Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 25 of 2007

Frahm v. Schick (CL 25 of 2007) [2011] TCASC 7 (01 May 2011);

Law report citations
Media neutral citation
[2011] TCASC 7
Coram
Martin, J

IN THE SUPREME COURT OF THE                                                           Case No CL 25/07

TURKS AND CAICOS ISLANDS

BETWEEN

MARTHE MARCELLE FRAHM                                         Plaintiff

and

LESLIE KENNETH SCHICK                                        Defendant

(as executor of the estate of Delmar Walter Schick)

Heard 12, 14, 26, 27, April 2011

For the Ms Frahm: Mr J Rutley

For the Mr Schick: Mr J Katan

JUDGMENT

(Numbers in square brackets refer to documents in the trial bundles.)

Background

1.             11 June 2004 was a terrible night with terrible consequences. Burglars broke into the house shared by the Canadian couple everyone knew as Del and Marty and stabbed him to death. Not only has his family been deprived of a father and brother; it has estranged her from his family, laid bare the sort of problems many families have but should be allowed to keep private, and generated years of litigation at enormous expense. The problems arose because they were not married, and the law here does not recognise any rights arising from what in Canada is known as a “common law” relationship.

2.             The couple were Delmar Walter Schick (“Mr Schick”) and Marthe Marcelle Frahm (“Ms Frahm”). They had both worked for Air Canada. He was a long haul pilot; she was a flight attendant. They had lived together from about 1998, originally in a house rented by Ms Frahm in Canada. At the time of his death they lived in a house built on parcel 60702/161, Cheshire Hall & Richmond Hills, Providenciales registered in Mr Schick’s name only. I shall simply refer to it as “the house”.

3.             Mr Schick’s will dated 27 March 1997 (when their relationship was in its early stages) makes no provision for Ms Frahm. The executor, Mr Schick’s brother, wishes to sell the house to distribute the estate. Notice was given requiring Ms Frahm to vacate. She registered a caution against the property to protect the interest she claims. She says that she and Mr Schick had agreed and intended that in due course the property would be transferred to them as beneficial joint tenants; and claims the entire property as the survivor. I have to determine whether she has any, and if so what interest in the property.

4.             The claim is, in effect, for a declaration that she is a joint tenant in equity with a right of survivorship by virtue of a constructive trust. She says that there was an express agreement; alternatively that a trust arises by virtue of financial contributions and other help with construction of the house. Mr Rutley also seeks to rely on proprietary estoppel. Mr Katan says (correctly) that as a separate ground this would have to be pleaded with full details of the representations relied on. In so far as it is put forward as a separate ground I cannot take it into account. But in a case of this nature the concepts of constructive trust based on common intention and proprietary estoppel are indistinguishable.1

5.             The defence

(i)            denies any express agreement;

(ii)           denies that Ms Frahm made any financial contribution to the property and

(iii)          denies the existence of a constructive             trust.

There is a counterclaim; but by order of 16 June 2010 at this stage I am only required to determine the issue on the claim.

1Oxley v Hiscock [2005] 1 Fam 211, at para 66

The law

6.             The task of the court in a case of this nature is a clinical one. As Lady Hale said in Stack v Dowden [2007] 2 AC 432 (at para 60), it is ‘to ascertain the parties' shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it. ’ The first question is whether there was a common intention that Ms Frahm should have any interest at all in the house. If so, the second is to ascertain the nature of that interest.

7.             If there was an express agreement, that settles the matter. But the evidence of that has to be clear. As Lord Bridge said in Lloyds Bank plc v Rosset [1991] 1 AC 107 (at p 132) “If there is to be a finding of an actual ‘agreement, arrangement, or understanding’ between the parties it must be based on evidence of express, discussions between the partners, however imperfectly remembered and however imprecise their terms may have been.”

8.             In the absence of an express agreement, Lord Bridge had this to say (at 132H- 133B): “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 to 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.’ (The last sentence has now been disapproved.)

9.             In Thomson v Humphrey [2010] 2 FLR 107 Warren J helpfully reviewed earlier cases up to Stack v Dowden. He reminded us of speech of Lord Diplock in Gissing v Gissing (1971) A.C. 886

“If the legal estate in the joint home is vested in only one of the parties (‘the legal owner’) the other party (‘the claimant’), in order to establish a beneficial interest, has to establish a constructive trust by showing that it would be inequitable for the legal owner to claim sole beneficial ownership. This requires two matters to be demonstrated: (a) that there was a common intention that both should have a beneficial interest; AND (b) that the claimant has acted to his or her detriment on the basis of that common intention.” He continued (at para 29):

“Accepting that matters have moved on since Lord Bridge's restrictive requirement that there needs to be a direct contribution in terms of the mortgage payments, it is not sensible to attempt to say what will and will not be enough. There will be cases which, on any view, fall from the claimant's point of view on the wrong side of the line, wherever that line is to be drawn. Each case is to be viewed on its facts ...”

10.          Sir Peter Gibson in Morris v Morris [2008] FLR 52,1 after quoting Lady Hale’s comment in Stack v Dowden about the task of the court said:

“the first question [is] whether an agreement arrangement or understanding that the claimant was to acquire a beneficial interest in the land has been shown. The authorities make clear that a common intention constructive trust based only on conduct will only be found in exceptional circumstances.”

11.          Warren J encapsulated the present state of the law at para 35:

“Before leaving the law, there is one other point I wish to make. Cases of this nature are to do with application of some quite strict legal principles, and not with imposing some standard of fairness ... the search is still for the result which reflects what the parties must, in the light of their conduct, be taken to have intended ... therefore, it does not enable the court to abandon that search in favour of the result which the court itself considers fair.

12.          With those principles in mind, I turn to the facts of this case.

The evidence

13.          Ms Frahm was previously married and had two daughters. She separated in 1996 and was divorced in 2000. Mr Schick had been married twice before. His first wife died leaving him with two children, Amanda and Christopher (who gave evidence). He married again but this marriage failed. He was divorced in 1996 but financial issues were not concluded until June 1999, when he was required to pay his wife what he considered (according to his brother Leslie Schick) far too much. He found the litigation very stressful. It also appears to have made him wary of making another commitment because when he was contemplating getting married again he asked his brother about pre-nuptial agreements made by friends of his.

14.          Like many other pilots with Air Canada, Mr Schick decided that he could save tax if he became non resident in Canada. Since 1995 he has been formally resident in the Turks and Caicos Islands [716]. Notwithstanding this, in November 1998 Ms Frahm and Mr Schick began to live together in Canada, sharing time together whenever their flight schedules permitted. At first they lived in a house rented by Ms Frahm from Mrs Elizabeth Bakos at 32 Leggett Avenue, Etobicoke, Ontario. Mr Schick’s daughter Amanda lived there also while she was attending university. Ms Frahm paid the rent but Mr Schick paid the bulk of the expenses. She kept the tenancy until September 2003. Meanwhile the search continued for a plot on which to build in Providenciales.

15.          On 19 January 1999 Ms Frahm received her divorce settlement of Can$96,081.40. This was transferred to Mr Schick’s account here, she says as part of her contribution to the anticipated purchase of land and building costs. I will consider this in more detail later. In March 2000 the land was bought in Mr Schick’s sole name [1352]. She explained that by then he was involved in litigation with the tax authorities in Canada [1370-1380] and it was feared that if she, still a resident of. Canada, had an interest in the house it might affect his claim to be non resident himself. That also is something I must consider later.

16.          Ms Frahm says that before the purchase was concluded they had agreed between themselves that in due course the house would be transferred to them both as beneficial joint tenants (as she put it, “with rights of survivorship in the event something happened to either one of us”). She says that they had many, many discussions about that between themselves, and that it was clearly agreed that the transfer would be made when three things had occurred: the litigation with the tax authorities was concluded; they had both retired; and they were married. There were no other witnesses to these conversations, and there is no evidence that either of them told anyone else about the agreement. Ms Frahm took the view that it was no one else’s business. As the building work progressed she said that she took an active part. I will return to that later.

17.          She said that Mr Schick wanted her to retire so that they could spend more time together. The opportunity arose in 2001 when Air Canada offered attractive, retirement packages to a number of staff. On 28 March 2002, on receipt of her retirement package of Can$46,020 she transferred the whole of it to Mr Schick’s account, she says as a further contribution to the cost of their home.

18.          On 24 October 2002 Mr Schick proposed marriage [231]. She accepted and immediately e-mailed various friends with the news. Mr Schick’s brother and children said that he did not tell them about it.

19.          Mr Schick began to suffer with shingles and had to give up work on 12 March 2003 [262, 1334]. The tenancy of the house in Leggett Avenue was surrendered at the end of October 2003 and from then until his death on 11 June 2004 they lived permanently in Providenciales.

20.          After Mr Schick’s death Ms Frahm understandably had difficulty in coping. At first the Schick family provided support. The most valuable benefit to her was Mr Schick’s pension from Air Canada, to which she would be entitled if she could prove her position as his common law spouse. Her first application for this was rejected [410] and a refund of contributions was made to the estate. This was when the relationship with the family began to sour. She sought their help in proving that she met the requirements of the pension scheme. Her lawyer submitted letters for them to sign which Mr Leslie Schick thought would compromise his brother’s tax claim because of references to their living together in Canada; he refused to sign it and advised Amanda and Christopher to do the same. Eventually with the help of a lawyer here she managed to persuade the pension fund authorities of her status and she now receives the pension [441]. The estate had to refund the capital payment to the pension fund, though it seems to have been reluctant to do so. Ms Frahm felt aggrieved at the apparent lack of support from the family. The family felt aggrieved at her apparent readiness to prejudice Mr Schick’s tax claim.

21.          No will having been found, Leslie Schick applied for letters of administration which were granted on 28 February 2005 [1025]. In anticipation of this grant on 25 January 2005 Hugh O’Neill and Co wrote to Leslie Schick to say [946-7], inter alia: “You will, I presume, be aware that Marty has a substantial financial interest in the house here in Providenciales both in terms of her cash investment in the construction and her personal effort with Del during the construction phase. This is a matter I presume will be dealt with as part of the estate when you are appointed.”

22.          On 18 May 2005 while looking in an unrelated file Dale Peters, at Mr O’Neill’s firm, was surprised to find an executed copy of a standard form will executed by Mr Schick on 27 March 1997 [206-213]. It had not been prepared by them and was not in the usual place where they store wills. It was promptly disclosed, and on 31 August 2005 the letters of administration were revoked and Mr Leslie Schick was appointed executor of the will [593].

23.          Mr Leslie Schick said in his witness statement that in September or October 2004 Ms Frahm approached him to ask for her money, saying that she was “flat broke”. “She said she had no money to move back to Canada as she had given the proceeds of her divorce and cashed in her RRSP (retirement payment) to Del to invest”. In cross examination he said: “She said Del had invested the money and could she have it because she was broke”. He asked for a paper trail so that the money could be traced back to her. Certain information was provided but it did not satisfy him. Nothing else appears to have happened until 15 June 2005 when Mr Katan wrote to Ms Frahm asking for evidence of a missing link in the bank transfers [601]. By then she had taken advice and was pursuing the claim now put forward. There was a series of meetings in an attempt to reach a settlement, but without success. The house was put up for sale. On 7 February 2006 Ms Frahm applied for a caution to protect her interest. On 11 May 2006 Mr Katan served notice terminating what he says was her licence to occupy the house. Application was made to remove the caution which was refused and this action was commenced. Since Mr Schick’s death the estate has made all the mortgage repayments.

24.          Mrs Elizabeth Bakos was their landlady in Canada. She said that “Del was the spokesperson and said the lease would be in Marty’s name. They became friendly and she and Ms Frahm would spend time together when Mr Schick was not there, shopping, visiting restaurants and chatting. When Mr Schick was there and they spoke of the house in TCI she said he always referred to it as “his house” and never said “our house”. She confirmed that there were tensions between Ms Frahm and Amanda (something confirmed by Amanda when she gave evidence but denied by Ms Frahm) and between Mr Schick and Christopher (which became very evident when he gave evidence). I do not propose to go into the details; it suffices to say that I am satisfied that such tensions did exist.

25.          Shortly after her husband’s death Ms Frahm and Mr Schick asked Mrs Bakos and her son Zoltan Bakos to witness various documents. They had left the documents with them a day or two before so that they could read them if they wished. They were executed on 31 July 2001. The documents produced show that Ms Frahm executed a power of attorney for personal care [214-6], a power of attorney for property [217- 220] and a will [201-205]. Mr Schick executed a power of attorney for personal care [221-223], a power of attorney for property [224-227], but no will. The powers of attorney each named someone else first, but if they could not act then Ms Frahm appointed Mr Schick and he appointed her. Both thought that Mr Schick had also executed a will. When being shown the relevant documents Mrs Bakos looked puzzled, and eventually said “Something is missing. It’s Del’s will.” When I asked her if she could be sure that he made a will then she said “I know Del made a will. He said his son had to learn a lesson.”

26.          She must have read something. She said in her witness statement: “I remember the only thing that Del seemed to be leaving to Marty was a stuffed toy ... I did ask whether Marty would get anything else and looking at Marty, Del said. “We shall see. I then asked him whether she was going to get the house in TCI. Firmly he said “NO”, then added that should he die, everything would go to his brother who would be named as executor for his children and mother. This has stuck strongly in my memory.”

27.          Mr Bakos had taken copies of the documents, but he was unable to find them. I accept that Mr Schick discussed the contents of his will, which is evidence of his intentions at that time. But I am not convinced that he made another will on that occasion. For some reason they had witnessed four copies of Ms Frahm’s will (all four were produced) and it is possible that they thought that they were signing two of each. We now know that Mr Schick had already made a will [1408-1418] (which was discovered later) which left only a stuffed toy to Ms Frahm. He may not have felt the need for another will at that stage.

28.          Mrs Bakos was a convincing witness. She had been friendly with both Ms Frahm and Mr Schick and had no reason to favour either of them. If anything, she had been more friendly with Ms Frahm. She readily conceded that she could not remember details, but had good reasons to remember the conversations she had.

29.          John Clarke was a fellow captain with Air Canada, also living here. He and Mr Schick were both involved in the tax litigation in Canada and often spoke about their investment plans. He told us “The litigation has been ongoing since 1998 and it is for this reason that Del wanted the TCI property in his name alone”.

30.          Emilio Binavince was Mr Schick’s Canadian attorney in respect of the tax dispute. Ill health prevented him from attending so his witness statement carries less weight in respect of contentious matters. But it does say that, if asked, he would have advised that “there would be no problem with him owning a property with [Ms Frahm] or any Canadian resident; in fact it would in no way affect his Canadian tax position ...’’..Mr Schick had not asked Mr Binavince, but appears to have worked it out for himself. We know that before he bought the parcel on which the house was built he had contemplated buying another property in Providenciales jointly with another Canadian resident, Mr Hambsh. Whatever he may have said to others, there was no tax reason why the house could not be put into joint names.

31.          Fred Skovberg and his wife lived across the road from Mr Schick and Ms Frahm and they became good friends. He was first on the scene after the murder and gave whatever help and support he could in the aftermath. In September or October 2004 he attempted to mediate, which he probably came to regret. He did say that at that time “It was not clear what she was going for. I don’t think she said then that she should have the whole house.”

Mr Schick

32.          In order to divine Mr Schick’s intentions at the time it is helpful to consider what sort of person he was. Ms Frahm said that he was “very kind, loving, loyal, an ‘in charge’ sort of person.” She agreed that he was “an honest and fair man who would not deliberately deceive anyone.” Leslie Schick described him as “a ‘business’ kind of guy who would go to extremes to make sure he did not lose money. He would keep receipts for everything ... Everything was documented and he would spend hours entering data into his computer - often into the small hours.” He appears to have been almost obsessive about keeping records and supporting documentation - even to a 90 cent toll receipt which was produced. This tendency is amply demonstrated by the detailed records he kept of each and every item of, expenditure on the house [1557-1589] and of his own time spent on the project, which he “charged out” at $30 per hour [1590] and the “Moose Lodge Journal’' which records building progress. It is difficult to imagine him entering into any agreement without recording it in detail.

The missing documents

33.          Ms Frahm has been criticised for her apparent reluctance to disclose relevant documents. Certainly discovery has been long and drawn out. Much of the information kept by Mr Schick would have been on his computer. When Amanda and her husband went to obtain records for the estate Ms Frahm allowed them only limited access to the computer, saying that she did not want them to see certain private pictures. When pressed later to disclose everything on that computer, she said that it was no longer available because it had been damaged by salt and had been dumped. She said that “I never thought of the computer as being relevant.” Even if it had been damaged, it is likely that the hard drive could have been saved and information recovered from it. When giving evidence she denied having shredded any documents. When Christopher gave evidence he produced a bag of shredded documents that he had removed from the house on one of his visits. As late as last year Ms Frahm disclosed the existence of a laptop, the contents of which led to Mrs Bakos whose evidence has been helpful. Ms Frahm has not helped her case by her reluctance to disclose any documents that did not support it.

Ms Frahm’s contribution

(i) Work on the project

34.          Ronald Shaw prepared the designs, in consultation with both Ms Frahm and Mr Schick. He had many face to face meetings with both and thought they shared in the decision making on an equal basis. He didn’t know who owned the land and couldn’t remember who paid his bills.

35.          Mr Schick had a history of involvement in building projects in Canada. The building contract was given to Junior Skippings but the “Moose Lodge Journal” kept by Mr Schick and Ms Frahm at the time is a useful indicator of who did what. It records for example:

Monday May 7/01 [1598]

(records purchase of materials) followed by

“Worked at plumbing drains today and had one of Junior’s fellows helping at $6 an hr”

Monday May 14/01 [1599]

(after recording when workmen arrived)

“I installed hot and cold water lines and security system conduiting.”

Friday May 18/01 [1599]

(Mr Schick was on site all day. It records replacing of column supports and re-routing electrical supply lines; pouring concrete 0945 to 3 pm.)

Wednesday May 30/01 [1600]

“Plumbing, plumbing, plumbing ...”

Saturday June 2/01 [1600]

“Poured concrete in all vertical columns. Spent another day doing more plumbing. Marty joined me and did some clean up detail while I finished and put stuff away in the trailer ...”

And so it goes on. It shows that Mr Schick was on site whenever he could be, often doing part of the work, particularly plumbing and electrical installations. At times Ms Frahm helped out by helping to check measurements, clearing up, taping boxes, running wires and generally supervising in Mr Schick’s absence while he was away flying. She also was involved in trying to resolve problems with the customs office.

36.          She appears to have had limited success in supervising the work force. The entry on Wednesday Oct 24/01 [1608] is revealing:

“Arrived 1300 hrs and Marty picked me up. Stopped at the job site and no one was working. Hardly no work was accomplished since I left ...”

There are several complaints about lack of progress in his absence. They tend to confirm the impression gained by Leslie Schick that in Mr Schick’s absence not much was done.

37.          I conclude that Ms Frahm’s input was limited (as one would expect) to helping whenever asked with measurements or with wiring or other jobs being done by Mr Schick, cleaning up the site and generally helping with administrative matters such as dealing with customs. I accept that she was also very active in planning and setting out the garden.

(ii) Ms Frahm’s money

38.          Tracing the path of this money has been a frustrating exercise because the relevant documents appear in different parts if the trial bundles. The following appears to represent the position:

On 19 January 1999, after receiving her divorce settlement, Ms Frahm transferred Can$ 96,081.64 to Hugh O’Neill’s trust account [290]

On 5 March 1999 the same sum (less charges) was transferred into Mr Schick’s account [293] - Can$ 95,779.04

On 11 March 1999 he made an investment management agreement with Dominion Securities [292]. On the same day he authorised the transfer of the same sum to a Sovereign discretionary account, with the instruction: “Until further notification, only accept any further trading or money movement instructions from Marthe Marcelle Frahm, whose signature specimen is below.” It was signed by both Mr Schick and Ms Frahm. [294]

On 28 March 2002, after her retirement from Air Canada, Ms Frahm directed the transfer to Mr Schick’s account of Can$ 46,020 [311]. It was received in his account on 3 April 2002 [313]

The money remained there until March 2004 when Dominion Securities wrote [1119] to ask for information which Mr Schick was unwilling to provide (possibly concerned about his dispute with the tax authorities). He gave instructions for the holding to be liquidated [305]. That was done in apparent disregard of the instruction to accept instructions only from Ms Frahm. Be that as it may, the holding was sold releasing Can$ 141819.69 [863], [1644] and transferred into Mr Schick’s account [1646] where it remained at his death [877]

The funding of the project

39.          Ms Frahm said that at the time they made their agreement Mr Schick “had just come out of a divorce. He didn’t have any money. He was starting from zero.” Later she said “Del took care of the finances. As far as I knew my money was being used for the property.” He was better off than she thought. Whatever her understanding at the time, it is now clear that the purchase of the land and the building project was funded entirely by Mr Schick. He was able to arrange a mortgage of $300,000, leaving her money untouched. If he had decided to use her money, he would not have had to borrow as much. With the help of Mr Shaw, he worked out that he needed $300,000 [332-3]. A reconciliation of all his accounts at 10 March 1999 [1197] shows that at that date he had Can$ 102,019.29 available. We have a copy of his application to Scotiabank who granted the mortgage [1509-9], [339] but it does not show any financial information. We do have a copy of an application form to CIBC [724-7] dated 12 September 2000, which is likely to contain the same information. It shows current assets of around $192,000 which does not include the money from Ms Frahm. He had a very well paid job and could afford the repayments. He did not need to, and did not, use Ms Frahm’s money.

40.          It was suggested that even if Mr Schick didn’t actually use her money, he was only able to borrow $300,000 because of it. I am unable to accept that argument because, as indicated, it seems likely that he obtained the mortgage without disclosing the existence of her money at all.

41.          I conclude that Ms Frahm made no direct financial contribution towards the cost of buying the land and building the house.

Conclusions

Was there an express agreement?

42.          I remind myself of the agreement that Ms Frahm says was made. It was that the house should be held by them as jointly, and on the death of one of them it would go automatically to the survivor. It would be formally transferred when (i) the tax litigation was over; (ii) they had retired, and (iii) they were married. The only positive evidence of the agreement is that of Ms Frahm herself. There are some circumstances that tend to support her. I accept that she and Mr Schick had lived together as husband and wife since 1998; that they intended to marry at some stage; and that he intended to provide for her. However there are other circumstances which suggest that Mr Schick was unlikely to have made such an agreement.

43.          He had just come through a bruising financial battle after his divorce, when he had lost a lot of his hard earned money. He is unlikely to have been in the mood at that time to agree in advance to divest himself of more of his capital. There was no need to await the outcome of the tax litigation in Canada, and he knew it (see paragraph 31).

44.          I accept the evidence of Mrs Bakos that Ms Frahm had denied any intention of putting her money into the house; and that Mr Schick had denied any intention of giving her a share in it.

45.          Neither Mr Schick nor Ms Frahm mentioned the agreement to anyone else. Until his death this was entirely understandable; it was their business and nobody else’s. But after his death I would have expected her to mention it immediately to the family, if only to protect her own interests. In September or October 2004 she was asking Leslie Schick for her money back; and making Mr Skovberg understand that she did not claim the whole house. The first mention of a formal claim comes in the letter from Hugh O’Neill on 28 February 2005 [946-7] but that only claims “a substantial interest” and not the whole house. Her affidavit supporting her caution does not mention such a claim. It claims a one half interest.

46.          Most importantly, the alleged agreement makes no provision for what' happened after the death of the survivor. Both were anxious to provide for their respective children. If the agreement was made as alleged, the effect would be that on the first death the survivor would take the house; and on the survivor’s death his/her children would take it all and the other’s children receive nothing. When asked what was to happen on the second death she could only say “We never got that far.” It may not have occurred to her, but from what we know of Mr Schick that is not something he is likely to have overlooked.

47.          The evidence is insufficient to establish an express agreement in the terms alleged.

Was there a constructive trust?

48.          It is for Ms Frahm to show that the legal title does not reflect what was intended. She has to demonstrate (i) that there was a common intention that both should have a beneficial interest; and (ii) that she has acted to her detriment on the basis of that common intention. I must focus on their intentions at the time when the agreement is said to have been made - before the land was bought - and bear in mind that a common intention constructive trust based only on conduct will only be found in exceptional circumstances. As Nourse LJ said in Grant v Edwards2

“... it must be conduct on which the woman could not reasonable have been expected to embark unless she was to have an interest in the house.”

49.          The conduct she relies on is contributing the whole of her capital; but I have found that she made no direct financial contribution. Payment of her capital into Mr Schick’s account can also be explained by an agreement that he should invest it for her, she having no account here at the time. She further relies on practical help in connection with the building; but I have found that was limited. It is not so great as to have no other explanation. She also says that she has acted to her detriment in taking early retirement; but there could be other reasons for that, not least the prospect of a capital sum in addition to her pension.

2 [1986] 1 Ch 638, at p 648G

50.          I do not propose to repeat the circumstances casting doubt on an express agreement, but they are equally relevant to assessing their common intention. The evidence falls far short of that required to prove a constructive trust on such a basis.

51.          It follows that Ms Frahm’s claim fails and is dismissed with costs. The counterclaim remains adjourned generally and if the parties are unable to agree outstanding matters they should seek an appointment for directions.

Dated 1 May 2011

Justice G W Martin