“1.1. The definitions and rules of interpretation in this clause apply in this agreement. Admission Date: [ ] February 2010, being the date of LLP’s admission to the Partnership. Founding Partners: Mr Brake and Mrs Brake. Managing Partner: Mrs Brake, who was appointed as managing partner in accordance with clause 14. Partnership Property: the Premises and all other assets (all rights in them) which are used by the Partnership for the purposes of the Business and listed in Part I of Schedule 5 except for those assets listed in Part II. Premises: the freehold or leasehold premises to be occupied by the Partnership, 0 [sic], and such other premises as the Partners may decide in accordance with clause 15.6(i). [ … ] 2. The Partnership is a continuation of the partnership established by the Founding Partners before the Admission Date and shall be carried on under the terms of this agreement from the Admission Date until it is terminated in accordance with its terms. [ … ] 4.1. The net capital of the Partnership after loans and overdraft immediately before the Admission Date, as contributed by the Founding Partners, is£4 million . 4.2. LLP hereby agrees that its aggregate loans of£380,000 made to the Partnership before the Admission Date are to be converted into a capital contribution from the Admission Date and added to LLP’s Capital Account. LLP further undertakes to contribute (A) a further£1,120,000 in cash on the Admission Date to the Partnership by way of additional capital contribution and (B) a further£500,000 in cash on or before sixth of April 2010 by way of additional capital contribution. [ … ] 4.5. The capital of the Partnership at any time will belong to the Partners in the amounts contributed by them from time to time. [ … ] 5.1. Partnership Property at any time shall belong to the Partners in the proportions in which they have contributed to the capital of the Partnership at that time. 5.2. Any Partnership Property which is vested in one or more of the individual Partners’ names shall be held by them on trust for sale for all of the Partners. … 6.1. The Net Profits and Losses of the Partnership (including capital profits and losses realised in that Accounting Period) shall belong to and be borne by the Partners in the ratio set out in Schedule 1 … [ … ] 8.4. The Partners hereby agree that the Founding Partners are entitled to reside in the Premises as Licensees rent-free. 8.5. West Axnoller Cottage forms part of the Premises. The Partners agree that as and when the Founding Partners so decide at any time after the second anniversary of the Admission Date, West Axnoller Cottage will be valued by an independent valuer and an aggregate amount equal to 25% of the value will be credited in that Accounting Period to the Current Accounts of the Founding Partners … [ … ] 33.1. Except as otherwise provided, any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity or termination, or the legal relationships established by this agreement, shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration, which Rules are deemed to be incorporated by reference into this clause. [ … ] Schedule 1 Partners and Profit Share Partner Profit Share 1. Andrew Young Brake and Nihal Mohammed Kamal Brake 67% 2. Patley Wood Farm LLP 33% Schedule 2 Capital Contribution Partner Capital Contribution Payable Mr and Mrs Brake£4,000,000 Paid Patley Wood Farm LLP£380,000 Paid Patley Wood Farm LLP£1,120,000 Admission Date Patley Wood Farm LLP£500,000 £6,000,000 6 April 2010 Schedule 4 Premises West Axnoller Farm Schedule 5 Part I Partnership Property West Axnoller Farm Fixtures and fittings in Voltaire and Burggraaf Contents of Voltaire and Burggraaf Mechanical digger (subject to finance agreement) Part II Assets that are used in the Business but which are not Partnership Property Two marble lamps and two tables located in Voltaire and Burggraaf Horses and other livestock Tractors and gardening equipment that is not the subject of finance agreements paid for by the Partnership Contents of Axnoller House All other assets save as mentioned in Part I above”
“We did the minimum to make it okay for Simon to live in but the whole heating system and wiring of the house had to be redone because it was neither legal nor did it work. When Simon moved out we did what we could, this necessitated lifting floors et cetera to rewire and replumb. We now need to reinstate. This is why we need to have some money to make it habitable. This is what we need some of the money for. … We need to put floors down and carpet and replace the kitchen which has no appliances and so we cannot use it. Simon brought and took his own stuff.”
“16. … With a sense of excitement, Andy and I contacted Mr Alan Konya, an architect who had helped us with some aspects of the design of West Axnoller Farm, and asked him to prepare some plans for the complete redesign of the Cottage. The idea was to cut it off visually and physically from the rest of the site by using the incline of the hill to sink it into an earth bund and to conceal its north side from the rest of the buildings while constructing the south side almost entirely of glass. It would be approached through a tunnel in the hill. … Mr Konya produced some wonderful plans and a model of the house for us.”
“111. As stated above, as a consequence of the extent of the usage of the main house at West Axnoller Farm, Andy and I have increasingly had to live in the cottage to the point that we now do so most of the time. This has been a gradual process, reflecting the commitments of the business.”
“113. Also, Andy and I recognise that, unless the cottage is sold by the receivers together with the Farm, the Farm should shortly be sold by the receivers on behalf of the bank. The opportunity which Andy and I then have to stay at the Farm occasionally will be extinguished. If the receivers do not sell the cottage, the cottage will be our only residence. At present it is our principle place of residence”
“If Mrs Foster bought the property, you and Andy had no intention of leaving the main house, did you?”
“I think the most important word in that sentence is ‘if’.”
“The Seller and the Receivers do not give any warranty as to vacant possession and the Property is sold subject to the occupation of the Seller and any third parties whether or not they occupy pursuant to any Occupational Agreements as may exist at the date of Completion without obligation on the part of the Seller to identify or define the same and the Buyer having had the opportunity to inspect the property and carry out its own enquiries should be deemed to purchase with full knowledge thereof and shall not raise any objections or requisition in respect thereof.”
“I am aware the Claimant has made reference to a statement that I made in previous litigation in which I mistakenly referred to [the cottage] as our principal primary residence. This was at a time during which I was acting as a litigant in person and did not appreciate the proper definition of that phrase. As [the cottage] was the only house that we ‘owned’ and at which we were registered on the electoral role, I understood that to be our primary place of residence. I now know this to be incorrect.”
“(1) Subject as follows, a bankrupt’s estate for the purposes of any of this Group of Parts comprises – (a) all property belonging to or vested in the bankrupt at the commencement of the bankruptcy, and (b) any property which by virtue of any of the following provisions of this Part is comprised in that estate or is treated as falling within the preceding paragraph. [ … ] (3) Subsection (1) does not apply to … (a) property held by the bankrupt on trust for any other person … ” (a) all property belonging to or vested in the bankrupt at the commencement of the bankruptcy, and (b) any property which by virtue of any of the following provisions of this Part is comprised in that estate or is treated as falling within the preceding paragraph. (a) property held by the bankrupt on trust for any other person … ”
“In those circumstances the Claimants are entitled to and do seek specific performance by the First Defendant of the Cottage Agreement. Further or alternatively, by reason of the matters set out above, the Claimants have, in addition to their pre-existing legal and equitable interests in the Cottage, acquired a further interest in it by way of an equity arising by proprietary estoppel. … ”
“The Beneficial Interest, the Brakes’ registered title and the Cottage Access Land each constituted an interest in a dwelling house which at the Bankruptcy Date was the principal residence of the Brakes within the meaning of the revesting provisions in section 283A IA 1986.”
“On the appointment of their trustee in bankruptcy on31 July 2015 , whatever beneficial interest the Brakes had under the trust of land vested in their trustee under ss 283 and 306 IA 1986.”
“15. … In various formal documents, [Mr Swift] acknowledged that the Brakes’ proprietary interest in the Cottage vested in him.”
“The Trustee [ie Mr Swift] certifies that the part of [the] Property [ie the cottage] registered to the First Bankrupt and the part of the Property registered to the Second Bankrupt forms part of the Property comprised in the respective estates of the First Bankrupt and of the Second Bankrupt within the meaning ofsection 283(1) of the Insolvency Act 1986 .”
“All property and rights and interests in property originally brought into the partnership stock or acquired, whether by purchase or otherwise, on account of the firm, or for the purposes and in the course of partnership business, are called in this Act partnership property, and must be held and applied by the partners exclusively for the purposes of the partnership and in accordance with the partnership agreement.”
“On29 September 1989 , when the leasehold premises, fixtures and fittings and the goodwill of the business were acquired, they became ‘partnership property’ to be held and applied exclusively for the purposes of the partnership pursuant to section 20(1) of the Act of 1890. Although it is both customary and convenient to speak of a partner's ‘share’ of the partnership assets, that is not a truly accurate description of hisinterest in them, at all events so long as the partnership is a going concern. While each partner has a proprietary interest in each and every asset, he has no entitlement to any specific asset and, in consequence, no right, without the consent of the other partners or partner, to require the whole or even a share of any particular asset to be vested in him”
“39. On the dissolution of a partnership every partner is entitled, as against the other partners in the firm, and all persons claiming through them in respect of their interests as partners, to have the property of the partnership applied in payment of the debts and liabilities of the firm, and to have the surplus assets after such payment applied in payment of what may be due to the partners respectively after deducting what may be due from them as partners to the firm; and for that purpose any partner or his representatives may on the termination of the partnership apply to the Court to wind up the business and affairs of the firm.”
“19. In the current (eighteenth) edition of Lindley & Banks on Partnership, the topic of ‘partnership shares’ is dealt with in Chapter 19. Lord Lindley's ‘classic definition’ is quoted in paragraph 19-05. He said that ‘the share of a partner is his proportion of the partnership assets after they have been all realised and converted into money, and all the debts and liabilities have been paid and discharged.’ In the following paragraph, the editors effectively endorse this definition, albeit stating that ‘it would be more accurate to speak of a partner's entitlement to a proportion of the net proceeds of sale of the assets’… ”
“27-72. All that vests in the liquidator or trustee is the insolvent partner’s share in the partnership, subject to the liens and other rights of the solvent partners. Accordingly, he can claim nothing until all the partnership debts have been paid and the accounts as between the partners duly settled.”
“The starting point is that the cottage is held by the 3 Partners in trust for the Partnership until our estoppel claim is decided (clause 8.5 of the Partnership Agreement). The Partnership was dissolved and its assets (including the cottage) ordered to be sold by Mr Lee pursuant to his award in 2013. He also ordered that the assets of the Partnership are to be distributed, in accordance with sections 39 and 44 of thePartnership Act 1890 . This means that they are to be distributed to the partnership’s creditors first and then (and only then) will it be possible to determine whether any partner including either of us has any beneficial interest in the cottage. If we do not (which is very likely to be the case if we do not win the estoppel claim, given that there is a large negative in the partnership’s asset/liability position), then the LLP’s charge which is over only my beneficial interest would be zero. Therefore the asset would be sold to be distributed between the partnership’s creditors only. In short there is a very significant interest for the partnership creditors.”
“8.4. The Partners hereby agree that the Founding Partners are entitled to reside in the Premises as Licensees rent-free.”
“(1) A writ of execution shall not issue against any partnership property except on a judgment against the firm. (2) The High Court, or a judge thereof, … [or the county court in England and Wales or a county court in Northern Ireland,] may, on the application by summons of any judgment creditor of a partner, make an order charging that partner’s interest in the partnership property and profits with payment of the amount of the judgment debt and interest thereon, and may by the same or a subsequent order appoint a receiver of that partner’s share of profits (whether already declared or accruing), and of any other money which may be coming to him in respect of the partnership, and direct all accounts and inquiries, and give all other orders and directions which might have been directed or given if the charge had been made in favour of the judgment creditor by the partner, or which the circumstances of the case may require. (3) The other partner or partners shall be at liberty at any time to redeem the interest charged, or in case of a sale being directed, to purchase the same. [ … ]”
“The first step towards obtaining the charging order was the taking out of the summons on April 20, 1896, and at that time the bankrupt’s interest in the partnership had ceased to be his interest. It had vested in the official receiver, and became the property of the trustee in bankruptcy in the events which happened.”
“This leads me to consider what right in law and justice one partner has against another, after a dissolution of the partnership. It clearly is not to change the possession, or to make an actual division of specific effects. One partner may be a creditor of the partnership to ten times the value of all the effects. The other partner in that case can only have a right to an account of the partnership, and to the balance due to him, if any, on that account. No person deriving under the partner can be in a better condition. … The assignees, under a commission of bankruptcy against one partner, must be in the same state. They can only be tenants in common of an undivided moiety, subject to all the rights of the other partner.”
“15. … It is, however, common ground between the parties that, even if [the cottage] was not, as is likely, partnership property at the outset, it certainly became partnership property at the date of purchase or subsequently. … 16. In this case, title to the cottage is held in the names of the two defendants [the applicants in the present case] and also Mrs Brehme, not the LLP. It seems to be plain in those circumstances that clause 5.2 of the Partnership Deed is operative and the cottage is, therefore, held by the defendants on trust for sale for all the partners; that is the defendants and the LLP. [ … ] 22. The defendants’ position is not entirely clear, but it is not seriously in dispute that the only substantial asset they hold is their share in the partnership… [ … ] 25. That very long introduction leads me to the application for the interim charging order, which was made expressly on the basis that it was without prejudice to the fact that it is the claimant’s case that the property (that being the cottage) is partnership property. Reference is made to the High Court proceedings [ie the 2012 cottage claim] to which mention has just now been made. The claimant’s position at the date that they made their application was that they sought the charging order to guard against the eventuality that the defendants might be successful in that claim. They were not seeking the charging order on the basis that they sought to secure any sum as against the defendants’ interest in the partnership. That position has now changed. The claimant now seeks to assert that, relying on clause 5 of the Deed, the defendants have an interest which is capable of being the subject of an order under the 1979 Act.”
“1(1). Where, under a judgment or order of the High Court [or the family court] or [the county court], a person (the “debtor”) is required to pay a sum of money to another person (the “creditor”) then, for the purpose of enforcing that judgment or order, the appropriate court may make an order in accordance with the provisions of this Act imposing on any such property of the debtor as may be specified in the order a charge for securing the payment of any money due or to become due under the judgment or order. [ … ] 2(1). Subject to subsection (3) below, a charge may be imposed by a charging order only on— (a) any interest held by the debtor beneficially— (i) in any asset of a kind mentioned in subsection (2) below, or (ii) under any trust; or [ … ] (2) The assets referred to in subsection (1) above are— (a) land, [ … ].” (a) any interest held by the debtor beneficially— (i) in any asset of a kind mentioned in subsection (2) below, or (ii) under any trust; or [ … ] (a) land, [ … ].”
“28. There is now no real difference between the parties as to the application of the 1979 Act. With clause 5 of the Partnership Deed in play, the interest which could be subject to a final order is either that which arises if the defendants’ High Court claim is successful or that which arises under clause 5 of the Deed. … ” 139. Then, after considering submissions about the financial position of the partnership, the Chief Master said: “37. In those circumstances, I can see no basis for concluding that there is a real risk of there being an insolvency. … Here, I can see no such risk [ie of insolvency] and, therefore, the position of the partnership creditors, when discounted to remove Mrs Brehme’s debt, falls out of the picture. There is no reason to suppose that they will not be paid whether or not a final charging order is made.”
“ … The fundamental point in relation to charging orders is that it does not normally determine what the interest is. It is simply a charge on whatever the interest may be.”
“47. It is well established on authority that in the case of an unconditional contract for the sale of real property the vendor is treated as a trustee of the property for the purchaser pending completion: see Shaw v Foster (1871-72)LR 5 HL 321 and 349; Lysaght v Edwards(1876) 2 Ch D 499 at 506-7 per Jessel MR. The relationship is described in some of the judgments as a bare trust but it is clear that it exists as an incident of the contractual relationship and is no more than a consequence of the principle that equity treats as done that which ought to be done. It is therefore dependent upon the contract remaining specifically enforceable and (Mr Lander contends) remains at all times subject to the terms of the contract. 48. In Jerome v Kelly[2004] 1 WLR 1409 the House of Lords held that an uncompleted contract for the sale of land did not have the same effect as a declaration of trust. After reviewing the authorities I have mentioned, Lord Walker of Gestingthorpe (at [32]) said: ‘It would therefore be wrong to treat an uncompleted contract for the sale of land as equivalent to an immediate, irrevocable declaration of trust (or assignment of beneficial interest) in the land. Neither the seller nor the buyer has unqualified beneficial ownership. Beneficial ownership of the land is in a sense split between the seller and buyer on the provisional assumptions that specific performance is available and that the contract will in due course be completed, if necessary by the court ordering specific performance. In the meantime, the seller is entitled to enjoyment of the land or its rental income. The provisional assumptions may be falsified by events, such as rescission of the contract (either under a contractual term or on breach). If the contract proceeds to completion the equitable interest can be viewed as passing to the buyer in stages, as title is made and accepted and as the purchase price is paid in full’.” ‘It would therefore be wrong to treat an uncompleted contract for the sale of land as equivalent to an immediate, irrevocable declaration of trust (or assignment of beneficial interest) in the land. Neither the seller nor the buyer has unqualified beneficial ownership. Beneficial ownership of the land is in a sense split between the seller and buyer on the provisional assumptions that specific performance is available and that the contract will in due course be completed, if necessary by the court ordering specific performance. In the meantime, the seller is entitled to enjoyment of the land or its rental income. The provisional assumptions may be falsified by events, such as rescission of the contract (either under a contractual term or on breach). If the contract proceeds to completion the equitable interest can be viewed as passing to the buyer in stages, as title is made and accepted and as the purchase price is paid in full’.”
“49. Whatever may be the precise nature of the beneficial interest enjoyed by a purchaser under the contract of sale, it is clear that prior to completion of the contract the purchaser does not have an equity in the property which he can transfer to a subpurchaser so as to be binding against the vendor. … [ … ] 51. I think that we are therefore bound by authority to reject Mr Cawson’s submission that the effect of the 2003 Agreement was by operation of law to transfer to [C] a beneficial interest in the Properties which is enforceable directly against [A].”
“The introduction of an interest under a constructive trust is an essential ingredient if the plaintiff has any right at all. Therefore in cases such as this, it cannot be that the interest in property arises for the first time when the court declares it to exist. The right must have arisen at the time of the transaction in order for the plaintiff to have any right the breach of which can be remedied. Again, I think the DHN Food Distributors Ltd case[1976] 1 WLR 852 shows that the equity predates any order of the court.”
“It is hereby declared for the avoidance of doubt that, in relation to registered land, each of the following– (a) an equity by estoppel, and (b) a mere equity, has effect from the time the equity arises as an interest capable of binding successors in title (subject to the rules about the effect of dispositions on priority).”
“An objection to this approach might be that, until a court order is made in B’s favour, B’s right is too uncertain to be permitted to bind C, as it is unclear how a court might respond to B’s proprietary estoppel claim. On this view, the mere fact of B’s having met the test for such a claim at the time of C’s involvement would never permit B to assert a right against C: unless B could show some independent or ancillary claim, C would take C’s right free from any claim of B. That view, however, has never been accepted by the courts and is also flatly inconsistent withs.116(a) of the Land Registration Act 2002 , which states that, in registered land, an ‘equity by estoppel’, like a ‘mere equity’, ‘has effect from the time the equity arises as an interest capable of binding successors in title (subject to the rules about the effect of dispositions on priority)’. The difficulty with s.116(a) is that, on its face, it may seem to go too far in the other direction, and to mean that C is always prima facie bound if acquiring a right in A’s land before a court order in B’s favour, as it can be argued that, in all such cases, B has an ‘equity by estoppel’. This causes no difficulty in cases where, at the time of C’s involvement, A would in any case have been ordered to grant B a property right in the land. The problem, it is submitted, arises if, at that point, A would simply have been ordered to pay B a sum of money, or to allow B a licence. Certainly, as C would not have been bound if acquiring a right in the land after such a court order in B’s favour, it is very hard to see why C might be bound before such a court order. This difficulty may, however, be capable of resolution if the term ‘equity by estoppel’, as used in s.116(a), is interpreted so as to refer only to cases where a court would, at that point, have ordered A to give B a recognised property right; after all, the term ‘mere equity’ in s.116(b) must similarly be limited to cases where B had a power to acquire such a recognised property right, as it cannot apply in every case where some equitable protection would have been available to B against A.”
“26. … On the basis of the facts alleged, either [the father and mother of the claimant] jointly, or [the father] alone had an equity interest in [the estate], which would take effect on the death of his father. The precise extent of the equity might depend on the circumstances at that time, as the court will assess the minimum that is necessary to give effect to the promise and avoid unconscionability … However the assurances are to be interpreted, assuming that they, and the necessary reliance and detriment, are established on the evidence, [the father] had by December 1992 either a joint or sole interest in the estate. Its existence did not depend on any future uncertain event. 27. [Counsel for the claimant] submitted that [the father] had not acquired any property by December 1992. In cases of this kind, no property interest arose until the death of the promisor, unless the promisor did something inconsistent with the promise in his lifetime to the knowledge of the promisee: if he did, the promise she had an immediate claim, as in Gillett v Holt. 28. This seems to me to confuse the right with the circumstances in which the right is enforced. Normally, the promisee would not bring proceedings unless and until the promisee’s personal representatives refused to give effect to the equity. … But the property here is not the cause of action but the equity, described by Slade LJ in Jones v Watkins, unreported,26 November 1987 as ‘a right in equity to a transfer of the whole property’. On the facts pleaded in this case, [the father and the mother], alternatively [the father] alone, had acquired such a right long before December 1992. Although there is no authority directly in point, in my view [the father]’s right was property which passed to the Official Receiver as his trustee in bankruptcy.”
“45. In my view, the flaw in Mr Willetts’ argument is that it proceeds on the basis that because examination of an equitable estoppel is a retrospective process, “look[ing] backwards from the moment when the promise falls due to be performed and ask[ing] whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept”, it follows that there is no property until that process may be undertaken. However, the examination in fact being undertaken is one of measurement or valuation of an equitable interest which already exists or has existed. 46. The examination relevant to determining whether the subject matter of the equitable estoppel is property for the purposes of s.436 IA 1986 requires consideration of the circumstances at an earlier point in time, namely as they were at the time of the bankruptcy. 47. The fact that it may not be possible to say, until after the happening of some future contingent event, whether or not an equity has been satisfied and, if not, to identify the minimum relief necessary to satisfy the equity does not mean that the equity did not come into existence, or that it could not have existed, unless and until the future contingent event occurs. 48. The equity comes into existence, if at all, as the result of a promise being made to and relied upon by and a detriment being suffered by a promisee. It is at that point that the promise becomes irrevocable, the equity is recognised, and it is this equity to which the definition of property at s.436 IA 1986 is to be applied.”
“35. … But even if Mr Young is correct that he has reacquired his interest in the matrimonial home via the operation of s 283A, notwithstanding the disclaimer, and I can see some merits for such an argument, he has not thereby reacquired the cause of action as well for all the reasons given above. I have already determined that the cause of action takes a separate route if the one step into the hands of the Official Receiver amounts to anything as grand as a route. It is a separate item of property from the beneficial interest in Mr Young’s matrimonial home.”
“1. The property known as West Axnoller Cottage … registered as a freehold title under title number DT 302107 (Cottage) and the contiguous land providing access to the Cottage, registered as a freehold title under title number DT 344200 (Cottage Access Land) are used together and form part of the same place of residence. [ … ] 11. For all practical purposes … the Cottage and the Cottage Access Land should be sold/owned together. [ … ] 31. The Beneficial Interest, the Brakes’ Registered Title and the Cottage Access Land each constituted an interest in a dwelling house which at the Bankruptcy Date was the principal residence of the Brakes within the meaning of the revesting provisions in section 283A(1) IA 1986 … ”
“13. Paragraph 1 is admitted. [ … ] 20. Paragraph 11 is admitted. [ … ] 26. Paragraph 31 is denied. … .”
“43. As to the fifth issue, Mr Hunt argued that if the case came within section 283A(4), then the freehold in the whole pier vested in him. That seems to me to be wrong. Sir William Blackburne has already held that the extent of any dwelling house, as that term is defined by section 385(1) of the 1986 Act did not extend to the whole of the pier. On the true construction of section 283A, the interest which would vest under section 283A(4) would be the dwelling house alone. … .”
“Westminster v Reith does not assist the Brakes. It was construing a different statute … where the language of ‘belonging’ was being used in an entirely distinct context. Nor were the same policy considerations as are behind section 283A in play. The same is true of section 222 of the 1992 Act, where the provision is about relief on capital gains tax on a person’s main residence. Section 283A has to be construed in the context of the scheme of the 1986 Act, rather than by reference to tax legislation”
“31.3.79 Bankrupt may have more than one family home The bankrupt may have more than one family home where, for example, he/she lives in one, his/her estranged spouse live in another, and a former spouse lives in a third. If the bankrupt has an interest in any of these properties, they would each re-vest after the three year period (see paragraph 31.3.80) unless dealt with by the official receiver as trustee (see paragraph 31.3.83). Similarly, the bankrupt or spouse/civil partner, estranged spouse/civil partner, former spouse/civil partner may have more than one residence (for example one in the city for work and another in the country for weekends and holidays) – in which case, he/she would have to elect which property was the principal residence (see paragraph 31.3.63) and, therefore qualifies as the, family home.”
“I think there must be evidence of something more than a vague wish to return. It must be a real hope coupled with the practical possibility of its fulfilment within a reasonable time.”
“If a tenant is out of occupation for some time he must at least prove an intention to return; but if the circumstances of the case are such that by reason of mental or physical illness or for some other reason the intention, even if clearly and bona fide held, seems most unlikely to be achieved within a reasonable time, it must surely be open to the judge in a case to find as a fact that the tenant is not in occupation.”
“55. … I would summarise as follows the relevant principles to be applied in determining whether a tenant continues to occupy a dwelling as his or her home, for the purposes of the 1985 Act, despite living elsewhere. First, absence by the tenant from the dwelling may be sufficiently continuous or lengthy or combined with other circumstances as to compel the inference that, on the face of it, the tenant has ceased to occupy the dwelling as his or her home. In every case, the question is one of fact and degree. Secondly, assuming the circumstances of absence are such as to give rise to that inference: (1) the onus is on the tenant to rebut the presumption that his or her occupation of the dwelling as a home has ceased; (2) in order to rebut the presumption the tenant must have an intention to return; (3) while there is no set limit to the length of absence and no requirement that the intention must be to return by a specific date or within a finite period, the tenant must be able to demonstrate a 'practical possibility' or 'a real possibility' of the fulfilment of the intention to return within a reasonable time; (4) the tenant must also show that his or her inward intention is accompanied by some formal, outward and visible sign of the intention to return, which sign must be sufficiently substantial and permanent and otherwise such that in all the circumstances it is adequate to rebut the presumption that the tenant, by being physically absent from the premises, has ceased to be in occupation of it. Thirdly, two homes cases, that is to say where the tenant has another property in which he or she voluntarily takes up full-time residence, must be viewed with particular care in order to assess whether the tenant has ceased to occupy as a home the place where he or she formerly lived. Fourthly, whether or not a tenant has ceased to occupy premises as his or her home is a question of fact. … ”
“If someone lives in two houses the question which does he use as his principal or more important one cannot be determined solely by reference to the way in which he divides his time between the two.”
“[Counsel for the Crown] said, in my view quite rightly, that it was not enough for the taxpayer to take the view that it was his principal or more important residence. The matter must be decided objectively. [Counsel for the taxpayer], on the other hand, said that it was something which the commissioners were entitled to take into account as part of the picture as a whole. I agree with both those contentions. It seems to me that on its own the taxpayer's view could not carry much weight. But again it seems to me that it is something which can be thrown into the balance.”
“26. … We think that it is probably impossible to produce a definition of ‘main residence’ that will provide the appropriate test in all circumstances. Usually, however, a person's main residence will be the dwelling that a reasonable onlooker, with knowledge of the material facts, would regard as that person's home at the material time. That test may not always be an easy one to apply, but we have no doubt as to the conclusion to which it leads in the present case.”
“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”
“30. … Wisniewski is not authority for the proposition that there is an obligation to draw an adverse inference where the four principles are engaged. As the first principle adequately makes plain, there is a discretion ie ‘the court is entitled to draw adverse inferences’.” [Emphasis added]
“154. In my judgment the point can be dealt with relatively briefly thus: i) This evidential ‘rule’ is, as I have indicated above, a fairly narrow one. As I have noted previously ([2018] EWHC 1768 (Comm) at [115]), the drawing of such inferences is not something to be lightly undertaken. ii) Where a party relies on it, it is necessary for it to set out clearly (i) the point on which the inference is sought (ii) the reason why it is said that the ‘missing’ witness would have material evidence to give on that issue and (iii) why it is said that the party seeking to have the inference drawn has itself adduced relevant evidence on that issue. iii) The Court then has a discretion and will exercise it not just in the light of those principles, but also in the light of: a) the overriding objective; and b) an understanding that it arises against the background of an evidential world which shifts - both as to burden and as to the development of the case - during trial. [ … ]” i) This evidential ‘rule’ is, as I have indicated above, a fairly narrow one. As I have noted previously ([2018] EWHC 1768 (Comm) at [115]), the drawing of such inferences is not something to be lightly undertaken. ii) Where a party relies on it, it is necessary for it to set out clearly (i) the point on which the inference is sought (ii) the reason why it is said that the ‘missing’ witness would have material evidence to give on that issue and (iii) why it is said that the party seeking to have the inference drawn has itself adduced relevant evidence on that issue. iii) The Court then has a discretion and will exercise it not just in the light of those principles, but also in the light of: a) the overriding objective; and b) an understanding that it arises against the background of an evidential world which shifts - both as to burden and as to the development of the case - during trial. [ … ]”
“In a case before me this year, one partner, several years before the institution of the suit, and upwards of twenty years after the closing of the partnership business, and when the accounts had been settled between him and his partners by arbitration, and never afterwards opened or disputed, had destroyed the books which contained the accounts of that partnership, I treated lightly the circumstance of that destruction, and did not suffer it to prejudice his case. But the case is very different when the transactions to which they relate are recent, where the accounts arising from them have not been finally adjusted, or the balance ascertained or paid, and still more when that destruction takes place by the person who has actually filed a bill to have the accounts taken of those very transactions to which these books relate. In such a case some very cogent reason must be given to satisfy the Court that the destruction was proper or justifiable, and, in the absence of any such reason, which is the fact here, I am compelled to act on the principle laid down in the well-known case of Armory v Delamirie, and presume, as against the person who destroyed the evidence, every thing most unfavourable to him, which is consistent with the rest of the facts, which are either admitted or proved. [ … ] But in all cases of contradictory evidence, whether between a witness and a Defendant, or between two witnesses who give evidence in direct contradiction to each other, with regard to a matter equally within the knowledge and cognizance of both, it is the duty of the judicial tribunal to search for facts which may corroborate or invalidate the testimony of either witness. In this case there were books containing the account of the transactions, which would have afforded clear and distinct evidence to enable the Court to judge which of the two was to be believed. This evidence Mr. Gray has himself removed, and removed, as I consider proved by his own evidence, after the contest relating to these accounts had arisen between himself and Haig & Son. He must suffer the necessary consequence of the absence of that evidence so occasioned; and I consider myself bound to believe that these books, if now forthcoming, would prove the truth of the statements contained in Rikey's evidence.”
“Documentary Evidence by Charles Hollander QC … suggests in paragraph 10-06 of the 10th edition that ‘there might be cases where it was appropriate to draw adverse inferences from a party's conduct before the commencement of proceedings.’ In my judgment there would have to be some clear evidence of deliberate spoliation in anticipation of litigation before one could legitimately draw evidential ‘adverse inferences’ in those circumstances. There is no such evidential basis in this case.”
“If someone lives in two houses the question which does he use as his principal or more important one cannot be determined solely by reference to the way in which he divides his time between the two.”
“77. … for their own purposes, though not for the purposes of the wedding and holiday letting business. Instead, this business was carried on by a lady called Rebecca Holt on behalf of Mrs Foster, until23 January 2016 , when (the injunction having lapsed) Mrs Brake took over in that capacity.” and “81. … for their own purposes, even though they were not allowed to carry on the wedding business.”