Daniel Family Homes Limited & Anor v Jeffrey Gold & Anor [2025] EWHC 2697 (Ch)

[2025] EWHC 2697 (Ch)Case No CH-2025-000012
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS (ChD)
ON APPEAL FROM THE ORDER OF HHJ MELISSA CLARKE
DATED 10 DECEMBER 2024 SITTING IN THE COUNTY COURT
AT OXFORD
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 20/10/2025
Before
THE HONOURABLE MR JUSTICE CAWSON
Between
DANIEL FAMILY HOMES LIMITED (2) TERRY DANIEL Appellants and Respondents to Cross-Appeal- and -(1) JEFFREY GOLD (2) PATRICIA GOLD Respondents and Appellants in Cross-Appeal
Mr Shyam Thakerar (instructed by Taylor Rose) for Appellants and Respondents to Cross-AppealMr Patrick Taylor (instructed by Pepperells Solicitors) for Respondents and Appellants in Cross-AppealHearing Hearing date: 8 October 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on Monday, 20 October 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]This is an appeal and a cross-appeal, brought with the permission of Michael Green J, against various aspects of the decision of HHJ Melissa Clarke (“the Judge”) dated 10 December 2024 in proceedings in the County Court at Reading, sitting in Oxford (“the Proceedings”) reflected in an order of that date.[2]The appeal is brought by the Claimant to the claim in the Proceedings, Daniel Family Homes Ltd (“DFH”), and by Terry Daniel (“Mr Daniel”) who was a defendant to the Part 20 Claim therein. The cross-appeal is brought by the Defendants in the Proceedings, Jeffrey Gold (“Mr Gold”) and Patricia Gold (“Mrs Gold”), who brought therein the Part 20 Claim.[3]DFH and Mr Daniel were represented by Mr Shyam Thakerar of Counsel, and Mr and Mrs Gold were represented by Mr Patrick Taylor of Counsel. I am grateful to them both for their helpful written and oral submissions.

The Proceedings

[4]The Proceedings were commenced by DFH as possession proceedings to recover possession of the property 28 Rogers Lane, Stoke Poges, Slough SL2 4LE (“the Property”). In addition, DFH sought damages for trespass on the basis that whilst Mr and Mrs Gold had been granted a licence to occupy the Property, that licence had been determined by a notice dated 4 May 2021 that expired on 2 June 2021.[5]In response to the claim, by their Defence and Part 20 Claim, Mr and Mrs Gold alleged, in essence, as follows: i) Whilst it was accepted that DFH had legal title to the Property, it was asserted that Mr and Mrs Gold were the beneficial owners thereof by virtue of the operation of a proprietary estoppel and/or pursuant to a resulting or constructive trust. ii) Further or in the alternative, that DFH had executed a Declaration of Trust declaring that the Property was held in trust for Mrs Gold. iii) DFH and Mr Daniel were liable to repay loans made by Mr and Mrs Gold, in respect of which £629,576.53 was due together with interest thereupon.[6]In response to the Defence and Part 20 Claim, in their Reply and Defence to the Part 20 Claim, it was denied that Mr and Mrs Gold had any beneficial interest in the Property, or that any Declaration of Trust had been executed as alleged, and it was alleged by DFH and Mr Daniel that: i) When Mr and Mrs Gold had taken up occupation of the Property in or about 2007, it had been agreed that they should pay rent in respect thereof that would not be payable on an ongoing basis, but which would be set off against the amounts due in respect of the monies loaned by Mr and Mrs Gold, with the consequence that no monies were now due and owing in respect of the latter. It was subsequently alleged that Mr and Mrs Gold had entered into an Assured Shorthold Tenancy (“AST”) agreement in respect of the Property in 2008 providing for the payment of a fixed amount by way of rent. ii) No interest was due in respect of the loans made by Mr and Mrs Gold in any event. iii) Mr Daniel was entitled to set off against outstanding loan monies certain charges and expenses, including charges agreed between Mr Daniel and Mrs Gold for the storage on Mr Daniel’s land of vehicles belonging to Mr Gold. As advanced at trial, the case was that Mr Daniel had agreed with Mrs Gold in 2019 that he could retrospectively charge for storage of the vehicles and then dispose of them a month later.[7]The trial of the above issues took place over five days between 25 and 29 November 2024, after which the Judge reserved judgment, handing down a clear, detailed and comprehensive judgment on 10 December 2024.[8]The witnesses who gave evidence at trial, and who were extensively cross-examined, included Mr Daniel, Mr Daniel’s sister, Mrs Tracey Rigg (“Mrs Rigg”), and Mr and Mrs Gold, as well as a number of more independent witnesses called by the respective parties. It is fair to say that the Judge was very critical of each of Mr Daniel, Ms Rigg and Mr Gold as witnesses, essentially saying that she felt unable to accept their evidence unless verified and supported by other evidence.[9]On the issues that arose, the Judge found as follows: i) Mr and Mrs Gold had no beneficial interest in the Property on any of the bases upon which they contended that they had acquired an interest. In particular, she held that payments relied upon by Mr and Mrs Gold as contributions towards an interest in the Property had not been paid or had not been paid as such contributions. Further, she held that no Declaration of Trust relating to the Property had been executed. ii) One of the payments that the Judge, in the Judgment, thought that Mr and Mrs Gold were relying upon as a contribution towards an interest in the Property was a particular payment of £121,000. Whilst she did not accept that this was such a contribution, she did hold that this sum had been lent by Mr and Mrs Gold and ought thus to be brought into account. iii) There had been no agreement that Mr and Mrs Gold should pay rent for their occupation of the Property. The AST agreement that had, somewhat belatedly, been produced by DFH had not, she held, in fact been executed or entered into with Mr and Mrs Gold. Further, the Judge held that Mr Daniel had given a number of different explanations as to what had, or had not been agreed so far as rent was concerned, and the explanation that she preferred was one given by Mr Daniel in a witness statement made in bankruptcy proceedings in 2020 in which, as understood by the Judge, Mr Daniel had agreed that Mr and Mrs Gold could move into the Property as a quid pro quo for the assistance that the latter were giving by the making of large loans to DFH and/or Mr Daniel, and as a way of giving something back for what was then the close friendship between Mr Daniel and Mr and Mrs Gold. Consequently, so the Judge held, it having been agreed that Mr and Mrs Gold could occupy the Property rent free, there was no rent to be offset against the otherwise outstanding loans. iv) Save in relation to two early loans that were documented, it had not been agreed that interest should be paid on the loans made by Mr and Mrs Gold, and no interest was payable thereon. Consequently, it was unnecessary for her to make any findings in relation to the rate of interest that might be payable in the absence of express agreement as to rate. v) As to the alleged agreement relating to the storage of vehicles on Mr Daniel’s land, Mr and Mrs Gold had denied in evidence that any such agreement had been reached, and it was further contended that Mrs Gold had no authority to enter into the relevant agreement with Mr Daniel. Unfortunately, despite the respective parties having been cross-examined on this issue, the Judge did not make any finding as to whether any such agreement had been concluded, or whether Mrs Gold had authority to contract on behalf of her husband. However, she concluded that there was no binding agreement. This was because she rejected the submission that there was fresh consideration for the alleged agreement in the expenditure required to dispose of the vehicles because there was no evidence as to the cost of disposal or otherwise as to the expenditure alleged to have been incurred. vi) The Judge held that Mr and Mrs Gold were, by the time of the trial at least, trespasses at the Property, but she did not award damages or other compensation for their use and occupation of the Property from 2 June 2021, when DFH’s notice to quit had expired.[10]So far as costs are concerned, after hearing submissions following the hand down of judgment, the Judge ordered each party to pay 50% of the other parties’ costs. Grounds of Appeal and Grounds of Cross-Appeal DFH’s and Mr Daniel’s appeal

Grounds of Appeal and Grounds of Cross-Appeal

[11]The Grounds of Appeal advanced by DFH and Mr Daniel can be summarised as follows: i) Ground 1 – It is submitted that after the Judge had determined that Mr and Mrs Gold had not acquired or obtained a beneficial interest in the Property, it was not open to her to find that there was no agreement with regard to the payment by Mr and Mrs Gold of rent which would be available to DFH and/or Mr Daniel to set-off against the loans otherwise due. This was said to be on the basis, amongst other things, that there was no evidence from Mr and Mrs Gold to this effect, and the Judge’s finding was therefore wrong (“the Rent Issue”). ii) Ground 2 - It is submitted that the Judge, having found that Mr and Mrs Gold were trespassers, “erred in law” by failing to award damages or charge for use and occupation of the Property from 2 June 2021, when the relevant notice to quit expired (“the Damages for Trespass Issue”). iii) Ground 3 - It is submitted that the Judge was wrong to find that the loan of £121,000 had been made by Mr and Mrs Gold, in that it is submitted that she failed to weigh the evidence appropriately and was materially influenced by an error of fact that Mr Gold had claimed such a payment was for a beneficial interest in the Property (“the £121,000 Loan Issue”). iv) Ground 4 - It is submitted that the Judge “erred in law” by finding that no further consideration had been provided by DFH/Mr Daniel following the agreement for Mr Daniel to charge for car storage (“the Car Storage Issue”). v) Ground 5 - It is submitted that the Judge exercised her discretion incorrectly by ordering DFH and Mr Daniel to pay Mr and Mrs Gold 50% of their costs, and wrong to order that Mr and Mrs Gold only pay DFH and Mr Daniel 50% of their costs. It is said that the Judge wrongly stated that 50% of Mr and Mrs Gold’s costs had been spent on their money claim, and that she failed to have regard or sufficient regard to the conduct of Mr and Mrs Gold in the proceedings and their only partial success on their money claims.

Mr and Mrs Gold’s Cross-Appeal

[12]The Grounds of Cross-Appeal advanced by Mr and Mrs Gold can be summarised as follows: i) Ground 1- It is submitted that the Judge’s decision that Mr and Mrs Gold did not hold a beneficial interest in the Property was wrong, and that she reached a factual conclusion in respect thereof that could not be supported by the evidence, and which no judge could reasonably have reached. Particular reliance is placed upon the following: a) An email exchange between Mr Daniel and Mr Coyle, his Solicitor, in October 2009 which the Judge did not deal with in the Judgment and which is said to be explicable only on the basis that Mr Daniel recognised that Mr and Mrs Gold had a beneficial interest in the Property; b) An email from Mr Daniel to Porchester Homes dated 6 February 2010 referring to the Property as being that of Mr Gold; c) The Judge’s error in proceeding on the basis that Mr and Mrs Gold were contending that the payment of £121,000 was a contribution to the Property, whereas their pleaded case was that, in return for an interest in a different property, 3 Thurlstone Road, it was agreed that Mr and Mrs Gold would acquire an interest in the Property. It is said that the Judge, therefore, failed to address this factual issue. d) A contention that her factual finding that the Declaration of Trust had not been executed was a factual finding that no judge could reasonably have reached for a number of reasons that were advanced. (“The Beneficial Interest Issue”) ii) Ground 2 - It is submitted that the Judge “erred in law” in finding that DFH was entitled to possession of the Property before repayment of the loans (“the Possession Issue”). iii) Ground 3 – It is submitted that the Judge was wrong to find that interest was not payable on the loans advanced by Mr and Mrs Gold (“the Interest Issue”). However, Mr Taylor made clear in submissions that this ground of appeal is only advanced in the event that I should reach a different conclusion from the Judge in respect of the Rent Issue.

Correct Approach

[13]Most of the Grounds of appeal and cross-appeal that are advanced in the present case relate to determinations of questions of fact on the part of the Judge as a trial judge. She had the benefit of seeing the witnesses and considering the documents in the context of the trial and in the light of how they might have been put to witnesses. It is for these reasons that an appeal court must act with extreme caution in interfering with the factual findings of a trial judge and will only do so where the judge is plainly wrong and has reached conclusions on the evidence that no reasonable judge could have reached.[14]I was referred to a number of authorities, but the correct approach was helpfully and succinctly summarised in by Lewison LJ in Volpi v Volpi [2022] EWCA Civ 464, at [2]-[5]. To quote therefrom at [2]:
“The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled: “i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. ii) The adverb ‘plainly’ does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable. vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.” “i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. ii) The adverb ‘plainly’ does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable. vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”

Determination of the issues

[15]I turned to consider the various issues that are raised by the appeal and cross-appeal. I broadly do so in the order in which they were argued.

Rent Issue

[16]The crux of the Judge’s decision in respect of this issue is in paragraph 45 of the Judgment where she considered it more likely than not that Mr Daniel agreed with Mr and Mrs Gold that they could move into the Property as a quid pro quo to the assistance that they were giving with large loans at the time, and by way of giving something back to their friendship.

The Judge explained that:

“This is one of the accounts that [Mr Daniel] has provided and I believe it is the one which is more likely than not to be correct”
. She went on to explain as part of her reasoning that she did not accept Mr Daniel’s and Mrs Rigg’s evidence that there was an agreement that the rent would be set against the loans because she was satisfied if there had been such an agreement, both of them would have been able to tell her what the market rent was, what the “mates rates” alleged to have been agreed was, and also because the rent accruing and being set off against loans would have been meticulously documented by Mrs Rigg and visible in the accounts, which DFH would have disclosed to support their case on this point.[17]The gist of Mr Thakerar’s case on this point was to the effect that there had been no evidence from Mr and Mrs Gold that it had been agreed that they could occupy the Property rent free because their evidence had been to the effect that they owned the Property beneficially, and that there was no other evidence to support the finding that no agreement had been reached regarding the payment of rent.[18]Insofar as the Judge had preferred the one particular account that Mr Daniel had provided as to what had been agreed, Mr Thakerar argues that this account came from what Mr Daniel had said in a witness statement dated 28 July 2020 made in support of an application to set aside a statutory demand served by Mr and Mrs Gold, and that on proper analysis what Mr Daniel had said in this witness statement does not support the Judge’s finding because her finding did not accurately reflect what Mr Daniel has said in this witness statement.[19]In paragraph 16 of his witness statement dated 28 July 2020, Mr Daniels said:
“Buying houses is an expensive business and 28 Rogers Lane has been a drain since the start, but I look at it as an investment and paying back the Golds in the way that I can, letting them live rent free as a quid pro quo for money is lent to me.”
It is apparent from paragraph 35 of the Judgment that this is the passage that the Judge particularly relied upon in coming to the conclusion that she did, because she has highlighted it. However, Mr Thakerar submits that if paragraph 16 is considered in context and having regard to what is said elsewhere in this witness statement, it does not support the finding that the Judge came to based upon it.[20]In particular, Mr Thakerar points to earlier in paragraph 16, where Mr Daniel had said that:
“once loans were still outstanding, rent is accumulating”
. Further, he refers to paragraph 12 of the witness statement where Mr Daniel refers to Mr and Mrs Gold asking, “whether they could rent [the Property] instead, which I agreed,” and then went on to say that Mr and Mrs Gold had resided at the Property since early 2007 and had not paid any rent at all. I note further that in paragraph 20 of the witness statement; Mr Daniel asserts an entitlement to set rent off against the outstanding loans as a basis for challenging the statutory demand.[21]There is force in the particular points that Mr Thakerar makes with regard to Mr Daniel’s witness statement dated 28 July 2020, and other parts of the witness statement are consistent with Mr Daniel meaning by reference to “rent free”, in the final sentence of paragraph 16 thereof, not that no rent would become due at all, but that there would be no obligation to pay rent on an ongoing basis on the basis that accruing unpaid rent would ultimately be applied or set-off against outstanding loans. However, in order to succeed on this ground, Mr Thakerar would need to show that these other parts of the witness statement dated 28 July 2020 so fundamentally undermined the Judge’s reasoning on this issue that it can properly be said that she was plainly wrong and came to a conclusion that no reasonable judge would have come to.[22]On proper analysis, I do not consider this can be so said for the following reasons: i) The onus of proof plainly was on DFH and Mr Daniel to prove that an agreement was reached with Mr and Mrs Gold to the effect that rent would be payable, a task not aided by the fact that the Judge found Mr Daniel to be an unreliable witness, and her finding, which is not challenged, that there was no AST agreement providing for payment of rent in a particular amount despite the assertion by DFH and Mr Daniel that there was. ii) The Judge was faced with difficulty that Mr Daniel was an unreliable witness, who had given various accounts of the circumstances which were said to have given rise to an obligation on the part of Mr and Mrs Gold to pay rent. The final sentence of paragraph 16 of the witness statement dated 28 July 2020 does use the expression “rent free”, which is, on a natural reading, inconsistent with any obligation to pay rent at all. To this extent, the witness statement dated 28 July 2020 might properly be considered to be ambiguous as to what Mr Daniel might actually have agreed with Mr and Mrs Gold, as opposed to what, with hindsight, he might now think that he had agreed. In the circumstances, I consider that the Judge was entitled to rely upon the final sentence of paragraph 16 of the witness statement in concluding that no agreement had been reached for Mr and Mrs Gold to pay rent. iii) Michael Green J, in granting permission to appeal, regarded it as a “surprising conclusion” to have reached that Mr and Mrs Gold were not obliged to pay rent for their 14 years of occupation of the Property yet could still recover their loans in full. However, this has to be viewed in the context of the Judge’s other findings in relation to the a quid pro quo under which Mr and Mrs Gold, then very good friends of Mr Daniel and who had lent very significant sums of money, were to be permitted to live at the Property, which extended to her finding that the loans were interest free. With regard to interest on the loans, I note that, in paragraph 85 of the Judgment, the Judge explained her conclusion in relation thereto on the basis that the loans … “were provided within the course of the very close relationship between Mr Daniel and Mr Gold, in the context of benefit being provided by DFH and Mr Daniel in terms of assistance with property transactions which had made the Golds over £1m, and accommodation been provided in the Property for which no rent was chargeable.” iv) The Judge supported her conclusion in paragraph 45 of the judgment with the well-made points that if there had been an agreement that rent would be set off against the loans, then: a) Mr Daniel and Mrs Rigg might have been expected to have been able to say what the market rent was and what the “mate’s rates” agreed was; b) The rent accruing for set-off against the loans would have been documented rather than left vague and uncertain, in circumstances in which loans were made to both DFH and Mr Daniel personally, v) I must bear in mind that the key witnesses will have been cross-examined on the various factual issues that arose, and the Judge will have had the opportunity of assessing that evidence in a way that is simply not open to me. The evidence will have included an examination of the relationship between the parties, from which the Judge will have been able to come to her conclusion that there had been the quid pro quo that she held that there was. vi) In Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114], Lewison LJ observed that:
“In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.”
I am concerned that in attaching the weight that Mr Thakerar invites me to do two other parts of Mr Daniel’s witness statement dated 28 July 2020, I would be “island hopping” in the “sea of evidence” before the Judge, and I consider that there was sufficient evidence before the Judge to entitle her to come to the conclusion that she did.[23]Consequently, I will dismiss DFH’s and Mr Daniel’s Ground 1 of their appeal.

Damages for Trespass Issue

[24]Dealing with the claim for possession, in paragraph 94 of the Judgment,

the Judge said:

“I consider the loans to be an entirely separate matter to the basis of their [Mr and Mrs Gold’s] occupation of the Property. Notice has been given to quit - the Golds must quit the Property which they now occupy as trespassers. I will make a possession order in the claim but will hear submissions about the terms of such order.”
[25]If it is right that the service of the notice to quit, which expired on 2 June 2021, meant that Mr and Mrs Gold became trespasses as from that date as the Judge appears to have found, then DFH, as freehold owner, would be entitled to a sum representative of the market rent as damages without proof of loss – see Swordheath Properties Ltd v Tabet [1979] 1 WLR 285 at 288E-F. For reasons that are not clear, the Judge did not make any determination in respect of the claim for damages as from 2 June 2021, although the Order that she made recorded an agreement between the parties that Mr and Mrs Gold should be entitled to occupy the Property as licensees until 10 January 2025, paying £100 per day for the use and occupation thereof.[26]There was no expert evidence before the Court, although there was included within the hearing bundle a marketing report prepared by Gibbs Gillespie, Estate Agents, dated 18 January 2021 recommending placing the Property on the market for let, at that time, at a rental price in the region of £2,500-£3,000 per calendar month.[27]Subject to the point raised on behalf of Mr and Mrs Gold that I will return to, having found that Mr and Mrs Gold had been trespassers as from 2 June 2021, I consider that the Judge should have awarded damages referable to a market rent as from that date.[28]On behalf of Mr and Mrs Gold it is submitted that even if such is my finding, I should dismiss this Ground of Appeal on the basis that there is no evidence before the Court as to rental value. An option would be to refer the matter back to the Judge to determine the appropriate level of damages. However, I am concerned that this would be a disproportionate exercise, and that I should do the best I can on the materials available to determine the market rental, but having regard to the fact that the onus was on DFH to place the appropriate evidence before the Court below, I consider that my task is to seek to arrive at an irreducible minimum on the evidence before me.[29]The £100 per day agreed between the parties equates to the higher of the monthly rental figures recommended by Gibbs Gillespie, but their recommendation is nearly 5 years old and recommended a price to market the Property for rent rather than providing a valuation as such. However, taking into account the recommendation on the part of Gibbs Gillespie, and what was agreed between the parties with regard to a licence figure going forward, I consider that I can safely conclude that the market rental value of the Property will have been no less than £2000 per month since June 2021, and that I can award damages on the basis of this figure. On my calculations, this comes to something in the region of £84,000 for the period from June 2021 to the date of the Judgment. Thereafter, I consider that it be appropriate to apply the rate agreed between the parties of £100 per day.[30]However, this point ties in with the Possession Issue, raised by Ground 2 of the cross-appeal. The point taken by Mr and Mrs Gold is that if there was the quid pro quo as found by the Judge relating to the friendship between the parties, the occupation of the Property by Mr and Mrs Gold rent-free, the loans made by Mr and Mrs Gold, and the fact that the latter were interest free, then it must be implicit at least that DFH should not be entitled to recover possession of the Property without the loans first being repaid.[31]Mr Taylor, on behalf of Mr and Mrs Gold relies upon a plea by DFH and Mr Daniel in paragraph 5d of the Re-Amended Reply to Amended Defence and Defence to Counterclaim in relation to an agreement that included for Mr and Mrs Gold to occupy the Property, that:
“Accordingly, the Agreement could not be terminated by the Claimant or Mr Daniel whilst there was a balance due to the Defendants in the Loan Account.”
[32]It is submitted that it would now be inconsistent with that plea for DFH to have been entitled to terminate Mr and Mrs Gold’s licence to occupy the Property without repaying the loans.[33]In reaching a decision on the question of trespass in paragraph 94 of the Judgment, the Judge did so on the basis that the loans were an “entirely separate matter” to the basis of Mr and Mrs Gold’s occupation of the Property. Unfortunately, this is, seemingly, inconsistent with her findings in paragraph 45 of the Judgment with regard to a quid pro quo which touched upon Mr and Mrs Gold’s occupation of the property and the loans, and paragraph 85 where the question of interest was found to be an element of the quid pro quo, hence her finding that the parties had not intended that interest would be payable on the loans.[34]So far as the pleading point referred to in paragraph 32 above is concerned, Mr Thakerar fairly makes the point in his Skeleton Argument that the “Agreement” referred to as pleaded out in paragraph 5 of the relevant pleading was one under which rent was to be payable which, although not immediately payable, would accrue as against, and therefore be open to be set off as against the outstanding loans. However, on the basis of the quid pro quo as found, under which it is not open to DFH to offset a market rent as against the loans, it is submitted that it would make little sense if DFH was unable to recover possession of the Property in order to realise the same in order to repay the loans, which is the net effect of the contention that DFH is not entitled to possession unless and until the loans are repaid.[35]I consider that the answer to this must be that it was open to either party to determine the informal quid pro quo on reasonable notice, and that on either party giving reasonable notice, DFH will become entitled to possession of the Property, the loans would be repayable, and interest at a commercial rate would accrue thereon going forward. To the extent that the quid pro quo might have the formality of a contractual agreement, I consider that it would be necessary to imply a term to this effect in order to give the same business efficacy, and that the form of indefinite arrangement contended for by Mr and Mrs Gold lacks business efficacy.[36]In short, therefore, I consider that the Judge was wrong not to award damages for trespass as against Mr and Mrs Gold, and I therefore allow Ground 2 of the appeal. In reaching this conclusion, I have not had to disturb or interfere with any findings of fact made by the Judge.[37]A consequence of my reasoning behind allowing Ground 2 of the appeal is that that Ground 2 of the cross-appeal raising the Possession Issue must be dismissed on the basis that such reasoning depended upon DFH becoming entitled to possession of the Property in June 2021.

£121,000 Loan Issue

[38]At paragraph 30 of the Judgment, the Judge found that Mr and Mrs Gold had made a loan of £121,000 to DFH in September 2005: “for the purpose of enabling the purchase of Norfolk Road”.[39]In evidence under cross-examination, Mr Daniel did not, in terms deny that the £121,000 had been advanced by Mr and Mrs Gold, but said that there was no evidence of it in his records, and that whilst he had asked Mrs Rigg, there was nothing in the completion statements relating to either “Norfolk” or “Fairfield”, or in the relevant accounts showing the receipt of the £121,000 (Transcript, page 207:19-34 of the Appeal Bundle) .[40]Mr Thakerar submits that there were “numerous factors” that strongly pointed against the relevant loan having been made, that the Judge made no reference to in the Judgment, including: i) The £121,000 had only been added to the counterclaim on 22 November 2024, the working day before trial, which is said to have prejudiced the ability of DFH and Mr Daniel to respond to the point. ii) DFH and Mr Daniel had accepted all the other sums alleged had been paid by Mr and Mrs Gold, on the basis that there was evidence to support the same, which it is said there was not in the case of this particular sum. iii) It was said that the completion statements for the properties held by DFH/Mr Daniel in Norfolk Road and Fairfield Road did not reference any loan from Mr Mrs Gold. iv) Mr and Mrs Gold had been poor in their accounting, having previously claimed sums, including a sum of £137,200 that they had been unable to substantiate, and failed to bring into account sums that they had received, including a sum of £145,000. Further, it is said that Mr Gold accepted under cross examination that he did not disclose financial records that he did not consider relevant to the Proceedings, including certain bank statements, that it is said might have been important. v) Mr Gold had been found by the Judge to have been a dishonest witness, in particular in relation to a payment of £150,000 alleged to have been made to Robert Clarke (“Mr Clarke”), one of the witnesses who gave evidence for DFH and Mr Daniel.[41]Mr Thakerar thus submitted that the evidence: “points overwhelmingly against the conclusion on the balance of probabilities that [Mr and Mrs Gold] made this Loan of £121,000”.[42]Mr Thakerar submitted that the Judge’s error in proceeding on the basis that it was Mr and Mrs Gold’s case that the £121,000 was a contribution towards acquiring an interest in the Property materially influenced her into erroneously finding that this sum had been lent by Mr and Mrs Gold. However, I regard it as significant that the Judge did not simply find that if it was not such a contribution then it must be a loan. Rather, she went on to consider in some detail the factual basis for it being a loan.[43]The primary evidence before the Judge in support of the contention that £121,000 had been advanced by way of loan to DFH was a CHAPS Transfer Request Form whereby Mr Gold had requested the transfer of £121,000 from his Nationwide account to Lennon & Co’s client premium account, with the following added regarding payment details, namely “fairfield and norfolk”. Further, a bank statement in respect of the relevant Nationwide account has been produced showing the CHAPS payment in the amount of £121,000 having been paid on 8 September 2005.[44]A further consideration is that there is evidence of £96,000 having been paid back to Mr and/or Mrs Gold on 7 December 2005 following the sale of Norfolk Road.[45]I am satisfied that the Judge was entitled to conclude, on the evidence before her, that the £121,000 was advanced by way of loan, and that it would be wrong for me to interfere with her finding of fact on the basis that I cannot be satisfied that she was plainly wrong, or came to a conclusion that no reasonable judge could have come to on the evidence.[46]Whilst the Judge may not specifically have dealt with all the points identified by Mr Thakerar, it cannot be assumed that she did not have them in mind. Indeed, in paragraph 29 of the Judgment, the Judge specifically refers to Mr Daniel’s evidence with regard to searching his records and being unable to find evidence that either he or DFH received the sum in question, and that it was his evidence that the £121,000 was not reflected in the completion statements for Norfolk Road. She clearly, therefore, factored these particular considerations into her decision, and I note that although reference was made in Mr Daniel’s evidence to Mrs Rigg having looked at the relevant completion statement, it was not actually produced as it might have been.[47]The fact that the payment should have been directed to Lennon & Co’s client account, the fact that the payment instruction made specific reference to properties that DFH/Mr Daniel, were developing, and that £96,000 was subsequently repaid specifically relating to Norfolk Road, provides, in my judgment, a sound evidential basis for the Judge’s conclusion that the £121,000 was advanced by way of loan notwithstanding the specific points identified by Mr Thakerar.[48]I therefore conclude that the Judge was properly entitled to the conclude on the evidence as she did in relation to the £121,000 Loan Issue, and therefore that Ground 3 of the appeal should be dismissed.

Car Storage Issue

[49]At paragraph 75 of the Judgment,

the Judge dealt with the Car Storage Issue the subject matter of Ground 4 as follows:

“I do not believe it is disputed that a number of Mr Gold’s cars were kept on Mr Daniel’s properties over a number of years. He says that he agreed with Mrs Gold in September 2019 that he could retrospectively charge for storage of those vehicles and then dispose of them a month later. The Golds submit that Mrs Gold was not acting as her husband’s agent, and in any event past consideration is no consideration. DFH/Mr Daniel submits that there was fresh consideration in the expenditure required to dispose of the vehicles. The difficulty with that is that there is no claim for any such expenditure, there is no evidence that there was any cost of disposal and I take judicial notice of the fact that cars generally have a scrappage value such that it is perfectly possible that they could have been collected at no cost, or indeed for a payment of scrap value, so any such expenditure is not self-proving. I reject this claim for those reasons.”
[50]It is apparent therefrom that the Judge did not determine the issue as to whether any agreement as between Mr Daniel and Mrs Gold was ever concluded, or as to whether Mrs Gold had authority to act in Mr Gold’s behalf, issues in respect of which, so I was informed, the relevant witnesses were cross-examined at trial. The Judge decided the question by concluding that there was insufficient evidence to support there having been fresh consideration for the alleged agreement on the basis that there was no evidence as to the expenditure or detriment suffered or to be suffered by Mr Daniel or DFH in performing their obligations under the relevant agreement.[51]Mr Thakerar’s essential complaint is that the Judge incorrectly analysed how consideration might have operated in respect of the relevant agreement, and that she failed to have regard to: i) The fact that consideration need only be “of some value in the eye of the law” (see Thomas v Thomas (1842) 2 QB 851 at 859), and need not therefore be financial expenditure; and ii) That Mr Daniel (as promisee) did not need to suffer detriment in order for valid consideration to be provided, if a benefit was conferred on Mr Gold (as promisor) (see Chitty in Contracts, 35th Edn at 6-004).[52]It is submitted that even if Mr Daniel or DFH did not incur financial expenditure, he had arranged for the collection and disposal of the vehicles, after the agreement with Mrs Gold, acting on behalf of herself and Mr Gold, had been entered into. Consideration was therefore provided which was sufficient to support an agreement under which Mrs Gold agreed that storage charges would be paid for past storage.[53]I consider that Mr Thakerar is correct in the submissions of law that he makes as referred to in paragraph 51 above. However, I consider that his difficulty is that evidence as to whether any real benefit was conferred on Mr and/or Mrs Gold by the agreement allegedly concluded is just as lacking as is evidence of detriment suffered by Mr Daniel/DFH. On this basis, even if the Judge erred in failing to consider the question of consideration by reference to the benefit to Mr and/or Mrs Gold conferred by the alleged agreement, I consider that she would have come to the same conclusion because there is no cogent evidence that the benefit alleged to have been conferred did, in fact, benefit Mr and/or Mrs Gold in any real or tangible way.[54]Had I found in Mr Daniel’s/DFH’s favour contrary to my finding above on this consideration issue, this would not have resolved the Car Storage Issue as a whole because there has been no determination of the factual questions as to whether the agreement was ever concluded, and whether Mrs Gold had authority to act on behalf of Mr Gold. I have power pursuant to CPR 52.20(2)(b) to refer these questions back to the Judge, but this would not, I consider, be a satisfactory way to proceed given that the trial took place over a year ago.[55]The wording of CPR 52.20(2)(b) supports my having a discretion in the matter of reference back to the Judge. It would not, I consider, be right for me to determine these factual questions myself without having heard the witnesses in relation thereto. However, in considering how my discretion might be exercised, I do consider it appropriate to consider the prospects of the Judge concluding that the alleged agreement was concluded if the matter were to be referred back to her. So far as this is concerned, it is significant that the Judge held that Mr Daniel was not a witnesses whose evidence she would be inclined to accept unless supported by other evidence. Whilst the Judge was very critical of Mr Gold, that criticism did not extend to Mrs Gold as such. There is no documentary evidence to support the alleged oral agreement. In these circumstances, I regarded it as somewhat unlikely that, if the matter were referred back to the Judge, she would find that Mr Daniel/DFH had satisfied the burden on them proving the alleged agreement. In the circumstances, had it been necessary for me to do so, I would, in any event, have exercised my discretion against referring the matter back to the Judge.[56]For the above reasons, I dismiss Ground 4 of the appeal.

Costs Issue

[57]I consider it appropriate to merely express a provisional view in relation to costs at this stage, in that there will inevitably be argument in relation to the costs of the appeal and cross-appeal, and how my decision in relation to the latter might impact upon the order that the Judge might have made below. However, I would make the following observations.[58]I do not, for my part, consider that Mr and Mrs Gold are to be criticised for their Solicitors having not produced a Statement of Costs at the end of the trial, or on hand down on 10 December 2025. There is no presumption in favour of assessing summarily costs after the conclusion of a five-day trial, and, that being the case, it seems to me that there can have been no expectation on the parties in the present case to have produced Statements of Costs to be available at the end of the trial or at the hand down of the Judgment when costs were considered.[59]The Judge had a wide margin of appreciation so far as the exercise of her discretion in relation to costs was concerned, and an appeal court will rarely interfere with such an exercise of discretion unless some clear error of principle can be established. It is clear from how she dealt with the question of costs in the penultimate paragraph of the transcript of the hand down hearing on 10 December 2024, that she he had in mind the alternative of an issue-based order as to costs, but quite rightly, I consider, concluded that matters were better dealt with by a percentage based approach to costs.[60]Mr Thakerar argues that insufficient weight was given to Mr Daniel and DFH’s success in relation to certain issues, such as successfully reducing the amount that Mr and Mrs Gold claimed to be entitled to recover by way of loan repayments. However, the Judge had the advantage over this Court of seeing how the various issues played out during the course of the trial, as well as reaching a view in respect of the conduct of the respective parties.[61]In the circumstances, and given that no clear error principle has been established in the approach taken by the Judge, I would require a great deal of persuading that I should substitute my own discretion for that of the Judge in respect of the order that she made in respect of costs, namely that each party should pay 50% of the other party’s costs.[62]Consequently, subject to further submissions on the point following hand down of this judgment, I would be inclined to dismiss Ground 5 of the appeal relating to the Costs issue.

Beneficial Interest Issue

[63]This is the first Ground of Appeal in the cross-appeal.[64]As I have identified, Mr and Mrs Gold’s case, as pursued at trial, was that payments had been made as consideration for a beneficial interest in the Property, and that, in any event, a Declaration of Trust had been executed in Mrs Gold’s favour with regard to beneficial ownership of the Property. The Judge held that the payments relied upon had not been made, and that the Declaration of Trust had not been executed. Mr and Mrs Gold appeal both findings, and her overall conclusion that Mr and Mrs Gold had no beneficial interest in the Property.[65]It is convenient to deal with the question of the Declaration of Trust first. The real question for the Judge to decide was as to whether the Declaration of Trust was prepared and executed with the intention that it should genuinely reflect that Mrs Gold was the beneficial owner of the Property, or whether it was prepared in draft with a view to being produced to distance DFH from its ownership of the Property in circumstances in which DFH was under significant financial pressure from HMRC.[66]The parties each relied upon independent witnesses in support of their case, both of whom the Judge held to have given truthful evidence, namely David Bannon (“Mr Bannon”) for Mr Daniel and DFH, and Colin McCreavie (“Mr McCreavie”) for Mr and Mrs Gold. Mr McCreavie gave evidence as to having witnessed a Deed of Trust executed by Mr and Mrs Gold. Mr Bannon gave evidence of having been told by Mr Daniel that Mr Gold had approached him on several occasions advising him to organise and sign a Deed of Trust to hide DFH’s assets in case DFH went into receivership, but that he advised Mr Daniel not to do this as it was an illegal attempt to hide an asset, and that Mr Daniel left the meeting in question telling Mr Bannon that he would not sign the document.[67]It is clear that the Judge carefully analysed the evidence in paragraphs 62-73 of the Judgment. Thus, for example, she carefully considered the evidence of Mr McCreavie regarding the execution of a Trust Deed or similar such document and concluded that this was likely to have related to some other document than the Declaration of Trust sought to be relied upon - see paragraph 72 of the Judgment. On the other hand, so far as Mr Bannon is concerned, at paragraph 71 of the Judgment, the Judge said that she considered that Mr Bannon’s evidence was strongly supportive of Mr Daniel’s account that the purpose of drafting the relevant deed was a plan to put the beneficial interest in the Property into the name of another in an attempt to conceal it from creditors, and that Mr Daniel ultimately resolved not to carry that plan into effect, and so no deed was executed.[68]Further, the Judge carefully considered the involvement of Andrew Coyle (“Mr Coyle”) of Lennon & Co in the preparation of the draft Declaration of Trust.[69]The Judge correctly identified that it was for Mr and Mrs Gold to satisfy her on the balance of probabilities that the Declaration of Trust was executed and held that they had failed to do so and that their own evidence on the point was untruthful.[70]I do not consider that any flaw in the Judge’s reasoning has been identified, let alone one that suggests that the Judge came to a conclusion that was plainly wrong or that no reasonable judge could have come to.[71]So far as the more general complaint that the Judge wrongly concluded that Mr and Mrs Gold had no beneficial interest in the Property is concerned, four key lines of argument are advanced, namely: i) The Judge wrongly proceeded on the basis that it was Mr and Mrs Gold’s case that the payment of the £121,000 was a contribution towards a beneficial interest in the Property, when, in fact, it was their case that they had acquired an interest in a property known as 3 Thurlstone Road, and that it had been agreed that they should exchange such interest for DFH’s beneficial interest in the Property, a case that was pleaded in paragraphs 4 and 35 of the Amended Defence and Counterclaim. It was submitted that this raised factual issues that were not decided by the Judge. ii) An email exchange between Mr Daniel and Mr Coyle, his Solicitor, in October 2009, which the Judge did not deal with in the Judgment, and which it is said is explicable only on the basis that Mr Daniel recognised that Mr and Mrs Gold had a beneficial interest in the Property; iii) An email from Mr Daniel to Porchester Homes dated 6 February 2010 referring to the Property as being that of Mr Gold; iv) Reliance is placed upon the recitals to a draft Declaration of Trust that has been produced, and the point is made that the evidence was to the effect that the draft was produced by Mr Coyle on instructions provided by Mr Daniel, and that the matters set out in the recitals on the basis of those instructions are consistent with Mr and Mrs Gold’s case and not that of Mr Daniel and DFH.[72]It is submitted that this evidence fundamentally undermines the conclusion reached by the Judge that Mr and Mrs Gold had not made contributions so as to acquire a beneficial interest in the Property.[73]I deal with these points in turn.[74]So far as 3 Thurlstone Road is concerned, in the course of opening the appeal Mr Thakerar, whilst recognising that the Judge had fallen into error in proceeding on the basis that it was Mr and Mrs Gold’s case that the £121,000 had been contributed in respect of a Beneficial Interest in the Property, identified that Mr and Mrs Gold’s case at trial had focused on a payment of £150,000 to Mr Clarke and a further payment of £76,000, and that, as Mr Thakerar put it, the question of a contribution via a beneficial interest 3 Thurlstone Road had “fallen away” during the course of Mr Gold’s cross-examination.[75]The Judge dealt in robust terms with the alleged payment of £150,000 to Mr Clarke, dismissing as untruthful Mr Gold’s evidence that this payment had been made to Mr Clarke for his interest in the Property. In coming to this conclusion, the Judge considered Mr Clarke’s evidence on the point to be truthful evidence from an essentially independent witness.[76]So far as the £76,000 is concerned, it is true that the Judge did not deal with this payment until later in her judgment, when she dealt with it in a rather different context when dealing with the Declaration of Trust. She analysed the circumstances in which the £76,000 had been paid in paragraph 63 of the Judgment, coming to the conclusion that it related to an advance to pay HMRC, in respect of which an undertaking was obtained to repay the relevant sum from the proceeds of sale of two other properties. The payment of this sum was therefore clearly held not have been a contribution towards acquiring a beneficial interest in the Property.[77]Going back to 3 Thurlstone Road, Mr Taylor did not, in his submissions on behalf of Mr and Mrs Gold, challenge the proposition that reliance upon 3 Thurlstone Road had fallen away during the course of Mr Gold’s cross-examination, for example by showing me where Mr Gold had dealt with this in his evidence. I can only but conclude that the Judge did not deal with the point because it had, in fact, fallen away. The mere fact that she may have been mistaken with regard to reliance on the £121,000 does not mean that she had mistaken this with reliance upon a contribution via an interest in 3 Thurlstone Road.[78]I do not therefore consider that the fact that the Judge did not, in the Judgment, specifically deal with an argument based upon a contribution via an interest in 3 Thurlstone Road undermines the Judge’s finding that contributions had not been made by Mr or Mrs Gold towards acquiring an interest in the Property.[79]So far as the email dated 9 October 2009 is concerned, in this email, Mr Daniel wrote to Mr Coyle asking:
“Can you confirm the date Pat Gold bought Rob Clarke out of 28 Rogers Lane”
. Mr Coyle responded on 14 October 2009 to say:
“Our accounts records show a payment was made to Rob Clarke on the Rogers Lane file on 25 May 2007.”
The point is taken that the Judge did not deal with, or comment on this exchange, and it is submitted that the exchange fundamentally undermines the Judge’s finding that Mr and/or Mrs Gold had not acquired a beneficial interest in the Property.[80]However, as I have already explained, the Judge did specifically deal with the allegation that Mr Gold paid Mr Clarke £150,000 in exchange for his interest in the Property, something that was denied by Mr Clarke who the Judge found to be an honest witness in contrast to Mr Gold. Indeed, on this particular issue the Judge described herself as satisfied that Mr Gold’s evidence was “dishonestly given from start to finish”. The Judge came to the conclusion that she did with the benefit of cross-examination of the relevant witnesses.[81]Whilst the email exchange beginning with Mr Daniel’s email dated 9 October 2009 is supportive of a case that Mr Daniel believed that Mr Gold had acquired a beneficial interest in the Property because he had bought out an interest of Mr Clarke therein, it was confirmed to me in the course of submissions that there had been cross-examination on this email exchange, and although she may not have expressly referred to it, there is no reason to believe that the Judge did not have it in mind in coming to the conclusion that she did, and weighted it against the other evidence including, in particular, that of Mr Clarke himself whose evidence she accepted as an independent and truthful witness.[82]I do not, in these circumstances, consider that this email exchange provides a proper basis for disturbing the Judge’s findings.[83]So far as the email to Porchester Homes dated 6 February 2010 is concerned, the Judge did deal with this in paragraph 91 of the Judgment. In this email, Mr Daniel had written to Porchester Homes in terms that, at least on one reading, suggested that he regarded the Property as belonging to Mr Gold. However, again, the Judge had the benefit of hearing cross-examination on this issue, and the conclusion that she came to was that, in the particular context, the Property was referred to as “his property” because he was the occupier of it. The context as explained by the Judge was of seeking to obtain compensation for Mr and Mrs Gold in relation to development behind the Property. I consider this to be a perfectly rational decision to have come to in the circumstances, and one that I do not consider it appropriate for this Court to interfere with.[84]This leaves the question of the recitals to the draft Declaration of Trust. It is true that they do support Mr and Mrs Gold’s case in the sense that they refer to the balance of the purchase monies of the Property as having been provided by Mrs Gold, and to loans having been made to DFH which broadly equated to the amounts secured by the mortgage on the Property entered into by DFH. Further, Mr and Mrs Gold can pray in aid the fact that instructions in relation to the preparation of the Declaration of Trust were provided by Mr Daniel to Mr Coyle, a further point being that it was the evidence of Mr Coyle that he would not have been party to the creation of a false deed.[85]However, once the Judge had decided, as I have held that she was entitled to do, that a draft of a Trust Deed had been prepared with a view to being produced to present a false picture to DFH’s creditors as to the true beneficial ownership of the Property, then it is not inconsistent with that finding that the draft Declaration of Trust that has been produced should exist containing a false narrative to justify the contents of the Deed. Consequently, I do not consider that the production of this draft, and the evidence with regard to how it came to say what it did, undermines the Judges decision. The key point is that the plan to deceive creditors was not, on the Judge’s findings, carried into effect, and so the relevant deed was never executed.[86]I have considered how the Judge dealt with Mr and Mrs Gold’s case that a proprietary estoppel had arisen in their favour, and that they had the benefit of a constructive or resulting trust as set out in paragraph 90 et seq of the Judgment, and can find no flaw in her reasoning based upon the findings of fact that she made.[87]In short, therefore, I do not consider that any of the points raised by Mr and Mrs Gold undermine the Judge’s decision that Mr and Mrs Gold had not acquired a beneficial interest in the Property. They certainly do not lead me to the conclusion that the Judge plainly came to the wrong decision or that she came to a decision that no reasonable judge could have come to on the evidence before her.[88]I therefore dismiss Ground 1 of the cross-appeal.

Possession Issue

[89]As explained in paragraph 36 above, a consequence of my allowing Ground 2 of the appeal is that I must dismiss Ground 2 of the cross-appeal concerning the Possession Issue, this is because I am satisfied that, as the Judge found, Mr Gold and Mrs Gold became trespassers in the Property in June 2021 on the expiration of the notice to quit, which determined their licence to occupy.[90]I therefore dismiss Ground 2 of the cross-appeal.

Interest Issue

[91]Mr Taylor, in my view quite correctly, accepted on behalf of Mr and Mrs Gold that if I upheld the Judge’s decision on the Rent Issue, then it would be appropriate to uphold her decision on the Interest Issue and dismiss Ground 3 of the cross-appeal, at least subject to the point considered in paragraph 92 below.[92]I have noted the Judge’s finding in respect of interest in paragraph 21(iii) above. She tied the question of interest in with the close relationship between Mr Daniel and Mr and Mrs Gold, and the provision of accommodation to them in the form of the use of the Property and other factors relating to her finding a quid pro quo that underpinned her decision on the rent issue. On this basis, it seems to me that, subject to the point considered in paragraph 95 below, the Interest Issue stands and falls with the Rent Issue.[93]Thus if I had allowed Ground 1 of the appeal relating to the Rent Issue, then I would have allowed Ground 3 of the cross-appeal on the basis that both issues turn on the Judge’s finding as to the existence of the quid pro quo that she found underpinned the arrangements between the parties as she did in paragraphs 45 and 83 of the Judgment in particular.[94]However, as I have concluded that the Judge’s finding could not properly be said to be clearly wrong, or one that no reasonable judge could have reached on the evidence, Ground 3 of the cross-appeal should be dismissed, subject to the point considered in paragraph 95 below.[95]In paragraph 35 above, I concluded that it must have been open to either party to determine the informal quid pro quo on reasonable notice as DFH did with effect from 2 June 2021, and that if that happened then DFH would become entitled to possession of the Property, the loans would become repayable and interest would become payable on the loans at a reasonable commercial rate. Thus, I consider that interest would have become payable on the loans as from 2 June 2021, and to this limited extent, I would allow ground 3 of the cross-appeal.

Overall result

[96]I consider it appropriate to dismiss all the Grounds of Appeal and Grounds of Cross-appeal, apart from: i) Ground 2 of the appeal which should be allowed to the extent that I have found that as the Judge had, in my view correctly, decided that Mr and Mr Gold were trespassers in the Property as from 2 June 2021, I consider that she should have gone on to award damages for trespass as from that date. I have set out in paragraph 28 above how the sum payable by way of damages ought to be calculated; and ii) Ground 3 of the cross-appeal relating to the Interest Issue, to the extent that I consider that interest became payable as from 2 June 2021 at a reasonable commercial rate. To the extent that agreement cannot be reached as to an appropriate rate, I will hear submissions thereon when I deal with consequential matters.