“5.3 No. 8 and No. 28, Brendon Street, London, United Kingdom. Estimated value of my interest: PKR62,997,445/£461,993 . 5.3.1 the registered proprietor of these two separate properties is Energy Plus Limited (see paragraph 8.6 below) a company registered in Cayman Islands. I believe that Energy Plus Limited would acknowledge that I have an interest arising from an informal settlement in these properties to the value of PKR62,997,445/£461,993 but my interest is not registered as a charge on the property. The title registers for the properties confirmed that they each have a mortgage with Habibsons Bank…. 8.6 Energy Plus Limited I do not have any direct or indirect legal or beneficial interest in the above company. I do not have any power and/or control over any share in this company nor is there any third party who holds or controls this asset in accordance with my direct or indirect instructions as defined in paragraph 6 of the Order. However, as mentioned above, I have an interest in two properties (House No. 8 & 28, Brendon Street, London, UK) owned by this company to the extent of PKR62,997,445/£461,993 only.”
“17. It is convenient to begin with a re-statement of the basic principles by which equity (which in this respect is shared by England and Wales and the British Virgin Islands) provides for identification of beneficial interests arising from a gratuitous transfer of property. First, if either the transferor or the transferee makes a written (or oral) declaration as to those beneficial interests, or they do so together in an agreed form, that will generally be decisive, regardless of the subjective intentions of either of them: see for example Whitlock v Moree[2017] UKPC 44 . Secondly, and in default of any such declaration, the court looks for evidence from which a common intention as to beneficial ownership may be inferred. This may include evidence of statements made by either party before, at the time of or even after the relevant transfer, the parties’ conduct, and the factual context in which the transfer takes place. Sometimes, a choice between possible conclusions as to beneficial interest may properly be arrived at by a process of elimination, whereby the most unlikely conclusions are first removed, leaving the least unlikely as the correct one. Finally, recourse may be had to time-honoured presumptions, such as the presumption of advancement or the presumed resulting trust, where there really is no evidence from which an inference as to common intention may properly be drawn. But these are, in modern times, a last resort, now that historic restrictions on the admissibility of evidence have been removed, and the forensic tools for the ascertainment and weighing of evidence are more readily available to the court.”
“10-019 When property is purchased and transferred into the name of a person other than the purchaser, a resulting trustarises in favour of the purchaser if there is a presumption of a resulting trust which is not rebutted by evidence that he intended a gift, or if the purchaser establishes that it was his actual intention that the property purchased was not to be owned beneficially by the person in whose name the purchase was made. A presumption of resulting trust arises only when the purchase is made in the name of a person who is in equity a stranger to the real purchaser. Hitherto, where a purchase has been made in the name of a person who is not in equity a stranger to the real purchaser, such as his spouse or child, then a presumption of gift, called the presumption of advancement, has arisen in favour of the nominal purchaser. Where this presumption has applied,the real purchaser has been able to establish a resulting trust in his favour only by evidence of his actual intention rebutting the presumption of advancement. When, if ever,section 199 of the Equality Act 2010 comes into force, the presumption of advancement will be abolished, except in relation to anything done before, or in relation to any obligation incurred before, that date.The presumption of advancement has generally been considered to apply only to purchases by a father or husband, and not to those by a wife or mother, the House of Lords having recognised as long ago as 1969 that the presumption arose in circumstances when women’s role in society was very different to now.It is now tolerably clear that the presumption of advancement applies without gender discrimination, so in principle will apply to purchases by a mother in the name of her child and of a wife in the name of her husband.The remainder of this section should be read subject to these points. It would appear that it does not apply as between unmarried couples,but it would almost certainly be held to apply as between civil partners in the same way as spouses. 10-020 It has been seen above that the presumptions of resulting trust and of advancement are, compared with evidence of actual intention, of only limited significance in relation to the establishment of resulting trusts that arise on gratuitous lifetime transfers in the circumstances there considered.The Court of Appeal (in the context of a purchase by a father in the name of his child) has more recently indicated that the law applies presumptions only where there is no evidence of the intention with which a transfer is made, and the court did not draw any distinction in this regard between voluntary transfers and purchases, nor between the different kinds of relationship to which the presumption of advancement applies.We will, nonetheless, approach this topic in the traditional manner, by considering first the presumptions that arise, and secondly the manner in which they may be rebutted. Presumption of resulting trust 10-0 21 The general rule is that when real or personal property is purchased in the name of a stranger, a resulting trust is presumed in favour of the person who paid the purchase money,if he did so in the character of purchaser. Land 10-022 The rule was long ago established in relation to land: “The clear result of all the cases, without a single exception, is that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser; whether in one name or several, whether jointly or successivè;results to the man who advances the purchase money 92 … and it goes on a strict analogy to the rule of the common law, that where a feoffment is made without consideration, the use results to the feoffor.”
“These findings are not, it seems to me, inconsistent with the ladies' undoubted intention that the property should be available as a London home for both of them. Had Mr Lowe taken the trouble to obtain further instructions from Princes Madawi, he might have suggested that some part of Garden's share capital should be owned by Princess Hend, and I have little doubt that a suggestion would have been welcomed by Princess Madawi. But there was nothing particularly surprising about Princess Madawi owning all the shares; in a way it mirrored the situation in Riyadh, where Princess Hend was sole owner of the house where she and Princess Madawi lived when they were both in Saudi Arabia. As Lord Bridge said in Lloyds Bank v Rosset[1991] 1 AC 107 ,[1990] 1 All ER 1111 , at page 130 of the former report, neither a common intention to renovate a house as a joint venture, nor a common intention that a house is to be shared, throws any light on the parties' intentions as regards beneficial ownership. For these reason I think that it is Princess Madawi's intentions, and hers alone, that I am concerned with. The other point that I have to come back to is the significance of the transfer being made to a company whose whole share capital belonged to Princess Madawi. If (as in McGrath v Wallis[1995] 2 FLR 114 , [1995] 3 FCR 661,) a father and son both contribute to the purchase of a house which is transferred to the son alone, the question whether beneficial ownership corresponds to, or differs from, legal ownership - however it is resolved - has serious financial consequences for the parties. If they fall out and the house has to be sold during the father's lifetime, it affects the destination of the proceeds of sale; if they retain the house until the father dies, it affects how much he has to leave by his will. The position is quite different if the house belongs to a private company. If a private company is sole legal owner of the house, and the occupier of the house is sole legal and beneficial owner of all the company's shares, then (so long as both parties remain solvent) there is no basic economic difference between the company being sole beneficial owner of the house, and being a nominee for the occupying shareholder. There will be incidental differences - for instance, the tax implications - and these may be of some practical importance, as has been seen. But at a basic level a wholly-owned company cannot be seen by its shareholder either as a potential rival to him in claims to ownership of property, or as a potential recipient of bounty from him (see, in a different context, IRC v Levy[1982] STC 442 56 Tax Cas 68). What goes out of one economic pocket comes straight into the other. In these circumstances I can see very little room for the application of the traditional presumptions as between Princess Madawi and Garden. I do not discount them completely but I must look first for evidence of actual intention before having recourse to the judicial last resort. From the evidence of Princess Madawi herself (who gave evidence clearly and candidly, though with understandable gaps in her recollection) I find that she did decide that Garden was to be the owner of the property, even if she reached that decision with some reluctance because of Miss Hassan's advice against it. That decision (reached on the understanding that she would be shareholder, but without any advice or thought as to the possibility of nominee ownership and a resulting trust) seems to me to be conclusive evidence of her intention that Garden should indeed be the owner - in technical terms which were not explained to her, that Garden should be beneficial as well as legal owner. The position cannot in my judgment be affected by both ladies having subsequently contributed to the cost of repairing, improving and equipping the property. I can see no evidence that their sharing of these expenses, which was natural in the circumstances, marked any change of common intention or was capable of creating any trust which did not exist beforehand. I reach this conclusion on my findings as to Princess Madawi's own intentions, without adopting a submission (made to me by Mr Briggs in opening, and repeated more tentatively in reply) as to a client being bound by his solicitor's intentions, if the client has decided to leave a matter to the solicitor. There may be some such principle, especially in the field of artificial tax avoidance (see IRC v Fitzwilliam[1993] 3 All ER 184 ,[1993] 1 WLR 1189 ) but its scope is not clear and it cannot, on any view, be of completely general application. If I had to inquire into Mr Lowe's intentions I should have great difficulty in deciding what they were, not only because of his very imperfect recollection of his advice but also because of his rather imperfect understanding of what he was advising on. Instead I base my conclusion, as I have indicated, on what Princess Madawi said about her own decision to accept her solicitor's advice, and her own likely understanding of his brief explanation of the reasons for it.”
“Over and above those matters Mr Munby submitted, and I agree, that the proper and natural inference from the decision by an individual to purchase a property in the name of a company and provide it with the funds to do so, especially where the company is controlled by the individual, is that the company should be the beneficial as well as the legal owner of the money and then the property. This is well illustrated in Stockholm Finance Limited v Garden Holdings Inc & ors (unreported)26 October 1995 … … Although not a director or shareholder of Omdeep and not a beneficiary of the Lotus Trust, Mr Mehta effectively controlled both Omdeep, through having undated letters of resignation of the three directors, and the Lotus Trust (and through the Lotus Trust the shares in Omdeep) through his power, while protector, to appoint new trustees of the Lotus Trust and, through the exercise of that power and the exercise of his power as protector, his further powers to procure the appointment of whatever beneficial trusts he might wish. The existence of this control renders it all the more likely that Mr Mehta's intention (as provider of the funds) was that Omdeep should become and remain the beneficial — and not just the legal — owner of the property. I therefore conclude that, although he provided the purchase monies, Mr Mehta did not become the beneficial owner of No 8.”
“ Inference or imputation? 26. In Stack v Dowden Lord Neuberger observed (paras 125-126): “While an intention may be inferred as well as express, it may not, at least in my opinion, be imputed. That appears to me to be consistent both with normal principles and with the majority view of this House in Pettitt[1970] AC 777 , as accepted by all but Lord Reid in Gissing v Gissing[1971] AC 886 , 897H, 898B-D, 900E-G, 901B-D, 904E-F, and reiterated by the Court of Appeal in Grant v Edwards[1986] Ch 638 at 651F-653A. The distinction between inference and imputation may appear a fine one (and in Gissing v Gissing[1971] AC 886 , at 902G-H, Lord Pearson, who, on a fair reading I think rejected imputation, seems to have equated it with inference), but it is important. An inferred intention is one which is objectively deduced to be the subjective actual intention of the parties, in the light of their actions and statements. An imputed intention is one which is attributed to the parties, even though no such actual intention can be deduced from their actions and statements, and even though they had no such intention. Imputation involves concluding what the parties would have intended, whereas inference involves concluding what they did intend.”
“Returning to the crucial question there is a wide gulf between inferring from the whole conduct of the parties that there probably was an agreement, and imputing to the parties an intention to agree to share even where the evidence gives no ground for such an inference. If the evidence shows that there was no agreement in fact then that excludes any inference that there was an agreement. But it does not exclude an imputation of a deemed intention if the law permits such an imputation. If the law is to be that the court has power to impute such an intention in proper cases then I am content, although I would prefer to reach the same result in a rather different way. But if it were to be held to be the law that it must at least be possible to infer a contemporary agreement in the sense of holding that it is more probable than not there was in fact some such agreement then I could not contemplate the future results of such a decision with equanimity.” 28. The decision of the House of Lords in Gissing v Gissing has been so fully analysed and discussed that it is almost impossible to say anything new about it. However it may be worth pointing out that their Lordships' speeches were singularly unresponsive to each other. The only reference to another speech is by Viscount Dilhorne (at p 900) where he agreed with Lord Diplock on a very general proposition as to the law of trusts. The law reporter has managed to find a ratio for the headnote (at p 886) only by putting these two propositions together with some remarks by Lord Reid (at p 896) which have a quite different flavour. We can only guess at the order in which the speeches were composed, but the third and fourth sentences of the passage from Lord Reid's speech, set out in the preceding paragraph, suggest that Lord Reid had read Lord Diplock's speech in draft, and thought that it was about “an imputation of a deemed intention.” 29. This sort of constructive intention (or any other constructive state of mind), and the difficulties that they raise, are familiar in many branches of the law. Whenever a judge concludes that an individual “intended, or must be taken to have intended,” or “knew, or must be taken to have known,” there is an elision between what the judge can find as a fact (usually by inference) on consideration of the admissible evidence, and what the law may supply (to fill the evidential gap) by way of a presumption. The presumption of a resulting trust is a clear example of a rule by which the law does impute an intention, the rule being based on a very broad generalisation about human motivation, as Lord Diplock noted in Pettitt v Pettitt[1970] AC 777 , 824: “It would, in my view, be an abuse of the legal technique for ascertaining or imputing intention to apply to transactions between the post-war generation of married couples ‘presumptions' which are based upon inferences of fact which an earlier generation of judges drew as to the most likely intentions of earlier generations of spouses belonging to the propertied classes of a different social era.”
“36. In the meantime there will continue to be many difficult cases in which the court has to reach a conclusion on sparse and conflicting evidence. It is the court's duty to reach a decision on even the most difficult case. As the deputy judge (Mr Nicholas Strauss QC) said in his admirable judgment[2009] EWHC 1713 (Ch) ,[2010] 1 WLR 2401 , para 33 (in the context of a discussion of fairness) “that is what courts are for.”
“51. In summary, therefore, the following are the principles applicable in a case such as this, where a family home is bought in the joint names of a cohabiting couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests. (1) The starting point is that equity follows the law and they are joint tenants both in law and in equity. (2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change. (3) Their common intention is to be deduced objectively from their conduct: “the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party's words and conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party” (Lord Diplock in Gissing v Gissing[1971] AC 886 , 906). Examples of the sort of evidence which might be relevant to drawing such inferences are given in Stack v Dowden , at para 69. (4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, “the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property”: Chadwick LJ in Oxley v Hiscock[2005] FAm 211 , para 69. In our judgment, “the whole course of dealing … in relation to the property” should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties' actual intentions. (5) Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4)). 52. This case is not concerned with a family home which is put into the name of one party only. The starting point is different. The first issue is whether it was intended that the other party have any beneficial interest in the property at all. If he does, the second issue is what that interest is. There is no presumption of joint beneficial ownership. But their common intention has once again to be deduced objectively from their conduct. If the evidence shows a common intention to share beneficial ownership but does not show what shares were intended, the court will have to proceed as at para 51(4) and (5) above. 53. The assumptions as to human motivation, which led the courts to impute particular intentions by way of the resulting trust, are not appropriate to the ascertainment of beneficial interests in a family home. Whether they remain appropriate in other contexts is not the issue in this case.”
“49. Of the other five properties owned by PRL, the first category comprises the three properties (Flats 4 and 5, 27 Abbey Road, and Flat 2, 143 Ashmore Road) acquired by the company in December 1995 and March 1996, in each case for a nominal consideration of£1 . Since no explanation has been forthcoming for the gratuitous transfer of these properties to PRL, there is nothing to rebut the ordinary presumption of equity that PRL was not intended to acquire a beneficial interest in them. The only question is who did hold the beneficial interest. Flat 4, 27 Abbey Road was transferred by the husband, who had originally bought it in his own name in 1991, before PRL was incorporated. There is therefore an ordinary resulting trust back to the husband, which is held by him subject to the charges in favour of Ahli United Bank and BNP Paribas. Flat 5, 27 Abbey Road was transferred to PRL by the husband's younger brother Michel. He had acquired title shortly before at a time when he could not have paid for it himself. The wife's evidence was that the husband paid for it. Again, there is no evidence to rebut the ordinary inference that the husband was the beneficial owner of the property at the time of the transfer to PRL, and that the company held it on a resulting trust for him. The leasehold interest in Flat 2, 143 Ashmore Road was transferred to PRL by the wife. The rather curious chain of title before that is summarised above. The circumstances suggest that the husband must have provided the purchase money and was the beneficial owner when the legal estate was held by Jimmy Lawrence and also at the time of its transfer from him to the wife. Either it then became the beneficial property of the wife (which is what equity would initially presume); or else it remained in the beneficial ownership of the husband, which is what I would on balance infer from the wife's evidence that the transfer was procured by the husband without her conscious involvement. In either case, the company as the legal owner can be required to transfer this property to the wife. I conclude that the husband was at all relevant times the beneficial owner of all three properties.”
“50. The freehold interest in 143 Ashmore Road and Flat 6, 62–64 Beethoven Street come into a different category. Flat 6, 62–64 Beethoven Street is known to have been acquired by PRL from the husband in August 1998 for substantial consideration. Since PRL had not begun operations at that stage, I infer that the purchase money must have come from the husband. Virtually nothing is known about the terms of acquisition of the wife's interest in the freehold of 143 Ashmore Road, except that the husband says that the money came from PRL. I infer for the same reason that PRL was funded by the husband. In itself, that is consistent with PRL being the beneficial owner if, for example, the husband provided the money to the company by way of loan or capital subscription. But there is no evidence to that effect, and I would not be willing to presume it in the absence of any. I conclude that the husband was the beneficial owner of these two properties.”
“52. Whether assets legally vested in a company are beneficially owned by its controller is a highly fact-specific issue. It is not possible to give general guidance going beyond the ordinary principles and presumptions of equity, especially those relating to gifts and resulting trusts. But I venture to suggest, however tentatively, that in the case of the matrimonial home, the facts are quite likely to justify the inference that the property was held on trust for a spouse who owned and controlled the company. In many, perhaps most cases, the occupation of the company's property as the matrimonial home of its controller will not be easily justified in the company's interest, especially if it is gratuitous. The intention will normally be that the spouse in control of the company intends to retain a degree of control over the matrimonial home which is not consistent with the company's beneficial ownership. Of course, structures can be devised which give a different impression, and some of them will be entirely genuine. But where, say, the terms of acquisition and occupation of the matrimonial home are arranged between the husband in his personal capacity and the husband in his capacity as the sole effective agent of the company (or someone else acting at his direction), judges exercising family jurisdiction are entitled to be sceptical about whether the terms of occupation are really what they are said to be, or are simply a sham to conceal the reality of the husband's beneficial ownership.”
“61. Prima facie , the transfer of the legal title to a property will carry with it the absolute beneficial interest in the property conveyed. In the circumstances, a person who is not the legal owner of the property who asserts that he is the beneficial owner has to be able to establish a trust of land under which the legal owners hold their legal interest on trust for the beneficial owner. A trust of land can be created expressly, by means of fully satisfying the requirements ofs 53(1) of the Law of Property Act 1925 , or by operation of law, by means of a resulting trust (in circumstances where the property is purchased in the name of the legal owner with the money of the beneficial owner) or a constructive trust (in circumstances of common intention between those concerned, a change of position on the part of the beneficiary and a finding that it would be unconscionable to deny the claim).Section 53(2) of the Law of Property Act 1925 provides that the requirement in s 53(1)(b) that the trust be evidenced in writing does not affect the creation or operation of resulting, implied or constructive trusts. The burden of proof lies on the person asserting the existence of a trust of land.”
“72. With respect to resulting trusts, when real or personal property is purchased in the name of a stranger (in equity), a resulting trust is presumed in favour of the person who paid the purchase money, if he did so in the character of purchaser ( Rochefoucauld v Boustead[1897] 1 Ch. 196 ). With respect to real property, this principle has a very long pedigree. In Dyer v Dyer (1788) 2 Cox 92 at 93, Eyre LCB observed that: "The clear result of all the cases, without a single exception, is that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser; whether in one name or several, whether jointly or successivè; results to the man who advances the purchase money. This is a general proposition, supported by all the cases, and there is nothing to contradict it; and it goes on a strict analog to the rule of the common law, that where a feoffment is made without consideration, the use results to the feoff or. It is the established doctrine of a Court of equity, that this resulting trust may be rebutted by circumstances in evidence." 73. The modern approach concerning the establishment of a resulting trust is that such a trust can be established by evidence of the intention of the purchaser (see Kyriakides v Pippas [2004] 2 FCR 434 at [74] and [76]) or, absent such evidence, by way of a presumption that is not rebutted by evidence of a counter presumption of advancement or an intention to make an outright transfer (see Vandervell v I.R.C. [1967] 2 A.C. 291 at 312 and Westdeutsche Landesbank Girozentrale v Islington LBC[1996] AC 669 at 708A). 74. A vital ingredient in creating a resulting trust is establishing that payment of the purchase money for the property was made in the character of a purchaser. In most cases, the person who claims to be the real purchaser pays the purchase money direct to the vendor, and, so long as it is clear that he was not a lender or giving a gift, there should be no difficulty in showing that it was he who was the provider of the purchase money in the character of purchaser (see Lewin on Trusts (19th Edtn.) at [09-049]). In Hashem v Shayif & Anor[2008] EWHC 2380 (Fam) ;[2009] 1 FLR 115 Munby J (as he then was), made clear at [114] that: "…whether A provided the money by way of gift, or by way of loan, or qua purchaser is, in the final analysis, a simple question of fact, to be determined in the light of all the evidence as to the relevant circumstances, including, subject to the rule in Shephard v Cartwright[1955] AC 431 (see per Viscount Simmonds at page 445), the parties' evidence as to their intentions at the time."”
“110. I am, of course, acutely aware that there exists in this case a TR1 that purports to contain an express declaration of trust in favour of the husband and the Grand Duke, upon which purported express declaration the wife seeks to rely. I am likewise, of course, acutely aware of the principle in Goodman v Gallant that where a relevant conveyance contains an express declaration of trust which comprehensively declares the beneficial interests in the property or its proceeds of sale, there is no room for the application of the doctrine of resulting or constructive trusts unless and until the conveyance is set aside or rectified and that, until such an event, the declaration contained in the document speaks for itself. However, on the evidence that is before the court in this particular case, I am satisfied that Mr Leech must succeed in his argument as to the ownership of the beneficial interest in the former matrimonial home, based on the express terms ofs 53(1)(b) of the Law of Property Act 1925 . 111. The declaration of an express trust purportedly evidenced by the TR1 can only be effective if, at the time they purported to declare it, the husband and the Grand Duke were "able" to declare a trust of the beneficial interest for themselves for the purposes ofs 53(1)(b) of the 1925 Act . However, at the time they purported so to declare, I am satisfied that the beneficial interest in the former matrimonial home was vested in the ADB under a resulting trust for the following reasons. 112. It is important to note that this is not a 'consumer context case' in which a couple in an intimate relationship jointly purchase a property in which they intend to reside, perhaps with the assistance of a mortgage, and in the transfer document execute an express declaration of trust over the property in favour of themselves, thereby setting out their beneficial entitlement as part of the purchase they have made. In this case, the purchase monies for the former matrimonial home were provided from the GroBherzogliches Fideicommiss / fidéicommis grand-ducal and paid to the vendor by the ADB. The documentary evidence before the court confirms that the money in question was paid from the bank account of the ADB It is common ground between the parties that the intention was that, on any sale of the former matrimonial home, the monies provided from the GroBherzogliches Fideicommiss / fidéicommis grand-ducal would be returned to the ADB as the proceeds of sale. I am satisfied that there is nothing in the evidence before the court to suggest that the monies originally provided from the GroBherzogliches Fideicommiss / fidéicommis grand-ducal constituted a loan or a gift to husband and the Grand Duke. 113. In the circumstances, satisfied as I am on the unchallenged expert evidence before the court that it is more likely than not that the GroBherzogliches Fideicommiss / fidéicommis grand-ducal and the ADB have separate legal personalities, I am satisfied that the purchase monies from the GroBherzogliches Fideicommiss / fidéicommis grand-ducal were paid to the vendor of the former matrimonial home by the ADB in the character of a purchaser. Further, on the evidence before the court, I am satisfied that at the time the purchase monies from GroBherzogliches Fideicommiss / fidéicommis grand-ducal were paid by the ADB it was the settled intention of the ADB, the Grand Duke and the husband that the ADB would hold the beneficial interest in the property. I derive that conclusion from the following matters: i) As I have noted, the property was purchased by the ADB with funds from the GroBherzogliches Fideicommiss / fidéicommis grand-ducal. ii) As I have also noted, the wife herself concedes that upon any sale of the former matrimonial home the proceeds of sale would return to the ADB. iii) Whilst the compromis de vente completed in relation to the former matrimonial home contains omissions in terms of the husband's signature and a date, its existence in my judgment evidences an intention that the ADB would hold the beneficial interest in the property purchased with funds from the GroBherzogliches Fideicommiss / fidéicommis grand-ducal. Firstly, by reason of the distinction the existence of the compromis de vente creates between the manner in which the property in US property was purchased. When using private funds of Grand Duke to purchase the US property, no compromis de vente was drafted by the ADB. When using funds from the GroBherzogliches Fideicommiss / fidéicommis grand-ducal to purchase the former matrimonial home a compromis de vente was completed by the ADB. Whilst Mr Ewins emphasised the similarities between these two property transactions, in my judgment it is the differences between the manner in which the respective properties were purchased that are more significant. In particular, the fact that when the funds came from the GroBherzogliches Fideicommiss / fidéicommis grand-ducal as distinct from the private funds of the Grand Duke, a compromis de vente designed, as I am satisfied it was, to evidence the ADB's interest was employed. Secondly, by reason of the fact that, whilst incomplete, the terms of compromis de vente themselves constitute evidence of the intention of the husband, the Grand Duke and the ADB that the ADB would retain the beneficial interest in the former matrimonial home. iv) The statement of the husband accepts he holds no share of the beneficial interest in the property. Whilst this might be regarded as a self-serving statement in the context of these proceedings, and therefore of lesser weight, it is consistent with the other matters I have set out in this paragraph. 114. Within the context of this evidence of intention, having regard to the modern approach to resulting trusts set out in Kyriakides v Pippas , I am satisfied that it is not necessary to go on to consider the operation of the presumption. In these circumstances and having regard to the legal principles set out above, I am satisfied that the effect of the matters set out in the foregoing paragraphs was to create, upon the payment of the purchase monies from the GroBherzogliches Fideicommiss / fidéicommis grand-ducal by the ADB, a resulting trust of the beneficial interest in the former matrimonial home in favour of the legal entity that provided the entirety of the purchase monies for that property. Whether the beneficial interest in the former matrimonial home is owned under the resulting trust by the ABD, which paid the purchase monies, or the GroBherzogliches Fideicommiss / fidéicommis grand-ducal, which provided the purchase monies, is perhaps a point of some nicety. However, it is not necessary to decide that point for the purposes of the decision this court has to make. The key point is that the purchase monies did not, I am satisfied, come from the husband or the Grand Duke and they did not intend to own the beneficial interest in the property. 115. I remain cognisant of the principle in Goodman v Galant . However, whilst in Goodman v Galant the Court of Appeal stated that there is no room for the application of the doctrine of resulting or constructive trusts "unless and until the conveyance is set aside or rectified", in Pankhania v Chandegra I perceive the point as having been expressed in somewhat less absolute terms, with the Court of Appeal stating that there is no room for the application of the doctrine of resulting or constructive trusts unless the defendant has "established a case for setting the declaration of trust aside". Within this context, it seems to me that, given the foregoing evidence before this court, it would be artificial in this case to proceed on the basis of the TR1 when it is plain on that evidence that the husband and the Grand Duke were not "able" to declare a trust of the beneficial interest by reference to the terms ofs 53(1)(b) of the Law of Property Act 1925 and, as Mr Leech submits, any application to set aside the declaration on the grounds of mistake would be bound to succeed (accepting that no such application is before the court). A trust of the beneficial interest in the former matrimonial home was not the husband's and the Grand Duke's to declare. In short, you cannot declare an express trust in a beneficial interest that is not yours (or, to indulge in the Latin, nemo dat quod non habet ). 116. I have, of course, given careful consideration to the contrasting arguments advanced by the wife in support of her case that the husband does own a share of the beneficial interest in the former matrimonial home. I have dealt with the wife's contentions regarding the TR1 in detail above. With respect to the wife's assertion that some of the funds provided for the purchase of the US property constituted a gift to the husband from his mother, which funds were subsequently used to purchase the London property, as very properly accepted by the wife of her own volition, no corroborating evidence of the conversation said to ground that assertion is before the court or exists. The assertion was not raised by the wife prior to the hearing (she stating, perhaps understandably, that she had not appreciated the continuing legal significance of the disposal of Florida property within these proceedings). Further, the wife did not challenge Mr Wildgen's evidence that the funds to purchase the US property were provided by the ADB from the Grand Duke's 'private' funds and appeared to accept during her evidence that the proceeds of sale from the US property were returned to the ADB in their entirety. In any event, as I have noted above, the chronology makes clear that the former matrimonial home was paid for by the ADB with funds from GroBherzogliches Fideicommiss / fidéicommis grand-ducal prior to the sale of the US property. With respect to the wife's argument regarding the omissions in the compromis de vente, whilst it is plain that the husband did not sign that document and that the document is undated, those omissions do not act to alter my conclusions as to what intention is evidenced by the terms of that document within the context of my finding that the ADB paying for the former matrimonial home with funds from GroBherzogliches Fideicommiss / fidéicommis grand-ducal. Finally, with respect to the email from Mr von Habsburg, as I have already set out I am satisfied that Mr von Habsburg's description of the parties as owners in his email of11 August 2011 is a term of art or a shorthand, rather than an accurate description of the manner in which the former matrimonial home was held following the transaction. 117. It follows in the circumstances that I must conclude that the husband does not own a share of the beneficial interest in the former matrimonial home. In the circumstances, I am satisfied that the beneficial interest in the former matrimonial home does not fall for distribution in these financial remedy proceedings between the husband and the wife.”
“604. In the context under consideration, a nominee is someone who owns property, but holds it on a bare trust for the principal absolutely, effectively dealing with the property as the principal directs, including conveying it to the principal so as to terminate the trust: see Lewin , 1-028. Whether property is held by someone in the capacity of a nominee is essentially a question of fact. Lord Sumption, in Prest v Petrodel Resources Ltd[2013] UKSC 34 ;[2013] 2 AC 415 , [52] , observed [see citation above]… : 605. There are number of matters which may support the conclusion that the apparent owner of property in fact holds it as a nominee for someone else: whether someone other than the alleged nominee exercises control over the asset ( Phoenix v Cochrane [2017] EWHC (Comm), [17(5)]); whether the apparent owner uses or allows the asset to be used in a manner which advances someone else's interests rather than its own ( Prest, [52]); who paid for the asset, which may support a conclusion that it is held on constructive trust (Lewin, 10-019) and whether the person alleged to be the "real" owner had a motive to disguise his or her ownership ( JSC BTA Bank v Solodchenko & Ors[2015] EWHC 3680 , [8] ).”
“(2) Regard may be had, in particular, to the following— (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.” (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”