Judith Newman v Nigel Newman

• Jurisdiction: Jamaica
• Judge: Coram: Harris, J.
• Judgment Date: 22 February 2005
• Judgment citation (vLex): [2005] 2 JJC 2201
• Court: Supreme Court (Jamaica)
• Date: 22 February 2005

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN EQUITY

BETWEEN

JUDITH NEWMAN

APPLICANT

AND

NIGEL NEWMAN

RESPONDENT

Mrs. J. Samuels Brown for Applicant

Miss Saverna Chambers for Respondent.

REAL PROPERTY - Beneficial interest

Coram Harris, J

1 The applicant seeks a declaration that she is entitled to an interest in property known as 7 Mandela Drive, Temple Hall, registered at Volume 1213 Folio 626 and to certain consequential orders also.

2 The property was purchased by funds supplied by the Respondent. He is recorded as the sole registered proprietor on the Certificate of Title.

3 The parties met and formed a relationship in 1987. At that time, the Applicant was a 17 year old schoolgirl and the Respondent a 20 year old apprentice seaman. They lived in a common law relationship from or about February 1990 until October 12, 1991 when they got married.

4 It is the Applicant's evidence that sometime after the relationship commenced, she informed the Respondent that she was not prepared to continue the relationship unless they were married and moved into the their own home. The Respondent proposed marriage and told her he would purchase a home for them. After the house was bought, she supervised its maintenance, paid for the grilling of a window and purchased a water heater.

5 The Respondent declared that at the time he met the applicant he had already made a decision to purchase a home and had viewed a number of properties. He finally decided on 7 Mandela Drive. He further stated that his decision to marry the applicant was made subsequent to the acquisition of the home. This decision took place about 3 – 4 months before the marriage.

6 In order to determine whether the applicant has acquired a beneficial interest in 7 Mandela Drive, regard must be had to the equitable principles giving rise to the law of trust. In observance of the principles, Lord Diplock, in Gissing v. Gissing [1970] 2 ALL ER 780 at page 790 stated: -

"A resulting implied or constructive trust -and it is unnecessary for present purposes to distinguish between these three classes of trust - is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land"

7 Where there is no direct contribution by a claimant to the purchase price of the property, or where there is no express arrangement, or written agreement for the Claimant to share beneficially in the property, it must be established that there was a common intention between the parties that the Claimant should benefit and the Claimant acted upon it to his or her detriment.

8 In Grant v. Edwards 1 Ch 1986, 638 at page 64 Norse L.J. stated:-

"In order to decide whether the plaintiff has a beneficial interest in 96, Hewitt Road we must climb again the familiar ground which slopes down from the twin peaks of Pettit v. Pettit [1970] A.C 777 and Gissing v. Gissing [1971] A.C. 886. In a case such as the present, where there has been no written declaration or agreement, nor any direct provision by the plaintiff of part of the purchase price so as to give rise to a resulting trust in her favour, she must establish a common intention between her and the defendant, acted upon by her,...