Constandas v. Lysandrou & Ors (2018) EWCA Civ 613

Facts

  • Mr. Constandas (‘C’) brought proceedings against his sister, Mrs. Lysandrou (‘L1’), his brother-in-law, Mr. Lysandrou (‘L2’), and his nephew, Michael Lysandrou (‘L3’) for a declaration that he had a 50% beneficial interest in a property in North London (‘the Property’) in which all the parties had lived for many years.
  • At the time of the proceedings, the title to the Property had been in L1 and L2’s names for c. 10 years and L3 was living in the Property. L1 and L2 were in their 80s, both suffering from dementia and were unable to give evidence.
  • C contended that he was entitled to a half share of the property on the basis that when it was purchased in 1959 for £1,200, he had paid half of the total purchase price, the remainder having been funded by way of a mortgage in L1’s sole name.
  • It was accepted by all parties that C’s claim was based on a resulting trust said to arise in accordance with the principles established by the House of Lords in Stack v. Dowden [2007] UKHL 17 and that there was a presumption that the beneficial ownership followed the legal ownership. The case turned on whether C could establish that he contributed £600 to the purchase price of the Property in 1959.
  • The trial judge dismissed C’s claim on the basis that the burden of proof fell on C and that he had failed to discharge the same. C appealed. One issue to be determined by the Court of Appeal was whether the trial judge had been justified in disposing of the case on the basis of the burden of proof.

Held, dismissing the appeal:

  • Resort to the burden of proof is only permissible in an exceptional situation where, notwithstanding that it has striven to do so, the court cannot reasonably make a finding in relation to a disputed issue (citing in approval Wilson J. in Stephens v. Cannon [2005] EWCA Civ 222 at [46]).
  • In this context, ‘exceptional’ means no more than that such resort is only necessary where on the available evidence, there is nothing left but to conclude that the claimant has not proved his case (citing in approval Auld LJ in Verlander v. Devon Waste Management & Anr [2007] EWCA Civ 835 at [20]).
  • The trial judge had been right to approach the case on the basis that it was not for L1, L2 and L3 to prove that they had had the money in 1959 to purchase the house or that they had, in fact, made the dispute payment. The burden was on C to prove that he had made the payment.
  • In the absence of any other plausible evidence that he had done so, C was effectively inviting the court to draw an inference in his favour in the absence of any other plausible source of the funds. This would be a bold inference, particularly in light of L1 and L2’s inability to give oral evidence.
  • Given that there was no positive evidence that C had made the payment, and considering the trial judge could not rule out that it had come from another source, it was inevitable that the judge concluded that C had not made out his case.

Stay Up To Date

Follow us on Linkedin to stay up to date with the latest news from 1 Hare Court.