DEVON SMITH

Claimant

AND

—-·—–·————-·-···–

2018: December 7;

2019: May 22.

———————————

JUDGMENT

[1] GLASGOW, J.: The claimant, Devon Smith (“Mr. Smith”) seeks an order against the defendants for possession of premises being the upper floor of a dwelling house at La Taste in the parish of Saint Patrick in the State of Grenada. The 1s1defendant, Elizabeth Halley, (“Ms. Halley”) counterclaims for a declaration that she is entitled to an undivided forty percent (40%) share or a reasonable share in the dwelling house aforesaid.She further seeks an order that the said dwelling house be valued, and the claimant forthwithpay to her, her share of the dwelling house aforesaid.The 2nd defendant, Naureen John, (“Ms. John”) also counterclaims for reasonable compensation for four (4) years of domestic services and child care given to the claimant.

[2]Mr. Smith and Ms. Halley had been in an intimate relationship for several years, which produced two children, one of whom eventually died.The two met while they were in secondary school. Mr. Smith alleges that heand Ms. Halley first got together in or about the years 1998 to 1999. He was occasionally occupied in the trade of barbering at the time of the commencement of their relationship. He was also a professional cricket first for the Windward Islands Cricket team thenthe West Indies Cricket team. His evidence exposes that his financial circumstances improved significantly once he commenced his career with the West Indies Cricket team. Engagement with his barbering trade appears to have declined after he started playing for the West Indies Cricket team.

[3]At some during the courtship, they resided together in the downstairs of Ms. Halley parents’ home for a number of years. Ms. Halley alleges that while they lived in the downstairs of her parents’ home, Mr. Smith did not financially contribute to the household and it was her parents and herself who assisted and sustained him.While living at the home of Ms. Halley’s parents the couple became engaged to be married.

[4]Mr. Smith states that he got the opportunity to play for the West Indies Team as a cricketer in the year 2002.

[5]Ms. Halley states that she was employed as a Data Entry Clerk at GIFTA which is now known ei tile 0rtmacla Autnomy ror me Kegutauons OT f-tnancial Institution (GARFIN) from the year 2003 until 2013 when her services were terminated. Her evidence indicates that shedid not seek further employment post the termination of her employment at GARFIN. Instead she focused her time on caring for the medical

needs of the surviving child,Jayden Smith,who has a number of ailments.

[6]on 27th August 2008, Mr. Smith purchased land situate at La Taste in the parish of Saint Patrick measuring Fifteen Thousand Two Hundred and Thirty-six square feet

[15,236 sq. ft.}, which is recorded in the Deeds and Land Registry of Grenada in Uber 37-2008 at page 138.

[7]Shortly thereafter, Mr. Smith mortgaged the said land to the Grenada Co-operative Bank Limited on 29th August 2008, which is recorded In the Deeds and Land

Registry of Grenada in Uber 37-2008 at page 143. Both transactions above were done in Mr. Smith’s name only.

[8]Sometime in the year of 2008,Mr. Smith alleges that he contracted his brother and Ms. Halley’s father to build a two-storey dwelling house on the said land (“the property”). He alleges that he paid his brother and Ms. Halley’s father to build the property utilizing cash in the sum of $300,000.00 and the proceeds from the said mortgage with the Grenada Co-operative Bank Limited in the sum of $500.000.00.

[9]Ms. Halley says that it was always intended for them to build the house as the matrimonial home for them to reside together as a family. Ms. Halley’s assertion as to the purpose for the house also forms the soilon which the contention in this case is sown. For it is her further position that not only was the house to serve as the family home, it was also intended that she would share a beneficialinterest in the

house.

[10) In her evidence, Ms. Halley explains that –

[N]otwithstandlng that the Deed for the property is in the Claimant’s sole name and he has been responsible for the majority of the financing for the purchase of same and the construction of the house thereon, I, including my family, have made substantial financial contribution to the same … My
other financial contributions include –

[a) During the time of my employment, I purchased … from my own funds: furniture, wares, pots, a washing machine, curtains and other

[b) Additionally, the claimant and I travelled to New York to purchase furniture and furnishings … I made most of the decorative decisions for the house including the lighting fixtures, paint and tiles; the decorating of the subject house was mainly executed by the Second Defendant,

Naureen John and me.2

[11J Ms. Halley also relies on her non-financ ial contributions –

My non -financial contributions include but are not limited to the care of the children of the family (living and deceased) and domestic duties such as cooking, cleaning, washing and the upkeep of the yard and surroundings. I have been a Joyal, loving and supportive partner to the Claimant as well as
a loving, committed mother to their [ sic} children. I take care of the Claimant
and sees [sic]to his every need. The Claimant is seldom home and I tends [sic]to his affairs and the affairs of the subject property in his absence and even when he is present at home.3
 

[12]Ms. Halley also testifies that her father contributed to the construction and development of the property –

(a) Reducing the cost of construction to $800 , 000 when the true cost of construction was in excess of one million . ..
(b) Paying a portion for the plan in the sum of $4000.00.
(c) Purchase of the 622 Sq.Ft of/and …
 
 
 
1Ms. Halley lists and exhibits a number of bills and statements at paragraph 12 of her witness statement.
2 Ibid at para. 13
3 Ibid at para.28

[e) He also helped to negotiate a lower sum for the plans from $75,000.00 to $38,000.00…4

[13]Her brother’s contribution are listed as –

My brother, Daniel Halley, also took care of the lawn and flower beds with the help of his friends free of charge. He also repaired the front gate when the Claimant reversed into it, also free of charge. Further my brother did paint work and installed burglar bars for part payment. I paid my brother approximately $1000.00 for the erection of the back gate after the house was burglarized and further paid for repairs to some of the doors.s
 

[14) Ms. Halley submits that the sum total of her and/or her family’s financial and non – financial contributions demonstrates that she has a beneficial interest in the property. On this claim,she asks for that interest to be quantified and distributed to her.

[15]The intention stated by Ms. Halley is strongly disputed by Mr. Smith. His rebuttal is that he solely paid for the mortgage and all property taxes with respect to the property. He rejoins that there was never an intention that Ms. Halley would share a beneficialownership of the property.

[16]Mr. Smith alleges that, in addition to solely purchasing the land and paying for the construction of the house,it is he who deposited $40,000.00 of his money onto his credit card account to purchase furnishings for the property in New York . Both Mr. Smith and Ms. Halley travelled to New York to purchase furnishings for the property.

 
4 Ms. Halley’s submissions filed on 14th January 2019 at para. 30
s Supra, note 1at para . 12(ix)

Ms. John claims that Mr. Smith asked her to move in the property in 2009, where she alleges that she served as a live-in housekeeper and caregiver for the children and made errands.She further claims that she cooked, cleaned and did laundry for the household including Mr. Smith without compensation from him for her services.

She therefore claims compensation for her contribution to the property and her four years of service.

[18]The issues that arise for the court to determine are as follows:

a) Whether Ms. Halley is entitled to a share In the property.
b) If yes, what share is she entitled to?
c) Whether Ms. John is entitled to compensation from the Claimant for domestic services.
d} If so, how much is she entitled to?
Mr. Smith ‘ s subm i ssions
 
 

[19]In his prayer for relief, Mr. Smith sought an order possession. Ms. Halley is no longer in occupation of the property. However, Mr. Smith still requests an order for possession since he believes that without such an order Ms. Halley may resume occupation.

[20]In respect of Ms. John, learned Queen’s Counsel for Mr. Smith submits that Ms. John admitted that at no time did she have any discussion with Mr. Smith with respect to payment for her services. Therefore , it is argued that by virtue of that admission Ms. John’s counterclaim for compensation is not proven and must fail.

[21]The case for Mr. Smith continues that since he and Ms. Halley were never married, the principles of the Matrimonial Cause Act are not applicable. Dictum is recited

[22]The court is urged to find that since the property is not registered in the joint names of Mr. Smith and Ms. Halley, Ms. Halley is tasked with the legal burden of proving that the parties intended that she would also have an interest in the property.

[23]With respect to the present case, learned Queen’s Counsel points out that there is no evidence that Ms. Halley contributed financially to the purchase or construction of the property. Indeed it is said that she admits the fact that Mr. Smith solely financed the purchase of the land and the construction of the house. In the circumstances, counsel argues, in order for Ms. Halley to establish any right as she asserts, she must show express agreement for shared ownership or direct or other contribution, from which an intention to share the asserted beneficial ownership can be inferred. It is opined that the court would be hard pressed to find any evidence of an express agreement that Ms. Halley would own an interest in the property.

There is no such materialbefore the court.

[24} Additionally, it is argued, there is nothing presented to the court from which it can infer a common Intent to share the beneficialinterest in the property. The court is reminded that it is Mr. Smith who paid the mortgage, bills, save and except, the cable and telephone bills and the purchase of some furniture, wares and gym equipment. Such matters as joint accounts are missing in this case.Starkly, learned Queen’s Counsel notes, both Mr. Smith and Ms. Halley maintained separate accounts even though Ms. Halley had access to the pinnumber of one of Mr. Smith’s accounts. counsel explains that it is not unusualfor people, who are living together to share account information but posits that this does not mean that they intended to own or share in each other’s finances and certainly would not entitle them to own the other’s property. Counsel reasons that the mere purchase of gym equipment or

 
6 (2000) 58 WIR 164

[29]Learned counsel for Ms. Halley’s opening salvo is that in the instance of cohabiting couples the court must examine the overall context of the relationship and adopt a practical approach to determine the true intention of the parties. He relied on the dictum of Lord Hope of Craighead in Stack v Dowden? in proffering this view.

[30]He stated that the court can infer or impute a bargain in the circumstances where when examining each individual case, it is fair and equitable to do so. Counsel submitted that the first question the court must ask is whether there was any agreement, arrangement or understanding reached between the parties. He went further to submit that in the absence of above,the court can examine the conduct of the parties to infer a common intention to share the property beneficially and as such to give rise to a constructive trust.

[31]In relation to the contribution of Ms. Halley to the purchase of the property,counsel repeated much of the material set out above. He further indicated that during the periods when Mr. Smith was away playing cricket, Ms. Halley, who was employed during that period. paid the bills and took care of the property, which enabled Mr.

Smith to pay the mortgage.

[32]Counselrepeated the claimthat Ms. Halley’s father contributed by reducing the cost of construction of the property, paying for a portion of the cost of the land and

negotiating for a lower sum for the plans of the property among other things.
[33]He went on to expound on the principles in Grant v EdwardsB, where the plaintiff in

the action made no direct contribution to the house,but a substantial contribution was made by raising the children and housekeeping.He continued that the court in Grant drew a distinction between conduct from which common intention can be

inferred and conduct which amounts to acting upon it.
 
7 (2007) UKHL page 17
8 (1987) 1FLR 87

[35]Counsel submitted that it is for Mr. Smith to displace the burden that Ms. Halley did not act to her detriment on the common intention. He also submits that the act of living together;examining the land;planning a family; construction of the property; decorating; paying bills; moving into the property; having a family and utilizing the

resources of Ms. Halley’s family and friends show that Ms. Halley acted to her detriment.

[36]He summed up that position by submitting that Mr. Smith has failed to displace the above burden and relied on the dictum of Sir Nicholas Browne-Wilkinson in Grant10.

[37]He stated that Ms. Halley indicated both in her evidence in chief and under cross examination that Mr. Smith always said that the house is their home. The bed was carved with their names at Mr. Smith’s request; their child is buried on the property; she paid bills; took care of the children and she was the homemaker. He continued that they shared all bills and used each other’s credit cards. He states that they were married,but for the ceremony.

[38]counsel referred the court to Eves v Eves11 where he expounded that the plaintiff, despite not contributing financially to the property was told she would own the

property jointly

but tor her age. He stated that Ms. Halley was told that it was their

was their property by Mr. Smith’s conduct despite not adding her name on to the deed and relied on the dictum of Lord Denning in Eves v Eves12.

[39]Further, counsel argued that the concept of detriment must be examined in the round and not as a narrow or technical concept. He then referred the court to the authority of Giiiett v Holt13 where the court analyzed the concept of detriment as being a broad concept and not a narrow one.

[40) A constructive trust is said to be created by the trustee holding property in trust for the cestui que trust by virtue of the conduct of the trustee and/or induced the cestui que trust to act to his detriment. It is further said that the trust is normally inferred and can be shown by direct or indirect contributions.

[41]At paragraph 50 of learned counsel’s submissions, he reasons that the court has a wide discretion when considering the concept of proprietary estoppel and the applicable factors in determining Ms. Halley’s contribution. Hewent further to submit that the court can decide to what extent relief can be given and what form it can take. He argues this discretion allows the court to consider Ms. Halley’s father and brothers’ contribution as being attributed directly to her. The principles in Abbott v Abbott14 are presented as supporting this view.

{42]With respect to the authority of Gibbs v Otway15, counselexplains that the Court of Appeal’s ruling in that decision was not premised onproprietary estoppalin relation to real estate, since there was an agreement at the trial of the matter that the Belmont property resided in the applicant and the Gr:ind Anse property in the respondent. He maintains that the authority of Gibbs does not apply to the present
 
12 Ibid
13 [2000]2 All ER at page 289
14 [2007]UKPC at page 53
15 GDAHCVAP1997/19

case and that it does not assist Mr. Smith, but supports Ms. Halley’s position that there was a common intention based on the relationship of the parties.

[43]In respect of Ms. John’s counterclaim, counsel presents hersituation as being based on a promise by Mr. Smith to pay her for her services even though she was not willing accept any money from him.

Discussions and conclusion
 

[44]The competing contentions in cases of this nature are never easy to reconcile. Speaking of the challenges facing judges in cases involving property in the joint names of parties, Baroness Hale of Richmond in Stack v Dowden 16explained some of the difficulties thusly –

This is not a task tobe lightly emba rked upon . In family disputes, strong feelings are aroused when couples split up. These often lead the parties, honestly but mistakenly, to reinterpret the past in self-exculpatory or vengeful terms. They also lead people to spend far more on the legal battle
than is warranted by the sums actually at stake. A full examination of the
facts is likely to involve disproportionate costs. In joint names cases it is a/so unlikely to lead to adifferent result unless the facts are very unusual. Nor may disputes be confined to the parties themselves. People with an
inter est in the deceased’s estate may well wish to assert that he had a
beneficial tenancy in common. (Bold emphasis mine)
[45]As far back as 1969 in Pettitt v Pettitt1 1 Lord Morris of Borth -Y- Gest also ruminated on the court’s role –
 
16 [2007) UKHL 17 at para. 68
11[1969]2 ALL ER 385 at page 395

[46]In Lloyds Bank Pie v Rosset and another1s, Lord Bridge of Harwich comments on the issue with reference to married couples but undoubtedly his thoughts are quite applicable to the resolution of property disputes between unmarried couples –

The question the judge had to determine was whether he could find that before the contract to acquire the property was concluded they had entered into an agreement, made an arrangement, reached an understanding or formed a common intention that the beneficial interest in the property would be jointly owned. I do not think it is of importance which of these alternative
expressions one uses. Spouses Jiving in amity will not normally think it necessary to formulate or define their respective interests in property in any precise way. The expectation of parties to every happy marriageis that they wiff share the practical benefits of occupying the matrimonial home whoever owns it. But this is something quite distinct from sharing the beneficial interest in the property asset which the matrimonial home represents.
 
 
1a [1990]1All ER 1111at page 1115

Overall context to be considered

[47]In arriving at what the parties intended, the overall context and course of their relationaldealings must be considered. Luckhoo JA in Abdool Hack v Rahieman1s explained the approach –

But, be that as it may, it is now abundantly clear that the law has moved away from the position of treating a man and his mistress as strangers, and now resolves allissues as to their respective beneficial interests in property
which is acquired by their joint efforts in the same manner asis done in similar disputes between married couples, and In arriving at their respective interests, consideration is not to be limited to the mere money contributions made, but must include all other relevant facts and circumstances . To quote again from Lord Denning in Cooke v Head ([1972]2 All ER 38, 1 WLR 518, 116 Sol Jo 298) [1972]2 All ER 38 at p 42:
7he matter must be looked at broadly just as we do in husband and wife cases. We look to see what the equity is worth at the time when the parties separate. Weassess the shares as at that time. If the property has
been sold we look at the amount which has been realised, and say how it
is to be divided between them. Lord Diplock in Gissing v Gissing intimated that it is quite legitimate to infer that…
 
 
 
 
 
19 (1977) 27 WIR 109 at 118

[48]Baroness Hale of Richmond also commented on this issue in Stack v Dowden20

The search is to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it.
 
Oxley v Hiscock was, of course, a different case from this. Theproperty had been conveyed into the sole name of one of the cohabitants. The Claimant had first to surmount the hurdle of showing that she had any beneficial interest at all, before showing exactly what that interest was. The first could readily be inferred from the fact that each party had made some kind of financial contribution towards the purchase. As to the second, Chadwick LJ
said this, at para 69:
 
. . .in many such cases, the answer will be provided by evidence of what they said and did at the time of the acquisition. But, in a case where there is no evidence of any discussion between them as to the amount of the
share which each was to have – and even in a case where the evidence is that there was no discussion on that point – the question still requires an answer. It must now be accepted that (at least in this court and below) 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. And in that context, the whole course of dealing between them in relation to the property includes the arrangements which they make from time to time in order to meet the outgoings (for example, mortgage contributions, council tax and
 
 
 
20 [2007]UKHL 17 at paras. 60-61

That may be the preferable way of expressing what is essentially the same thought, for two reasons. First, it emphasises that the search is still for the result which reflects what the parties must, in the light of their con-duct, be taken to have intended. Second, therefore, it does not enable the cowt to

abandon that search in favour of the result which the court itself considers
fair. For the court to impose its own view of what is fair upon the situation in which the parties find themselves would be to return to the days before Pettitt v Pettitt (1970] AC 777 without even the fig leaf of s 17 of the 1882 Act. (Bold emphases mine)
Where does the burden lie?
 

[49]The burden falls on Ms. Halley to demonstrate that there was an intention for her to acquire an interest in the property –

The cases can be broken down into those where there Is a single legal ownership and thosewhere there is joint legal ownership. There must be consistency of approach between these two cases a point to which my noble and learned friend Lord Neuberger of Abbotsbury has drawn our attention. I think that consistency is to be found by deciding where the onus lies if aparty wishes to show that the beneficial ownershipis different from the legal ownership. I agree with Baroness Hale that this is achieved by taking sole beneficial ownership asthe starting point in the first case and by taking joint beneficial ownership asthe starting point in the other. In this context joint beneficial ownership means that the sharesare presumed to be divided betweenthe beneficial owners equally. So in a case of sole
legal ownership the onus is on the party who wishes to show that he has any beneficial interest at all , and if so what that interest is. In a case ofjoint legal ownership it is on the party who wishes to show that the beneficial interests are divided other than equally. 21 (Bold emphasis mine)
 
21 Stack v Dowden [2007) UKHL 17 at para. 4 per Lord Hope of Craighead

[50]More specifically,

Theonus is then on the party who contends that the beneficial interests are divided between them otherwise than as the tftle shows to demonstrate this on the facts. 22
 
Just as the starting point where there is sole legal ownership Is sole beneficial ownership, the starting point where there is joint legal ownership is joint beneficial ownership. The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership. So in sole ownership cases it is upon the non-owner to show that he has any interest at all.Injoint ownership cases, it Is upon thejoint owner who claims to have other than a joint beneficial interest.23 (Bold emphasis mine).

Discharging the burden

[51) What then are the specific matters to be established in order for Ms. Halley to discharge the burden of proving it was intended that she owns a beneficial share of the subject property? This area of the law is well strewn with dicta spanning many decades bothfrom our parts and beyond. As anticipated, the parties have produced a plentiful serving of many those erudite pronouncements. Without seeking to diminish the diligence of their research and the breadth of their scholarship or to disregard the insight of the very many authorities presented, I have extracted assistance from some of these cases, in particular, the guidance of Sir Nicholas Browne – Wilkinson V-C in Grant v Edwards and Edwards24•

[52]In Grant, his Lordship Sir Browne Wilkinson V-C categorised 3 matters that must be established25 –

 
22 Ibid at para. S
23 Ibid at para. 56 per Baroness Hale of Richmond
24 [1987) 1FLR 87
25 Ibid at 97. His Lordship’s 3 categories or sections as he called them emerged from his dissection and
application of the reasoning of Lord Diplock in Gissingv Gissing

17

(1) The nature of the substantive right;

[2) The proof of the existence of that right; and

[3) The quantification of the right

[53]His Lordship then expanded on the factors to be considered when making a determination on each category –

1. THE NATURE OF THE SUBSTANTIVE RIGHT (p. 9058-G).
If the legal estate in thejoint home is vested in only one of the parties (‘the legal owner’) the otherparty (‘the claimant?, in order to establish a beneficial interest, has to establish a constructive trust by showing that it would be
inequitable for the legal owner to claim sole beneficial ownership. This requires two matters to be demonstrated: (a) that there was a common intention that both should have a beneficial interest; and (b) that the claimant has acted to his or her detriment on the basis of that common
intention.
 
 
2. THE PROOF OF THE COMMON INTENTION

[a) Direct evidence (p. 905H):

 
 
It is clear that mere agreement between the parties that both are to have beneficial interests is sufficient to prove the necessary common intention. Other passages in the speech point to the admissibility and relevance of other possible forms of direct evidence of such intention: see at p. 907C
and p. 908C.
 

[b) Inferred common intention (pp. 906A-90BD)

 
 
Lord Diplock points out that, even where parties have not used express words to communicate their intention (and therefore there is no direct evidence), the court can infer from their act ons an intention that they shall

(4) To quantify the extent of the beneficial interest.

[54) The first question therefore to be confronted is whether Ms. Halley has discharged the burden of proving that while the legal title is solely in Mr. Smith’s name, there exists a common intent that she should share a beneficial interest in the same and that she acted to her detriment in reliance on that common intent. In considering this question, Ikeep in mind that like in Grant, this is case where there is no evidence of a‘written declaration or agreement, nor any direct provision … of part of the purchase price so as to give rise to aresulting trust..’26 Nourse LJ in Grant advised

that the claimant insuch cases will have to show that ‘there was a common intention between her and the defendant, acted uponby her, that she should have a beneficial interest in the property. ’27
 

[55]Ms. Halley says even though there is no written declaration or agreement,this case is a paradigm example of what is referred to by Nourse LJ in Grant as the ‘rarer class of case… where, although there hasbeen no writing, the parties have orally declared themselves in such a way as to make their common intention plain.’28 Or as Lord Bridge pointed out that the ‘mere agreement between the parties that both are to have beneficial interests issufficient to prove the necessary common intention.‘ Or as inLloyds Bank v Rosset 29 Lord Bridge of Harwich categorised cases of this sort into 2 categories.His Lordship explained that –

The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and man-aging their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, a”angement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I
 
 
 
26 Grant v Edwards [1987) 1FLR 87 per Nourse U at 93
27 Ibid
28 Ibid
29 [1990) 1ALL ER 1111at pages 1118 to 1119

think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect ismade it will only be necessary for

the partner asserting a claim to a beneficial interest against the partner

entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the

agreement in order to give rise to a constructive trust or proprietary estoppal.
 
In sh a rp contrast with th i s situation is the very different one where there Is no evidence to support afinding of an agreement or arrangement to share, however reasonable it might have been for the parties to each such an arrangement if they had applied their minds to the question, and where the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust . In this situation direct contributions to the purchase price by the partner who is not the legal o w n e r , whether initially or by payment of mortgage instalments , will readily justify the inference necessary to the creat i on of a constructive trust. But,
as I read the authorities, it is at least extremely doubtful whether anything
less will do.
 

[56]As a matter of completeness. in respect of Lord Bridge’s caution that he was doubtful that anything less than direct contributions to the purchase price by the partner who is not the legal owner would suffice to prove beneficialownership inthe instance of the second category, comment has been made onthis observation both inStack v Dowden and in the Privy Council inAbbott v Abbott30. In Abbott, Baroness Hale of Richmond made reference to Lord Walker of Gestingthorpe’s

dictum in Stack v Dowden to the effect that –
 
30 [2007]UKPC 53 at paras.5 and 6

[6} Lord Walker, Lord Hoffmann and Lord Hope of Craighead all agreed

with my own opinion, in which I summed the matter up thus at para 60:
Thelaw has indeed moved on in response to changing social and economic conditions. The search is to ascertain the parties ‘ shared intentions, actual, inferred or imputed, with respect to the property In the light of their whole course of conduct in relation to it.
The House also approved a passage from the Law Commission’s
discussion paper on Sharing Homes (2002, Law Com No 278, para 4.27): ff the question really is one of the parties ‘ ‘common intention’, we believe
that there is much to be said for adopting what has been called a ‘holistic approach’ to quantification, undertaking a survey of the whole course of

dealing between the parties and taking account of all conduct which throws light on the question what shares were intended.

Has Ms . Halley discharged t h e bu r den ?
 

[57]What then is the evidence proffered by Ms. Halley that her case falls within what I may loosely refer to as Lord Bridge’s first category or Nourse LJ’s classification of the ‘ rarer class of case‘ or the mere agreement of the parties that serves as direct evidence of the common intention per the terminology of Sir Nicholas Browne – Wilkinson V-C?. At paragraph 6 of her witness statement Ms. Halley testifies that –

The Claimant and I were in love and it was always intended that we would marry and build a family together. We both intended to have children and build a home together, which would be our matrimonial home. This was always the intention and up until his marriage to another party in 2016, the Claimant had never expressed otherwise.

[58]At paragraph 7 Ms. Halley says –

With this new fortune as a West Indies Cricketer, the Claimant and I were able to construct our Intended matrimonial home at La Taste.. .
 

[59]At paragraph 11, Ms. Halley states –

/ was not “invited ” to live (in]the subject home. The said house wasalways the intended matrimonial home… Weshared it as our matrimonial home .··
 

[60]Regarding the foregoing testimony ,counsel for Ms.Halley submits at paragraph 36 of the submissions31 that –

 
31Claimant’s submissions filed on 14ih January 20l9

The unchallenged evidence of Naureen John, wherein she stated at page 89 par 4 of the trial bundle that the Claimant and Ms. Halley intended to get married and build a house together, he constantly expressed his desire to build a house together… All the evidence is corroborated and finds support with the Claimant ‘s witness in particular, Ronald Fletcher who said he was asked by the Claimant to be the ‘best man’ at his wedding …

[61]Counsel for Ms. Halley also stated that she –

indicated both in her ev idenc e in chief and cross examination that the Claimant always said that the house is theirs and it is the ir family home. The bed was carved with their names at the Claimant’s request, their child is buried on the said property, she paid bills, took care of the children and
she was the home maker . They shared all the bills, they used each other’s credit cards … 32
 

[62]Having reviewed the cases in support of the position taken by Ms. Halley, I am of the view that she has not discharged the burden of showing what Sir Nicholas Browne referred to as the direct evidence of the common intention or what Nourse LJ referred to as the rarer class of cases in which either the claimant was led to believe that they had a share even though their name was not added to the title. Eves v Eves is one such case where the husband led the wife to believe that her name was excised from the title but for the fact that she was underage. It was later revealed in the proceedings that this was a ruse by the husband to keep the wife’s name off of the title. Her acts subsequent to the promise were found to have been performed in furtherance of the intention to grant her a share. Similarly, in Gra nt itself, the wife was told that while it was intended for her to have a share in the property, her name would not be placed on the title as such an act may prejudice her in matrimonial proceedings between her and her husband. It turns out that the

 
32 Ibid

husband never intended to place the wife’s name on the title. Her acts subsequent to the promise were found to be performed in furtherance of the intention that she was to obtain a share in the property.

[63]There is no such evidence before this court. Indeed there is no evidence of the sort found sufficient in Midland Bank pie v Dobson and Dobson 33 where there was clear proof of a commonalityof minds that the house was ·our house’ and a ‘principle of sharing’ everything that led the court to the irresistible conclusion as to the common intention.At the highest the evidence in this case demonstrates that prior to the demise of the relationship and during happier times the parties did plan a life together. There was no doubt in either party’s mind that they intended to marry,start a family and live as such in the subject property. Much was made in Ms. Halley’s evidence and on the cross examination of Mr. Smith and his witnesses about the living arrangements at Ms. Halley’s parents’ house,Mr. Smith’s engagement to Ms. Halley, the promises to marry her,the construction of the home and the purchase of adjoining lands, the furnishing of the home and repairs and maintenance of the same. But nothing was presented by Ms. Halley or her witnesses or extracted from Mr. Smith or the witnesses for Mr. Smith to show that the parties ever had an

agreement, arrangement or understanding that Ms. Halley was to share a beneficial interest in the property. As Lord Bridge of Harwich commented in Lloyds’ Bank v Rosset and another 34,
…neither a common intention by spouses that a house is to be renovated as a ]oint venture’ nor a common intention that the house is to be shared by parents and children as the family home throws any light on their intentions with respect to the beneficial ownership of the property.
 
 
 
 
 
 
 
 
33 (1986]lf lR 171
34 [1990]1All ER 1111at pagelllG

Inferred common intention

[64) Lord Bridge of Harwich’s second category of cases delineated those instances where the court can find ‘no evidence to support a finding of an agreement or a”angement to share…’35. In these cases, his Lordship advised that ‘the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and the conduct relied on to give rise to a constructive trust.’36 His Lordship’s doubt that anything less than direct contributions to the purchase price or the mortgage instalments by the person who claims a beneficial interest has already been addressed above. This court is required to look at the whole course of dealings of the parties to see if the requisite intent can be inferred. In this regard,Sir Nicholas Browne – Wilkinsonspoke of both direct and indirect contributions by the claimant spouse as evidence from which a common intention can be inferred in the absence of direct evidence of an agreement, understanding or an arrangement as to a common intention to share the beneficial interest in the property. Indeed I am guided by the many pronouncements throughout the cases that contributions beyond direct financial contributions may in appropriate cases indicate the requisite common intent.

[65]A useful synopsis of the approach that should be adopted since the clarification of the law in Pettit andGissing is stated by Lord MacDermott CJ in MacFarlane v

MacFarlane3 7

 
These decisions , as I understand them, have also established or affirmed two rather less negative propositions of law to which I must now refer. The firstis that, in the absence of proof to the contrary, a spouse who hasacquired the legal title to property purchased with the aid of a substantial monetary contribution from the other spouse will hold the property subject
 
 
 
3S Ibid at page 1118
36 1bid
57 [1972]NI 59 at pages. 66-77

to a beneficial interest therein belonging to theother spouse: see Pettitt, per Lord Reid at p. 7948, per Lord Hodson at p. 810G, per Lord Upjohn at p. 815 G-H; and Gissing per Lord Pearson at p. 264G-265B. This may be the result of some binding agreement between the spouses; but more usually

it will flow from a resulting trust in favour of the contributing spouse who has
not the legal title. The extent of the beneficial interests will depend on the circumstances. They will not necessarily be equal, but may be held so where that conclusion accords with the broad merits of the respective claims or with what is fair and reasonable when there is some difficulty or uncertainty in assessing the contributions: see Rimmer v. Rimmer {1953]1
Q.8. 63.
 
 

The second proposition which I take to be now accepted in Pettitt and Gissing must be stated in a qualified form. It is that in certain circumstances the first proposition can also apply in favour of the spouse without the legal title where that spouse has contributed to the purchase, not directly by finding a part of the price, but indirectly and in a manner which has added to the resources out of which the property has been acquired as, for example, by work done or services rendered or by relieving the other spouse of some,at any rate, of his or her financial obligations.

[66]In Oxley v Hiscockas, Chadwick LJ spoke of the recognition in earlier cases includingPettit and Gissing that ‘ a common intention at the time of purchase, sufficient to give rise to a constructive trust, might be inferred from conduct other than the making of financial contributions.’

 
[67) In Oxley v Hiscock, Chadwick LJ also observed in reference to Lord Bridge’s dual categorisation in Lloyd’s Bank v Rosset –
 
38 [2004) 3 ALL ER 703 at para. 28

27

[68]In Stack v Dowden, Baroness Hale of Richmond, again speaking of the cases in which the property has been registered in joint names, made the following observation which may,insome respects,offer assistance as to the sort of evidence

that may suffice in this instance –
Each case will turn on its own facts. Many more factors than financial contributions may be relevant to divining the parties’ true intentions. These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties ‘ relationship ; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses. When a couple arejoint owners of the home and jointly liable for the mortgage, the inferences to be drawn from who pays for what may be
 
 
 
39 Ibid at para. 40

28

very different from the inferences to be drawn when only one is owner of the home. The arithmetical calculation of how much was paid by each is a/so likely to be less important. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally. The parties’ individual characters and personalities may also be a factor in deciding where their true intentions lay. In the cohabitation context, mercenary considerations may be more to the fore than they would be in marriage, but it should not be assumed that they always take pride of place over natural love and affection.4o

[69]Iwould say immediately that this is not a case where evidence has emerged that Ms. Halley made a direct contribution to the purchase price of the land or after purchase of the land and construction of the house thereon, that she paid any part of the mortgage instalments. The land was purchased by Mr. Smith and the house was constructed out of moneys either raised by Mr. Smith personally or via a mortgage that was repaid solely by him. There is some dispute as to financial assistance given to Mr. Smith by Ms. Halley’s father but this will be addressed

below.
Ha s t he r e been i nd i rec t c o n t rib u t i on?
 

[70]So what sort of indirect contribution has been indicated by Ms.Halley? In this case,

Ms. Halley lists her contributions as both financial and non-financial. At the risk of repetitiveness 1 repeat them both. In terms of financial contribution she said the
following –

During the time of my employment, I purchased … from my own funds: furniture, wares, pots, a washing machine, curtains and other decorations

40 (2007} UKHL 17 at para. 69

29

and equipment for the gym. I also paid the telephone, internet and cable bills from 2009 to 2012.

 
 
Additionally, the claimant and I travell ed to New York to purchase furniture and furnishings … I made most of the decorative decisions for the house including the lighting fixtures, paint and tiles; the decorating of the subject
house was mainly executed by the Second Defendant , Naureen John and me4 t
 
 

[71) In terms of non-financial contributions, Ms. Halley relies on the said the following –

My non – financial contributions include but are not limited to the care of the children of the family (living and deceased) and domestic duties such ascooking, cleaning, washing and the upkeep of the yard and surroundings. I have been a loyal, loving and supportive partner to the Claimant as well as
a loving, committed mother to their [sic] children. I take care of the Claimant
and sees [ s ic] to his every need. The Claimant is seldom home and I tends [si c ] to his affairs and the affairs of the subject property in his absence and even when he is present at home42 .
 

[72]My view is that this evidence does not rise to the threshold necessary to show that there was a common intention that Ms. Halley was to share a beneficial interest in the property. As was noted in the cases, the court has to draw inferences from the conduct of the parties that is consistent with an intention that the party who is not the registered owner should share a beneficial interest in the property. Indeed in Pettitt itself their Lordships rejected an argument that the work executed on the property by the husband had improved its value and had thereby demonstrated the requisite intent that he share a beneficial interest in the property. Lord Reid said in

that case,

 
41 Supra, note 1
42 Supra note 1at para. 28

I agree with the view of Lord Denning MR expressed in Button v Button. He said with regard to the husband ([1968]1All ER at p 1066; [1968]1 WLR at P 461) “Heshould not be entitled to a share in the house simply by doing the ‘do-it-yourself jobs ‘ which husbands often do•: and with regard to the wife ([1968]1All ER at p 1067; [1968]1 WLRatp 462):

“The wife does not get a share in the house simply because she cleans the walls or works in the garden or helps her husband with the painting and decorating. Those are the sort of things which a wife does for the benefit of the family without altering the title to, or interests in, the property. 43
 

[73) Similarly in this case, Ido not find that the acts of assisting with the furnishing and decorating of the home,whether through buying some of the furniture (by loan or cash) or decorating it, leads me to conclude that it was intended that Ms. Halley should share a beneficial interest in the home. Much was also made of the time spent taking care of the home, the children and in particular the sick child. My comments are not meant to diminish, in any way, the tremendous responsibility placed on Ms. Halley in this regard. Mr. Smith was mostly away from the home plying his chosen trade.There was much to be done for this young family including the care of two sick children one of whom eventually died. The tasks performed by Ms. Halley cannot be valued or deemed a walk in the park. However, none of the acts claimed by her suggests that the parties intended that there was to be beneficial sharing of the property. The case law indicates that the court’s role is not to do what seems right or fair in the circumstances. The task of the court is to examine the

evidence to reveal or uncover what was intended by the parties themselves. It must not ascribe, attribute, assign or impute an intention based on its assessment of what seems fair or “just” in the circumstances. In this part of my analysis Ialso include the references made to the joint sharing of a bank account. Ido not find that any of the evidence presented on the financial and non-financial contributions demonstrate
 
43 (1969) 2 ALL ER 385 at page 391

My Lords, in determining whether or not there was such a common intention, regard can of course be had to the conduct of the parties . If the wife provided part of the purchase price of the house, either initially or subsequently by paying or sharing in the mortgage payments, the inference

may well arise that it was the common intention that she should have an interest in the house.
 
 
To establish this intention there must be some evidence which points to its existence. It would not , for in-stance, suffice if the wife just made a mortgage payment while her husband was abroad. Payment for a lawn and provision of some furniture and equipment for the house does not of itself
point to the conclusion that there was such an intention .
[1971) A.G. 886 Page 901
 
 

I appreciate that there may be very great difficulty In establishing such an intention where the dispute is between former spouses but that does not alter the question to be decided. In evety case it has to be established that

the circumstances are such that there i s a resulting, implied or constructive
trust in favour of the claimant to a beneficial interest or a share in it. In the case of former spouses that will ordinarily depend on whether it can be inferred from the evidence that there was such a common intention.
 
My Lords , I do not th i nk that any use f u l purpose will be served by my expressing any views on what will suffice to justify the drawing of such a n inference . In one case the evidence may just fall short of doing so; in another it may j ust suffice. But what is important is that it should be borne in mind that proof of expenditure for the benefit of the family by one spouse

[74]There is a significant point made by Lord Diplock in Gissing that made by of assistance in this case. He made the following interesting comment –

Where the wife hasmade no initial contribution to the cash deposit and legal charges and no direct contribution to the mortgage installments nor any adjustment to her contribution to other expenses of the household which it can be inferred was referable to the acquisition of the house, thereis in the
absence of evidence of an express agreement between the parties no
material to justify the court in inferring that it was the common intention of the parties that she should have any beneficial interest in a matrimonial home conveyed into the sole name of the husband, merely because she continued to contribute out of her own earnings or private income to other expenses of the household. For such conduct is no less consistent with a
common intention to share the day-to-day expenses of the household, while each spouse retains a separate interest in capital assets acquired with their own moneys or obtained by inheritance or gift. There is nothing here to
rebut the prima facie inference that a purchaser of land who pays the purchase price and takes a conveyance and grants a mortgage in his own name intends to acquire the sole beneficial interest as well as the legal
 
 
 
44 (1970} 2 ALL ER 780 at page 786

[75]These words are apposite to this case where there is –

[1) no express agreement;

[2) no financial contribution to the price of acquisition or mortgage Instalments;

[3) some adjustments thereafter to the other expenses. In this latter regard,Irepeat my finding that the furnishing of the home, decorating the same and taking care

of the children do not indicate that Ms. Halley was intended to share in a beneficial ownership of the house.
[76]As was found in Gissi ng,
 
 
The court is not entitled to infer a common intention to this effect from the mere fact that she provided chattels for joint use in the new matrimonial home; and there is nothing else in the conduct of the parties at the time of the purchase or thereafter which supports such an inference. There is no suggestion that the wife’s efforts or her earnings made it possible for the husband to raise the initial loan or the mortgage or that her relieving her husband from the expense of buying clothing for herself and for their son was undertaken in order to enable him the better to meet the mortgage installments or to repay the loan.46
 

[77]Similarly in thiscase,Icannot infer acommon intention that Ms. Halley’s contribution to some of the furnishing, decorating , taking care of the home and some of its expenses made it possible for Mr.Smith to raise the initial sums required to acquire or to later to develop or to assist him in a non-financial manner to repay the mortgage. As Nourse LJ helpfully suggested in G rant, the conduct sought to be

 
45 [1970) 2 All ER 780 at page 793
46 [1970]2 All ER 780 at page 794

relied on to show either the common intent or reliance thereon must beconduct ‘on which the woman could not reasonably have been expected to embark unless she was to have an interest in the house. If she was not to have such an interest, she could reasonably be expected to go and live with her lover, but not, for example, to wield a 14/bsledge-hammer in the front garden47’. Sir Nicholas Browne Wilkinson VC remarked that ‘Setting up house together, having a baby, making payments to general housekeeping expenses (not strictly necessary to enable the mortgage to be paid) may all be referable to the mutual love and affection of the parties and not specifically referable to the claimant ‘s belief that she has an interest in the house.’

48
 
 

[78]So while it is clear that these 2 young people loved each other at some point and were willing to do what was necessary to build a life together,the acts and conduct relied on in this case do not indicate that they either contemplated an arrangement where interest in the house would be shared or that either of them acted in such a manner. In Grant itself,it was found that the –

very substantial contribution which the plaintiff made out of her earnings after August 1972 to the housekeeping and to the feeding and to the bringing-up of the children enabled the defendant to keep down the

instalments payable under both mortgages out of his own income and , moreover , that he could not have done that i f he had had to bear the whole of the other expenses as well. For example, in 1973, when he and the plaintiff were earning about £1,200 each, the defendant had to find a total of about £643 between the two mortgages. I do not seehow he would have been able to do that had it not been for the plaintiff’s very substantial contribution to the other expenses. Thereis certainly no evidence that there
was any money to spare on either side and the natural inference is to the
 
47 {1987]1FLR 87 at page 95
4& 1bid

compensation for these acts in accordance withthe Minimum Wages Ordinance No. 30 of 2011.

[84]Unsurprising,Mr.Smith refutes the claim brought by Ms. John. He says that he has no contractual relationship with Ms. John. In his evidence he maintains that Ms. John was invited to live on the premises during a period of her personal difficulties. He never had any arrangement or agreement with her to be paid for any services rendered or for her to have a share in his property.

(85) In written submissions, counsel for Ms. John submits that‘despite offering her services gratuitously and was not willing to accept any money, does not negatethe promise of the claimant to pay her for her services.‘ Iam not sure how to assist Ms. John here. It is her claim that she had an agreement with Mr. Smith. Ido not need to recite legal authority for the proposition that it Is indeed for Ms. John to set out the terms of the agreement,the particulars of the breach of the alleged agreement and the requisite remedy (ies) in law. Nothing of that sort has been presented on this claim. As such the claim for Ms. John fails.
Conc l us i on
 

[86]The conclusion of this claim is therefore that –

[1) Mr. Smith is successful on his request for an order for possession of the premises at La Taste,St. Patrick, Grenada. Iobserve that he has claimed for mesne profits but the claim proceeded as one for possession only since no particulars of a claim or evidence for mesne profits was ever presented. No mesne profits are therefore awarded. Iam informed that Ms.Halley has ceased occupying the premises and as such this order of the court is declaratory of Mr.

Smith’s right to possession and occupation of the house;

[2) Ms. Halley and Ms. John are both unsuccessfulon their counterclaims; and