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Holman v Howes [2006] EWCA Civ 589

Application for permission to appeal granted against an order determined on Gissing v Gissing principles concerning beneficial ownership of property.

Court of Appeal: Dyson LJ and Sir Martin Nourse (26 March 2006)

Summary
Application for permission to appeal granted against an order determined on Gissing v Gissing principles concerning beneficial ownership of property.

Background
The claimant and her former husband, the defendant, had lived together briefly in a house in 1980 after their divorce. In November 2005, the judge held, in determining beneficial ownership of the house on Gissing v Gissing principles, that the defendant, in whose sole name the property was registered, held it in trust for himself and the claimant in equal shares, but on the basis that the claimant was exclusively entitled to live there and occupy the property for so long as it remained unsold; he also ordered that the defendant's application for the property to be sold forthwith should be refused 'for the time being'.

The claimant's application for permission to appeal (which had previously been refused both by the judge and on consideration of the documents) raised two separate issues: (1) that the judge, in considering the Gissing v Gissing claim, had only taken account of the parties' contributions to the acquisition of the property and should have taken into account their other dealings, as recommended by Chadwick LJ in Oxley v Hiscock [2005] Fam 211 at 246; and (2) that the doctrine of proprietary estoppel should be invoked, to the extent that the defendant was estopped from seeking to deny the claimant's entitlement to remain in the property indefinitely, since the claimant maintained that the judge's order did not give her adequate security of occupation.

Judgment
Held, granting permission to appeal, that it could not be said that an appeal under Gissing v Gissing had no real prospect of success; the court reached this conclusion with some misgivings, as it was doubtful whether the post-completion dealings relied on in this case would be matters which the judge necessarily had to take into account, assuming that he had not taken them into account.

While the proprietary estoppel issue was unlikely to have been a sufficient ground on its own, since the circumstances to trigger a sale of the property would have to be pretty drastic, the permission to appeal would extend to cover this point as well.

Read the full text of the judgment here