Mollika Begum v Mohammed Asad Miah

MR JUSTICE HOLGATE: Introduction 1 This is an appeal by Miss Mollika Begum against the order made by HHJ Murch on 3 May 2023 in the Luton County Court. The proceedings concern a dispute between the appellant and the respondent, Mr Mohammed Asad Miah, as to the beneficial ownership of the dwelling 3 Westbury Gardens, Luton (“the property”). 2 The parties were in a relationship between August 2012 and July 2019 when they decided to separate. On 27 November 2015 they bought the property for £370,000 in their joint names. There was no declaration of trust. 3 In paragraph 1 of his order, the judge made a declaration that the property was held in trust for both parties in equal shares until 3 August 2019. 4 In paragraph 2, he declared that on 3 August 2019 the claimant relinquished the whole of her 50 per cent share in the property to the respondent so that he became the sole beneficial owner. That decision was based in large part upon his conclusions as to the legal effect of an agreement signed by both parties at a meeting on 3 August 2019. This was referred to as a separation agreement. 5 In paragraph 3, the judge made an order pursuant to section 14(2) of the Trusts of Land and Appointment of Trustees Act 1996 (“the 1996 Act”) that the respondent should pay £30,000 to the appellant by 4 pm on 30 June 2023. 6 The appellant’s solicitors were required to provide a receipt to the respondent (see paragraph 4) and to hold the £30,000 on trust for the appellant pending resolution of the amount of costs to be paid by the appellant to the respondent under paragraph 8 (see paragraph 5). 7 Paragraph 6 required the appellant by 30 June 2023 to execute a TR1 giving effect to the trust by transferring her legal and equitable interest in the property to the respondent. 8 Paragraph 7 required the appellant to provide the TR1 to the respondent upon payment by him of the £30,000. 9 Paragraph 8 ordered the appellant to pay the respondent’s costs of the claim subject to paragraph 9, which preserved an earlier order for costs in the appellant’s favour on an interlocutory matter. 10 In the notice of appeal, the appellant asks this court to set aside paragraphs 2 to 8 of the judge’s order. She then asks the court to order, firstly, that she has not relinquished her 50 per cent share in the property; secondly, that the property shall now be sold on the open market; thirdly, that she be granted conduct of the sale of the property and be provided with access to facilitate this; fourthly, that the proceeds of sale be applied to estate agent costs, conveyancer’s costs and the discharge of the mortgage; fifthly, the remaining equity be divided equally between the parties; and, lastly, the costs of the claim and appeal be paid by the respondent to the appellant. 11 On 25 May, Richard Smith J. granted a stay of the judge’s order dated 3 May 2023 in relation to paragraphs 2 to 8 pending the determination of any appeal. On 10 July 2023, Michael Green J. granted the appellant permission to appeal. On 31 August 2023, the respondent served a respondent’s notice. It was out of time and asked both for permission to file and serve out of time and relief against sanction under CPR 3.9. That relief was necessary (see R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472). 12 On 6 October 2023, Michael Green J. granted relief against sanction and an extension of time for the filing of the respondent’s notice. It is apparent from the reasons given for the order that the judge only considered the justification put forward for having failed to comply with the time limit for filing and serving the notice and whether that delay had prejudiced the appellant. Neither of the parties nor the court addressed the content of the respondent’s notice at that stage. 13 Section 8 of the respondent’s notice stated that the respondent is asking this court to uphold the judge’s order for different or additional reasons. The notice did not ask for any orders made by the judge to be set aside or varied or added to, or for a new trial to be ordered. Consequently, section 5 of the respondent’s notice asserted that permission to appeal was not required. However, that was inconsistent with section 4 of the notice which purported to set out the part of the judge’s order against which the respondent wished to appeal. That reads as follows: “If the claimant has not transferred her 50 per cent beneficial interest under the separation agreement dated 3 August 2019 as found by HHJ Murch, the court shall declare the nature and extent of her interest in the property as the court thinks fit under sections 14 to 15 of the Trusts of Land and Appointment of Trustees Act 1996 …” 14 In other words, if the court should allow the appellant’s appeal by setting aside paragraph 2 of the judge’s order dated 3 May 2023, because he had been wrong to find that she had relinquished her 50 per cent share on 3 August 2019, the respondent was asking the court to declare the nature and extent of her interest in the property under the 1996 Act. That text is not to be found in the judge’s order of 3 May 2023. Bizarrely, section 8 of the respondent’s notice repeats that same wording as a “reason” for upholding the judge’s order, whereas that language does not, of course, provide any support for any paragraph in the judge’s order. Instead, whether in section 4 or in section 8 of the respondent’s notice, the respondent was really asking this court to declare that from 3 August 2019 the appellant had a beneficial interest in the property other than 50 per cent and to declare the extent of that interest. 15 On behalf of the appellant, Mr Charles Holbech pointed out the procedural flaw in the respondent’s notice in his skeleton argument dated 29 January 2023, a week before the hearing of the appeal. The respondent had instructed Mr Michael Fullerton by direct access. He did not respond on this issue before the hearing. 16 In my judgment, a number of points are clear: (1) The respondent’s notice does not challenge the judge’s finding that between 27 November 2015 and 3 August 2019 the appellant had a 50 per cent beneficial share in the property as stated in paragraph 1 of his order; (2) The respondent’s notice does not provide any additional ground for upholding paragraph 2 of the judge’s order; (3) If the appellant is successful in having paragraph 2 of the judge’s order set aside because she did not relinquish her beneficial interest, she would continue to hold her 50 per cent share of the beneficial interest in the property and consequential amendment would be necessary to the order of 3 May 2023 to reflect that fact. That is the position unless a proper respondent’s notice was served asking the court to vary the judge’s order in some other way; (4) The respondent’s notice is in substance a cross-appeal seeking to vary the judge’s order in the event that the appellant succeeds in having paragraph 2 of that order set aside; (5) The respondent’s notice falls within CPR 52.3 as an appeal by a respondent from the order of the court below. It therefore required permission to appeal and the application for that permission had to be made in the respondent’s notice (see CPR 52.13(2) and (3)); (6) The respondent has not made a formal application for permission to appeal or for the necessary extension of time or relief against sanction; and (7) The respondent has not indicated in the respondent’s notice or any skeleton the share in the beneficial interest of the property to which he says the appellant would be entitled. 17 That last point is important. In the County Court the respondent had said that from 27 November 2015 he was entitled to the whole of the beneficial interest. That assertion was rejected by the judge in his judgment and there has been no appeal against his order based upon any criticism of that part of his judgment. No alternative case has been put forward. 18 I asked Mr Fullerton to deal with these matters. He accepted that the respondent’s notice is a cross-appeal for which permission to appeal is necessary. He asked to make an oral application for permission to appeal, an extension of time and for relief in sanction. That was opposed by Mr Holbech. I said I would listen to Mr Fullerton’s argument de bene esse and deal with these procedural aspects in this judgment. I would simply note at this stage that Mr Fullerton’s argument on the point turned out to be very brief. I understood him to say that the appellant was only entitled to a 13 per cent share of the beneficial interest of the property, whether from 27 November 2015 or from 3 August 2019. This was based on the proportion of the deposit which she contributed in 2017 and the notion of a resulting trust. This was a wholly new line of argument. The Facts 19 The appellant and the respondent began their relationship in August 2012. In August 2015 they became engaged to be married (see the respondent’s admission in paragraph 5 of his defence). On 19 August 2015 they decided to buy the property. On the same day they both signed a conveyancing instruction form provided by their solicitors. They gave different addresses. The purchase price was £370,000 and the deposit was £37,000. There was to be a joint mortgage in both their names of £330,000. The form described the purpose of the purchase as “main residence”. 20 On 15 October 2015, the appellant and the respondent signed a “source of funds” form. The deposit was to be paid from “savings from work salary”. The appellant’s annual salary was recorded as £45,000 and the respondent’s as £25,000. The mortgage deed was signed by both parties on 27 November 2015. Each party was identified as the borrower for the property and also as an occupier. The judge found that £6,400 of the deposit was paid by the appellant and the balance of the deposit was paid by the respondent. He also paid stamp duty and legal fees totalling a further £11,902 (see paragraphs 45 and 46 of the judgment). 21 The TRI was also executed on 27 November 2015. The document was silent on the question relating to declaration of trust. The property was subsequently registered in the joint names of both appellant and respondent, which remains the case today. 22 On 28 August 2016, the parties entered into an Islamic marriage. They were recorded at that stage as living at different addresses but not at the property. 23 The judge concluded that by February 2017 both parties had moved into the property. 24 The appellant said in evidence that monthly payments of £1,333 were made out of her account for the mortgage (see paragraph 50 of the judgment). She said that although the respondent paid for a number of renovations and improvements to the house, she paid the mortgage (see paragraph 59). However, the respondent’s case was that he paid sums into the appellant’s bank account equivalent to the full cost of the monthly mortgage instalments. The judge does not appear to have found it necessary to make findings resolving this dispute. 25 At paragraph 85 of his judgment he said this:- “[85]I conclude that they pooled their resources when it came to the payment of the deposit in this case. Both of them contributed to the financing of the deposit. It is perhaps clear that the defendant provided the greater share because he made the greater payments, rather than that £6,000 figure which appears to have come from the claimant herself. But, nonetheless, I conclude that they were pooling their resources, adopting the terminology used by Lady Hale, each contributing what seemed perhaps appropriate in the light of their respective finances. Those payments continued immediately after the purchase. The defendant continued to make payments into the claimant’s account, being the one from which the mortgage liability was discharged.” 26 The appellant’s employment with the Financial Ombudsman came to an end in December 2018. She did not work again after that and was, therefore, unable to contribute to the financial pot. The last mortgage payment from her bank account was made on 23 November 2018. Since then the respondent has been paying for the mortgage, all bills relating to the property and for some works. However, it appears that more recently some of the mortgage instalments have not been paid. 27 In July 2019, the parties decided to separate. They entered into discussions on how to resolve their financial issues and sought assistance from Imans at a local Mosque. In a text sent to the respondent on 28 July 2019, the appellant’s sister set out the amounts of outstanding debts which it was said the respondent should pay off. It was also said that the respondent should pay off any other finance taken out by him in the appellant’s name. He replied that all was ready to be paid as soon as the appellant signed “my house over”. 28 Some text messages which then followed between the appellant and the respondent, in particular on 1 August 2019, indicate the emotional turmoil that they were both experiencing. The respondent said that he wanted a reconciliation with the appellant and he denied that that was true. The appellant also said that the respondent should pay his debts but then added “if you don’t want to pay them fine…don’t care anymore”. Later she texted “Okay, you’ll get your house. It was never about me.” At one point the respondent said that the appellant could not have both money and the house and she responded that she did not want the house. 29 The judge recorded that the messages between them continued on 2 August with the claimant saying, “Prepare some paperwork so I can sign over the house on condition that the debts and dowry is paid and talaq is issued.” Arrangements were then made for a meeting. 30 The judge found that the appellant had herself typed a document which he quotes in paragraph 33 of his judgment. It anticipated the meeting due to take place between both families on 3 August. In summary, the document required the respondent to pay off all the debts he had taken out in the appellant’s name. Dowry money was to be returned plus £5,000 relating to furniture and half of “wedding gift money”. After clearing all the debts the respondent would give talaq to the appellant. Once these conditions were met and subject to the mortgagor agreeing, the appellant would transfer her share of the property to the respondent. All of these steps were to be concluded by 31 August 2019. 31 In 3 August 2019 the meeting took place between the parties, family members and friends. A handwritten document signed by the parties states that a number of points have been agreed: “The property of 3 Westbury Gardens, LU2 7DW, will be transferred to Mohammed Asad Miah in due course. On Monday 5th August 2019 Asad will clear the debts of [I pause to record that the word ‘between’ is crossed out, followed by] “approximately £25,000”] which are under Mollika Begum’s name. The dowry money (£4,000), the furniture (£5,000) and wedding gifts (£1,500) will be paid directly to Mollika Begum from Asad Miah once the transfer of 3 Westbury Gardens is made to Asad Miah. The loan repayment of £600 must be paid to Mollika Begum from Asad Miah. This must be paid asap. Any credit accounts opened under Mollika Begum must be cleared and closed by Asad Miah.” There was a further entry in the document which reads as follows: “No other loans/credit applications must be opened under Mollika Begum’s name from this day onwards. Any gifts that have been exchanged between Asad Miah and Mollika Begum [again, I pause to note that the word “can” has been crossed out and replaced by “will”] be kept by the respective parties. No take backs.” 32 A second version of this document was signed by the parties and there is no dispute that the respondent wrote the words “on the basis of return of house” which appear amongst the signatures at the bottom of the document. 33 On 4 August 2019 the respondent wrote to the appellant, “Do you want to come round tomorrow so we call the loan company and get an early settlement figure to pay?” The appellant’s response was that he should “Speak to Baba”, a friend of the appellant. There was then a discussion between the respondent and Baba on 5 August: “[40] … As agreed on Saturday, the return of the gifts was not part of the contract that we all signed. Both parties agreed on this. Let’s stick to the arrangement so we can all move on and get to the point of transferring the house to your name only.” 34 Mr Holbech referred to paragraph 28 of the respondent’s first witness statement dated 27 August 2021 and paragraphs 57 to 60 of his second witness statement dated 22 December 2021 in which he explains why he considers that the appellant’s conduct very shortly after 3 August 2019 involved her reneging on the document signed on that date. 35 On 13 March 2020, the respondent sent an email to the appellant’s solicitors in which he referred to the appellant as having a share in the property. 36 On 17 March 2020, the respondent sent another email to her solicitors in which he said that he could pay the appellant “to purchase the equitable interest eventually”. He added that the market value of her equity could be negotiated. 37 On 25 August 2020, the respondent gave the appellant a cheque for £4,000 in respect of the dowry payment. The sum was debited in October 2020. 38 On 9 December 2020, the marriage was annulled. 39 On 25 February 2021, the appellant commenced proceedings in the Country Court seeking an order under the 1996 Act that the property be sold on the open market and that she receive a 50 per cent share of the net proceeds of sale. 40 On 2 July 2021, the respondent sent another email to the appellant’s solicitors, the second and third paragraphs of which reads as follows: “As Mollika Begum has failed to contribute towards the maintenance and mortgage payments for the past five years, I will again be seeking to recover the costs either from Mollika Begum directly or from the eventual sale of the property. Again, like last year, all invoices for labour and materials will be kept as evidence and available upon request as confirmation of financial cost which Mollika Begum will be liable for as a joint property owner.” 41 In his second witness statement the respondent described the 3 August 2021 document as an “outline agreement” under which the “legal title” to the property would be transferred to him (see paragraphs 51 and 54). The Judgment in the County Court 42 In his conclusions, the judge first considered the beneficial ownership of the property when it was acquired in November 2015. He applied the principles in Stack v Dowden [2007[ 2 AC 432. In paragraph 83 he rejected the respondent’s primary case that the property had been bought as an investment for his sole benefit. That was not the parties’ common intention at the time of acquisition. They had decided to marry before the purchase and to live together. They did marry after the purchase and subsequently they both lived together in the property. The property was bought to provide them with a home as a couple. The documents show that both of them were to be occupiers. 43 The judge addressed ownership of the beneficial interest at paragraph 85 which I have already quoted. He inferred that the common intention of the parties was to hold their beneficial interest jointly. The respondent did not satisfy the burden of showing that the equitable interests were to be held differently. 44 The grounds of appeal relate to the second issue determined by the judge, namely, whether the beneficial interest changed when the parties separated. He dealt, firstly, with the 3 August 2019 document. At paragraph 89 he said: “[89] I set out, first of all, as to how I shall deal with the 3 August document. First I have to determine its meaning. I conclude that it demonstrates the claimant’s intention to transfer her interest in the Property to the defendant. I do not see that the words “The property of 3 Westbury Gardens, LU2 7DW, will be transferred to Mohammed Asad Miah in due course” can be interpreted in any other way. I conclude that by the time the document was signed, the parties had agreed that the claimant was not (sic) longer to have an interest in the Property. The issue is whether that document had any legal effect.” 45 At paragraph 90 the judge decided that the document did not satisfy the requirements in s.52 of the Law of Property Act 1925 for a disposition of the appellant’s legal interest. 46 At paragraphs 94 to 95 the judge concluded that the document did not satisfy the requirements of section 2 of the Law of Property Miscellaneous Provisions Act 1989 as a contract for the disposition of an interest in land, because it simply said that there was to be a transfer at “a later date”. It did not expressly or impliedly provide for the date and time when the transfer would take place. 47 However, at paragraphs 91 to 92 and 96 to 97 of the judgment the judge concluded that the document dated 3 August 2019 did take effect as a disposition of the appellant’s beneficial interest by relinquishing the same and that this satisfied section 53(1)(c) of the Law of Property Act 1925. He said that by the time the document was signed, the parties had agreed that the appellant was no longer to have an interest in the property. 48 At paragraph 98, the judge considered the position if that conclusion was wrong. He said: “[98] If I be wrong in that, the analysis I reach is that there was a further common interest constructive trust and that the 3 August document evidences the intention of the parties, bolstered by the text messages to which I can have regard when trying to divine the common intention of the parties at this stage. The document has evidential value rather than itself effecting a transfer. I conclude that the texts to which I referred are context (and are not then being used to assist in the interpretation of the document itself) from which the parties’ intentions can be inferred. Taken with the 3 August document they are evidence of her intention no longer to have a beneficial interest in the Property. A detrimental reliance has been provided by the defendant since then being the sole person who has paid the mortgage, it being the defendant’s contention, accepted by the claimant, that only he has done so since that date. His doing so was close enough in time for me to find it more likely that not that it was on reliance of the common intention which they had then reached.” 49 At paragraph 100 the judge said:- “[100] I am afraid my legal analysis of the facts that I have heard is such that I conclude that there was a beneficial interest held by the claimant, but that it was relinquished by the 3rd August document, alternatively that it is part of the evidence to which I have regard in concluding that there was a common intention that she no longer have an interest. 50 I note that at paragraph 99, the judge said that he did not reach these conclusions with any enthusiasm. The First Issue 51 First, Mr Holbech challenged the judge’s conclusion that the document dated 3 August 2019 operated as a disposition by the appellant of her beneficial interest in the property by relinquishment satisfying section 53(1)(c). He relies upon Hudson v Hathway [2023] KB 345. In that case the Court of Appeal held that section 53(1) of the Law of Property Act 1925 applies to interests which effect an immediate disposition of interest in land, whereas section 2 of the 1989 Act applies to executory contracts for the sale or disposition of an interest in land. The issue is whether the document in question evinced a clear intention to divest a person of his equitable interest in the property immediately rather than a promise to do so in the future (see [32] and [50]). 52 I agree with Mr Holbech that a statement that a person will transfer their interest in due course, as was stated in the document dated 3 August 2019, would not amount to a disposition with immediate effect. I therefore agree that the judge was wrong to treat the document as satisfying section 53(1)(c). It could not operate as a disposition of the appellant’s beneficial interest. She did not relinquish her beneficial interest on 3 August 2019 by the document of that document. 53 Mr Fullerton submits that the phrase “will be transferred … in due course” refers to “administrative matters” that could not be completed on 4 August 2019, notably the signing of a TR1 which would have to be prepared by solicitors. But he says that the document is a sufficient record of the appellant making an immediate disposition of her beneficial interest to the respondent. With respect, this argument is unsustainable. There is only one sentence in the document which deals with “transfer” of the property. If that sentence is to be read as relating to a disposition of the appellant’s beneficial interest, it is impossible to read “in due course” as relating solely to a future TR1 in respect of a legal interest and not also to that disposition of her beneficial interest. It would be impossible to sever the sentence or to read it as if it treated any such disposition of her beneficial interest differently. In addition, the interpretation put forward on behalf of the respondent is wholly implausible. There is no reason to think that the appellant would have been willing to relinquish her beneficial interest immediately, giving the respondent an unassailable right to call for the transfer of the legal title, even if he did not settle the various debts referred to in the agreement. 54 Mr Fullerton suggested reading of 3 August 2019 document does not avoid the effect of section 53(1)(c) of the 1925 Act and the decision in Hudson v Hathway. The appellant’s appeal in relation to the first issue decided by the judge must be upheld. 55 In fairness to the judge, it does not appear that this point was raised before him. He did not have the benefit of the assistance which I have received from Mr Holbech. He did not appear at the hearing in the County Court. 56 Mr Fullerton’s reading of the critical sentence in the “separation agreement” has a further consequence. If the words “in due course” refer to the TR1 but not any dealing with the appellant’s beneficial interest, there is nothing in the remainder of the document dealing with that beneficial interest. There is nothing in the document to indicate that the appellant was relinquishing her beneficial interest at all. This has serious implications for the judge’s alternative conclusion that the appellant relinquished her beneficial interest pursuant to a common intention constructive trust. The judge’s conclusion in this respect was substantially based upon his reading of the document dated 3 August 2019. The Second Issue 57 Jones v Kernott [2012] 1 AC 776 dealt with the issue of whether a couple’s common intention with regard to their beneficial interests in their home changed when they separated. I refer to certain principles laid down in the decision: (1) The parties common intention is to be deduced objectively from their words and conduct [46] and [51]). (2) The court has regard to the whole course of conduct of the parties in relation to the property ([52]). (3) The relevant intention of each party is the intention which was reasonably understood to be manifested by that party’s words and conduct ([51]). (4) Appellate courts will be slow to overturn the findings of fact and inferences drawn by the trial judge ([33]). 58 Hudson v Hathway was also a case where the couple had separated and the issue was whether there was a common intention constructive trust under which one party had divested themselves of the whole of his beneficial interest in their former home. I note the following points in that decision: (1) The emails from Mr Hudson in that case were sufficient to amount to a release by him of his equitable interest in the property in part because they evinced a clear intention to do so ([50]). (2) The same principles apply to determining whether there was a common intention formed either on acquisition or after acquisition ([79] and [151]). (3) It is essential that the party claiming that there has been a change in beneficial ownership based upon a common intention constructive trust shows that he has acted to his detriment in reasonable reliance upon that common intention, that is, in the reasonable belief that by so acting he was acquiring a beneficial interest [“in this case the appellant’s beneficial interest”] ([73], [82] and [136]). (4) Although in general equity will not perfect an imperfect gift, that is not the case where a volunteer can show material detrimental reliance upon conduct from which it would be unconscionable for the other party to resile ([91] to [92]). (5) Conduct may suffice to establish both the relevant common intention and material detrimental reliance ([127]). 59 In relation to that third point, a court may hold that a party cannot reasonably rely upon an informal agreement so as to give rise to a proprietary estoppel or constructive trust where it is known that there are other matters to be agreed as part of the arrangement (see Cobbe v Yeoman’s Row Management Ltd. [2008] 1 WLR 1752 [14] to [15]). The question is whether on a fair reading of the 3 August 2019 document, in the context of the parties’ conduct as a whole, there was a clear common intention upon which the respondent was reasonably entitled to rely that the appellant was relinquishing her beneficial interest. 60 In paragraph 89 of his judgment, the judge concluded that the document demonstrated her intention to transfer her interest and that by the time it was signed she had agreed that she no longer had an interest in the property. But with respect the document does not say that. The judge’s interpretation cannot be supported. The document simply refers to a transfer at some unspecified time in the future. That is consistent with Mr Fullerton’s reading of the critical sentence in the document as referring to a TR1 in the future. That is also consistent with the appellant retaining her beneficial interest on 3 August 2019, so that she would in due course receive her share of the proceeds of sale. 61 I note that the judge did not address the subsequent emails from the respondent and his witness statements in his judgment. Plainly they show the respondent’s understanding that the appellant had retained her beneficial interest and would receive some part of the proceeds of sale. Those documents are inconsistent with a belief on his part that she had given up her beneficial interest. 62 There were two other aspects of the respondent’s evidence to which I should draw attention relating to conduct shortly after 3 August 2019 which, with respect, the judge did not reflect in his overall conclusions on common intention. First, the respondent did not consider the agreement on 3 August 2019 to be complete. He thought that points had been missed out. He also thought that the agreement had been favourable to the appellant, which is consistent with the appellant continuing to believe that the document dated 3 August 2019 did not have the effect of divesting the appellant of the entirety of her beneficial interest in the property. Second, he considered the appellant to be reneging on the points discussed on 3 August 2019 without saying that she was not entitled to do so. 63 The judge referred to a typed document which had been prepared by the appellant ([30] above). In my judgment it does not help the respondent to resist this appeal. The appellant said that once a number of conditions were met she would transfer her share of the property to the respondent. That, again, is consistent with her simply transferring her legal interest in the property to the respondent so that it could be sold and the proceeds of sale shared. It certainly does not indicate a clear intention to give up her beneficial interest forthwith. 64 In my judgment, the messages from the appellant before 3 August 2019 are incapable of sustaining the proposition that she evinced a clear intention on her part to give up her beneficial interest. On any fair reading, they are ambiguous. She said that she did not care anymore. She referred to the emotional effect that the separation and the discussions were having on her. I suspect that they were also affecting the respondent. Her statement that she did not want the house could mean that she did not want to live there anymore, or that she was not expecting the house to be transferred to her. The respondent’s references to signing over the house to him are consistent with his receiving the legal title so that the property could be sold. That, indeed, was the gist of the appellant’s account given in her second witness statement and in oral evidence (see paragraph 52 of the judgment). 65 The judge found the appellant to be an honest witness in relation to many of her points. He was careful to set out explicitly those particular matters where he did not accept the appellant’s account (see paragraph 82). By contrast, he made a series of adverse findings on the reliability of the respondent’s evidence. 66 It is plain from paragraphs 97 to 99 of the judgment that the judge saw the meaning of the 3 August 2019 document as clear. His interpretation of that document was central to his conclusion on common intention. 67 Having adopted that interpretation, not surprisingly the judge said that the texts were consistent with it. Having taken that approach, he inferred that the appellant had subsequently sought to distance herself from that agreement and changed her mind. With great respect to the judge, there are two flaws in his approach. First, he misread the document on 3 August 2019 as referring to an immediate relinquishment of the appellant’s beneficial interest. Second, and in the alternative, he did not consider whether the document and preceding texts were sufficiently clear to amount to such a relinquishment upon which the respondent could reasonably rely. In my judgment, and for the reasons I have given, they certainly were not. Accordingly, the judge was not entitled to conclude there was clear evidence of a common intention constructive trust whereby the appellant relinquished her beneficial interest in the property on 3 August 2019. 68 My conclusions thus far entitle the appellant to an order setting aside paragraph 2 of the judge’s order of 3 May 2023 and to a declaration that she continues to hold half of the beneficial interest in the property. It also follows that paragraphs 3 to 8 of the order must be set aside. 69 I should also consider the issue of material detriment. I refer, once again, to the judge’s conclusions in paragraph 98 which I have already quoted. 70 The payment of mortgage instalments up to the separation would have been referrable to the ongoing relationship. Once the parties decided to separate and the appellant decided to leave the property, the continuing payment of the mortgage instalments by the respondent would not be so referrable. In some cases that could amount to a material detriment giving rise to, or supporting, a common intention constructive trust (see, for example, Quaintance v Tandan [2012] EWHC 4416 (Ch) and Hudson at [110] and [175]). I am unimpressed by Mr Holbech’s submission that the respondent did not change his position in this regard after 3 August 2019 because on the respondent’s case he had been paying the whole of the mortgage throughout the period before that day. Even assuming for the sake of argument that that was factually correct, although the judge made no finding on that issue between the parties, the original purpose of the mortgage payments ceased to exist from August 2019. Accordingly, the real question on this part of the argument is whether in continuing to pay the mortgage the respondent could reasonably have been relying upon the common intention he alleges. 71 The judge appears to have proceeded on the basis that the mere payment of the mortgage by the respondent after 3 August 2019 was sufficient without more. According to the authorities, it was not. The payment of the mortgage was potentially consistent with the appellant retaining her beneficial interest and being entitled to a half share of the proceeds of sale, subject to an account for, amongst other things, the capital element of the mortgage payments. 72 The post-August 2019 communications from the respondent, which the judge did not address in his conclusions, show that he considered that the appellant continued to hold a half share in the beneficial interest of the property. Accordingly, it cannot be said that he placed any material reliance upon a common intention constructive trust when making the continuing mortgage payments. This is a further ground upon which the appeal against paragraphs 2 to 8 of the order must succeed. 73 I acknowledge that Mr Fullerton also relied upon two other matters which the judge did not mention in relation to “detrimental reliance”. First, £4,000 was returned in relation to the dowry but that was not until August 2000. Both before and after that payment, the respondent expressed his belief that the appellant had retained her share in the beneficial interest. The second point related to monthly payments of around £600 referrable to a loan. The judge was not provided with evidence sufficient to show that this amounted to material detriment, for example, the nature of the loan and when it was incurred. This does not overcome the respondent’s inability to show reliance, let alone reasonable reliance, on a common intention constructive trust. 74 Mr Holbech did advance other grounds in support of the appeal. I am not going to deal with those additional matters partly because they are not straightforward and I have not heard full argument on them sufficient to enable me to resolve them. But for the reasons I have given, there is no need for me to do so in any event. The Respondent’s Notice 75 Applying the principles in Denton v White [2014] 1 WLR 3926, I am not persuaded that relief against sanction should be granted. The failure to apply for permission to appeal for the cross-appeal and to do so within the appropriate time limit is serious and significant. The respondent’s notice is plainly a cross-appeal. This was pointed out by the appellant’s counsel a week before the hearing and nothing was done by the respondent to remedy the breaches. No applications were made for permission to appeal, extension of time or relief against sanction. No supporting grounds were put forward to explain what alteration to the judge’s order were sought and why, nor to explain why permission to appeal should be given for that ground and an extension of time granted. The respondent has not applied for relief against sanction (at least formally) or set out in writing or orally why the Denton criteria should be applied in his favour. 76 In the absence of the respondent applying for and obtaining permission to appeal, the appellant was entitled to assume that paragraph 1 of the judge’s order was not being challenged. In other words, she had a 50 per cent share to which effect would be given if her appeal against paragraph 2 of the judge’s order should succeed. 77 The reasons for the default have not been explained. No good reason for non-compliance has been advanced. Accordingly, relief against sanction is refused. 78 But in case I am wrong about that, I have gone on to consider whether permission to appeal and an extension of time would have been granted. The answer is no because the point sought to be raised is unarguable. Indeed, in my judgment it is wholly without merit. In summary, I say that for two reasons. First, the respondent wishes to argue for a 13 per cent share instead of 50 per cent corresponding to the contribution made by the appellant to the initial deposit and relying upon the concept of resulting trust. That is plainly contrary to the principles in Stack v Dowden and Jones v Kernott ([25]). It ignores the very purpose of the purchase of this property and the commitment of each party at that stage to their relationship. This was not a commercial situation, or one where domestic partners were also business partners (see, again, Jones). Second, the proposed ground of appeal involves a wholesale attack on the judge’s findings on the relationship and the purpose of the purchase without any explanation as to how such an challenge could be justified on appeal. 79 Accordingly, the appeal must be allowed. Orders 2 to 8 of the judge’s order of 3 May 2023 must be set aside. There must be an order for sale. I will hear submissions on the conduct of the sale. 80 I agree that there should also be an account as from 3 August 2019 unless it is going to be submitted that any other date represented the date of separation. But the account should be from the point of separation; it should not cover any earlier period. The account should cover mortgage payments, explaining the difference between capital and interest and the outstanding debt on the mortgage. I also direct that the account is to cover improvements made by the respondent and the extent to which those improvements have increased the value of the property since separation. But the account must not include improvements carried out by the respondent prior to separation. 81 I have considered the submission made by Mr Holbech that I should not include in the account improvements post-separation. I disagree with him. He submitted that the matter should have been dealt with by way of expert evidence filed in the County Court before the matter came before HHJ Murch in May last year. But this matter did not properly arise until the court had resolved the issue as to whether, firstly, the respondent had a 100 per cent beneficial interest in the property and, secondly, assuming that he did not, whether the appellant had relinquished her interest in the property in August 2019. It would have been a waste of money for the parties to instruct surveyors prior to those points being decided by the court. That would not have been in the interests of justice or the overriding objective. I see no reason why that issue should not be dealt with at this stage if the parties are so advised. 82 Before I conclude the judgment, I would reiterate something I said during argument. This case has been crying out for mediation all the way through and even more so at this stage. It is a great pity that so much money has been consumed in legal costs. However difficult it may be for the parties to overcome their personal differences, it is in their respective interests that they seek now to resolve their financial disagreements without further litigation. 83 May I conclude by thanking counsel on both sides for the help that I received both in writing and during the course of oral submissions. _________ CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] This transcript has been approved by the Judge. OPUS 2 DIGITAL TRANSCRIPTION