an agreement which did not have the precision which could be expected of persons of more experience in property and the law. There is no necessary conflict on the evidence between Miss Lauretani being obliged to bring in all the net proceeds and her being obliged to match Mr Young. Mr Young's evidence in this area was as follows:-
"A. She said she'd contribute all the proceeds. I said you match anything I put in – so its 50/50 right down the middle
Q. Was it 50/50 or that all the proceeds had to be paid?
A. It was whichever comes first."
In context, I think that reference to 'whichever comes first' can only be understood as 'whichever is the lesser'. Mr Young's evidence – "50/50 right down the middle" - had a directness and simplicity which I found credible.
- Accordingly, on this fourth issue, I conclude that the obligation on Miss Lauretani went beyond her one-third beneficial share in the net proceeds and that the obligation was that she should either bring all the net proceeds in or should match what Mr Young had brought in, whichever required the lesser payment. As for what was meant by what he had put in, I do not take that to require some assessment at any time or from time to time of his obligations under the South Road mortgage but rather simply to look at what he had or was obliged put towards the acquisition of South Road by way of payment of the initial deposit and cash and by way of the net sale proceeds of Laurel Avenue.
[5] and [6] Equitable etc. accounting and occupation rent
- The intention of Mr Young and Miss Lauretani, as emerges from the Trust Deed and surrounding circumstances, was that South Road would be acquired by deployment, on capital account, of:-
(i) A mortgage for which Mr Young alone was, prima facie, responsible;
(ii) The net proceeds of sale of Laurel Avenue, which were to be used to reduce the above mortgage;
(iii) A repayable loan of £168,000 from Miss Lauretani;
(iv) The deposit and cash paid by Mr Young at the outset;
(v) The net proceeds of sale of Sedgeford Road which were also to be deployed to reduce the above mortgage, and
(vi) Although this was not agreed at the time, on capital account, Mr Young laid out £6,900 in October 2005 to reduce the amount of the mortgage.
- The principles illustrated in Wilcox v Tait [2006] EWCA Civ 1867 (19th December 2006, unreported) which has a comprehensive review of authorities in the area, suggest that in many cases it is prudent to await the sale of the property in dispute before equitable accounting is further dealt with. However, in the case at hand, both parties wish to be able to buy the property in question and so there must be some prospect that the delays and expenses of a sale to a third party might be avoided. Moreover, without equitable accounting being investigated at least in outline, neither side will be able to be sure how much they can afford to offer to acquire the property. Accordingly it seems to me that there is a good argument for not awaiting the sale before indicating, at least in outline, how the proceeds of sale ought to be divided between Mr Young and Miss Lauretani.
- The net proceeds of sale of South Road will, by reason of the Trust Deed, in my judgment, be prima facie divisible equally between its two beneficial owners but, on capital account, there needs to be adjustment to reflect the basis upon which their equal joint ownership was laid down. Thus there needs to be adjustments as follows:
(i) On the assumption that Mr Young has not yet used the net proceeds of sale of Laurel Avenue to reduce the mortgage, his capital account should be debited with those net proceeds of sale;
(ii) He should, however, be credited on capital account with the £6,900 used to reduce the mortgage in October 2005;
(iii) Miss Lauretani's account should be credited with the £168,000 which should have been repaid;
(iv) Miss Lauretani's capital account should be debited (whichever is the lesser) with a sum equal to the whole net proceeds of sale of Sedgeford Road or sufficient thereof to match the aggregate of the sums at para 58(ii), (iv) and (vi) above.
- So far as concerns the income account to be reflected in the overall split of the proceeds of South Road, and still attempting to follow Wilcox supra but having regard, too, to Stack v Dowden [2007] 2 WLR 831 reported on 11th May 2007, I hold that down to the 19th November 2006, when Mr Young ceased to live at South Road, the accounts between the parties should not reflect on either capital or income account that there has been delay (and hence, it might be argued, interest payable) as to the repayment of the £168,000, as to the failure promptly to use the Laurel Avenue or Sedgeford Road proceeds to reduce the mortgage or interest on any other grounds, or as to the parties' respective contributions in this period (either on capital or income account) to repairs, improvements, insurance, Council tax, decoration, adaptation or maintenance of South Road, nor to household expenditure relating to Mr Young, Miss Lauretani, Joshua or Mrs Hill in the period down to the 19th November 2006. Nor, on income account, is there to be adjustment to take account of the fact that, down to that date, Mr Young bore all the mortgage repayments. When the parties have been living together, in the absence of clear and express agreement otherwise (and here, save as I shall come on to, there was none), it is not correct, in respect of the period when they are together, to try to assess the relative weights, for example, of mortgage outgoings borne by one and household expenses by the other. All can be taken to have been thrown into the one indivisible pot not to be sought to be divided and such as not to be subjected to the sort of analysis that might have been appropriate between commercial parties. Moreover, the respective failures to bring in the proceeds of Laurel Avenue and of Sedgeford Road, not greatly apart in time, might, as between co-habiting man and woman, be thought to justify and deserve the other.
- However, the income account between the parties should reflect that Mr Young alone has borne mortgage repayments with respect to the period on and after the 19th November 2006, the accounting to be such that Miss Lauretani is to be liable for half the mortgage payments in the period. Further, and to reflect that she alone, of the two of them, has had the benefit of occupation of South Road from which, to all practical intents, he had been excluded, she should be liable on income account for half of an occupation rent for the whole of the period after the 19th November 2006. If, for periods after 19th November 2006, Mr Young or Miss Lauretani has borne rates, repairs, improvements or other outgoings related to South Road of the kind a landlord could be expected to bear, he or she should be credited accordingly (on the basis that they should have been borne equally between them) but after 19th November 2006 payments made by Miss Lauretani referable as if to a tenant's occupation and consumption at South Road should be borne by her, with Mr Young being credited if he has borne them.
- The overall division of net proceeds of sale of South Road should be computed so as to reflect both the income and the capital account between the two in the way that I have in, outline, suggested but to that figure further adjustment needs to be made to reflect the terms of clause 4(b) and 5 of the Trust Deed so far as not already taken into account. Thus Miss Lauretani should be credited with actual payments (as opposed to indirect contributions such as household expenses) if any made by her directly to, or to Mr Young for deployment towards, the mortgage on South Road in the period between the 27th June 2003 and May 2005 (sale of Laurel Avenue) other than out of the £168,000. Mr Young should be debited with twelve times £1,200 under clause 5 of the Trust Deed. That alone was what was already promised and there was no promise as to interest to compensate for delay. To go beyond the limits of the clear promise (for example as to a multiplier higher than twelve) would only be fair between the parties as part of a highly detailed relative £1 by £1 assessment, both for before and after 19th November 2006, that would not be appropriate between former cohabitating man and woman.
- Moreover, as I hold that Mr Young made another clear promise to Miss Lauretani that he would, if there was any "void" in the letting of Sedgeford Road, make good to her the rent thus lost (which should be computed as net after any compensation received) adjustment on income account should be made to reflect (if this is the case) that he had not honoured that promise in respect of some seven to eight months.
- It would be difficult for me to anticipate what minor topics and sums will give rise to differences in the working out of who owes what to whom and I shall therefore give general liberty to apply.
[7] Who, if either, buys out the other?
- The parties will, of course, be free to negotiate as to who should buy South Road and on what terms and at what price but, should terms not be agreed, then South Road will have to be sold with vacant possession by public auction as there is, in my judgment, no sufficient reason to compel any other outcome than that conventional solution. Each of Mr Young and Miss Lauretani (and Mrs Hill) should be given liberty to bid. Conduct of the sale should be given to Mr Young's solicitors but with estate agents or auctioneers chosen by Miss Lauretani from a list of at least three independent and suitable firms provided by Mr Young. The expenses of the sale should be borne equally by the two parties. Should an offer be made by anyone, including either of the parties and Mrs Hill, prior to the auction and be made at a level at which the estate agents or auctioneers instructed would commend acceptance rather than proceeding with the auction, then the sale need not proceed to auction but only if the parties agree that it need not. The sale would need to be conducted on the basis that each of Miss Lauretani (as co-owner and occupier of South Road) and Mr Young (as co-owner) would co-operate with the other and with the solicitors and estate agents or auctioneers instructed and use their respective best endeavours to achieve, and to do nothing to impede, the attainment of the best price reasonably obtainable in the circumstances.
- I see no reason, once the parties have been given a reasonable interval in which to attempt to agree terms between each other, why the sale by auction (should it prove necessary) should not then proceed apace. Accordingly, instructions for a sale by public auction should be given by Mr Young's solicitors to the chosen estate agents or auctioneers by the 9th July 2007, leaving the estate agents or auctioneers, once instructed, to chose such a date for the actual auction (within six months of their instruction) and to take such steps as to advertising as would in their view be most likely to lead to the achievement of the best price reasonably obtainable. If difficulties arise as to the course of the sale they should, in the first place, be raised before a Chancery Master and, only if he should regard it as necessary, should such issues be restored to me.
- Mr Warren's firm's original conveyancing file has, it seems, been lost. That fact emerged very late. It was not Mr Warren or his firm who lost it. A detailed examination of the originals has thus been impossible but, as a result of enquiries made, I believe I can be satisfied that the copy file used in the proceedings is as complete and the same as was the original.
- I will need to discuss with Counsel how best to incorporate the various aspects of this judgment into the form of an Order but any Order will need to include liberty to both parties to apply, in the first place, if the subject concerns arrangements for the sale of South Road, to the Master but, subject to that, to me.
