Judgment entered for the Plaintiff to keep the matrimonial house on the land, absolutely. Small house to the Defendant absolutely. Land to be partitioned and title to that part of the land on which the matrimonial home stands, to be conveyed to the Plaintiff. Each party to bear its own costs.
The Plaintiff’s evidence that the Defendant had made an oral representation of an intention to co-own the properties with her was shaky at best and did not meet the standard applied in the locus classicus on fraudulent misstatements set out in Derry v Peek [1889] LR 14 App Cas 337 in that there must be proof of fraud and that fraud is shown that a false representation is made knowingly; or without belief in its truth; or recklessly, careless whether it be true or false (paras 55-56).
It is now settled law that in determining property relations between husband and wife, the law of trusts is the applicable body of law, and in particular, constructive trusts in circumstances in which a particular partner contributes to the acquisition of property directly or indirectly upon a belief that he/she would own a beneficial interest in the property. The court found as a fact that although there may have been no expressed intent by the Defendant that the Plaintiff would hold a beneficial interest in the buildings, the significant contribution of the plaintiff, made in the belief that she was providing security for the loan in purchasing the freehold title, preserving that which was her own through routine maintenance and repairs after hurricanes, which contribution was accepted by the Defendant as an entitlement, placed the Defendant in the position of a trustee (paras 62-64; 91-94, 100). Gissing v. Gissing [1970] 2 All ER 780 HL CONSIDERED; Grant v. Edwards and anor [1986] 2 All ER 426 CONSIDERED; Abbott v. Abbott PC Appeal No 142/2005 CONSIDERED; Lloyd’s Bank plc v. Rosset [1991] AC 107 at 132-3 CONSIDERED; Midland Bank v Cooke [1992] 2 FLR 995 CA CONSIDERED.
The Court has the power to deal with the marital contributions to property acquired in a period that includes the period of marriage under ss 28 and 29 of the Matrimonial Causes Ordinance Cap 11.04 (para 95).
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