Lloyds Bank plc (Appellants) v. Rosset and others
(Respondents)
JUDGMENT
Die Jovis 29° Martii 1990
Upon Report from the Appellate Committee to whom was
referred the Cause Lloyds Bank plc against Rosset and another,
That the Committee had heard Counsel on Monday the 12th,
Tuesday the 13th, Wednesday the 14th and Thursday the 15th
days of February last, upon the Petition and Appeal of Lloyds
Bank plc of 71, Lombard Street, London EC3P 3BS praying that
the matter of the Order set forth in the Schedule thereto,
namely an Order of Her Majesty’s Court of Appeal of the 13th
day of May 1988, as amended on the 15th day of June 1988,
might be reviewed before Her Majesty the Queen in Her Court of
Parliament and that the said Order might be reversed, varied
or altered or that the Petitioners might have such other
relief in the premises as to Her Majesty the Queen in Her
Court of Parliament might seem meet; as upon the case of the
Second Respondent Diana Irene Rosset lodged in answer to the
said Appeal; and due consideration had this day of what was
offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal of the 13th day of May 1988, as amended on the 15th
day of June 1988, complained of in the said Appeal be, and
the same is hereby, Set Aside, save as to costs, and that the
Order of His Honour Judge Scarlett of the 22nd day of May 1987
as between the Appellants and the Second Respondent be, and
the same is hereby Restored: And it is further Ordered,
That the Appellants do pay or cause to be paid to the said
Second Respondent the Costs incurred by her in respect of the
said Appeal to this House, the amount of such last-mentioned
Costs to be certified by the Clerk of the Parliaments if not
agreed between the parties: And it is also further Ordered,
That the Cause be, and the same is hereby, remitted back to
the Queen’s Bench Division of the High Court of Justice to do
therein as shall be just and consistent with this Judgment.
Die Martis 8° Maii 1990
Upon further Report from the Appellate Committee to whom
was again referred the Cause Lloyds Bank plc against Rosset
and others, That the Committee had heard Counsel on Thursday
the 3rd day of May last on a question of Costs:
Judgment: 29.3.90
HOUSE OF LORDS
LLOYDS BANK PLC
(APPELLANTS)
v.
ROSSET AND ANOTHER
(RESPONDENTS)
Lord Bridge of Harwich
Lord Griffiths
Lord Ackner
Lord Oliver of Aylmerton
Lord Jauncey of Tullichettle
LORD BRIDGE OF HARWICH
My Lords,
The subject matter of this dispute is Vincent Farmhouse,
Manston Road, Thanet (“the property”). The property is registered
land which the first respondent, Mr. Rosset, contracted to purchase
on 23 November 1982 and which was conveyed to him on 17
December 1982. On the same date Mr. Rosset executed a legal
charge on the property in favour of the appellant, Lloyds Bank
Plc. (“the bank”) to secure an overdraft on his current account
with the bank. The bank’s charge was registered on 7 February
1983. The bank initially agreed to allow Mr. Rosset to borrow up
to £15,000, but later raised this limit to £18,000. The limit was
in due course exceeded, the bank’s demand for repayment was not
met and the bank instituted proceedings in the Thanet County
Court for possession of the property in July 1984 against both
respondents. Mr. and Mrs. Rosset, who had initially occupied the
property as their matrimonial home, had by this time parted. Mr.
Rosset, who was no longer residing in the property, did not resist
the bank’s claim. Mrs. Rosset, however, alleged by way of
defence to the bank’s claim and by way of counterclaim against
her husband that she had been entitled, since the date when her
husband contracted to purchase the property, to a beneficial
interest in the property under a constructive trust which qualified
as an overriding interest under section 70(1)(g) of the Land
Registration Act 1925 because she was in actual occupation of the
property both on 17 December 1982 and 7 February 1983,
whichever was the relevant date to be considered in determining
the existence of the overriding interest to which she alleged the
bank’s charge was subject.
At the trial Judge Scarlett found that Mrs. Rosset was
entitled as against her husband to a beneficial interest in the
property in an amount to be determined at a future hearing. He
held that, on the true construction of the Land Registration Act,
the proprietor of a legal charge takes subject to overriding
interests which are subsisting on the date of creation, as opposed
to the date of registration, of the charge. He accordingly asked
himself whether Mrs. Rosset was in actual occupation of the
property on 17 December 1982 and, finding that she was not,
concluded that her equitable interest was not protected as an
overriding interest by section 70(1)(g) so as to prevail against the
bank’s legal charge. He gave judgment for possession in favour of
the bank. Mrs. Rosset appealed, but Mr. Rosset has taken no
further part in the proceedings.
The Court of Appeal unanimously affirmed the judge’s
decision that the relevant date on which Mrs. Rosset had to show
that she was in actual occupation in order to establish an
overriding interest which would prevail against the bank was 17
December 1982, the date of creation of the bank’s charge. But
they differed on the facts as to whether she was in actual
occupation on that date. Purchas and Nicholls L.JJ. held that she
was; Mustill L.J. held that she was not. The bank now appeals
by leave of your Lordships’ House against the majority decision of
the Court of Appeal in Mrs. Rosset’s favour.
The important question arising under the Land Registration
Act as to the relevant date on which to ascertain whether an
interest in registered land is protected by actual occupation so as
to prevail under section 70(1)(g) against the holder of a legal
estate has now been resolved by your Lordships’ decision in Abbey
National Building Society v. Cann in favour of the view that it is
the date when the estate is transferred or created, not the date
when it is registered.
The primary ground of the bank’s appeal challenges the
judge’s finding, which was also unanimously affirmed by the Court
of Appeal, that Mrs. Rosset had by the date of completion
acquired a beneficial interest in the property.
The Rossets were married in 1972. There are two children
of the marriage, a daughter born in 1972 and a son born in 1981.
From 1976 until the events giving rise to the present dispute, the
parties were living in premises which had been built as an
extension to a bungalow in Broadstairs which was the home of
Mrs. Rosset’s parents, Mr. and Mrs. Gardner. Mr. Rosset had
borne the cost of building the extension, but it was occupied on
the terms of an agreement between the Rossets and the Gardners
which provided that, on the Rossets vacating the extension, each
should be paid a fixed sum by Mr. and Mrs. Gardner. Mrs.
Rosset’s father had insisted on his daughter being joined in the
agreement in this way.
Mr. Rosset is a Swiss national. He was working in 1982 as
a courier conducting coach parties of tourists on the continent of
Europe and was away from home a great deal. Some time before
1982 he became entitled to a substantial sum of money under a
trust fund established by his grandmother in Switzerland. In 1982
the Rossets were looking for a new home to be bought with Mr.
Rosset’s inheritance. It was Mrs. Rosset who first found the
property. It had been unoccupied for seven or eight years and
required substantial work to render it suitable for occupation.
Mrs. Rosset took her husband to see it. He liked it and made an
offer to purchase it for the asking price of £57,500. This was
accepted on 3 August 1982 subject to contract.
– 2 –
On 25 October 1982 Mr. Rosset opened an account at the
Broadstairs branch of the bank. He saw the manager and told him
that he was intending to buy the property with money he had
inherited in Switzerland. On 2 November Mr. Rosset received a
payment of £70,200 from Switzerland of which £59,200 was paid
into his account with the bank. On 23 November contracts for
the purchase of the property were exchanged. On 14 December
Mr. Rosset saw the bank manager and asked to be allowed to
overdraw on his current account up to £15,000 to meet the cost
of the works of renovation which were needed to be undertaken to
the property. The manager asked whether the property was to be
acquired in joint names. Mr. Rosset replied that the property was
to be acquired in his sole name because his wife and children were
living with her parents. The manager agreed the overdraft and
Mr. Rosset signed the bank’s form of charge which was then sent
to Mr. Rosset’s solicitor to be dated on completion and registered
on behalf of the bank. Completion took place on 17 December
with funds drawn from the account which required an initial
overdraft of £2,267. Mrs. Rosset knew nothing of the charge to
the bank or the overdraft.
Meanwhile Mr. and Mrs. Rosset had been let into possession
of the property by the vendors even before the exchange of
contracts. The builder employed by them, a Mr. Griffin,
commenced work on 7 November 1982. It was originally hoped
that the house would be ready for the Rossets to move in before
Christmas, but this proved in the event to be impossible.
Eventually the Rossets moved in about the middle of February
1983 when the work was substantially complete. By this time Mr.
Rosset’s overdraft had risen to. over £18,000 and the bank refused
to extend further credit. Most of the additional funds drawn from
the account had been expended in paying for the renovation works.
Both the purchase price of the property and the cost of the works
of renovation were paid by Mr. Rosset alone and Mrs. Rosset made
no financial contribution to the acquisition of the property.
The case pleaded and carefully particularised by Mrs. Rosset
in support of her claim to an equitable interest in the property
was that it had been expressly agreed between her and her
husband in conversations before November 1982 that the property
was to be jointly owned and that in reliance on this agreement she
had made a significant contribution in kind to the acquisition of
the property by the work she had personally undertaken in the
course of the renovation of the property which was sufficient to
give rise to a constructive trust in her favour.
There was a conflict of evidence between Mr. and Mrs.
Rosset on the vital issue raised by this pleading. The question the
judge had to determine was whether he could find that before the
contract to acquire the property was concluded they had entered
into an agreement, made an arrangement, reached an
understanding, or formed a common intention that the beneficial
interest in the property would be jointly owned. I do not think it
is of importance which of these alternative expressions one uses.
Spouses living in amity will not normally think it necessary to
formulate or define their respective interests in property in any
precise way. The expectation of parties to every happy marriage
is that they will share the practical benefits of occupying the
matrimonial home whoever owns it. But this is something quite
– 3 –
distinct from sharing the beneficial interest in the property asset
which the matrimonial home represents. These considerations give
rise to special difficulties for judges who are called on to resolve
a dispute between spouses who have parted and are at arm’s
length as to what their common intention or understanding with
respect to interests in property was at a time when they were
still living as a united family and acquiring a matrimonial home in
the expectation of living in it together indefinitely.
Since Mr. Rosset was providing the whole purchase price of
the property and the whole cost of its renovation, Mrs. Rosset
would, I think, in any event have encountered formidable difficulty
in establishing her claim to joint benficial ownership. The claim
as pleaded and as presented in evidence was, by necessary
implication, to an equal share in the equity. But to sustain this it
was necessary to show that it was Mr. Rosset’s intention to make
an immediate gift to his wife of half the value of a property
acquired for £57,500 and improved at a further cost of some
£15,000. What made it doubly difficult for Mrs. Rosset to
establish her case was the circumstance, which was never in
dispute, that Mr. Rosset’s uncle, who was trustee of his Swiss
inheritance, would not release the funds for the purchase of the
property except on terms that it was to be acquired in Mr.
Rosset’s sole name. If Mr. and Mrs. Rosset had ever thought
about it, they must have realised that the creation of a trust
giving Mrs. Rosset a half share, or indeed any other substantial
share, in the beneficial ownership of the property would have been
nothing less than a subterfuge to circumvent the stipulation which
the Swiss trustee insisted on as a condition of releasing the funds
to enable the property to be acquired.
In these circumstances, it would have required very cogent
evidence to establish that it was the Rossets’ common intention to
defeat the evident purpose of the Swiss trustee’s restriction by
acquiring the property in Mr. Rosset’s name alone but to treat it
nevertheless as beneficially owned jointly by both spouses. I doubt
whether the evidence would have sustained a finding to that
effect. But the judge made no such finding. On the contrary, his
judgment on this point amounts to a clear rejection of Mrs.
Rosset’s pleaded case. He said:
“The decision to transfer the property into the name of the
first defendant alone was a disappointment to the second
defendant, but I am satisfied that she genuinely believed
that the first defendant would hold the property in his name
as something which was a joint venture, to be shared
between them as the family home and that the reason for it
being held by the first defendant alone was to ensure that
the first defendant’s uncle would sanction the export of
trust funds from Switzerland to England for the purchase.
As so often happens the defendants did not pursue their
discussion to the extent of defining precisely what their
respective interests in the property should be. It was
settled that the property should be transferred into the
name of the first defendant alone to achieve the provision
of funds from Switzerland, but in the period from August
1982 to the 23 November 1982 when the contracts were
exchanged, the defendants did not decide whether the second
defendant should have any interest in the property.’ On one
– 4 –
occasion the second defendant heard the first defendant say
to her parents that he had put the house in their joint
names, but she knew that he could not do that and treated
what he said as an expression of what he would like to do.
In these circumstances I am satisfied that the outcome of
the discussions between the parties as to the name into
which the property should be transferred did not exclude the
possibility that the second defendant should have a
beneficial interest in the property.”
I have emphasised the critical finding in this passage from the
judgment.
Even if there had been the clearest oral agreement between
Mr. and Mrs. Rosset that Mr. Rosset was to hold the property in
trust for them both as tenants in common, this would, of course,
have been ineffective since a valid declaration of trust by way of
gift of a beneficial interest in land is required by section 53(1) of
the Law of Property Act 1925 to be in writing. But if Mrs.
Rosset had, as pleaded, altered her position in reliance on the
agreement this could have given rise to an enforceable interest in
her favour by way either of a constructive trust or of a
proprietary estoppel.
Having rejected the contention that there had been any
concluded agreement, arrangement or any common intention formed
before contracts for the purchase of the property were exchanged
on 23 November 1982 that Mrs. Rosset should have any beneficial
interest, the judge concentrated his attention on Mrs. Rosset’s
activities in connection with the renovation works as a possible
basis from which to infer such a common intention. He described
what she did up to the date of completion as follows:
“Up to 17 December 1982 the second defendant’s
contribution to the venture was: (1) to urge on the builders
and to attempt to co-ordinate their work, until her husband
insisted that he alone should give instructions; (2) to go to
builders’ merchants and obtain material required by the
builders . . . and to deliver the materials to the site. This
was of some importance because Mr. Griffin and his
employees did not know the Thanet area; (3) to assist her
husband in planning the renovation and decoration of the
house. In this, she had some skill over and above that
acquired by most housewives. She was a skilled painter and
decorator who enjoyed wallpapering and decorating, and, as
her husband acknowledged, she had good ideas about this
work. In connection with this, she advised on the position
of electric plugs and radiators and planned the design of the
large breakfast room and the small kitchen of the house;
(4) to carry out the wallpapering of Natasha’s bedroom and
her own bedroom, after preparing the surfaces of the walls
and clearing up the rooms concerned before the papering
began; (5) to begin the preparation of the surfaces of the
walls of her son’s bedroom, the Den, the upstairs lavatory
and the downstairs washroom for papering. All this
wallpapering was completed after 17 December 1982 but by
31 December 1982; (6) to assist in arranging the insurance
of the house by the Minster Insurance Co. Ltd. home cover
policy, in force from 3 November 1982; (7) to assist in
– 5 –
arranging a crime prevention survey on 23 November 1982;
(8) to assist in arranging the installation of burglar alarms
described in a specification dated 3 December 1982.”
Later the judge said:
“I am satisfied that in 1982 the common intention expressed
by the defendants in conversation between themselves was
that Vincent Farmhouse should be purchased in the name of
the first defendant alone, because funds would not be made
available from the first defendant’s family trust in
Switzerland unless the purchase was made only in his name.
In addition, however, it was their common intention that the
renovation of the house should be a joint venture, after
which the house was to become a family home to be shared
by the defendants and their children.”
I pause to observe that neither a common intention by spouses
that a house is to be renovated as a “joint venture” nor a common
intention that the house is to be shared by parents and children as
the family home throws any light on their intentions with respect
to the beneficial ownership of the property.
Reverting to Mrs. Rosset’s activity in connection with the
renovation of the property the judge said:
“It is plain that she made every effort to make the house
fit for occupation before Christmas 1982 and spent all the
time she could at Vincent Farmhouse in between taking
Natasha to school and fetching her from school. . . .
Obviously the extent of the work which the defendant did in
preparation, clearing up before painting and decorating, and
the painting and decorating itself, was valuable. … In the
result, having considered: (1) the semi-derelict condition of
Vincent Farmhouse in November 1982, (2) the absence of the
first defendant abroad for 10 days in November and early
December 1982, (3) the second defendant’s special skills in
painting and decorating over and above those of the average
housewife and her indirect contribution to reducing the cost
of renovation of the farmhouse by carrying out certain
painting and decorating herself, (4) the time she spent at
the farmhouse from 4 November 1982 attempting to co-
ordinate the work of the builders and her work in ordering
and delivering materials to the site for the builders, and (5)
the conversations between the parties concerning into whose
name the property was to be transferred and the nature of
the joint venture and the purpose of purchasing Vincent
Farmhouse;
I am satisfied that prior to 17 December 1982 there was a
common intention between the defendants that the second
defendant should have a beneficial interest in the property
under a constructive trust and that she did act to her
detriment on the faith of such a common intention. Some,
but not all, of her work at the farmhouse prior to 17
December 1982 falls into the category of work upon which
she could not reasonably have been expected to embark
unless she was to have an interest in the house, namely the
work to which she brought the special skills of painting and
– 6 –
decorating and her work in ordering and delivering materials
to the site for the builders in attempting to co-ordinate her
work. These actions by the second defendant must have
reduced the cost of renovating the farmhouse and thus
indirectly contributed to the acquisition of the property,
albeit to a small extent.”
At the very end of his judgment the judge pointed out that
he had made no finding as to the extent of Mrs. Rosset’s
beneficial interest in the property. He indicated that he would
hear counsel as to what directions should be given for the
determination of this issue at a later date. He concluded his
judgment with the sentence:
“An area which the court would wish to explore is the
extent to which the qualifying conduct of the second
defendant reduced the cost of the renovation of the
farmhouse and its buildings.”
It is clear from these passages in the judgment that the
judge based his inference of a common intention that Mrs. Rosset
should have a beneficial interest in the property under a
constructive trust essentially on what Mrs. Rosset did in and about
assisting in the renovation of the property between the beginning
of November 1982 and the date of completion on 17 December
1982. Yet by itself this activity, it seems to me, could not
possibly justify any such inference. It was common ground that
Mrs. Rosset was extremely anxious that the new matrimonial home
should be ready for occupation before Christmas if possible. In
these circumstances it would seem the most natural thing in the
world for any wife, in the absence of her husband abroad, to spend
all the time she could spare and to employ any skills she might
have, such as the ability to decorate a room, in doing all she
could to accelerate progress of the work quite irrespective of any
expectation she might have of enjoying a beneficial interest in the
property. The judge’s view that some of this work was work
“upon which she could not reasonably have been expected to
embark unless she was to have an interest in the house” seems to
me, with respect, quite untenable. The impression that the judge
may have thought that the share of the equity to which he held
Mrs. Rosset to be entitled had been “earned” by her work in
connection with the renovation is emphasised by his reference in
the concluding sentence of his judgment to the extent to which
her “qualifying contribution” reduced the cost of the renovation.
On any view the monetary value of Mrs. Rosset’s work
expressed as a contribution to a property acquired at a cost
exceeding £70,000 must have been so trifling as to be almost de
minimis. I should myself have had considerable doubt whether
Mrs. Rosset’s contribution to the work of renovation was sufficient
to support a claim to a constructive trust in the absence of
writing to satisfy the requirements of section 51 of the Law of
Property Act even if her husband’s intention to make a gift to her
of half or any other share in the equity of the property had been
clearly established or if he had clearly represented to her that
that was what he intended. But here the conversations with her
husband on which Mrs. Rosset relied, all of which took place
before November 1982, were incapable of lending support to the
conclusion of a constructive trust in the light of the judge’s
– 7 –
finding that by that date there had been no decision that she was
to have any interest in the property. The finding that the
discussions “did not exclude the possibility” that she should have an
interest does not seem to me to add anything of significance.
These considerations lead me to the conclusion that the
judge’s finding that Mr. Rosset held the property as constructive
trustee for himself his wife cannot be supported and it is on this
short ground that I would allow the appeal. In the course of the
argument your Lordships had the benefit of elaborate submissions
as to the test to be applied to determine the circumstances in
which the sole legal proprietor of a dwelling house can properly be
held to have become a constructive trustee of a share in the
beneficial interest in the house for the benefit of the partner with
whom he or she has cohabited in the house as their shared home.
Having in this case reached a conclusion on the facts which,
although at variance with the views of the courts below, does not
seem to depend on any nice legal distinction and with which, I
understand, all your Lordships agree, I cannot help doubting
whether it would contribute anything to the illumination of the law
if I were to attempt an elaborate and exhaustive analysis of the
relevant law to add to the many already to be found in the
authorities to which our attention was directed in the course of
the argument. I do, however, draw attention to one critical
distinction which any judge required to resolve a dispute between
former partners as to the beneficial interest in the home they
formerly shared should always have in the forefront of his mind.
The first and fundamental question which must always be
resolved is whether, independently of any inference to be drawn
from the conduct of the parties in the course of sharing the house
as their home and managing their joint affairs, there has at any
time prior to acquisition, or exceptionally at some later date, been
any agreement, arrangement or understanding reached between
them that the property is to be shared beneficially. The finding
of an agreement or arrangement to share in this sense can only, I
think, be based on evidence of express discussions between the
partners, however imperfectly remembered and however imprecise
their terms may have been. Once a finding to this effect is made
it will only be necessary for the partner asserting a claim to a
beneficial interest against the partner entitled to the legal estate
to show that he or she has acted to his or her detriment or
significantly altered his or her position in reliance on the
agreement in order to give rise to a constructive trust or a
proprietary estoppel.
In sharp contrast with this situation is the very different
one where there is no evidence to support a finding of an
agreement or arrangement to share, however reasonable it might
have been for the parties to reach such an arrangement if they
had applied their minds to the question, and where the court must
rely entirely on the conduct of the parties both as the basis from
which to infer a common intention to share the property
beneficially and as the conduct relied on to give rise to a
constructive trust. In this situation direct contributions to the
purchase price by the partner who is not the legal owner, whether
initially or by payment of mortgage instalments, will readily justify
the inference necessary to the creation of a constructive trust.
But, as I read the authorities, it is at least extremely doubtful
whether anything less will do.
– 8 –
The leading cases in your Lordships’ House are Pettitt v.
Pettitt [1970] AC 777 and Gissing v. Gissing [1971] AC 886.
Both demonstrate situations in the second category to which I have
referred and their Lordships discuss at great length the difficulties
to which these situations give rise. The effect of these two
decisions is very helpfully analysed in the judgment of Lord
MacDermott L.C.J. in McFarlane v. McFarlane [1972] N.I. 79.
Outstanding examples on the other hand of cases giving rise
to situations in the first category are Eves v. Eves [1975] 1
W.L.R. 1338 and Grant v. Edwards [1986] Ch 638. In both these
cases, where the parties who had cohabited were unmarried, the
female partner had been clearly led by the male partner to
believe, when they set up home together, that the property would
belong to them jointly. In Eves the male partner had told the
female partner that the only reason why the property was to be
acquired in his name alone was because she was under 21 and
that, but for her age, he would have had the house put into their
joint names. He admitted in evidence that this was simply an
“excuse.” Similarly in Grant v. Edwards the female partner was
told by the male partner that the only reason for not acquiring
the property in joint names was because she was involved in
divorce proceedings and that, if the property were acquired jointly,
this might operate to her prejudice in those proceedings. As
Nourse L.J. put it, at p. 649:
“Just as in Eves v. Eves [1975] 1 WLR 1338, these facts
appear to me to raise a clear inference that there was an
understanding between the plaintiff and the defendant, or a
common intention, that the plaintiff was to have some sort
of proprietary interest in the house; otherwise no excuse for
not putting her name on to the title would have been
needed.”
The subsequent conduct of the female partner in each of these
cases, which the court rightly held sufficient to give rise to a
constructive trust or proprietary estoppel supporting her claim to
an interest in the property, fell far short of such conduct as would
by itself have supported the claim in the absence of an express
representation by the male partner that she was to have such an
interest. It is significant to note that the share to which the
female partners in Eves and Grant v. Edwards were held entitled
were one quarter and one half respectively. In no sense could
these shares have been regarded as proportionate to what the
judge in the instant case described as a “qualifying contribution” in
terms of the indirect contributions to the acquisition or
enhancement of the value of the houses made by the female
partners.
I cannot help thinking that the judge in the instant case
would not have fallen into error if he had kept clearly in mind the
distinction between the effect of evidence on the one hand which
was capable of establishing an express agreement or an express
representation that Mrs. Rosset was to have an interest in the
property and evidence on the other hand of conduct alone as a
basis for an inference of the necessary common intention.
– 9 –
If Mrs. Rosset had become entitled to a beneficial interest
in the property prior to completion it might have been necessary
to examine a variant of the question regarding priorities which
your Lordships have just considered in Abbey National Building
Society v. Cann and, subject to that question, to decide whether,
as a matter of fact, she was in “actual occupation” of the
property on 17 December 1982. Since these questions have now
become academic, I do not think any useful purpose would be
served by going into them.
For the reasons I have indicated I would allow the appeal,
set aside the order of the Court of Appeal and, as between Mrs.
Rosset and the bank, restore the order of the trial judge.
LORD GRIFFITHS
My Lords,
I have had the advantage of reading in draft the speech of
my noble and learned friend, Lord Bridge of Harwich. I agree
with it and, for the reasons he gives, I would allow the appeal.
LORD ACKNER
My Lords,
I have had the advantage of reading in draft the speech
delivered by my noble and learned friend Lord Bridge of Harwich.
I agree with it and would allow the appeal for the reasons which
he has given.
LORD OLIVER OF AYLMERTON
My Lords,
I have had the advantage of reading in draft the speech
delivered by my noble and learned friend Lord Bridge of Harwich.
I agree with it and would allow the appeal for the reasons which
he has given.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend Lord Bridge of Harwich.
I agree with it, and for the reasons which he has given I too
would allow the appeal.
– 10 –
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