Turner v Jacob [2006] EWHC 1317 (Ch)

[2006] EWHC 1317 (Ch)Case No HC05C01244
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/06/2006
Before
MR JUSTICE PATTEN
Between
BRIAN TURNERClaimant / Part 20 Defendant
Mr Jonathan Russen (instructed by Webster Dixon) for ClaimantMr Jeremy Callman (instructed by Blakemores) for DefendantHearing Hearing dates: March 22-27,28-31 and 03 April 2006
JudgmentMr Justice Patten :Introduction
[1]This action concerns a freehold property known as 26 Clarkfield, Mill End in Rickmansworth (“Clarkfield”). It is occupied by the Defendant, Mrs Kim Jacob (to whom I shall refer in this judgment, as the context requires, both as “Mrs Jacob” and “Kim”) and her son Philip. Mrs Jacob has never paid for her occupation and is not a tenant. The property was purchased by her late mother, Mrs Dorothy Turner on 10 October 2002 for £189,500. At the time Mrs Jacob was living in a house at 18 Williamson Way in Rickmansworth, which she had bought with her former husband Mr Andy Jacob for £173,000 on 12 November 1999. By October 2002 she was estranged from him and he was subject to an injunction which prevented him from entering 18 Williamson Way. He continued however to live opposite in his father’s house and Mrs Jacob was anxious to move. Her mother purchased Clarkfield to enable her and her son to leave Williamson Way and to move to a new home.[2]It is common ground that Mrs Jacob was not told of the purchase of Clarkfield until some time in January 2003. By then, Mrs Turner and the Claimant (who was her third husband and is Mrs Jacob’s stepfather) had carried out some improvements to the house and Mr Turner did further work to the property in the months which followed. Mrs Turner was seriously ill with cancer. She died on 15 July 2003. At the time of her death Mrs Jacob was in the process of selling 18 Williamson Way and moving into Clarkfield. Completion of the sale of Williamson Way for £250,000 took place on 18 July 2003. Mrs Jacob moved into Clarkfield only a day or two before her mother died.[3]On 29 May 2003 Mrs Turner had made a new will. It was professionally drawn based on instructions which Mr Turner gave the solicitor (Mr Burton) after (he said) discussing matters with his wife. The will leaves Clarkfield to Mr Turner. Mr Burton’s evidence is that he did not meet Mrs Turner before the will was executed but that he did speak to her on the telephone and that she confirmed that she was happy for Clarkfield to be transferred to her husband. There is no challenge to the validity of the will. It replaced an earlier will made on 27 February 1999 a few months before the Claimant and Mrs Turner were married.[4]The 1999 will was made contemporaneously with a will by Mr Turner and a declaration of trust in respect of the beneficial ownership of a property called Merry Acres where Mr and Mrs Turner lived. They had bought this house as joint tenants in 1997 for £424,000 soon after Mrs Turner was divorced from her second husband Mr Brian Hutchison. Under the declaration of trust, Merry Acres was to be held by them as tenants in common in the shares in which they were expressed to have contributed to the purchase price and to various improvements to the property. Mrs Turner was to be entitled to 81% of the net proceeds of sale up to £500,000 and Mr Turner to 19%. Any proceeds of sale over £500,000 were to be shared equally.[5]The 1999 will itself replaced an earlier will executed on 7 May 1996. Under this will Mrs Jacob was left her mother’s entire estate. The only gift to the Claimant was of a Mercedes motor car. Mrs Turner’s 1999 will gave to Mr Turner any sums standing to her accounts at the National Westminster Bank together with personal chattels. Her beneficial share in Merry Acres was to be held by her trustees subject to a direction that the property should not be sold so long as Mr Turner retained his beneficial interest in it and wished to remain in occupation. If he wished to sell the trustees of the will were directed to comply with any reasonable request by him for the purchase of another residence on terms that he would pay the outgoings on the property during his occupation of it. On his death, Mrs Turner’s share in Merry Acres (or any replacement property) was to fall into residue. Under cl. 7 of the will her entire residuary estate was left to Mrs Jacob.[6]The 2003 will gives to Mr Turner his late wife’s personal chattels; the credit balances on her National Westminster bank accounts and all other bank and building society accounts and “all my interest” in Clarkfield. The will replicates the provisions in the 1999 will dealing with her interest in Merry Acres but requires ten per cent of her beneficial interest to be paid into the residuary estate if Merry Acres is sold in order to purchase an alternative property for Mr Turner. On his death (or an outright sale if earlier) Mrs Turner’s entire interest falls into residue and is left to Mrs Jacob.[7]Following Mrs Turner’s death the Claimant remained in Merry Acres. Her personal representatives (the partners in Mr Burton’s firm Messrs Barber Young Burton & Rind) executed a vesting assent of Clarkfield in his favour on 30 June 2004. His title to the legal estate is not in issue. But Mrs Jacob claims that she is either beneficially entitled to the property under a constructive trust or that the property should be conveyed to her in satisfaction of an equity which has arisen in her favour under the doctrine of proprietary estoppel as a result of circumstances which she says make it inequitable for Mr Turner to go behind her mother’s declared intention that Clarkfield should belong to her.[8]Both these claims are denied as is the allegation that it was ever Mrs Turner’s intention that her daughter should own the house. Although at one stage negotiations commenced for Mrs Jacob to buy Clarkfield, relations between her and Mr Turner have broken down. Mrs Jacob is said to have complained that under the 2003 will she would get nothing until Mr Turner died unless he vacated Merry Acres and did not require the trustees of the will to provide him with an alternative home. The dispute has now spread to include even minor items such as ornaments and furniture which Mrs Jacob says belong to her. Mr Turner accepts that some of these items do belong to Mrs Jacob but in relation to Clarkfield his case remains that his late wife intended him to have the property beneficially and he seeks possession of it.[9]What has, however, changed is that Mr Turner has vacated Merry Acres and it has been sold. He has now re-married and lives with his new wife in her home. He decided not to exercise his right under the will to require the trustees to buy another property. As a result, the net proceeds of sale of Merry Acres have been distributed between him and Mrs Jacob and she has received the sum of £577,000. Mr Callman submitted that this is fortuitous and has no real relevance to the issues which arise in the action in relation to Clarkfield. With one minor exception, which I will come to later, I accept that. The claim to a beneficial interest[10]At the start of the trial I gave permission for the amendment of the defence and counterclaim. The purpose of the amendment was to clarify the basis on which the claim to beneficial entitlement is asserted. Three alternatives bases for the claim are now relied on: i) That Clarkfield is held on what is described as a common intention constructive trust which arose at or after the purchase of the property as a result of Mrs Turner’s intention that Mrs Jacob should occupy it as her home and/or from her belief that she had a legal or moral obligation in effect to repay to Mrs Jacob certain monies which belonged to her following the sale of two earlier properties known as 30 Fleetwood Close, Chalfont St. Giles (“Fleetwood”) and 28 Glebe Avenue, South Ruislip (“Glebe Avenue”); ii) That as a result of statements and assurances given by Mrs Turner to her daughter and others between January 2003 and her death to the effect that she had purchased Clarkfield for the Defendant to occupy with her son as their home and the Defendant’s reliance on these assurances, Mrs Turner was and her estate is estopped from resiling from these assurances and the property is subject to a constructive trust in her favour or should be conveyed to her in satisfaction of the equity; and iii) That the monies belonging to Mrs Jacob as a result of the sales of Fleetwood and Glebe Avenue can be traced into the purchase of Clarkfield so as to give her a claim against that property based on a resulting trust to the extent that these monies were used to purchase it.[11]Factually, these claims are interlinked and depend on the same evidence. For convenience I propose therefore to analyse the three main transactions relied on and then to consider each of the suggested bases for Mrs Jacob having a beneficial interest in Clarkfield. I want to begin however by saying something about the main characters involved in these events. Mrs Turner[12]Apart from one or two letters there is no documentary evidence from which to obtain an impression of the kind of person Mrs Turner was. But all the witnesses were agreed that she was a strong minded and outgoing person with a large circle of friends. She had a very successful career as a stunt artiste and appeared in eight James Bond films as well as the films of Batman, Superman and Robin Hood. She was by all accounts an expert horsewoman who obviously had little or no fear. Many of her stunts involved high falls, chases on horseback and spectacular car accidents. Mr Turner said that her job as a stunt woman made her very resolute and that she was able to compete and succeed in what was a very male dominated industry.[13]She was married three times. Mrs Jacob is the child of her first marriage to Mr Ray Ford, which ended in divorce in about 1970. She was then married to Mr Brian Hutchison who had a haulage and car dealership business and later carried on business as a property developer. He described her in his evidence as forthright and as someone who did not suffer fools gladly. They married in 1972 but by about 1984 Mr Hutchison had moved to the United States and the marriage was effectively over. They divorced in 1997. Mr Hutchison said at one stage in his evidence that although he loved Mrs Turner he found it impossible to live with her. They continued however to keep in touch. He was not Mrs Jacob’s natural father nor did he adopt her but it seems to be accepted that Mrs Jacob regarded him as her father and he has supported her in these proceedings. Mrs Jacob[14]Mrs Jacob is now 43. She is Mrs Turner’s only child. She was born with severe hearing difficulties and is (as her counsel described her) a person with intellectual limits. Until she was 24 (in 1987) she lived with her mother at a house called Olde Chelsea in Chalfont St. Giles which Mrs Turner and Mr Ford had purchased in 1966. After their divorce Mrs Turner retained the property and in 1977 it was conveyed into the joint names of herself and Mr Hutchison as beneficial joint tenants. In 1985 following their separation Mr Hutchison conveyed to Mrs Turner his interest in the property subject only to the existing mortgage. By 1987 Mrs Jacob wanted to move to another property with her then boyfriend Mr Vernon Pearce and it was in these circumstances that Fleetwood came to be purchased.[15]The strength of Mrs Turner’s personality comes across very clearly in the evidence about her relationship with her daughter. All the witnesses agree that there was a close and protective relationship between mother and daughter which subsisted up to Mrs Turner’s death. In many ways she continued to treat her as a child. Mrs Turner was obviously concerned about her daughter and her ability to cope in life and took various steps over the years to help and protect her in her personal life. This became particularly evident during the time when the Defendant was married to Andy Jacob who apparently mistreated and took advantage of her. Mr Hutchison described Mrs Jacob as very vulnerable in financial matters and personal relationships and as easily influenced by other people. Other witnesses spoke of her tendency to be a spendthrift with money and of her mother’s concern about this.[16]Mrs Jacob found giving evidence to be a difficult and highly emotional experience. But I am satisfied that she gave her evidence honestly and to the best of her ability. It was however clear to me that she had only a general understanding of many of the transactions with which this action is concerned and relied very much on Mrs Turner to guide her through whatever arrangements were proposed. She said (and I accept) that she trusted her mother implicitly and was willing to do whatever she was asked. My rejection of parts of her evidence is not a reflection on her honesty but rather a recognition of the exaggerated and inaccurate impression which she has formed about some aspects of this case. Mr Brian Hutchison[17]Mr Hutchison met Mrs Turner in 1969 and remained with her until about 1984 when he went to live in the United States. As mentioned earlier, they did not divorce at this time, but Mr Hutchison transferred to Mrs Turner his interest in Olde Chelsea and agreed to pay her £2,000 a month for her maintenance. Mr Hutchison said that he left Mrs Turner because he could no longer live with her but that he remained emotionally attached to her until her death. She was, he said, very forceful. She thought that he would come back but by 1988 Mr Turner was living with her and it is, I think, clear that there was no real prospect of any reconciliation after this.[18]Mr Hutchison said that he had experience in property dealing and was streetwise. Mrs Turner therefore continued to consult him on property related matters especially in connection with Mrs Jacob who has always regarded him as a father. To make Mrs Turner happy (as he put it) he continued to pay her the £2,000 per month even after her relationship with Mr Turner began and this continued until 1994 when he wrote to her saying that he felt that after seven years apart the time had come “to make the final break and for your man Brian to do the honourable thing and take care of you financially…” “I now think”, he wrote, “it only fair to let me get on with my life without any additional financial burden to me, which I have been doing on a voluntary basis for so many years!! I do hope you understand, and that we can remain firm friends, and I will always be there if you need me!!” In 1997 they were divorced.[19]One important issue in this action which goes to the credibility of some of Mr Hutchison’s evidence is the degree of contact and reliance between Mrs Turner and Mr Hutchison in the years after he left. There is material put before me during the trial which discloses that in 1991 Mr Hutchison was convicted in the U.S of various counts of fraud in relation to a property transaction. He says that he signed a blank mortgage application form which was then used by others to make a fraudulent loan application to a bank. His evidence to me was that he had been (to use his words) “stitched up” by some business rivals and in effect wrongly convicted. I am not able on the information which I have, to go behind the certificate of conviction, but nor is it necessary for me to do so. The evidence of the U.S conviction was relied on primarily as indicating that it was unlikely that Mrs Turner continued to trust him. I think the position was more fluid than that. By then she was living with Mr Turner and her need for Mr Hutchison’s help and support was obviously much reduced. But she did remain in touch with him and did speak to him about the property transactions involving Kim. However, even this diminished with the passage of time. Although he discussed the purchase of Fleetwood in some detail he had really no involvement in the purchase of Clarkfield. By then he had ceased to maintain Mrs Turner, they were divorced and they had lived apart for 17 years. There was at most one conversation some months after the property had been purchased in which she told him what she had done. He was by then, on any view, much more a friend than a confidante or advisor. Fleetwood[20]The first transaction which is directly relevant to the dispute about the ownership of Clarkfield is the purchase of Fleetwood. As mentioned earlier in this judgment this house was purchased by Mrs Turner on 17 September 1987 for £75,000 in order to provide somewhere for Kim to live. She was then 24 and wanted to move from Olde Chelsea to live with Mr Pearce in a place of her own.[21]The house was bought by Mrs Turner in her own name with the benefit of a loan of £65,000 from the National Westminster Bank. Mrs Turner paid the deposit of £7,500 plus the balance of the purchase price, stamp duty and other fees and costs amounting to a further £3,833.05. A total of £11,333.05. Mrs Jacob says in her witness statement that Mr Hutchison was then living in Texas but that there were discussions between herself, Mrs Turner and him about her mother buying a property for Mrs Jacob and Mr Pearce to live in and that Mr Hutchison was anxious that a property should be purchased for her. She says that she has no recollection of the terms of any discussion as to how the finance for the purchase was to be provided, but she recalls that her mother and Mr Pearce each paid half of the monthly mortgage instalments. She says, however, that she discussed with her mother and Mr Hutchison that the property was being purchased for her which she and they understood meant that she actually owned the property.[22]Mr Hutchison says in his witness statement that Mrs Turner contacted him by telephone about the purchase of Fleetwood. At that time he was living in Houston. He did some calculations of how it could be financed. He had already transferred to her in 1985 his interest in Olde Chelsea but that property remained subject to a mortgage in favour of the Anglia Building Society. Mr Hutchison said that Mrs Turner had money in a building society account and in an account in the Channel Islands and had intended to buy Fleetwood for cash. But he persuaded her that it would be better to obtain a bank loan which she did from Natwest Home Loans. The calculations by Mr Hutchison are contained in a document headed “Financial Re-organisation” dated 30 July 1987. It begins with an analysis of Mrs Turner’s assets in the form of Olde Chelsea and her corresponding liabilities comprised in the mortgage to the Anglia Building Society. At that time there was about £12,000 outstanding on the mortgage. Mr Hutchison said in cross-examination that he offered to pay off the mortgage on Olde Chelsea to allow it to be used as security for the loan to purchase Fleetwood. But in the end this was not required. The bank took a charge over Fleetwood.[23]Fleetwood was therefore purchased without any direct financial contribution from Mr Hutchison although he says (and Mr Turner accepts) that he did pay off the balance of the mortgage on Olde Chelsea to assist Mrs Turner. It is also clear from the financial re-organisation document that part of the thinking behind the purchase of Fleetwood was that it could be converted into two flats. On 17 August 1987 a planning application was submitted for permission to do this but permission was refused by the local planning authority on 26 November 1987. On 22 March 1988 an appeal was lodged but this was dismissed later in that year. The significance of the planning application is that it indicates that Mrs Turner certainly did not intend that Mrs Jacob and Mr Pearce should have the use and occupation of the whole of the house. Mr Hutchison says in his witness statement that had planning permission been granted the other flat would have been let to provide Mrs Jacob with an income but that is not consistent with the documents lodged in support of the planning appeal and with the financial re-organisation document. The appeal statement says (in para 4.23):
“One of the residential units will be available on the open market, the remaining residential unit will be retained by the appellant for use as a family flat. However, no doubt in the future this residential unit will also be available on the open market.”
In Mr Hutchison’s financial calculations the intended flats are given values of £42,000 and £49,000 respectively.[24]Mr Turner was not involved in any discussions about the purchase of Fleetwood at the time but says that Mrs Turner did discuss the purchase with him later and said that the intention was that one flat would be sold to Kim and Mr Pearce and the other was to be disposed of to reduce the outlay on the purchase.[25]I am not persuaded that there was ever any settled agreement with Kim that she should purchase one of the flats but I am satisfied that prior to the purchase of Fleetwood no agreement was reached by Mrs Turner with either Mr Hutchison or with Mrs Jacob that Fleetwood was to belong beneficially to her daughter. The house was obviously purchased to enable Mrs Jacob and Mr Pearce to live together and to provide them with a home. But the entire purchase price had been provided by Mrs Turner either personally or by way of bank loan and the Defendant’s case requires me to accept that notwithstanding this Mrs Turner wished to make a gift of the equity to her daughter.[26]This case was never advanced as part of the original pleading. The allegation that Mrs Turner agreed to purchase Fleetwood for her daughter beneficially appears as part of the Amended Defence but it is put no higher than that she purchased Fleetwood to provide a home for Mrs Jacob (para 20) and that she discussed with Mr Hutchison on the telephone that although held in Mrs Turner’s name the property was being bought for Mrs Jacob to provide her with a good financial start in life. Mrs Jacob said in cross examination that the discussions with her mother and Mr Hutchison referred to in her witness statement took place at Olde Chelsea on one of Mr Hutchison’s visits to England. Her mother said that she wanted to buy a house for Mrs Jacob to occupy with Mr Pearce and that he would pay rent of £300 per month. The house would be divided into two flats and the other flat would be sold. When Mr Pearce left two rooms were let to lodgers and the rent was paid to Mrs Turner.[27]This seems to me to be a much more credible account of the discussions which took place before the purchase of Fleetwood and it comes no where near to establishing an agreement or understanding that Mrs Jacob would own the house. Having heard her give her evidence I do not regard paragraph 6 of her witness statement as representing an accurate statement of her recollection of these discussions and I think that Mrs Turner’s statement that Fleetwood would provide a home for Mrs Jacob and Mr Pearce has been given a meaning which the words were never intended to bear. Fleetwood did provide a home for Mrs Jacob but I do not consider that at the time of the purchase Mrs Turner either intended or agreed that it should belong to her daughter. The planning application was current and on that basis one of the flats was to be sold off to reduce the costs of purchase. All of this is entirely consistent with Mrs Turner being the owner of the property as is the fact that the rent from Mr Pearce, and later the lodgers, was paid to her.[28]Mr Hutchison says in paragraph 11 of his witness statement that he agreed with Mrs Turner that they would both be buying the property to give Kim a start in life so that she would be the beneficial owner of the property. It is not suggested that there was ever any actual reference to beneficial ownership as such in these discussions, but nor do I accept the suggestion made by Mr Hutchison that Fleetwood was regarded as a joint purchase for the benefit of Kim. The idea had come from Mrs Turner and I find that the purpose of her discussion with Mr Hutchison was merely to get advice on how the purchase should be funded. At that time they were separated but not divorced, although in June 1987 she had consulted solicitors about a divorce and they had drafted a petition. Mr Turner says that Mrs Turner decided not to go ahead with the proceedings because Mr Hutchison told her she would get nothing. In the circumstances she preferred to leave things as they were with the £2,000 per month maintenance and did not press for further financial provision from the court. There is nothing in this context to support the idea that Fleetwood was purchased as part of some joint family arrangement for the benefit of Mrs Jacob and I simply do not accept that there was ever a discussion between Mrs Turner or Mr Hutchison along the lines described in paragraph 11 of his witness statement.[29]My findings in relation to the purchase of Fleetwood are also supported by a consideration of subsequent events. On 21 September 1998 Mrs Jacob’s grandmother, Mrs Rocks, made a gift to her of the property at Glebe Avenue. It looks as if the timing of the gift was designed to avoid inheritance tax on Mrs Rocks’ death although in the event she did not survive seven years. But the property was tenanted at the time and although attempts were made to persuade the tenant (a Mrs Susan Evans) to leave she did not do so until 1991. It does look, however, as if Mrs Turner anticipated obtaining vacant possession and her daughter then moving into Glebe Avenue, because in September 1988 she put Fleetwood up for sale for £117,500. Mr Hutchison says that Mrs Turner suggested to Kim that she might move to Glebe Avenue. There is evidence that her relationship with Mr Pearce was deteriorating and that Mrs Turner might have been anxious that he should leave the property. In the event, Mrs Jacob did not move to Glebe Avenue and Fleetwood was not sold, but on 31 January 1989 Mrs Turner paid Mr Pearce £2,500 in full and final settlement of a claim made by him for monies which he said were due in respect of the house and he then moved out of Fleetwood.[30]By late 1988 interest rates began steadily to increase and this trend continued into 1990. The bank suggested that the loan be converted into a longer term mortgage, but Mrs Turner still anticipated selling the house and this was not done. She was, however, clearly concerned about the increasing cost of servicing the loan. Mr Turner said that she felt down and often telephoned Mr Hutchison in Texas to complain about the expense. In about February 1989 he paid off the outstanding loan. There was some debate as to whether the monies were paid in one instalment or over a longer period, but I am satisfied that during the course of 1989 the NatWest loan was repaid and in March 1990 the bank released its charge over Fleetwood.[31]It has always been the Defendant’s case that the loan was re-paid by Mr Hutchison on the basis of an agreement with Mrs Turner that the net equity (after re-paying what Mrs Turner had expended in the purchase of Fleetwood) would belong to Kim. Mrs Jacob was not party to these discussions and did not know at the time that Mr Hutchison had re-paid the loan. But he says that Mrs Turner telephoned him and he agreed that in return for his payment Mrs Turner would hold Fleetwood for Kim’s ownership and use. He says that he paid £75,000 by bank transfer into Mrs Turner’s account with the National Westminster bank in Chalfont St. Peter, which was intended to re-pay the bank loan and refund her contribution to the purchase price.[32]Mr Turner was not involved in these discussions and said in cross-examination that he had no evidence to the contrary. It is clear that by 1989 Mrs Turner does seem to have been taking further advice about the financial settlement on her divorce. In February 1989 she went with her solicitors, Messrs Hill Bailey, to see Mr Paul Focke Q.C but there is no note of what was discussed. Mr Hutchison says that he considered that he had already made reasonable provision for her by transferring Olde Chelsea and paying off the Anglia Building Society mortgage together with the payments of £2,000 per month which he was making. He agreed to re-pay the Fleetwood bank loan but on terms that the house would be held for the benefit of Kim.[33]On the face of it the payment made by Mr Hutchison is equally explicable in terms of providing an additional payment to Mrs Turner in anticipation of divorce and Mr Russen has advanced a number of criticisms of his evidence based on changes in dates, the amounts paid and the inconsistency between the alleged pre-purchase agreement and the agreement at the time of the re-payment of the bank loan. Mr Hutchison accepted that he has retained no documents relating to these transactions and that he has constructed his witness statement with the assistance of the documents provided by the Claimant. But there is one document which does link Mrs Turner directly with the agreement alleged by Mr Hutchison. In 1994 the Inland Revenue were investigating Mr Hutchison’s non-residence status. There is a typed letter dated 18 February 1994 to the Inspector of Taxes from Mrs Turner which sets out various facts relating to Mr Hutchison and his departure from the UK. Mr Hutchison says that the letter was prepared by Mr O’Brien of Williams Jeffery Barber in Chesham who were tax advisors used by Mr Hutchison. He says that he believes the letter was sent (although there is no signed copy) and there is no evidence to the contrary. One of the matters dealt with is the purchase of Fleetwood. The letter says this:
“I bought the property on the advice of Brian Hutchison to divide it into two flats. This planning permission was refused so my daughter Kim lived there until it was sold. The financing was arranged through NatWest Bank on a Bank Loan. At that time interest rates were very high, 14%, Brian generously paid off the balance of the loan after I had had it for about two years. He intended the property to be our daughter’s as part of my overall divorce settlement.”
[34]The only relevance of Fleetwood to the Inland Revenue inquiry would have been whether Mr Hutchison had an interest in the property. The reference therefore to the intention that the property should be Kim’s as part of an overall divorce settlement could not have been included simply to assist Mr Hutchison to establish his tax status and there is no other explanation as to why the information would have been included if not true. This letter therefore corroborates Mr Hutchison’s account of the basis on which the bank loan was re-paid and I accept his account of that matter.[35]In April 1992 Fleetwood was sold for £86,500. The tenant of Glebe Avenue had vacated and Mrs Jacob moved in. After agents and solicitors’ fees there was a balance of £84,068 which Messrs Speechlys paid to Mrs Turner by cheque. Mrs Jacob said that her mother did not discuss with her what she was going to do with the money but we know that it was paid into her current account and that £75,000 ( a sum equivalent to what Mr Hutchison says that he paid) was then transferred into her Crown Reserve deposit account.[36]Mr Hutchison says in his witness statement that he was asked by Mrs Turner for and paid a further £2,500 to compensate her for a shortfall on the sale and for the monies she had paid to Mr Pearce. Given that Mr Hutchison had paid off the bank loan and that Mrs Turner had received the entire net proceeds of sale it is difficult to see how any shortfall could have existed on the sale unless the £75,000 was regarded by her as effectively ring-fenced for Kim and not her money to deal with. It was suggested that the payment was in fact made towards the cost of a new porch for Glebe Avenue and Mr Hutchison accepted that he had paid for work on the property. In the end it remains unclear why this additional payment was made and I attach no real importance to it for the purposes of my decision.[37]What I think is not in dispute is that the balance of the proceeds of sale over £75,000 were retained by Mrs Turner in her current account and used to meet her personal expenses. In round terms these equate to the amount which she had spent on paying the deposit on Fleetwood and meeting the other expenses of the purchase. But the important sum in relation to these proceedings is the £75,000 paid into the deposit account. Mrs Jacob accepts that her mother was entitled to re-coup her expenses of the purchase out of the proceeds of sale.[38]Mr Hutchison says that he was unaware that Mrs Turner paid the £75,000 into her deposit account until he saw a bank statement during the early part of these proceedings. He says he made no enquiries about the proceeds of sale at the time but accepted that it would have been unwise of Mrs Turner to have handed them to Kim. She was unable properly to manage her affairs and would probably have squandered the money. He said he trusted Mrs Turner to hold it for Kim.[39]Mr Turner’s evidence is that later in 1992 Mrs Turner spent at least £60,000 of the money on a Mercedes sports car. It is common ground that she purchased a car at this price, but Mr Hutchison said that he believed the funds came from a Channel Island account in which there was about £70 – 80,000 at this time. The claim to a beneficial interest in Clarkfield depends on one alternative on being able to trace the £75,000 into the purchase of that property. The rules of tracing require one to assume that trust money would not be used to fund payments in breach of trust before all other monies in a mixed account had been utilised. On this basis Mr Turner was challenged about his evidence that the car had been purchased using the £75,000. There are unfortunately no surviving bank statements for the Crown Deposit account in 1992 but he has analysed the other bank accounts and says that there is no record of the £60,000 being paid out of any of them. By June 1993 Mrs Turner had also withdrawn a total of £31,000 from the Crown Reserve account into her current account to meet personal expenses. In July 1993 the balance then remaining in the Crown Reserve account of £63,491.19 was paid into a Diamond Reserve account and the Crown Reserve account was closed.[40]Pausing there it is, I think, clear that one cannot say with any certainty whether the £75,000 was used to buy the motor car, because there is no record of how much was in the Crown Reserve account from time to time, or whether it was supplemented by funds transferred in from other sources. Nor is it clear whether the car was purchased entirely from monies in the Crown Reserve account or whether part of the price was met from, for example, funds in a Channel Islands account. But what does come out of Mr Turner’s analysis is that the monies paid into the Crown Reserve account were in no sense treated as a restricted fund. There were regular payments out to the current account and by July 1993 only £63,000 of the £75,000 remained even if one assumes for tracing purposes that any non-trust monies were used first. Mrs Turner did not therefore attempt to isolate the £75,000 intended for Kim.[41]Mr Russen submits that this in itself is evidence negativing the alleged agreement concerning the payment by Mr Hutchison of the £75,000. In addition he relies on the arrangements made in relation to Glebe Avenue. Before Mrs Jacob could move in extensive works of repair and decoration were carried out at Mrs Turner’s expense. The details do not matter. Rather than fund these works out of the £75,000 provided by Mr Hutchison, Mrs Turner arranged for Kim to take out a NatWest home loan of £15,000 to re-pay her mother for the costs involved. This is also said to be inconsistent with the agreement alleged.[42]Although these points have some forensic merit, they are not in my judgment sufficient to outweigh the expression of Mrs Turner’s own understanding of the arrangements set out in her letter to the Inland Revenue of 18 February 1994. I think it is highly unlikely that Mrs Turner had any real grasp of the intricacies of the law of trusts or of the need to separate trust money. It seems more likely that she regarded herself as under an obligation to account to Kim for whatever was due to her when that time came. But in the meantime, she continued to keep her daughter on a tight financial rein and the £15,000 mortgage is typical of a desire to avoid Mrs Jacob having free access to significant sums of money. Glebe Avenue[43]Mrs Jacob moved into Glebe Avenue in early 1992 when Fleetwood was sold. Her grandmother died in the same year, but the administration of her estate took some time and it was not until 1995 that she received about £15,000 which she used to pay off the mortgage. In 1995 she also married Andy Jacob and he moved into Glebe Avenue. It seems to be common ground that by 1996 there were problems in the marriage. Mr Jacob often became drunk and abusive towards Mrs Jacob, household bills were not paid and Mrs Turner discovered through Kim that there were a number of county court judgments outstanding against her husband. She became concerned for her daughter, not only personally, but also because Mr Jacob indicated that he wanted a share in the house. There was obvious concern that in any divorce he would seek financial provision from a sale of the property.[44]Mrs Turner spoke to Mr Hutchison about this and he advised that a deed of gift should be executed transferring Glebe Avenue to Mrs Turner. He told her to contact Speechlys who had dealt with the sale of Fleetwood and they drew up the deed. It was executed on 16 August 1996. It is unlikely that the conveyance of Glebe Avenue to Mrs Turner for no consideration would have been effective to defeat a claim for financial provision by Mr Jacob, given the anti-avoidance provisions contained in the Matrimonial Causes Act 1973, but it is accepted that this was a device intended to discourage any such claim and that it was not intended to alter Kim’s beneficial entitlement to the property.[45]In May 1997 Mrs Turner was divorced from Mr Hutchison. The petition sought no further financial provision. At the same time, Olde Chelsea was placed on the market and eventually sold in January 1998 for £565,000. Mrs Turner had found another property, Merry Acres, which she wanted to move to and this was purchased on 17 July 1997 for £424,000 with a mortgage of £270,000. The balance of the purchase price was provided by Mr and Mrs Turner from their respective savings and the sale of shares and other investments. When Olde Chelsea was sold part of the proceeds of sale were used to pay off the mortgage on Merry Acres. On 27 February 1999 Mr and Mrs Turner executed the declaration of trust referred to earlier under which the net proceeds of sale were held for them as to 19% and 81% respectively up to the sum of £500,000 and above that in equal shares.[46]In September 1997 Mrs Jacob obtained a decree nisi in her own divorce proceedings against Andy Jacob together with a non-molestation order preventing him from entering Glebe Avenue. The divorce was made absolute on 14 April 1998. But later that year there was a reconciliation between them and Mr Jacob moved back to live with her. Early in 1999 Mrs Jacob told her mother that she and Andy wanted to move to a more modern property nearer to his parents in Rickmansworth. Mr Turner’s recollection is that Kim and Andy went to an estate agent (Gibbs Gillespie) in Ruislip and put Glebe Avenue on the market for £149,950.[47]There has been disclosure of the agents’ records for the property which show that they were instructed to sell it by Mr and Mrs Jacob and an offer was received from a Mr and Mrs Sullivan in the sum of £147,000. At the same time, Kim and Andy had found a house they wanted to buy at 18 Williamson Way and had made an offer to buy it for £173,000 which had been accepted.[48]This put them under a certain amount of pressure. They had accepted the offer from the Sullivans but these purchasers needed to obtain a mortgage offer and appear to have been dragging their feet. Mr Turner said that the vendors of Williamson Way were pressing the Jacobs to exchange contracts. In the end, Mrs Turner stepped in to help and agreed to purchase Glebe Avenue from Kim for £147,000 using the money she had received from the sale of Olde Chelsea. This enabled the Jacobs to proceed with their purchase of Williamson Way without further delay and completion took place on 12 November 1999. The intervention of Mrs Turner also solved another problem which would have led to further delay in the sale of Glebe Avenue. The title to the property was unregistered and the title deeds were missing. As part of the conveyancing arrangements Kim was asked to sign a statutory declaration (dated 26 November 1999) setting out the details of the earlier deeds of gift and confirming that her mother had paid what is referred to as “the then agreed value” of the property in the sum of £147,000 further to the arrangements made in August 1996 under which she had executed the deed of gift in her mother’s favour. The statutory declaration refers to there having been an agreement then that Mrs Turner would pay to her the value of the property if called on to do so and that on 18 October 1999 this had been done.[49]Mr Callman submitted to me that it was unrealistic to suppose that his client fully understood the implications of what she was signing. But the evidence is that the statutory declaration was drawn up and agreed between solicitors. Mr Burton acted for Mrs Turner and Mrs Jacob was represented by Mr Miles of Bird & Lovibond who were also acting on the purchase of Williamson Way. In part, the statutory declaration confirmed what is common ground in these proceedings namely that the 1996 deed of gift was what Mr Miles described in correspondence as “an exercise in convenience” to deal with the problem of Andy Jacob asserting a claim to Glebe Avenue. Mr Burton said in evidence that although not involved in the 1996 deed of gift he understood the arrangement to be that Mrs Turner would either re-transfer the property or pay Kim its value as and when asked.[50]Even if Kim never bothered herself with the language of the document and did little more than to sign what was put in front of her, I do not accept that the contents of the statutory declaration are inaccurate. It is the Defendant’s case that the 1996 deed of gift was simply an arrangement under which Mrs Turner would retain the benefit of Glebe Avenue for her. That obligation would be satisfied by her paying to her daughter whatever was the market value of the property as and when she was called upon to pay. The controversial part of the statutory declaration is the statement that £147,000 was the then value of Glebe Avenue in October 1999. What is alleged is that £147,000 was not the value of the property and that its true market value was in the region of £185,000. This requires me to accept that the solicitors were told that £147,000 was the true value when the parties knew that it was not. Mr Burton’s evidence (which I accept) is that he certainly did believe that £147,000 was the true value of the property at the time and that Mrs Turner did not suggest otherwise.[51]In her witness statement Mrs Jacob said that her mother explained that the property was being sold to her for less than it was worth and that she would look after the balance of the £185,000 for her. She wanted Andy Jacob to make some financial commitment to the purchase of Williamson Way and by paying only £147,000 this would force him into obtaining and paying a mortgage to make up the balance of the purchase price of £173,000. In his witness statement Mr Hutchison says that Mrs Turner told him that she believed Glebe Avenue was worth £185,000 and that as part of the plan to force Mr Jacob to get a mortgage, he advised her to put the property on the market for £150,000 and once an offer was received then to offer Kim the same price. He was not worried that Mrs Turner ended up paying £38,000 less than the true value because she would in the end leave everything to Kim.[52]I do not accept any of this evidence and its falsity was exposed when Mrs Jacob herself came to be cross-examined. She confirmed that she and Andy instructed Gibson Gillespie to sell Glebe Avenue and that it was put on the market for £149,950. She said that the Sullivans had made an offer of £147,000 but that they were not progressing matters. Her mother offered the same to allow her to get Williamson Way. When asked whether she and Mr Jacob would have sold to the Sullivans had they been able to exchange in time she confirmed that they would have done.[53]This evidence is not consistent with Mr Hutchison’s account of how Glebe Avenue came to be put on the market or with the suggestion that the property was worth £185,000. If that was in fact its true value at the time, it is difficult to see why the agents suggested it be offered for sale at £149,950 and why there were no offers at or in excess of the asking price. But Mrs Jacob’s admission that she and Andy would have sold to the Sullivans at that price makes it impossible to accept that this was a strategy designed to convince Andy Jacob that the house was worth only £150,000 and to encourage him to take out a mortgage to assist in the purchase of Williamson Way. Unless the estate agent had been persuaded in advance to tell Mr Jacob that the value of the property was only £150,000 he would have discovered its true value when he and Kim went to Gibson Gillespie and instructed them to put the house on the market. I am afraid that I regard these allegations about the sale of Glebe Avenue as completely untrue.[54]Quite apart from the inherent implausibility of this evidence, there is no valuation of Glebe Avenue which supports the alleged value of £185,000 in 1999. When asked about the £185,000 figure Mrs Jacob said that it came from Andy Jacob and that he had typed it out. Mr Hutchison referred to the same document. There are two points to be made about this. The first (and most obvious) is that if Andy Jacob did know and believed Glebe Avenue was worth £185,000 it is difficult to see how the plan to get him to contribute to the cost of Williamson Way by obtaining a mortgage could work. The second is that the document referred to is simply a calculation by Mr Jacob of what monies were available from the sale of Glebe Avenue and the mortgage advance and what was needed to buy Williamson Way. We know that Mr and Mrs Jacob in fact only needed to borrow about £30,000 to buy Williamson Way but they obtained a mortgage of £38,000 which left them with a surplus of £8,292.99. Mr Turner said that Kim wanted some extra money to enable them to buy some new furniture for Williamson Way. If one adds £38,000 to £147,000 then you get a total of £185,000 but this has nothing to do with the value of Glebe Avenue. It is simply the addition of the sale price of Glebe Avenue and the mortgage which Kim and Andy obtained to buy Williamson Way and furnish it.[55]I therefore reject the suggestion that Mrs Turner paid anything less than the market value of Glebe Avenue in 1999. Her obligations to Kim in respect of that property were therefore satisfied with the payment of the £147,000. Clarkfield[56]By 2002 there were further problems between Mr and Mrs Jacob. Mrs Jacob said that Andy had again threatened her with violence and in April 2002 an injunction was made preventing him from entering Williamson Way. There were mortgage arrears and Mrs Jacob was anxious to find somewhere else to live. 2002 was also a difficult year for Mrs Turner. In March she had been diagnosed with cancer. It was inoperable but she commenced a course of chemotherapy. At the same time she was worried about the deteriorating relationship between Kim and Andy. In June 2002 she sold Glebe Avenue for £220,000. Since 1999 it had been rented out. Mr Turner assisted Kim by writing letters to Andy in an attempt to get him to agree to a sale of Williamson Way or to a transfer of the property to Kim. During the summer Mrs Turner encouraged Kim to look for another house that might be suitable. Kim found one that she liked at 26 Clarkfield which was for sale at £189,950. It was outside her price range and also needed work doing to it. Mrs Turner (who had sold Glebe Avenue by this time) made an offer to buy the house for £185,000 but the property was taken off the market. As far as Kim was aware that was the end of it.[57]But Mrs Turner did subsequently agree to purchase Clarkfield for £189,500 and completion took place on 10 October 2002. Mr Turner said that most of the monies used to buy Clarkfield came from the sale of Glebe Avenue. The news of the purchase was kept from Kim because Mrs Turner feared that she might become lazy about the sale of Williamson Way and was also concerned that Andy Jacob might attempt to block it. But whatever the reason, Mrs Jacob accepts that she knew nothing about the purchase until January 2003 when she was taken to see the property. Before then Mr Turner had refurbished and decorated parts of the house. It was clearly intended to be a surprise for Kim. She said that in early 2003 her mother and Mr Turner came over to Williamson Way and told her that she had bought her a house. They took her on what amounted to a tour of the local area and eventually ended up at Clarkfield. She said that her mother told her that this was the house she had bought for her and that she and Mr Turner were doing it up to be ready for her. Work continued in the property and on 18 July 2003 Williamson Way was sold for £250,000. Kim moved into Clarkfield shortly before her mother’s death on 15 July.[58]In her witness statement Mrs Jacob gives no evidence of any other statements made to her about the ownership of Clarkfield up to her mother’s death although there is a concluding paragraph in which she says in general terms that she was always given to understand that Clarkfield (together with Fleetwood, Glebe Avenue and Williamson Way) was owned by her. Mr Turner accepts that he drove Kim and her mother to see Clarkfield and that Mrs Turner probably did say words to the effect that she had bought a house for her. But he says that it was always Mrs Turner’s intention that Kim should reimburse her once Williamson Way had been sold. Mrs Turner had simply used her own money to help Kim out of a difficulty at Williamson Way and to re-house her. She was living opposite her former husband who had been violent towards her and she was understandably anxious to get away from there.[59]It was put to him that Mrs Jacob could not have afforded to buy Clarkfield out of the proceeds of Williamson Way, although that property was sold for £250,000, and there is no clear evidence about how much Mrs Jacob received. He said that Mrs Turner would not have insisted that Kim should pay more than she could afford, but that she was anxious to prevent Kim from having unnecessary amounts of free capital. She did not therefore intend that her daughter should have Clarkfield without paying for it.[60]This evidence is consistent with much else of what we know about the relationship between Kim and her mother. Although they were clearly very close, Mrs Turner was in many ways very tough in her approach to Kim. Although she paid the mortgage on Fleetwood she did not provide her with a regular allowance and Mrs Jacob worked as a domestic cleaner to earn an income. Mrs Turner withheld the monies paid by Mr Hutchison to redeem the mortgage on Fleetwood and she was always concerned that if given access to monies Kim would spend them. Although caring for her daughter she was in no sense an indulgent parent and her intention that Kim should pay her for Clarkfield would be consistent with that.[61]Mr Turner’s evidence is supported by Mrs Derys Gingell. She was Mrs Turner’s hairdresser and friend, but for a number of years and until shortly before Mrs Turner’s death she was not in contact with her. Mrs Jacob said that this was due to an incident in about 1995 when her mother believed that Mrs Gingell had some kind of brief liaison with Mr Turner. Mrs Gingell denies that she had an affair but the debate may be over a matter of terminology. Mr Turner, I think, accepts that there was what he describes as a slight blip in his relationship with Mrs Turner. It is not necessary (or indeed possible) to make any findings on this beyond accepting that Mrs Turner did have reason to complain about some kind of incident back in 1995. But her relationship with Mr Turner survived and when Mrs Gingell learnt that Mrs Turner was very ill she got in touch and visited her at Merry Acres.[62]On one of these visits she says that Mrs Turner referred to the sale of Williamson Way and the purchase of Clarkfield although she may not have mentioned the houses by name. Mrs Gingell says that she was told that Mrs Turner had bought Clarkfield with her own money to enable Kim to move out of Williamson Way and to get away from Andy Jacob but that the intention was that Kim would pay Mrs Turner when Williamson Way was finally sold.[63]The other relevant evidence which supports Mr Turner’s case is the 2003 will. As mentioned earlier in this judgment, the will contains a gift of Clarkfield to Mr Turner. In April 2003 Mr and Mrs Turner had gone to Mexico so that she could be treated in a clinic there which specialised in alternative therapies for cancer patients. The consultant at the Royal Marsden Hospital had told her that her condition was terminal and that the Mexican clinic would not help, but she insisted on going. They returned on 8 May and Mr Turner told her that her will needed to be changed. Her previous will pre-dated her marriage. The new will was drawn up by Mr Burton on the basis of some notes prepared by Mr Turner which indicated which of the provisions of the 1999 will were to be retained and what new provisions were to be added. Clarkfield (described in the notes as “my wholly owned property”) was to be given to Mr Turner.[64]Mr Burton says that based on these instructions, he drew up the new will. He did not visit Mrs Turner but he spoke to her on the phone. There is no attendance note of the call but Mr Burton says that he asked Mrs Turner if she had read Mr Turner’s notes and she said that she had. He asked if she was happy that Clarkfield should be transferred to Mr Turner and she replied that she was. His evidence is that that was about the extent of the conversation. Mrs Turner at no time suggested to him that the property was held for Kim or that she (Mrs Turner) was not the beneficial as well as the legal owner. Much of the cross-examination of Mr Burton on the 2003 will carried with it the implication that Mr Turner in some way influenced his wife and took control of the process of drawing up a new will. It was executed by her in the garden of Merry Acres during a visit by Mrs Betty Thorn, an old friend of Mrs Turner and her son Mr Roy Page. They said that Mrs Turner was very tired and are not sure that she read the will before she executed it. Mrs Thorn also said that she was told in terms by Mrs Turner that she had bought a house for Kim.[65]There is, however, no challenge to the validity of the will nor any evidence to contradict Mr Burton’s recollection that Mrs Turner wanted Clarkfield to go to her husband. I accept his evidence as to what was said during the telephone conversation and the terms of the 2003 will are powerful evidence that Mrs Turner not only wished to give the house to her husband but also considered that she was entitled to do so. By this time, she knew that she was going to die and if she had intended that Mr Turner should hold Clarkfield on trust for Kim, I think that, ill though she was, she would have said so. On the Defendant’s case Mrs Turner made a will leaving Clarkfield to her husband whilst at the same time saying to Mr Hutchison and others, including Kim, that she was to be the owner of the house. Unless I take the view that she was untruthful, even duplicitous in her conduct with her daughter (which I do not) this simply makes no sense.[66]The evidence relied on as showing that Mrs Turner intended Kim to be the owner of Clarkfield was mainly from Mr Hutchison. He says in his witness statement that in early 2003 he received a phone call from Mrs Turner. She said that she was about to go to the clinic in Mexico. She said that she had already had a will put in place and that she had bought Kim another house. When added to the monies from Williamson Way this would take care of what she referred to as the “Chalfont money” and the “Glebe situation”. He says that this meant that the gift of Clarkfield would enable Mrs Turner to account for what she owed Kim from the sale of Fleetwood and Glebe Avenue. He does not say that Mrs Turner talked of Kim owning Clarkfield but he says that this is what she meant. He asked her whether Kim was taken care of in the will but Mrs Turner said that she did not want to get into a detailed discussion about that and that Mr Turner would look after Kim financially.[67]When cross-examined about this evidence Mr Hutchison admitted that he could not be sure about when the call took place. The telephone records indicate two calls from Mr Hutchison; one on 20 January 2003 which lasted five and a half minutes and the other on 4 June which lasted eight minutes. He thought it would have been the June conversation because that would tie in to the references to Mrs Turner having made a will. In his oral evidence he says that she told him about the trip to Mexico although in his witness statement he says that she told him she was about to go to the clinic. At one point in his cross-examination he said (without explaining) that Mrs Turner did not leave Clarkfield to her husband and that the 2003 will was not her last will. But none of this was taken up by Mr Callman in his closing submissions.[68]I do not regard it as safe to rely on any of Mr Hutchison’s evidence about Clarkfield. I am not persuaded that Mrs Turner said anything to him beyond the fact that she had bought a house for Kim. It is clear that Mr Hutchison has no clear recollection of these events and has largely re-constructed his account from the documents he has been supplied with. This explains his evidence about Glebe Avenue being worth £185,000 based on the Andy Jacob document and the same is true of his final conversation with Mrs Turner. I do not believe that she made any reference to the “Chalfont money” or to the “Glebe situation”. Mr Hutchison has chosen to read into what she did say about having bought a house for Kim far more than she either said or meant and his desire to obtain for Kim a larger share of her mother’s estate has prompted him simply to exaggerate and I am afraid to say invent much of the detail. There was no reference at all to the “Glebe situation” in Mrs Jacob’s case as originally pleaded. The particulars given of the telephone conversation were that the purchase of Clarkfield “takes care of Chalfont”. Mr Hutchison says that this was a mistake by the lawyers. But I am inclined to accept Mr Russen’s submission that the particulars were prepared at a time when Mr Hutchison believed that Fleetwood had been sold for £110,000 rather than £86,500 and that the reference to Glebe Avenue was added so as to make it more credible that Clarkfield was intended to account for what was owed to Mrs Jacob.[69]Much the same goes for the other witnesses who were called to say that Mrs Turner told them that Kim was to own Clarkfield. Mrs Jill Ridley, Mrs Shirley Dent, and Mrs Pam Hepple all said in their witness statements that Mrs Turner told them that she had bought a house for Kim and that this would be a property which Kim would own. It seems to me most unlikely that Mrs Turner would have stressed that Kim was to own Clarkfield unless someone had specifically asked her what she meant by having bought a house for her daughter which none of these witnesses had any reason to do. It emerged during their evidence that these witness statements were prepared on the basis of a series of leading questions by Mrs Jacob’s solicitors, which I suspect have prompted the witnesses to read into Mrs Turner’s words and consequently to recall far more than she actually said.[70]I prefer the evidence of Mr Burton and Mrs Gingell. As already indicated, I do accept that Mrs Turner did probably say that she had bought a house for Kim, but by that she meant no more than that she had purchased Clarkfield to allow Kim to move there from Williamson Way. The evidence of her will indicates that she did not intend that the house should belong to Kim without payment. Although she had taken £75,000 from Mr Hutchison on the basis that it would be used to provide for Kim there is every reason to suppose that she believed this would be done through Kim inheriting her share in Merry Acres. In the meantime she expected Mr Turner to look after Kim’s interests in much the way she had done. This is what Mr Hutchison said that she told him.[71]The other matter which needs to be considered in relation to Clarkfield is the Defendant’s allegation that she spent money or changed her position in the belief that the property belonged to her. Kim accepts that most of the refurbishment work was carried out late in 2002 and 2003 prior to her moving into Clarkfield. This was paid for by her mother. But she says that she also did some work at her own expense. In her third witness statement she says that she paid for some tiling in the kitchen and bathroom, for a laminate floor in the hall and for some light fittings. These items total about £1800 although the work to the kitchen was not carried out until January 2005 after the notice to quit had been served.[72]Mrs Jacob says that in 2005 she also spent £18,000 on a new car and £3,000 on holidays which she would not have done if she had not believed that Clarkfield was her own. I do not accept that. By the end of 2004 she had received the notice to quit and had also been paid over £570,000 from her mother’s estate following the sale of Merry Acres. I am quite satisfied that all the expenditure in 2005 was simply the result of Mrs Jacob’s inheritance and had nothing to do with Clarkfield. I also consider that the earlier expenditure on the house was no more than what she would have carried out had she been told that she could remain there as a licensee. These were minor works carried out to improve her comfort at Clarkfield.[73]Her more substantial complaint is that had she been told that she would have to pay for Clarkfield she would not have moved there but would have looked to buy a cheaper house elsewhere. The cost of buying such a house has now risen by about 20%. I am far from satisfied that Kim would have been sufficiently independent to have refused the offer of Clarkfield and to have looked for another house. It seems to me that she would have moved to Clarkfield because that is what her mother wanted and her evidence is that she always did what her mother asked. If Mrs Turner had asked her to pay for Clarkfield out of what was left from Williamson Way I have no doubt that she would have done that. The suggestion that she would or could have exercised a judgment of her own is, I believe, quite unrealistic.[74]But the other point is that I am far from satisfied that Mrs Jacob would have rejected the offer of Clarkfield even if told that she had to pay for it. The evidence as I mentioned earlier, is that her mother would not have insisted that Kim should pay more in the short term than was available to her from the sale of Williamson Way. Clarkfield was the property which she herself had chosen and it seems to me highly improbable she would have looked for a cheap and possible inferior house if she could have had Clarkfield for the same price. A constructive trust[75]Although I have attempted to analyse the evidence in some detail my conclusions can be summarised quite shortly. I do accept that Mrs Turner received the £75,000 from Mr Hutchison on the basis that the net proceeds of Fleetwood would belong to Kim as part of an overall divorce settlement. I also accept that Mrs Turner agreed to hold Glebe Avenue or its value for Kim’s benefit under the 1996 deed of gift, but I am satisfied that she discharged those obligations with the payment of £147,000 in October 1999. I do not accept that there was ever an agreement between Mrs Turner and Kim that Clarkfield would belong to Kim beneficially or that she ever intended this should be the case. But I do accept that she did say to Kim in early 2003 words to the effect that she had bought her a house. I do not believe that she ever said to Kim anything more than this.[76]Mr Callman submits that a constructive trust can be based on a common intention between the parties that one or both should have an interest in the property which is acted on by the party seeking to establish the trust. Although this intention or agreement will normally exist at the date of acquisition it may exceptionally arise at some later date. This submission is based on a passage in the speech of Lord Bridge in Lloyds Bank v Rosset [1999] AC 107 at p.132 E – G where he said this:
“The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made it will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive trust or a proprietary estoppel.”
[77]In the case of Fleetwood there was no express agreement or arrangement of this kind between Mrs Turner and Kim but there was (as I have found) such an arrangement or understanding between Mrs Turner and Mr Hutchison that Kim would have an interest in Fleetwood equivalent to the £75,000 which he was contributing. I think that Mr Russen accepts that this could be sufficient on my findings to raise an equity in Kim’s favour even though it was Mr Hutchison who relied and acted on the agreement by paying the £75,000. I regard that as sufficient to have given rise to a constructive trust in Kim’s favour of that proportion of the net proceeds of sale.[78]The position about Clarkfield is different. What is alleged in the Amended Defence and Counterclaim is that as a result of the moral or legal obligation which Mrs Turner was aware of arising from the sale of Fleetwood and Glebe Avenue to account to Kim for the £75,000 and the £38,000, she purchased Clarkfield for her and subsequently agreed that it would be hers. In reliance on this Kim moved into the house, expended money on improvements and lost the chance of purchasing a cheaper property at a price she could afford. For the reasons set out earlier, I have rejected the claim that Mrs Turner was under any duty to account for £38,000 in respect of Glebe Avenue. But I am also not persuaded that she bought Clarkfield with the intention that it would in effect re-pay the £75,000 from Fleetwood or that there was any agreement to that effect. Her intention was not to make a gift of the property to Kim and what she said to her daughter has to be viewed in that light.[79]The most that I am prepared to accept is that in early 2003 Mrs Turner said to Kim (and perhaps others) that she had bought a house for her. But that statement was factually true even if the intention was that Kim should pay for it. It seems to me that this falls very far short of the kind of arrangement or agreement which Lord Bridge was speaking of in Lloyds Bank v Rosset and a mother’s friendly and concerned gesture towards her daughter has been given a significance out of all proportion to what it can properly bear.[80]Recent authorities have emphasised that the boundaries between the creation of a constructive trust by agreement and the operation of the doctrine of proprietary estoppel which may lead to the creation of interest in the property are closely linked and have many characteristics in common. Lord Bridge, I think, recognised this in the passage I have quoted, but it was spelt out clearly by the Court of Appeal in Yaxley v Gotts [2000] Ch 162 at p. 176 where Robert Walker LJ said this:
“At a high level of generality, there is much common ground between the doctrines of proprietary estoppel and the constructive trust, just as there is between proprietary estoppel and part performance. All are concerned with equity's intervention to provide relief against unconscionable conduct, whether as between neighbouring landowners, or vendor and purchaser, or relatives who make informal arrangements for sharing a home, or a fiduciary and the beneficiary or client to whom he owes a fiduciary obligation. …………… The overlap between estoppel and the constructive trust was less fully covered in counsel's submissions but seems to me to be of central importance to the determination of this appeal. Plainly there are large areas where the two concepts do not overlap: when a landowner stands by while his neighbour mistakenly builds on the former's land the situation is far removed (except for the element of unconscionable conduct) from that of a fiduciary who derives an improper advantage from his client. But in the area of a joint enterprise for the acquisition of land (which may be, but is not necessarily, the matrimonial home) the two concepts coincide.”
In the earlier decision in Grant v Edwards [1986] Ch 638 at p.656 Sir Nicolas Browne-Wilkinson V-C said that:
“I suggest that in other cases of this kind, useful guidance may in future be obtained from the principles underlying the law of proprietary estoppel which in my judgment are closely akin to those laid down in Gissing v Gissing [1971] AC 886. In both, the claimant must to the knowledge of the legal owner have acted in the belief that the claimant has or will obtain an interest in the property. In both, the claimant must have acted to his or her detriment in reliance on such belief. In both, equity acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating the common intention. The two principles have been developed separately without cross-fertilisation between them: but they rest on the same foundation and have on all other matters reached the same conclusions.”
[81]In recent years the emphasis in cases of proprietary estoppel has been away from a concentration on set criteria and the courts have instead emphasised that the central question is whether it would in all the circumstances be unconscionable for the maker of the representation to be allowed to go back on what he has promised. Whereas 19th century cases such as Ramsden v Dyson (1866) LR 1HL 129 contained references to the need to show an expenditure created or encouraged by the representor, more modern authorities take a broader approach. This is typified by the judgment of Oliver LJ in Habib Bank Ltd v Habib Bank AG [1981 1 WLR 1263 who said this (at p.1285B) ‘For myself, I believe that the law as it has developed over the past twenty years has now evolved a far broader approach to the problem than that suggested by Mr Aldous and one which is in no way dependent upon the historical accident of whether any particular right was first recognised by the common law or was invented by the Court of Chancery. It is an approach exemplified in such cases as Inwards v Baker [1965] 2 QB 29) and Crabb v Arun DC [1976] Ch 179). We have been referred at length to a recent judgment of my own in Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd, [1981] 2 WLR 576 in which I ventured to collect and review the authorities. I said this,[1981] 2 WLR 576 at 593):
“Furthermore, the more recent cases indicate, in my judgment, that the application of the Ramsden v Dyson (1866) LR 1 HL 129 principle (whether you call it proprietary estoppel by acquiescence or estoppel by encouragement is really immaterial) requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.”
Whilst, having heard the judgment read by counsel I could wish that it had been more succinct, that statement at least is one to which I adhere.’[82]In Jennings v Rice [2002] EWCA Civ 159 the Court of Appeal emphasised that an important aspect of this branch of equity was the need for the remedy granted to be proportionate to the justice of the case. This may not be the same as the expectations of the Claimant. As Aldous LJ said at para 36:
“[36] Both the result and the reasoning of the judgment in Campbell’s case are inconsistent with Mr Warner’s submission. There is a clear line of authority from at least Crabb’s case to the present day which establishes that once the elements of proprietary estoppel are established an equity arises. The value of that equity will depend upon all the circumstances including the expectation and the detriment. The task of the court is to do justice. The most essential requirement is that there must be proportionality between the expectation and the detriment.”
Similarly at para 49 Robert Walker LJ said that:
“[49] It is no coincidence that these statements of principle refer to satisfying the equity (rather than satisfying, or vindicating, the claimant’s expectations). The equity arises not from the claimant’s expectations alone, but from the combination of expectations, detrimental reliance, and the unconscionableness of allowing the benefactor (or the deceased benefactor’s estate) to go back on the assurances. There is a faint parallel with the old equitable doctrine of part performance, of which Lord Selborne said in Maddison v Alderson (1883) 8 App Cas 467 at 475, [1881–5] All ER Rep 742 at 747: ‘In a suit founded on such part performance, the defendant is really “charged” upon the equities resulting from the acts done in execution of the contract, and not (within the meaning of the statute) upon the contract itself.’ So with proprietary estoppel the defendant is charged with satisfying the equity which has arisen from the whole sequence of events.” “[49] It is no coincidence that these statements of principle refer to satisfying the equity (rather than satisfying, or vindicating, the claimant’s expectations). The equity arises not from the claimant’s expectations alone, but from the combination of expectations, detrimental reliance, and the unconscionableness of allowing the benefactor (or the deceased benefactor’s estate) to go back on the assurances. There is a faint parallel with the old equitable doctrine of part performance, of which Lord Selborne said in Maddison v Alderson (1883) 8 App Cas 467 at 475, [1881–5] All ER Rep 742 at 747: ‘In a suit founded on such part performance, the defendant is really “charged” upon the equities resulting from the acts done in execution of the contract, and not (within the meaning of the statute) upon the contract itself.’ So with proprietary estoppel the defendant is charged with satisfying the equity which has arisen from the whole sequence of events.”
[83]I have referred to these authorities because Mr Callman as part of his submissions argued that it would not be appropriate to measure or limit any equity that may arise in Kim’s favour out of the circumstances surrounding her move to Clarkfield by reference to the level of expenditure actually incurred by her on the property. I should attempt to give effect to what she had been promised.[84]I am prepared to accept that there may be cases where the circumstances are such that the only fair and proper way to give effect to the equity is to hold the Defendant to the promise which he has made. To some extent that principle is in operation in cases where the parties to the acquisition of a property expressly agree what their beneficial shares in the property are to be. But in this case the objection to the claim based on a constructive trust whether by agreement or on the basis of proprietary estoppel is that Mrs Jacob has not, in my judgment, established circumstances which make it inequitable or unconscionable for her not to be given some interest in the property or some other form of compensation. The question of unconscionability requires the Court to look at all the relevant circumstances and not at particular factors in isolation. Mrs Turner did not, on my findings, intend or represent that Kim should be given Clarkfield which she had purchased with her own money from the sale of Glebe Avenue. Nor did Kim ever indicate to her mother that she had this belief or was acting in reliance on it. Mrs Turner bought Clarkfield to enable her daughter to escape from Williamson Way and to move to a decent house away from Andy Jacob. By the time that Kim knew about it Clarkfield had been purchased and renovated at Mrs Turner’s expense. All she was told was that her mother had bought a house for her. It was the same house that Kim had seen earlier and wanted but had been unable to buy. She moved to Clarkfield in 2003, partly because she was desperate to leave Williamson Way and partly because her mother wanted her to do so. Subsequently, she spent less than £2,000 on further works of renovation. None of this as I explained earlier, was the direct result of anything Mrs Turner had said about the ownership of the property. I do not believe that the question of whether or not she owned the property was ever a factor in Kim’s thinking at this time. It seems to me extraordinary that based on these facts Mrs Jacob now asserts a claim to the ownership of the property. Her mother set out to help her and was able at her own expense to provide her with a new home. But none of this makes it inequitable for Mrs Turner to have required Kim to pay for the property which on my findings was always her intention. I take the view that nothing Mrs Turner said to Kim is sufficient to raise an equity of that kind.[85]What I think has coloured the presentation of this claim and much of the witnesses’ recollection is the belief that Mrs Turner has not properly accounted to Kim for the monies due to her from the sale of Fleetwood. The complaint that Mrs Turner should have given Clarkfield to Kim in satisfaction of her liabilities has, I think, been transposed into a claim that this is what she must have intended or agreed to do. But there is no claim made against Mrs Turner’s estate in respect of those monies based on breach of trust and the fact that there is such a liability is not sufficient in itself to raise a constructive trust based on agreement or estoppel in relation to Clarkfield. Mrs Turner could (and perhaps should) have agreed to give the property to her daughter beneficially. But she did not in fact do so and absent the requisite agreement or intention the court has no power to impose what would amount to a remedial constructive trust simply as a matter of discretion. The tracing claim[86]The alternative claim to the beneficial ownership of Clarkfield is based on a resulting trust arising from the use of trust monies to purchase the property. The pleaded case relies on the use of monies from the sale of Fleetwood and the purchase of Glebe Avenue in October 1999 for what is alleged to be an undervalue. For the reasons set out earlier, there is no trust claim which arises from the Glebe Avenue transaction and any tracing claim must be limited to the £75,000 retained by Mrs Turner in her Crown Reserve deposit account following the sale of Fleetwood.[87]On my findings Mrs Jacob was beneficially entitled to a substantial interest in the proceeds of sale of Fleetwood corresponding to the amount paid by Mr Hutchison to redeem the mortgage on the property. That amounted to £75,000 which was the sum retained by Mrs Turner and transferred to her deposit account. Where the trust asset consists of a sum of money which is paid into an account and mixed with other funds belonging to the trustee various rules apply which are designed to give the beneficial owner the benefit of any doubts as to whose assets have been utilised in any subsequent dealings affecting the mixed fund. So the onus is on the trustee in the first place to distinguish his own assets from the trust assets and a failure to do so will result in the assets being presumed to be trust property. Similarly, any withdrawals from a mixed fund are presumed to be of the trustee’s own money rather than trust money.[88]A point may, however, be reached when it is clear in arithmetical terms that some or all of the trust money must have been expended. Subsequent deposits in the same account are not presumed to have been intended to replace the lost fund and the tracing claim is therefore limited to what was the lowest intermediate balance prior to the deposit of the trustee’s own money: see Snell’s Equity (31st ed) para 28 -37 and the cases cited therein.[89]In this case there is no need for Mrs Jacob to resort to a tracing claim in order to recover what is due to her in respect of the proceeds of sale of Fleetwood. Her mother’s estate would be liable to account for the £75,000 regardless of how the money has been spent but that would reduce the value of the residuary estate and therefore of Mrs Jacob’s own share of it. She has not therefore sought recovery of the monies from the estate. Instead she has asserted a beneficial interest in Clarkfield on the basis that the trust monies were used to purchase it. She must therefore show (on an application of the principles I have referred to) that the trust monies were preserved by Mrs Turner and then applied towards the purchase. Although Mr Turner gave no consideration for Clarkfield he is only bound by the same equities as would have affected the property in the hands of his late wife.[90]Fleetwood was sold in April 1992 for £86,500. The balance of the purchase price (after legal costs and other expenses) of £84,068.45 was paid into Mrs Turner’s current account on 8 April 1992. On 13 April 1992 the £75,000 was transferred to her Crown Reserve deposit account. As already indicated, there are no extant statements for this account but between May 1992 and 30 June 1993 a total of £31,000 was transferred to her current account. On 9 July 1993 the balance of £63,491.19 was transferred from the Crown Reserve deposit account to a newly opened Diamond Reserve account and it looks as if the Crown Reserve deposit account was then closed.[91]Mr Turner relies in part on the fact that in July 1992 Mrs Turner purchased the Mercedes car for £60,000. There is no evidence that the payment came from the Crown Reserve deposit account, but he says that there is no record of payment being made from any other source. It seems to me that the absence of evidence as to how the Crown Reserve deposit account actually operated makes it necessary for me to presume that the whole of the £63,491.19 remaining in the account as of 9 July 1993 represented trust monies. But even accepting this, the trust fund had by then been reduced to that amount. There is nothing to show that the monies transferred to the current account were preserved in some other form of investment as opposed to being spent.[92]From July 1993 until May 1995 a further £47,800 was withdrawn from the Diamond Reserve account and paid into the current account with the result that as of 10 May 1995 the balance of funds in the Diamond Reserve account was only £10,339.21. The transfers of monies into the current account continued right through until July 1997 when Merry Acres was purchased for £424,000 with a mortgage of £270,000. Most of the sums withdrawn are relatively small (between £1,000 and £5,000) but on some occasions in 1994 sums of £10,000 or even £20,000 were transferred out. There is however no suggestion that these monies were used either directly or indirectly to purchase any other property and the reasonable assumption is that the monies were used to fund personal expenditure.[93]During the same period there were additions to the account. Some £38,000 was paid into the Diamond Reserve account on 17 May 1995 and further sums of £10,000 and £10,612.54 on 19 July and 8 August 1995. The evidence suggests that most of this money came from the estate of Mrs Turner’s mother. Further deposits were made on 22 November 1995 (£20,000); 16 February 1996 (£10,000); 24 April 1996(£25,000); 20 June 1996 (£20,000) and 26 June 1996 (£15,000).[94]The net result of these movements in the Diamond Reserve account was that as of 3 July 1997 the credit balance had increased to £128,355.09. Mrs Turner then transferred £110,000 which was used for the purchase of Merry Acres. The pattern of withdrawals and deposits then continued until January 1998 when Olde Chelsea was sold. After paying off the mortgage on Merry Acres a balance of £279,513.25 was transferred into Mrs Turner’s Diamond Reserve account on 26 January 1998. On 3 March 1998 the Diamond Reserve account was closed and the credit balance of £276,775.50 was transferred to her current account. Of this, £250,000 was paid into a new Crown Reserve account (No. 66769132).[95]The Crown Reserve account was maintained until 24 May 2002. In May 1998 £100,000 was used to buy a Nat West investment plan which was subsequently closed on 3 October 2001. On 19 July 1999 some £36,000 was deposited as a result of an inheritance from an aunt. On 30 September 1999 £150,000 was used to purchase Glebe Avenue and in February 2002 £80,000 was paid towards the purchase of a flat in Gloucester Court which was once (but is no longer) part of the claim in these proceedings. The Crown Reserve account was closed on 24 May 2002 with a balance of £38,000. Of this £30,000 was transferred to a new Reward Reserve account (No. 66811686) the balance being paid into Mrs Turner’s current account.[96]Glebe Avenue was sold on 13 June 2002 and £200,000 was transferred into the Reward Reserve account from the proceeds of sale. In order to purchase Clarkfield £173,118.25 was transferred from the Reward Reserve account and the balance (in the form of the deposit) was paid from Mrs Turner’s current account. The balance on the Reward Reserve account was then £49,214.12.[97]This analysis indicates that the low point was reached in early May 1995 when on any view no more than £10,339.21 of the £75,000 remained. Applying the principles referred to earlier, the tracing claim is therefore limited to identifying what became of that sum without regard to the deposits which were subsequently made from other sources. Those other funds are relevant only insofar as they allow the Court to presume that they would have been used first to meet any subsequent withdrawals from the deposit account and there was no time after May 1995 when the relevant credit balance was less than £10,339.21.[98]On this basis it is possible to trace this sum through to March 1998 when the Diamond Reserve account was closed and the new Crown Reserve account opened. By the same exercise, one can treat the £10,339.21 as retained in the Crown Reserve account until May 2002 when the £30,000 was paid into the Reserve Reward account. Again, at no time between March 1998 and May 2002 was the credit balance on the Crown Reserve account less than that sum. The Reward Reserve account remained substantially in credit both up to and after the purchase of Clarkfield.[99]Mrs Jacob’s case is that she is entitled to treat at least the £10,339.21 as having been used to purchase Clarkfield and Mr Callman’s analysis concentrated on the £30,000 transferred into the Reward Reserve account. But it is not clear to me why I should under the rules of tracing described earlier, assume that in 2002 the £10,339.21 was invested in the purchase of Clarkfield rather than being retained in the Reward Reserve account yet should also assume that it was not used for investment in property at a much earlier stage. The point arises because in July 1997 the Diamond Reserve account was used to fund the purchase of Merry Acres. This left a balance on the account of £18,335.09. On Mrs Jacob’s case I have to assume that her money was not used as part of the £110,000 transferred to buy that property but was kept in the account as part of the £18,355.09. If the money was used as part of the purchase price of Merry Acres then clearly it was not used to purchase Clarkfield.[100]The rules of tracing which govern a beneficiary’s right to follow trust money in a mixed running account are technical rules based on presumptions which are designed to allow the recovery in specie of the trust monies by deeming the trustee to have preserved the trust fund at the expense of his own money regardless of the time at which his own funds were paid into the account. This is the result of the decision in Re Hallett’s Estate (1880) 13 Ch D 696 which disapplied the rule in Clayton’s case to accounts in which the only funds were those of the beneficiary and the trustee. The trustee is effectively disabled from asserting that the money withdrawn from the account was trust money if the expenditure can be attributed to his own funds in the account. If, however, the credit balance on the account falls below the amount of the trust monies the presumption can no longer apply and the lowest intermediate balance is, as explained earlier, then taken as the limit of the trust fund for all subsequent purposes. But part of the rationale behind the operation of these rules has to be the requirement that the trustee will preserve the fund and not utilise it for purposes unauthorised by the beneficiary. This principle is on the authorities modified where part of a mixed fund is used for an investment in property or in some other form of security (including another account) and the remaining credit balance is then dissipated. In this case the trustee is not permitted to treat the monies remaining in the account and dissipated as the trust monies. The beneficiary is entitled to assert a lien over the new asset acquired with monies from the mixed account: see Re Oatway[1903] 2 Ch 356.[101]In his judgment in Re Oatway (at p.361) Joyce J explained the reasoning behind the reversal of the general rule in cases where the monies remaining in the account have been dissipated. That was a case in which the defendant had used part of the monies to buy shares and had spent the balance. He said this:
“It was objected that the investment in the Oceana shares was made at a time when Oatway's own share of the balance to the credit of the account (if the whole had been then justly distributed) would have exceeded 2137l., the price of the shares; that he was therefore entitled to withdraw that sum, and might rightly apply it for his own purposes; and that consequently the shares should be held to belong to his estate. To this I answer that he never was entitled to withdraw the 2137l. from the account, or, at all events, that he could not be entitled to take that sum from the account and hold it or the investment made therewith, freed from the charge in favour of the trust, unless or until the trust money paid into the account had been first restored, and the trust fund reinstated by due investment of the money in the joint names of the proper trustees, which never was done.”
[102]It seems to me that in a case (such as the present) where the trustee maintains in the account an amount equal to the remaining trust fund, the beneficiary’s right to trace is limited to that fund. It is not open to the beneficiary to assert a lien against an investment made using monies out of the mixed account unless the sum expended is of such a size that it must have included trust monies or the balance remaining in the account after the investment is then expended so as to become untraceable. That is not the position here. From May 1995 onwards there was always at least £10,339.21 remaining in the successive deposits and that remained the position even after Clarkfield had been purchased. I take the view that under the rules of tracing, Mrs Jacob’s lien remained attached to this fund and not to Clarkfield. If I am wrong about that and one has to assume that the trust monies were invested in property then it must follow that they were used to purchase Merry Acres, which was the first property purchase made using the mixed funds. Either way, the claim to an interest in Clarkfield under a resulting trust is not made out. Personal chattels[103]I can I think deal with this part of the claim quite shortly. Mrs Jacob claims that a number of items of furniture and other property belonging to her remain in the possession of Mr Turner and she seeks their return. The paragraph references which follow are to the relevant paragraphs in the Amended Defence and Counterclaim.[104]Mr Turner accepts that Mrs Jacob is the owner of the coffee table (para 73(1)); the conservatory wicker furniture (para 73(5)); and (if different) the wicker glass table and chairs (para 73(6)). There is a dispute about the tea service and spoons (para 73(7)) and the crystal animals (para 73(8)) but on the evidence Mrs Jacob has not satisfied me that there was an effective gift to her of these items which (in the case of the tea service) had been inherited by Mrs Turner or in the case of the other items had been given to her by Mrs Jacob.[105]The washing machine (para 73(2)) and the dishwasher (para 73(3)) were beyond economic repair and have been disposed of and the wardrobe (para 73(4)) was apparently left at Merry Acres when the property was sold. Mr Turner says that he does not know where the two dressing tables and mirrors (paras 73 (9) and (10)) are but they were part of the furniture at Glebe Avenue and if they remain in his possession they must be returned to Mrs Jacob. That I think deals with all the pleaded items. Conclusions[106]The claim to the beneficial ownership of Clarkfield fails and the counterclaim relating to that will be dismissed. Absent agreement I will make an order for possession of Clarkfield and for the return to Mrs Jacob of the personal chattels I have indicated. Once the parties have had an opportunity of considering this judgment I will hear them on the form of order and on any other matters which may arise.

Cited in 3 later judgments