White v White

An express declaration that co-owners hold property as beneficial joint tenants does not necessarily exclude a collateral oral agreement governing the parties’ arrangements. Where that agreement requires survivorship and prevents voluntary severance, equity may disregard a notice of severance given in breach of it. The agreement may supplement, rather than contradict, the express trust. A retrial is a remedy of last resort. Deficiencies in a judge-alone trial and judgment do not require a retrial where the appellate court can identify the essential issues and conclude that the decision is safe.

The claimant, Barry White, succeeded before Mr David Oliver QC, sitting as a deputy judge of the Chancery Division, in a dispute with his brothers concerning the beneficial ownership of the former matrimonial home of their parents.

The property had been acquired in the joint names of the parents and Barry under an express declaration of trust. Barry asserted an oral agreement that he would fund the mortgage and conversion, while his parents would occupy part of the property rent-free and he would ultimately acquire the whole property by survivorship. His parents later executed a notice severing the beneficial joint tenancy. The deputy judge declared Barry beneficially entitled to the freehold. Brian appealed, principally seeking a retrial because of deficiencies in the pleadings, evidence analysis and judgment.

The central issues were whether the oral agreement prevented severance, whether the notice was induced by undue influence, and whether the deficiencies below made a retrial necessary.

1. Appeal dismissed. The deputy judge had reached a safe conclusion on the essential issues. A retrial was unnecessary, and the order was upheld with costs.
2. The express declaration of trust was consistent with the oral agreement. The declaration established a beneficial joint tenancy, while the oral agreement supplied the intended practical arrangement: Barry would undertake the mortgage and conversion costs, his parents would occupy the ground-floor accommodation rent-free, and Barry would normally become sole owner by survivorship.
3. The agreement necessarily implied that neither parent would sever the joint tenancy during his or her lifetime. The notice of severance was therefore ineffective because equity would disregard a notice given in breach of that agreement. The result did not depend on undue influence. The deputy judge had rejected the undue-influence claim concerning the 1989 notice, although he had criticised the conduct of Brian and Mr Bennett during later events.
4. The principle in Goodman v Gallant [1986] Fam 106 did not prevent the court from giving effect to the collateral agreement. That principle concerned the conclusiveness of an exhaustive express declaration of beneficial interests; here the agreement added to, rather than contradicted, the declaration.
5. An order for a retrial is a remedy of last resort. Although CPR Order 52 r.10 no longer formally requires proof of substantial wrong or miscarriage, the power remains restrictive. In a judge-alone trial, an appellate court may itself determine that defects in the judgment do not require a new trial. Heffer v Tiffin Green was exceptional and did not require a retrial in the present case.
6. The order was: appeal dismissed with costs, not to be enforced without permission of the court, with detailed assessment of each party’s costs.

• Court of Appeal (Civil Division): appeal from the order of Mr David Oliver QC, sitting as a deputy judge of the Chancery Division, dated 10 August 1999. Appeal dismissed with costs.