CH-2025-000012 and CH-2025-000014 - [2025] EWHC 2697 (Ch)

This is the first Ground of Appeal in the cross-appeal.

As I have identified, Mr and Mrs Gold’s case, as pursued at trial, was that payments had been made as consideration for a beneficial interest in the Property, and that, in any event, a Declaration of Trust had been executed in Mrs Gold’s favour with regard to beneficial ownership of the Property. The Judge held that the payments relied upon had not been made, and that the Declaration of Trust had not been executed. Mr and Mrs Gold appeal both findings, and her overall conclusion that Mr and Mrs Gold had no beneficial interest in the Property.

It is convenient to deal with the question of the Declaration of Trust first. The real question for the Judge to decide was as to whether the Declaration of Trust was prepared and executed with the intention that it should genuinely reflect that Mrs Gold was the beneficial owner of the Property, or whether it was prepared in draft with a view to being produced to distance DFH from its ownership of the Property in circumstances in which DFH was under significant financial pressure from HMRC.

The parties each relied upon independent witnesses in support of their case, both of whom the Judge held to have given truthful evidence, namely David Bannon (“Mr Bannon”) for Mr Daniel and DFH, and Colin McCreavie (“Mr McCreavie”) for Mr and Mrs Gold. Mr McCreavie gave evidence as to having witnessed a Deed of Trust executed by Mr and Mrs Gold. Mr Bannon gave evidence of having been told by Mr Daniel that Mr Gold had approached him on several occasions advising him to organise and sign a Deed of Trust to hide DFH’s assets in case DFH went into receivership, but that he advised Mr Daniel not to do this as it was an illegal attempt to hide an asset, and that Mr Daniel left the meeting in question telling Mr Bannon that he would not sign the document.

It is clear that the Judge carefully analysed the evidence in paragraphs 62-73 of the Judgment. Thus, for example, she carefully considered the evidence of Mr McCreavie regarding the execution of a Trust Deed or similar such document and concluded that this was likely to have related to some other document than the Declaration of Trust sought to be relied upon - see paragraph 72 of the Judgment. On the other hand, so far as Mr Bannon is concerned, at paragraph 71 of the Judgment, the Judge said that she considered that Mr Bannon’s evidence was strongly supportive of Mr Daniel’s account that the purpose of drafting the relevant deed was a plan to put the beneficial interest in the Property into the name of another in an attempt to conceal it from creditors, and that Mr Daniel ultimately resolved not to carry that plan into effect, and so no deed was executed.

Further, the Judge carefully considered the involvement of Andrew Coyle (“Mr Coyle”) of Lennon & Co in the preparation of the draft Declaration of Trust.

The Judge correctly identified that it was for Mr and Mrs Gold to satisfy her on the balance of probabilities that the Declaration of Trust was executed and held that they had failed to do so and that their own evidence on the point was untruthful.

I do not consider that any flaw in the Judge’s reasoning has been identified, let alone one that suggests that the Judge came to a conclusion that was plainly wrong or that no reasonable judge could have come to.

So far as the more general complaint that the Judge wrongly concluded that Mr and Mrs Gold had no beneficial interest in the Property is concerned, four key lines of argument are advanced, namely:

It is submitted that this evidence fundamentally undermines the conclusion reached by the Judge that Mr and Mrs Gold had not made contributions so as to acquire a beneficial interest in the Property.

I deal with these points in turn.

So far as 3 Thurlstone Road is concerned, in the course of opening the appeal Mr Thakerar, whilst recognising that the Judge had fallen into error in proceeding on the basis that it was Mr and Mrs Gold’s case that the £121,000 had been contributed in respect of a Beneficial Interest in the Property, identified that Mr and Mrs Gold’s case at trial had focused on a payment of £150,000 to Mr Clarke and a further payment of £76,000, and that, as Mr Thakerar put it, the question of a contribution via a beneficial interest 3 Thurlstone Road had “fallen away” during the course of Mr Gold’s cross-examination.

The Judge dealt in robust terms with the alleged payment of £150,000 to Mr Clarke, dismissing as untruthful Mr Gold’s evidence that this payment had been made to Mr Clarke for his interest in the Property. In coming to this conclusion, the Judge considered Mr Clarke’s evidence on the point to be truthful evidence from an essentially independent witness.

So far as the £76,000 is concerned, it is true that the Judge did not deal with this payment until later in her judgment, when she dealt with it in a rather different context when dealing with the Declaration of Trust. She analysed the circumstances in which the £76,000 had been paid in paragraph 63 of the Judgment, coming to the conclusion that it related to an advance to pay HMRC, in respect of which an undertaking was obtained to repay the relevant sum from the proceeds of sale of two other properties. The payment of this sum was therefore clearly held not have been a contribution towards acquiring a beneficial interest in the Property.

Going back to 3 Thurlstone Road, Mr Taylor did not, in his submissions on behalf of Mr and Mrs Gold, challenge the proposition that reliance upon 3 Thurlstone Road had fallen away during the course of Mr Gold’s cross-examination, for example by showing me where Mr Gold had dealt with this in his evidence. I can only but conclude that the Judge did not deal with the point because it had, in fact, fallen away. The mere fact that she may have been mistaken with regard to reliance on the £121,000 does not mean that she had mistaken this with reliance upon a contribution via an interest in 3 Thurlstone Road.

I do not therefore consider that the fact that the Judge did not, in the Judgment, specifically deal with an argument based upon a contribution via an interest in 3 Thurlstone Road undermines the Judge’s finding that contributions had not been made by Mr or Mrs Gold towards acquiring an interest in the Property.

So far as the email dated 9 October 2009 is concerned, in this email, Mr Daniel wrote to Mr Coyle asking: “Can you confirm the date Pat Gold bought Rob Clarke out of 28 Rogers Lane”. Mr Coyle responded on 14 October 2009 to say: “Our accounts records show a payment was made to Rob Clarke on the Rogers Lane file on 25 May 2007.” The point is taken that the Judge did not deal with, or comment on this exchange, and it is submitted that the exchange fundamentally undermines the Judge’s finding that Mr and/or Mrs Gold had not acquired a beneficial interest in the Property.

However, as I have already explained, the Judge did specifically deal with the allegation that Mr Gold paid Mr Clarke £150,000 in exchange for his interest in the Property, something that was denied by Mr Clarke who the Judge found to be an honest witness in contrast to Mr Gold. Indeed, on this particular issue the Judge described herself as satisfied that Mr Gold’s evidence was “dishonestly given from start to finish”. The Judge came to the conclusion that she did with the benefit of cross-examination of the relevant witnesses.

Whilst the email exchange beginning with Mr Daniel’s email dated 9 October 2009 is supportive of a case that Mr Daniel believed that Mr Gold had acquired a beneficial interest in the Property because he had bought out an interest of Mr Clarke therein, it was confirmed to me in the course of submissions that there had been cross-examination on this email exchange, and although she may not have expressly referred to it, there is no reason to believe that the Judge did not have it in mind in coming to the conclusion that she did, and weighted it against the other evidence including, in particular, that of Mr Clarke himself whose evidence she accepted as an independent and truthful witness.

I do not, in these circumstances, consider that this email exchange provides a proper basis for disturbing the Judge’s findings.

So far as the email to Porchester Homes dated 6 February 2010 is concerned, the Judge did deal with this in paragraph 91 of the Judgment. In this email, Mr Daniel had written to Porchester Homes in terms that, at least on one reading, suggested that he regarded the Property as belonging to Mr Gold. However, again, the Judge had the benefit of hearing cross-examination on this issue, and the conclusion that she came to was that, in the particular context, the Property was referred to as “his property” because he was the occupier of it. The context as explained by the Judge was of seeking to obtain compensation for Mr and Mrs Gold in relation to development behind the Property. I consider this to be a perfectly rational decision to have come to in the circumstances, and one that I do not consider it appropriate for this Court to interfere with.

This leaves the question of the recitals to the draft Declaration of Trust. It is true that they do support Mr and Mrs Gold’s case in the sense that they refer to the balance of the purchase monies of the Property as having been provided by Mrs Gold, and to loans having been made to DFH which broadly equated to the amounts secured by the mortgage on the Property entered into by DFH. Further, Mr and Mrs Gold can pray in aid the fact that instructions in relation to the preparation of the Declaration of Trust were provided by Mr Daniel to Mr Coyle, a further point being that it was the evidence of Mr Coyle that he would not have been party to the creation of a false deed.

However, once the Judge had decided, as I have held that she was entitled to do, that a draft of a Trust Deed had been prepared with a view to being produced to present a false picture to DFH’s creditors as to the true beneficial ownership of the Property, then it is not inconsistent with that finding that the draft Declaration of Trust that has been produced should exist containing a false narrative to justify the contents of the Deed. Consequently, I do not consider that the production of this draft, and the evidence with regard to how it came to say what it did, undermines the Judges decision. The key point is that the plan to deceive creditors was not, on the Judge’s findings, carried into effect, and so the relevant deed was never executed.

I have considered how the Judge dealt with Mr and Mrs Gold’s case that a proprietary estoppel had arisen in their favour, and that they had the benefit of a constructive or resulting trust as set out in paragraph 90 et seq of the Judgment, and can find no flaw in her reasoning based upon the findings of fact that she made.

In short, therefore, I do not consider that any of the points raised by Mr and Mrs Gold undermine the Judge’s decision that Mr and Mrs Gold had not acquired a beneficial interest in the Property. They certainly do not lead me to the conclusion that the Judge plainly came to the wrong decision or that she came to a decision that no reasonable judge could have come to on the evidence before her.

I therefore dismiss Ground 1 of the cross-appeal.