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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smith v Bottomley & Anor  EWCA Civ 953 (29 July 2013)
Cite as:  EWCA Civ 953
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ON APPEAL FROM THE HUDDERSFIELD COUNTY COURT
His Honour Judge Shaun Spencer QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
MR JUSTICE SALES
| Lisa Joanne Smith
|- and -
|Andrew Spencer Bottomley
Coach House Properties Limited
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Dominic Crossley (instructed by Clarion Solicitors Limited) for the Respondent
Crown Copyright ©
Mr Justice Sales :
"(4) The Intention of the Trustees is that the Property shall be jointly occupied by them as their home for a maximum of three years from the date hereof and shall thereafter be sold promptly and the proceeds divided as hereinafter mentioned. In the event of the breakdown of the couple's relationship before the three years has expired then it is intended that neither party should occupy the Property but that it should be sold as expeditiously as possible and the proceeds divided as hereinafter mentioned.
(5) Mr Bottomley has agreed to bear sole responsibility for payment of the mortgage instalments."
"1. As from the date of the Transfer they hold the Property (subject to the Charge)
UPON TRUST for themselves to be paid as follows:-
(i) Mr Bottomley shall be entitled to the return of the capital sum of seventeen Thousand One Hundred pounds together with a payment equivalent to all monies expended by him by way of interest or capital payments due in connection with the Charge
(ii) Any other proceeds of sale shall be divided equally between Mr Bottomley and Ms Smith
(iii) Until the Property is sold Mr Bottomley will pay all monies due in connection with the Charge …"
"When I agreed to move back in with him again he said he would put everything 50/50. The agreement covered everything. He said he wanted to give me peace of mind. Coach House Properties [the Company] was [Mr Bottomley]. He said everything we have is 50/50; he did not go into detail. The company was Mr Bottomley."
"Mr Bottomley having exchanged contracts and having paid the deposit obviously had an equitable interest in the property [the Barn]. I have already stated my conclusion that there was an agreement or understanding that any property intended to become the family home would be held by the parties in equal shares. Does the fact that Mr Bottomley directed the transfer to be made to the Second Defendant, the limited company, make any difference to the Claimant's entitlement? It seems to me that the company would take subject to any equitable interest which the Claimant might have which was binding upon the first Defendant. It must follow that the Claimant is entitled as against the Second Defendant to a one half share in White Lee Barn. I so rule. Whether this creates any problems as between the two Defendants is not a matter with which I am concerned. Were I to be wrong in my conclusion that the Second Defendant is bound by the Claimant's equitable interest, (and, indeed, in any event) the direction by the Defendant for the transfer to the company put the Defendant in breach of trust vis a vis the Claimant. The measure of damages would be a figure equivalent to one half of the net proceeds of sale in Upper White Lee Barn."
(i) The appeal in relation to the Cropredy proceeds of sale
"As to paragraph 9.2.3, it is assumed that the property referred to is Cropredy. It is denied that the Claimant's share of the net proceeds of sale was used to fund property investments. Upon sale of Cropredy in January 2007 the First Defendant asked the Claimant what she wanted to do with her share of the net proceeds of sale of approximately £20,000. The Claimant said that it should be kept in the family pot. As the First Defendant's business did not make any profits for the next 3 years, the proceeds of sale were, with the knowledge of the Claimant, used as 'the family pot' towards meeting the family's living expenses."
(ii) The appeal in relation to the beneficial ownership of the Barn
Lord Justice Jackson
Lord Justice Lloyd