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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Green v. Green (Jamaica) [2003] UKPC 39 (20 May 2003) URL: https://www.bailii.org/uk/cases/UKPC/2003/39.html Cite as: [2003] UKPC 39, (2002-03) 5 ITELR 888 |
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Green
v.
Green
(Jamaica) [2003] UKPC 39 (20 May 2003)
ADVANCE COPY
Privy Council Appeal No. 4 of 2002
RoyGreen
Appellant
v.
Vivia
![]()
Green
Respondent
FROM
THE COURT OF APPEAL OF JAMAICA
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 20th May 2003
------------------
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hope of Craighead
Lord Millett
Lord Rodger of Earlsferry
[Delivered by Lord Hope of Craighead]
------------------
Green,
and the respondent,
Vivia
Green,
first met in 1972 they were each married to someone else. They formed a relationship and in 1973 decided to live together as man and wife. It was not until some years later that they were free to marry each other. The respondent was divorced from her first husband in 1980, but it was not until 1983 that the appellant was divorced from his first wife. In the meantime they had two daughters, Tanya and Teresa, who were born in 1973 and 1975. They were married in 1984, but not long afterwards things changed and their relationship started to deteriorate. In 1987 the appellant left the matrimonial home, and in 1990 the respondent left Jamaica and went to live in the United States of America. Two years later, in November 1992, the appellant commenced proceedings against the respondent in which he sought a declaration that he was entitled to one-half of the equity in the property which had been acquired by the parties during the period of their relationship.
various
assets at one-third to the appellant and two-thirds to the respondent. He also restricted his order to the assets of the parties in Jamaica, as he excluded property which the respondent has purchased in the United States of America. The appellant was content with that result, but the respondent was not. She appealed against the judge's order, and on 31 July 2000 the Court of Appeal (Downer, Harrison and Panton JJA) allowed her appeal. The judgment of Orr J was set aside. It was declared that the appellant was entitled to a one-third interest in one property only (Governor's Pen, St Mary) and that he had no interest in any of the remaining properties. It is against that judgment that the appellant has now appealed to their Lordships Board.
various
assets.
various
business enterprises. As so often happens in cases of this kind, they got on with their busy lives without much thought for the future. No agreement was made as to how the beneficial interests in the
various
properties were to be divided up between them. This is the background against which the judge was asked to decide what part the appellant played in the acquisition of the assets in which he was claiming a share of the equity.
various
businesses.
various
businesses. He said that the appellant had overstated the extent of his contribution having regard to his earnings and his other commitments to his family. But he held that he was able to work for reward outside his employment by
virtue
of his position as a supervisor. He summed the matter up in these words:
"I find that he was not a mere purveyor of goods for thevarious
businesses nor a handyman and a mere supervisor of repairs and refurbishing of the houses. I find that he was a partner in the acquisitions, that he left the handling of the finances to the defendant and that this was not due to an acceptance of her role as the sole owner but because of her capacity in this regard. I infer that there was a common intention between the parties from the outset for the acquisition of the business at Carpenters Road and East Road that both should share the beneficial interest and in all subsequent acquisitions."
Green
and
Green
as she wanted", so he told her she could do all the signing. The judge's conclusion was that the respondent was ingenuous. He found that he refrained from having his name placed on the relevant documents because he acted in the belief that everything belonged to both of them.
various
bank accounts.
view,
on the evidence available, it was not open to the trial judge to find that the appellant's contribution was sufficient to indicate that there was such a common intention relying on which he acted to his detriment. He referred to the fact that the appellant was employed full-time in his job as a supervisor on construction sites. He said that he was able to assist in the business only after 4.30 pm in the evenings, and that his transport of goods to the business was no more than intermittent as the evidence showed that there were other suppliers of goods. He noted that the appellant had accepted that the business was the source of the financing of the acquisition of the
various
properties, and that he had no specific knowledge of the details of how they had been purchased or paid for as he took no part in these transactions. This, in his
view,
confirmed that he had not established a claim to a beneficial interest in the premises. He agreed with the judge that the appellant had a beneficial interest in Governor's Pen and that there was evidence on which he could find that the appellant was entitled to a one-third interest in that property. But he held that he had no interest in the remaining properties nor did he have any interest in the sums held on the bank accounts.
v
Gissing [1971] AC 886, 904-910 by Lord Diplock; see also Grant
v
Edwards [1986] Ch 638. The question in Gissing
v
Gissing was whether the wife had a beneficial interest in the matrimonial home which had been purchased during the marriage in the name of the husband only. But the principles which that case identified are not confined to situations where the parties were married to each other when the property was acquired. As Lord Diplock explained at p 904H, they are of general application and can be applied to any case where a beneficial interest in land is claimed by a person, whether spouse or stranger, in whom the land is not
vested.
The question in all these cases is whether a common intention can be inferred from the parties' conduct as to how the beneficial interest is to be held. The relevant intention is that which a reasonable person would draw from the parties' words or conduct. It is for the court to determine what inferences can reasonably be drawn, and each case must depend on its own facts. Where the most likely inference from the parties' conduct is that the beneficial interest was not to belong solely to the party in whom the legal title is
vested,
the court must determine what in all the circumstances is a fair share.
v
Edwards [1986] Ch 638. The dispute in that case was between a couple who were not married to each other but had been living together in a house in which the plaintiff claimed she had a beneficial interest when the parties separated. The title was in the defendants' names and there was no direct evidence of any agreement that she was to have a beneficial interest in it. In that situation she had to establish a common intention between her and the defendant, acted upon by her, that she should have a beneficial interest in the property. If she could do that, equity would not allow the defendant to deny that interest and would construct a trust to give effect to it. It was made clear in that case that two matters need to be demonstrated to establish a constructive trust. They were described in all three judgments, but the analysis by Sir Nicolas Browne-Wilkinson
V-C
at pp 654C-655G is especially helpful. The first is that it must be shown that there was a common intention that both parties should have a beneficial interest in the property. Where parties have not used express words to communicate their intention with the result that there is no direct evidence of it, their intention can be inferred from their actings or from other circumstances. The second is that it must be shown that the claimant has acted to his or her detriment on the basis of that common intention. There must be a sufficient link between the common intention and the conduct which is relied upon to show that the claimant has acted on the common intention to his detriment. As Nourse LJ put it at p 648G-H this requires there to have been conduct on which the claimant could not reasonably have been expected to embark unless he was to have an interest in the property.
v
Thomas [1947] AC 484, 487-488 Lord Thankerton said that where a question of fact has been tried by a judge without a jury, and there is no question of his having misdirected himself, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that the decision of the judge cannot be explained by any advantage which he enjoyed by reason of having seen and heard the witnesses. Lord Macmillan developed the same point at pp 490-491. He said that the printed record was only part of the evidence. What was lacking was evidence of the demeanour of the witnesses and all the incidental elements which make up the atmosphere of an actual trial. He added these words at p 491:
"So far as the case stands on paper, it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of paramount importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone plainly wrong."
v
Choo Ah Pat [1978] 2 MJL 41, 42. He said that when Lord Thankerton referred in Watt
v
Thomas to "the printed evidence" (and this applies also to the passage which their Lordships have quoted from Lord Macmillan's speech in that case) he was referring to a transcript of the
verbatim
shorthand record of the evidence, and that it was obvious that the disadvantage under which an appellate court labours in weighing evidence is even greater where all it has before it is the judge's notes of the evidence and has to rely on such an incomplete record. In this case there is no
verbatim
transcript. The only record of the evidence is contained in the notes of the proceedings which were taken during the trial by the trial judge.
versions
given in evidence by the other witnesses. Taken overall, his judgment is much less helpful than it ought to have been. But their Lordships are not confident the judges in the Court of Appeal, in their turn, did full justice to the material which was available to them. In some significant respects it too is unsatisfactory.
Victor
Higgins, who did electrical work on the premises. The respondent did not contradict these statements in her evidence. The trial judge said that the appellant overstated the extent of his contribution to the business, but he was able nevertheless to accept his evidence that he was able to work for reward outside of his employment by
virtue
of his position as a supervisor and that he was not a mere purveyor of goods for the
various
businesses.
v
Thomas [1947] AC 484, 491, where a decision either way may seem equally open (as may be thought to be the position in this case) the decision of the trial judge is of paramount importance. The question is whether it has been shown that his judgment on the facts was affected by material inconsistencies or inaccuracies or that he failed to appreciate the weight of the evidence or otherwise went plainly wrong.
v
Gissing [1971] AC 886 had been correctly applied by the Court of Appeal, as it had not been shown that the other properties were acquired on the basis that the beneficial interest was to be shared.
version
of events was the subject of contrary evidence as he was said to have been seen driving the car after the critical date by other witnesses. The judge said that the appellant's
version
had not been established on a balance of probabilities. So he left the door open for the other part of the appellant's case, which was that he had contributed to the operation of the businesses in other ways. The judge said that the appellant had overstated the extent of his contribution, and in this respect too no doubt his case was weaker than he was making it out to be. But the judge was nevertheless satisfied that it was sufficiently substantial to show that there was a common intention that the beneficial interests in the business and all subsequent acquisitions of property should be shared and that the appellant had acted on that intention to his detriment.
various
properties was made out. The judge was clearly satisfied that the appellant was not just helping out from time to time but that he did so on a regular and substantial basis and that it was indeed, as the appellant maintained, a joint enterprise. It cannot be said that there was no evidence from which the judge was entitled to draw the inference that this was the parties' common intention from the outset and that the appellant was acting in the belief that he had a beneficial interest in the business to whose success his efforts were contributing. The fact that it was left to the respondent to manage all the finances and to arrange for the acquisition of the
various properties might have been taken to point in the opposite direction. But the judge accepted the explanations which the appellant gave for this, and this too was a matter for him as he was in a position to assess the evidence which both parties gave from the witness box.