[119] The learned authors of Halsbury’s Laws of England, Vol. 40(2), 4
th
Ed.,
Reissue, at para 1311 state that:
An enrichment may be either positive (the receipt of money or goods) or
negative (the saving of necessary expenditure)...A defendant may be
enriched by the receipt of goods or services even where he has not
requested, bargained for or freely accepted them. In such cases the
defendant is said to have been incontrovertibly benefited. An
incontrovertible benefit is ‘an unquestionable benefit, a benefit which is
demonstrably apparent and not subject to debate and conjecture.’ It may
take either a negative or a positive form. Negatively, a defendant is
incontrovertibly benefited when he is saved a necessary expense. The
expense may be legally of factually...Expenditure which is factually
necessary, might include sums spent on the purchase of ‘necessaries’ for
a person who lacks the capacity to enter into a contract to purchase them.
In deciding whether or not the expenditure is factually necessary, courts
will disregard ‘unrealistic or fanciful possibilities of the defendant doing
without it
[120] There is no doubt that the defendants in this case have benefited from the saving
of necessary expenditure. The resources expended by the claimant in this
instance were primarily sums spent contributing to building a house for the
defendants. The evidence clearly indicates that the house the defendants had
occupied since 1972/1973 had fallen into significant disrepair. An appropriate
house was needed by the defendants which they could not provide by
themselves. This explains why the 2
nd
defendant said she was waiting on her
sons for ten (10) years. The claimant made a contribution to this necessity which
the defendants could neither afford nor eventually, do without. The defendants
have thus been enriched.
[121] The second question is whether this enrichment was at the expense of the
claimant? At para. 1318 of Halsbury’s Laws of England, Vol. 40(2), 4
th
Ed.,
Reissue, it is indicated that:
The requirement that the claimant prove that the defendant has been
enriched at the claimant’s expense serves to identify the claimant as
being the proper person to bring the claim and also to identify the
measure of that claim....Generally the enrichment will be ‘by subtraction’
from the claimant; that is to say, the gain made by the defendant will
correspond exactly with the loss suffered by the claimant. Where,
however, the defendant has been enriched as a result of a wrong which
he has committed against the claimant, there need be no correlation
between the gain to the defendant and the loss to the claimant, and,
indeed, in most cases the gain which the defendant has made from the
wrong exceeds the loss which the claimant has suffered.
[122] The above question clearly has to be answered in the affirmative. The evidence
indicates that through a collaborative effort, which included the contribution of the
claimant, the house was built for the defendants. Therefore, the defendants were
enriched partly at the expense of the claimant.
[123] Thirdly, was the enrichment unjust? Would it be unjust if the defendants should
retain the benefit without recompensing her. Halsbury’s Laws of England, Vol.
40(2), 4
th
Ed., Reissue, at para 1320 records that:
In deciding whether or not a particular enrichment is unjust, the court is
not given free rein to give effect to its own perception of what is or is not
unjust, but must have regard to the case law in deciding whether, in a
particular case, it is unjust that the defendant should retain the benefit
without recompensing the clamant. Thus mistake of fact, mistake of law,
duress, undue influence, an ultra vires demand by a public authority for
tax or other impost, (total) failure of consideration, discharge of the debt
of another, necessity, incapacity, and the receipt of property which
belongs, whether at law or in equity, to the claimant, have all been
recognized as factors which can render an enrichment unjust. The
category of factors which can trigger a restitutionary claim is not closed
....However, restitution will generally be denied where the benefit was
conferred upon the defendant in the form of a valid gift or in pursuance of
a valid common law, equitable or statutory obligation owed by the
claimant to the defendant.
[124] In Blue Haven Enterprises Ltd v Tully and another[2006] UKPC 17, Lord
Scott at para. 24 stated that:-
Enrichment of A brought about by improvements to A's property made by
B otherwise than pursuant to some representation, express or implied, by
acquiescence or by encouragement, for which A is responsible would not
usually entitle B to an equitable remedy. But the reason would be that A's
behaviour in refusing to pay for improvements that he had not asked for
or encouraged could not, without more, be described as unconscionable.
[125] The context in which this case has arisen dictates the courts conclusion. On a
careful consideration of the law and the evidence, this court finds
that
the
defendants have not been unjustly enriched at the claimant’s expense. This
enterprise of building a new home for the defendants was commenced by all
parties in consideration of love and affection with the claimant and at least one
sibling having a desire to improve the living standards of their parents, the
defendants. The enrichment was therefore not unjust and no repayment is
required.
I
SSUE
6:
W
HETHER IF THE CLAIMANT HAS NO OTHER REMEDY THE COURT CAN CONSTRUE
AN INFORMAL FAMILY ARRANGEMENT IN RESPECT OF THE CLAIMANTS
OCCUPATION OF A ROOM IN THE DEFENDANTS
’
HOUSE
?
[126] Counsel for the claimant made reference to the case of Hardwick v Johnson
and Another [1978] 1 WLR 683 which explored the issue of informal family
arrangements and the power of the court to impose some form of legal
relationship in appropriate circumstances when other legal doctrines did not
apply.
[127] In Hardwick, Lord Denning stated at page 688,
So we have to consider once more the law about family arrangements. In
the well-known case of Balfour v. Balfour [1919] 2 K.B. 571, 579, Atkin
L.J. said that family arrangements made between husband and wife “are
not contracts … because the parties did not intend that they should be
attended by legal consequences.” Similarly, family arrangements between
parent and child are often not contracts which bind them: see Jones v.
Padavatton [1969] 1 W.L.R. 328. Nevertheless these family arrangements
do have legal consequences: and, time and time again, the courts are
called upon to determine what is the true legal relationship resulting from
them. This is especially the case where one of the family occupies a
house or uses furniture which is afterwards claimed by another member
of the family: or when one pays money to another and afterwards says it
was a loan and the other says it was a gift: and so forth. In most of these
cases the question cannot be solved by looking to the intention of the
parties, because the situation which arises is one which they never
envisaged, and for which they made no provision. So many things are
undecided, undiscussed, and unprovided for that the task of the courts is
to fill in the blanks. The court has to look at all the circumstances and
spell out the legal relationship. The court will pronounce in favour of a
tenancy or a licence, a loan or a gift, or a trust — according to which of
these legal relationships is most fitting in the situation which has arisen:
and will find the terms of that relationship according to what reason
and justice require. In the words of Lord Diplock in Pettitt
v.
Pettitt
[1970] A.C. 777, 823: “… the court imputes to the parties a common
intention which in fact they never formed and it does so by forming its
own opinion as to what would have been the common intention of
reasonable men as to the effect” of the unforeseen event if it had been
present to their minds.
[128] In Hardwick the plaintiff purchased a house for her son and his wife which was
put into her own name. After her son and wife married, they arranged to pay the
plaintiff £7 a week in order to pay off the purchase price. The couple made
several payments, however the plaintiff did not make any demands for any
outstanding amounts. The marriage broke down and the plaintiff sought to
recover possession of the house from the son’s wife.
[129] Lord Denning applied the principles to the facts and stated:
The present case is a good illustration of the process at work. The
correspondence and the pleadings show that the parties canvassed all
sorts of legal relationships. One of them was that there was a loan by the
mother to the couple of £12,000 which was repayable by instalments of
£28 a month. Another suggestion was that there was a tenancy at £7 a
week. Another suggestion was that there might be an implied or
constructive trust for the young couple. Yet another suggestion was that
there was a personal licence to this young couple to occupy the house. Of
all these suggestions, I think the most fitting is a personal licence. The
occupation of the house was clearly personal to this young couple. It was
a personal privilege creating a licence such as we have often had…. I
should have thought that the mother could have revoked the licence. But
there has not been a divorce, not even a judicial separation. The
daughter-in-law and the grandchild are still at the house. It seems to me
that as long as she pays the £7 a week this licence cannot be revoked.
Things may develop in the future. One cannot foresee when it may be
possible to determine the licence, but it cannot be determined at this
stage. The judge was quite right in refusing to order possession and in
giving, as he did, judgment for the amount of £112 — that is, £7 a week
from the time when the daughter-in-law first offered it until
commencement of the action in May, 1975.
[130] Roskill LJ also opined at page 690:
I am disinclined to express any opinion on what if any events that licence
is now determinable. Suffice it to say that in my judgment it is not
determinable in the event which has occurred, namely, that the husband
has left the wife — no divorce proceedings are pending, as Lord Denning
M.R. has said — since that licence was not given only to the husband. It
seems to me that no event has yet taken place which justifies the bringing
to an end of this contractual licence; and therefore, for that reason, I think
the deputy circuit judge reached the right conclusion in a careful and
closely reasoned judgment.
[131] It appears that the recourse the courts may impose on vague informal family
arrangements, are just as vague. What is discerned however is that the courts
should aim to preserve the reasonable foreseeable outcomes of these family
arrangements. As Lord Denning opined in Hardwick, the likely outcome of the
parties’ arrangement was that the couple would continue to live in the house and
subsequently inherit it. What the court had therefore done, was to impose a
license in keeping with this outcome and preserve the status quo until facts are
presented which clearly warranted a change in that status quo. Thus it would
appear that if the couple were to engage in divorce proceedings, such an event
may warrant a revocation of the licence as it moved away from the status quo.
[132] In the case of In Re Sharpe [1980] 1 All ER 198 which was cited by counsel for
the claimant Brown Wilkinson J endorsed the view that where parties proceeded
on a common assumption that one of them was to enjoy a right to occupy the
property and in reliance on that assumption he expended money or otherwise
acted to his detriment, the other party would not be allowed to go back on that
assumption, and the court would imply an irrevocable licence or constructive trust
giving effect to the arrangement.
[133] In the instant case, there was no prior arrangement for a repayment. However
multiple parties made financial contributions to fund the construction; the
claimant making the majority contribution. Additionally, notwithstanding the fact
that the house was being constructed for the personal benefit of the defendants,
there seemed to have been a collective understanding that other family members
should also enjoy some benefit of the home and the 2
nd
defendant referred to her
other relatives as her “Dead Leff” on multiple occasions during the trial. The
defendants gave the claimant control and occupation of the room by allowing her
to move in her son and restrict their access. The 2
nd
defendant stated in evidence
that she did not force the claimant’s son from the premises and at the time of the
trial, she was still restricted from the room.
[134] It appears that had relations not broken down and these proceedings not been
instituted, the claimant would have remained in control of the room if not
indefinitely, for a considerable time. I gave significant consideration to ordering
that the claimant be deemed to have an irrevocable licence to continue
occupying the room until the passing of both defendants. However, the
situation is not as it was in Hardwick where the couple would continue living
in and likely inherit the house, unless the status quo was changed for example by
divorce proceedings. In the instant case, the court having held that the
claimant has no legal or equitable interest in the property the status quo has
effectively been changed. This conclusion is also supported by the fact that the
poor relations between the parties which led to this litigation and the ouster of the
claimant’s son from the property, suggests that imposition of such an informal
arrangement would be fraught with tension and difficulty, especially as the
defendants are now of very advanced age.
[135] Further the only practical benefit of the room the claimant enjoyed at the time of
trial was the storage capacity it afforded. She does not reside in Jamaica, her
son no longer resides at the property and she has a home of her own in Jamaica
in Cardiff Hall. The court should not make an order out of sentimentality. In the
circumstances of this case it is more appropriate that the defendants regain
possession of the room. I therefore decline to hold that the claimant has a
licence to continue occupying the room.
DISPOSITION
[136] In the final analysis, upon a careful consideration of the law, the evidence of the
witnesses, the particular circumstances of this case and assessing the
circumstances ‘in the round’, this court finds that there was no contractual
agreement between the parties as there was never an intention to create legal
relations. Rather the house was built out of mutual love and affection, the 2
nd
defendant did not through her words or conduct assure the claimant that she
would not enforce her strict legal rights and the defendants have not been
unjustly enriched at the claimant’s expense.
[137] I therefore give judgment for the defendants on the claim and counterclaim and
make the following Orders:
(1) The claim for recovery of possession of the portion of a dwelling house
situated on land being ALL THAT parcel of land part of Elderslie called
Cooks Bottom in the parish of St. Elizabeth, registered at Volume 1262 Folio
598 is denied;
(2) The claim for an order for the transfer of the title to the claimant as joint
tenant with the existing registered proprietor is denied;
(3) The claim in the alternative for the sum of Four Million, Eight Hundred
Thousand Dollars ($4,800,000.00) plus interest at 6% per annum, for work
done in construction of the house on the property by the claimant is denied;
(4) The claim for declaration that the claimant is the equitable mortgagee by way
of deposit of title deeds for the amount claimed is denied;
(5) The claim for an order that the property be appraised, sold and the said
amount with interest and cost be paid out of the proceeds to the claimant is
denied;
(6) The claimant shall deliver up forthwith to the 2
nd
defendant the Duplicate
Certificate of Title for ALL THAT parcel of land part of Elderslie called Cooks
Bottom in the parish of St. Elizabeth, registered at Volume 1262 Folio 598,
and to the 1
st
defendant the Deed of Indenture for ALL THAT piece or parcel
of land situate and lying and being in the said parish of St. Elizabeth and
known as part of Cooks Bottom containing by Survey three roods and ten
and one third perches be the same more or less butting and bounding as
shown in diagram from Survey Department numbered 43404, dated January
13, 1960.
(7) If the claimant remains in possession of a room in the defendants’ house she
shall forthwith deliver up possession of it to the defendants.
(8) Counsel for the defendants at the time of hearing indicated that he had taken
on this matter to assist a family member of the defendants. In the
circumstances therefore each party is to bear their own costs.
Dostları ilə paylaş: |