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Home > Judgments > 2006 archive

S v S & M [2006] EWHC 2892 (Fam)

Application by former husband to enforce a charge over the former matrimonial home. The wife resisted the claim on the grounds that the husband had made an oral agreement to forego the charge if the wife gave up and claims for future maintenance. The application failed.

The respondent wife had defended the claim on the grounds that a constructive trust had arisen. She therefore had to persuade the judge that it was more likely than not that there had been an oral agreement; a claim that the applicant strongly denied. Having reviewed the evidence, Sumner J concluded that the respondent's evidence, and that of her mother as the intervenor, was more likely to be truthful. He also reviews the relevant cases concerning constructive trusts and proprietary estoppel.

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Case No: BT86D00583

Neutral Citation Number: [2006] EWHC 2892 (Fam)

IN THE HIGH COURT OF JUSTICE FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

16th November 2006

Before :

THE HON. MR JUSTICE SUMNER
- - - - - - - - - - - - - - - - - - - - -
Between :

S (Applicant)

- and -

S - and – M (Respondent) Intervener

Miss Ayesha Hasan (instructed by Northwood Law Practice Solicitors) for the Applicant
Mr Tor Alloway (instructed by Chesham & Co Solicitors) for the Respondent
Mr Nathaniel Duckworth (instructed by Chesham & Co Solicitors) for the Intervener

Hearing dates: 19 & 20 October 2006
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................

THE HON. MR JUSTICE SUMNER

This judgment is being handed down in private on 16 November 2006. It consists of 13 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

The Hon. Mr Justice Sumner :

Introduction
1. This is an application by Mr S, the Applicant, to enforce an order obtained by him at Barnet County Court on 14 March 1989. It gave him a deferred 33½% interest in the former matrimonial home. It is resisted by his former wife, the Respondent. She says that he agreed to forego his claim in 1993 in exchange for her agreeing not to pursue her claim for maintenance. The value of the claim is now about £68,000.

2. The property has been occupied by the respondent's mother, M, since 1996. This as a result of an arrangement with her daughter whereby she acquired a half share of the Respondent's interest in the property. That half share interest in the property is either ½ of the whole house as the Respondent contends, or ½ of a 2/3rd interest as the Applicant contends. M was, pursuant to a court order, made a party to the proceedings as an Intervener. The parties have been represented with Miss Hasan appearing for the Applicant, Mr Alloway for the Respondent and Mr Duckworth for the Intervener.

Summary of the issues
3. It is common ground that in 1989 the Applicant was awarded a 33½% interest in the former matrimonial home. It was deferred upon terms. The charge was not registered.

4. The dispute arises because the Respondent says that, as a result of an oral agreement in 1993, the Applicant agreed to forego his charge if the Respondent made no further claims on him either for arrears of maintenance or future maintenance. She acted upon this to her detriment. Her case is that the Applicant is estopped from denying her 100% interest in the property as from 1993. Further or alternatively he holds his interest in the property on trust for the Respondent. The Applicant denies the existence of any such agreement.

5. M says that the Applicant repeated it to her a year later. Because of that she bought a half share interest in the property from her daughter. Again the Applicant denies this. It is those 2 issues and their effect if proved that I have to determine.

Background
6. The Applicant and the Respondent were married in 1976. They have 2 children, T born 8 July 1976 and J born 23 March 1979. In due course they separated. The Respondent obtained a maintenance order from the Hendon Magistrates Court. She subsequently petitioned for divorce. Her application for ancillary relief came before Mr Registrar Arnold at the Barnet County Court in March 1989. The only asset was the former matrimonial home where the Respondent was living with the 2 children. The Applicant was in employment. It appears that it was a contested hearing.

7. The order was in the following terms –

"1. the property known as (the former matrimonial home) be transferred by the Petitioner and the Respondent to the Petitioner for use by her and the children of the family subject to:-

a) the existing mortgage,
b) a charge in favour of the Respondent by 33 1/2 of the net value of the said property at the date of realisation of the said charge.

2. the Petitioner shall be responsible for all the outgoings in respect of the said property including all necessary repairs.

3(i). the said charge shall be realised-

a) on the death of the Petitioner,
b) on the remarriage of the Petitioner,
c) upon the youngest child completing full-time education.
(ii) if the Petitioner shall permanently cohabit with another man for a period exceeding six months, the Respondent shall have leave to apply for the charge to be exercised.

4. the order of the Hendon Magistrates Court is hereby revoked.

5. the Respondent do make periodical payments to the Petitioner in the sum of £5.00 per week for herself from the date of this order. Such payments do continue until such date as she shall remarry or until further order.

6. the Respondent do make periodical payments to the Petitioner for the benefit of each of the children of the marriage, namely T and J at the rate of £50.00 per week from the date of this order. Such payments do continue until each child attains the age of 17 years or until they cease full-time education.

7. liberty to apply as to the implementation of this order.

8. the Respondent do pay one half of the Petitioners costs to be taxed."

1993
8. In 1993 the Respondent was studying catering management on an HND course. She had only a student grant plus the £105 a week she received from the Applicant under the court order. The subsequent events are largely in dispute.

9. She claims that the Applicant rang her at the beginning of the year. He had been living with a partner called L. They were both working. They had separated and he was finding it difficult to pay the mortgage, pay off debts, and make the payments to the Respondent. His property was in negative equity. He asked her to agree to him reducing his payments to £50 a week. On the basis that this was a temporary situation and that the arrears would be made up, the Respondent agreed.

10. The Applicant accepts that that was his financial situation at the time. He denies that he asked to or did reduce the maintenance, except that he reduced the payments for T when she finished in 6th form college in the summer of 1993 at the age of 17.

11. I find that the Applicant did ask for a reduction in his payments early in 1993 and before T had left 6th form college. The Respondent agreed though it meant some hardship for her.

12. Later in 1993 the Respondent says that the Applicant turned up unexpectedly at the former matrimonial home. He had not see J for so long that he was not initially recognised. The Respondent was out. He left a message. Soon afterwards he invited the Respondent out. Their relationship began again with the parties spending weekends together. There was no full-time cohabitation and no full reconciliation according to the Respondent. The Applicant's contention is similar in that he considered the renewed relationship very volatile, it did not last long, and there was no permanency to it. It came to an end in May 2005.

13. During the relationship I am satisfied that the Respondent remained liable for maintaining the home, caring for the children, and making mortgage repayments. She received no money from the Applicant except £50 a week which stopped in late 1993. She says that there were discussions about the arrears of maintenance, future payments, and the Applicants 1/3rd interest in the house. The Applicant denies it.

14. According to the Respondent, the conversations took place mainly at the Applicant's flat. She was concerned about arrears and future payments. One of the Respondent's concerns arose when the Applicant told her that, as he was getting further and further into debt, he proposed to give up work. He would claim unemployment benefit and work as a mini cab driver at the same time.

15. According to the Respondent, this was one of the things that sparked off a conversation about the changes. The discussion turned to the question of the Applicant giving up his 1/3rd interest in return for not paying the arrears and future maintenance payments. This was shortly before Christmas 1993. The Respondent says she checked with a local newspaper and they agreed the house was worth £70,000 to £75,000. They then both did some rough estimates. I asked the Respondent in the witness box to try and do them again now.

16. She said the mortgage was about £30,000. It left a net equity of £40,000 to £45,000. A 1/3rd interest was between £13,300 and £15,000. There were the arrears of £55 per week in 1993. It was not a complete year. She took a figure of £2,500 for this. There was J' maintenance from then until November 1996 (at the earliest) at £50 a week for 3 years - £7,500. There was her £5 a week or £250 a year which was ongoing.

17. There was also the question of whether T would or would not return to work. She had worked part-time at a hairdresser in the summer. She did not know what to do. She had by the time of the conversation been offered a hairdressing apprenticeship. This was not necessarily settled.

18. It was an approximate calculation they did at a weekend. The Respondent says she went to the building society the next week. She wanted to remove the Applicant's charge from the property. The manager went to check and came back with some paper which showed there was no charge in favour of the Applicant. The property was in the sole name of the Respondent subject to the mortgage.

19. She told the Applicant of this and he said his divorce lawyers must have failed to register the change as he had not paid their fees. They referred afterwards to the deal they had made. The Applicant denies this. There was no deal, no conversation, and no calculations. He only heard about the failure to register the change in about 2005 when he obtained a copy of the court order and had it registered.

1994 – 1996
20. The next incident concerned the Respondent's mother, M. It is agreed that in 1994 she was married to the Respondent's step-father. They were living in Norfolk. Her husband became very ill with cancer. He was a patient in hospital in Northwood in September 1994. The Applicant's flat was nearby. He kindly allowed her to stay for a few weeks when she was visiting her husband in hospital. By this time the Applicant was no longer in employment. He was claiming DHS payments and doing mini cab driving as he accepts. M says she knew he was doing this.

21. She describes herself as slowly getting uptight. She knew he was not paying maintenance. It annoyed her that her daughter was short of money and he was doing the driving. In the end she asked him when he was going to pay maintenance. She says he replied –

"You don't have to worry we have come to an agreement – I do not pay maintenance and I do not have a claim on the house."

22. M told me that as soon as she heard of this she tackled her daughter about it. The Respondent said it was true. M had always understood he had a share in the house. The Applicant denies that he ever made such a reply.

23. Her husband died in May 2005. The relationship between the Applicant and Respondent came to an end. M returned to Norfolk after a stay with the Respondent. The family suggested she might like to come and live in London. In April 1996 she sold her house and came to stay with the Respondent. Her aim was to purchase a home of her own. She had £35,000 from the sale.

24. By this time the Respondent had met her present husband Mr M. He was a widower with 3 small children. They wanted a home of their own. The Respondent and M reached an agreement. It was that, in exchange for M making available her money from the sale of her property, she would have a ½ share in the home. She would be able to live there during her lifetime. J would remain living there with her. This is what happened.

25. She and the Respondent went to the building society in 1996. They were told that, if it was a new purchase, solicitors would have to be involved. They decided to have no legal formalities. M told me that she certainly would not have reached the agreement with the Respondent if she had known the Applicant had an interest in the property. She spent her £35,000. Some £16,000 went towards reducing the mortgage, she used £10,000 to buy the Respondent a car, and she spent further sums on furniture for the Respondent's new home.

26. Subsequently she spent money on the house. It included refurbishing the kitchen, replacing the roof which together with other expenses and maintenance totalled over £7,000. As the Applicant accepted, he knew M was spending money on the property. He was still coming to the house for T to cut his hair.

27. It is common ground that the Applicant did stop working in January 1994 as his P45 shows; other than 2 payments from the CSA he made no further payments under the court order from that time. The £5 a week to the Respondent would in fact have come to an end in March 1997 when she married Mr M.

28. The Applicant says that the reason he did not take any action on his charge was that J was living there. When he had left, the Applicant found that the charge had not been registered. He obtained a copy of the court order and then registered it. A letter before action followed in January 2004 and proceedings started in May 2004.

The issues
29. On the facts this can be put shortly. Until the registration of the Applicant's charge, he held an equitable charge on the (former matrimonial home), as a result of the court order of March 1989. The Respondent says this came to an end following an agreement between them in late 1993. That agreement she argues gives rise to an equitable estoppel or a constructive trust which prevents the Applicant relying on his charge. The Intervener M also relies upon this. In the event however that the Respondent's argument fails, she relies upon a further equitable defence arising from the assurance she says was given to her by the Applicant in 1994.

30. There are therefore 3 main issues to be determined. The Respondent having raised the defence of a constructive trust, the burden of proof rests with her. She must satisfy the court that it is more probable than not that there was an oral agreement as she describes. If she fails to do so, then M raises her separate submission.

31. She claims that as a result of the assurance given to her and her subsequent acts to her detriment, she acquired an equitable interest subsequent in time to that of the Applicant. But at the time the Applicant registered his interest she was an occupier in possession. It is for her to show that her later equitable interest should prevail. To do so she must establish an exception to the common law rule that between two equitable interests the older one has priority. In this case it is said that the exception applies because of the Respondent's negligence, his conduct, alternatively from his representation which gave rise to an estoppel.

32. If either defence is proved there is a final question. If the Applicant did agree to forfeit his charge in exchange for the Respondent, has she shown that she acted as a result to her detriment such that it is now inequitable for the Applicant to claim his charge or receive any other benefit from it? Alternatively, if M's defence succeeds but the Respondent's fails, has M acquired from the Applicant that percentage of the charge to take her interest to a half (50 – 33 ½ = 16 ½ %) or some other entitlement as a result?

Decision
33. I must resolve them bearing in mind the burden of proof. I heard from each of the 3 parties on 19 October. The case was listed for 1 ½ days. At a late stage on Thursday I invited Miss Hasan to address me on the facts. If I was then able to give a decision I indicated I would do so with judgment to follow later if the parties all agreed. This was accepted.

34. I heard from Miss Hasan who set out the Applicant's case shortly but cogently. I retired to consider the matter. I then announced that I was satisfied on two matters. Firstly that there had been an agreement as stated by the Respondent. Secondly M had been told by the Applicant that he had no interest in the property as she recounted. Counsel addressed me on 20 October on the result of those findings.

35. It is not as I pointed out an easy position for the Applicant. His response has always been that no such conversations took place. He has no particulars to give other than to express a firm denial which he has consistently done, and to examine the Respondent's and M's accounts for inconsistencies, improbabilities, and errors. This was fully explored.

36. I have born in mind throughout 2 particular points. No burden lies on the Applicant. He has to prove nothing. Secondly there was no contemporaneous record either between the parties, with the building society nor with any one else. What is being raised are conversations respectively 13 and 12 years ago. The first record in writing is in 2004.

37. I have therefore examined the evidence of the Respondent with care. It was submitted that I should treat it as a fabrication. I bear in mind it could alternatively be mistaken or exaggerated. It is said to be inherently improbable. Why did the Applicant not go to the building society as well as the Respondent if there was an agreement? It is said that the valuation she says she took at the time was simply plucked out of the air. Why did M not know of the agreement until her alleged conversation with the Respondent nearly a year later? This is particularly so given the closeness of the Respondent's family. It is in all an incredible account.

38. I have to access the parties and reach my own conclusion whether I consider the Respondent has satisfied me her account is more likely to be truthful. I find that it is. My further findings are as follows.

Further findings
39. The Applicant in early 1993 was in financial difficulties when his partner left. She had contributed to the outgoings. The Applicant, believing it to be for a short time only, was not so hostile to the Applicant that it prevented her agreeing to reduced maintenance if the arrears would be made up.

40. I was troubled for a time about whether such a conversation could have taken place later in the year when their relationship had restarted. The answer lies in the nature of that new relationship. They were not cohabiting save at weekends. The Applicant took over none of the Applicant's outgoings nor did he contribute save for £50 a week and then only to January 1994. His own view of the nature of their relationship which I have set out is supportive of that and an insight into his view of it.

41. It was the Applicant's mention of giving up his job in January 1994 and drawing benefits which was, I am satisfied, one of the factors behind the conversation. Though the Applicant would be mini cab driving, the financial implications for her were dire. There were arrears already for the best part of a year. There were doubts about whether the £50 a week would be continuing given that the Respondent would have less income. The Applicant himself said in his most recent statement that he knew he was to lose his employment. He added - "I was trying desperately to secure alternative employment and I realised that this might cause the Respondent some hardship".

42. It meant that the Respondent's dependence on the Applicant for repayment of arrears and future payments was very doubtful. It is therefore understandable that, given the nature of their relationship and the financial position, a conversation as described by the Respondent took place.

43. I find that the detail given by the Respondent rings true. She did check the value of the house. They both did approximate calculations based on it. Furthermore, as Mr Alloway pointed out in argument, it was not an immediate interest in the property which was under discussion. The earliest triggering event was likely to be Js' completion of full-time education. He was going to finish school in 1996, but whether he would start tertiary education was unknown. Any realisation by the Applicant of his charge could well be 3 to 6 years away.

44. That was not the only consideration. Property prices were in recession. The Applicant had a negative equity. Prices might not recover; they could continue to go down. Given these imponderables, the agreement made not only was far from unfair to the Applicant but, given his very uncertain financial future, it made good sense.

45. The value of the property was I accept £70,000 to £75,000 at the time. The prospect of the Respondent raising money on her limited income to pay off the Applicant when the time came for him to enforce the charge was remote. In all likelihood the house would have had to be sold which would after expenses release about £67,000 to £72,000. After repayment of the mortgage it would leave £37,000 to £42,000; 1/3rd would be £12,300 to £14,000. Maintenance was £2,500 in arrears and at least £7,500 for the future, plus £250 a year for the Respondent and the prospect T and/or J would go to college. The charge could not be realised for a significant time and might be worth less than in 1993 depending on house prices.

46. It not only made sense, it was a fair agreement. There is support to be found in the acceptance by the Applicant that thereafter he paid no maintenance. I find the detail of the Respondent going to the building society and the Applicant's reaction convincing. The absence of a record in writing is not so surprising given that the parties were seeing each other; it is consistent with the Respondent's dealings with her mother which again were not recorded at the time.

47. It was an agreement that in exchange for the Applicant giving up his claim on the house represented by the charge of 33 ½ %, the Respondent would seek no further maintenance and waive the arrears. She maintained her side of the agreement. She made no claim. I have listened carefully to the evidence of both parties. There were obvious places where the Respondent, if she was inventing or exaggerating her account, could readily have embellished it but this was not done. I prefer her account to that of the Respondent. She gave an account which, allowing for the time that has past, was essentially truthful.

48. I have preferred also the evidence of M where it conflicts with the Applicant. She is an independent lady holding a number of firm views. She had experienced with her own mother the upset of losing her home. She was not going to repeat that. She would not have bought into a property with her daughter if she thought the Applicant would be able to secure its sale to realise his interest.

49. She was obviously grateful for his offer of accommodation when her husband was so ill. It did not prevent her expressing her annoyance to the Applicant. He was not officially working, he was not supporting her daughter or J, and at a time when the Respondent was going through financial hardship. It was natural that she should, after as she said "slowly getting uptight", ask the Applicant when he was going to pay maintenance. I find her account is correct. The Respondent did say that he had come to an agreement he would not pay maintenance and he would not have any claim on the house.

The law
50. Mr Alloway's argument is that, having accepted the Respondent's account of the agreement in 1993, a constructive trust arises. An estoppel does not need an agreement. Here there was one. Where there is a common intention in the terms as expressed here it treats a constructive trust. It resulted in the Applicant holding his 33 ½ % interest in trust for the Respondent.

51. There did not have to be equality between the parties because any detriment other than de minimis is sufficient. Given that it was in any event an interest that might last longer that 3 years if J went on to tertiary education, I consider it was in fact a fair bargain. For a claim worth £12,000 to £14,000, a benefit of not less than £11,000 at least 3 years before the claim could be realised is a commercial deal.

52. The first point to consider is the fact that neither the agreement between the Applicant and the Respondent nor the assurance given by the Applicant to M were in writing. By s.2 (1) of the Law of Property (Miscellaneous Provisions) Act 1989 –

"A contract for the sale of or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each."

By s2 (5) –

"This section does not apply to … and nothing in this section affects the creation or operation of resulting, implied or constructive trusts."

53. I have therefore to consider whether, on the facts as I have found them to be, the Respondent can establish either an estoppel or a constructive trust. In Yaxley v Gotts (1999) Ch 192 Robert Walker LJ said at p 180:

" To recapitulate briefly: the species of constructive trust based on "common intention" is established by what Lord Bridge in Lloyds Bank Plc.v Rosset (1991) 1 A.C. 107,132, called an "agreement, arrangement or understanding" actually reached between the parties, and relied on and acted on by the claimant. A constructive trust of that sort is closely akin to, if not indistinguishable from, proprietary estoppel. Equity enforces it because it would be unconscionable for the other party to disregard the claimant's rights. Section 2 (5) expressly saves the creation and operation of a constructive trust."

54. In Kinane v Mackie-Conteh (2005) EWCA Civ 45, Arden LJ said in relation to Yaxley at para. 25:

"Those facts gave rise to proprietary estoppel, which is in point where a person acts to his detriment in reliance on a belief permitted or encouraged by the defendant that he is to obtain an interest in land in the circumstances where it is unconscionable for the defendant to refuse to confer that interest. Robert Walker LJ held that, where a constructive trust and proprietary estoppel overlap, the client can rely on section 25. The overlap exists where the claimant, to the knowledge of the legal owner, acts to his detriment in reliance on the belief that he has or will obtain an interest in property …..

In Yaxley v Gotts this court recognised that the doctrine of estoppel may not be invoked to render valid a transaction which the legislature has, on the grounds of public policy, enacted is to be invalid. However, it held that that principle was not violated where the circumstances giving rise to proprietary estoppel also gave rise to a constructive trust as the legislature has specifically made a saving cause for constructive trusts in section 2(5) of the 1989 Act…

It is to be noted that even on this scenario, reliance on the unenforceable agreement only takes the claimant part of the way: he must still prove all the other components of proprietary estoppel. In particular, the requirement that the defendant encouraged or permitted the claimant in his erroneous belief is not satisfied simply by the admission of the invalid agreement in evidence. In this sort of case, the claimant has to show that the defendant represented to the claimant, by his word or conduct, including conduct in the provision or delivery of the agreement, that the agreement created an enforceable obligation. The cause of action in proprietary estoppel is thus not founded on the unenforceable agreement but upon the defendant's conduct which, when viewed in all relevant aspects, is unconscionable."

55. Neuberger LJ at para. 51 added –

"As I see it, at least for present purposes, the essential difference between a proprietary estoppel which does not give rise to a constructive trust, and one that does, is the element of agreement, or at least expression of a common understanding, exchanged between the parties, as to the existence, or intended existence, of a proprietary interest, in the latter type of case."

56. I comment briefly on my understanding of these passages. Proprietary estoppel and a constructive trust may differ little in many instances. But a party may not rely on an estoppel to avoid a statutory obligation. One of the features of a constructive trust is that it is based on an agreement or understanding. But this is by itself insufficient for instance to avoid s.2 (1) of the Act. The party asserting the existence of the constructive trust must also show that they relied on the agreement or understanding to their detriment in circumstances where the conduct of the other party was unconscionable.

Conclusions
57. I am satisfied that there was an agreement reached between the Applicant and the Respondent in 1993. The Applicant made clear to the Respondent that she would have the benefit of the charge he held over the matrimonial home. He did so in exchange for the Respondent agreeing to give up her claim to arrears of maintenance, and any claim she had for future maintenance. In money terms, the value of one was close to the value of the other. The Respondent relied upon that agreement and she did so to her detriment. She neither claimed the arrears nor sought any future payments from the Applicant under the original court order despite the financial hardship this caused her. It would be unconscionable for the Applicant now to seek to enforce that charge against the Respondent when he was freed from paying arrears and current maintenance as the agreement provided

58. In further reliance she entered into an agreement with her mother, M, in 1996. It was to give her mother a half share in the property as well as promising M that she could remain in the property for the rest of her life. She did so in exchange for her mother providing her with the benefit of the £35,000 M received from the sale of her house in Norfolk. I am satisfied that the Respondent would not have reached that agreement with her mother nor made that promise had the Applicant not entered into the earlier agreement with her in 1993. That earlier agreement was confirmed to her in 1994 by M because of what the Applicant then told her.

59. Accordingly I find that the Respondent has proved that a proprietary estoppel was created. Furthermore, because it was based upon an agreement, it also gives rise to a constructive trust. As a result the Applicant holds his equitable charge on the property in trust for the Respondent.

60. In the light of this conclusion, I do not need to consider in any detail what the position would be if the Respondent had failed to prove the agreement. The question would then arise whether M had relied upon what the Applicant told her to her detriment. It was an assurance or representation made by the Applicant. It is more difficult to say that it was on the basis of an agreement or understanding as the Applicant was not aware of M's subsequent agreement with her daughter. I am however satisfied that M relied upon it to her detriment and acquired her interest in the property on the promise that she could stay there for her lifetime. She acquired thereby an equitable interest in the property as it would be unconscionable for the Applicant now to be able to enforce his charge against M.

61. The next question that would arise is whether her equitable charge would rank before or after the Applicant's equitable charge created by the order in 1989. By the ordinary common law rule she would rank after because her interest was created later in time. But there are exceptions. I have been referred to Meagher, Gummow and Lehane on Equity – Doctrines and Remedies.

62. I have not been referred to any authorities but note the exceptions listed by the authors under 10 different headings. In each case they are as the authors say examples of the merits not being equal. The position can perhaps be summarised by looking at the Australian cases which are cited. Is the position such that broad principles of right and justice can be used to determine the order of equitable interests, or will the exceptions be established by applying the law on a case by case basis? There is an argument to be made on each side given the Applicant's conduct as I have determined it.

63. Happily, the point in question does not arise, given my earlier findings of fact. I confess in any event to unease about determining an issue of such importance without consideration of the individual cases. I would be moving from the poorer soil of the Family Division to the richer pastures of the Chancery Division without the guidance which the limits of time have not made possible. I only venture to think that, if a broad equitable approach is permitted to prevail, there are clear arguments to be made out in support of M's case.

64. I am grateful for the assistance of counsel. I shall leave them to draw the order resulting from this judgment with liberty to apply.