[2024] EWHC 3625 (TCC)

What was the date on which the Defendants moved into the New Farmhouse?

Mr Lomax contends that the Defendants moved into the New Farmhouse in February 2019.

He told me that, whilst he had meetings with the Defendants in the New Farmhouse, it was not apparent to him that they were living there. He said that, for example, he was not offered a cup of tea at the meetings.

In any event, whilst he had received a Certificate of Completion and the other documents (referred to at paragraph 97 above) in 2018, he did not send them to the Defendants or to their solicitors until February 2019. He would not expect any of his purchasers to move into their new properties until they had been given those documents. He recalls that he was still maintaining the gardens of, and paying insurance in relation to, the New Farmhouse until February 2019, and that, in 2018, the property was not fully completed, with, for example, the stables and landscaping works still to be finished.

Orchard House has no clear and direct evidence on this issue, but Mr Lomax relies principally on the email which Ms Dimelow sent to the Local Authority, informing them that she and her mother had not completed their move into the New Farmhouse until February 2019. I have seen copies of photographs which are said to show that, towards the end of 2018, the Defendants had still not fully vacated the Old Farmhouse.

The Defendants’ case is that they moved into the property in June 2018. They rely on the various documents to which I have referred at paragraph 97 above.

In the witness box, Ms Dimelow told me that she and her mother had slept at the New Farmhouse every night from June 2018 onwards and that they had moved the majority of their clothes by that time.

She accepted that she had misled the Local Authority about the date on which she and her mother had moved into the New Farmhouse, with a view to minimising their exposure to Council Tax.

I find, on the balance of probabilities, that the Defendants moved into the New Farmhouse in June 2018. I have reached this conclusion for the following reasons.

Firstly, this was the clear evidence of Ms Dimelow and, as I have noted above, I found her to be an honest and reliable witness. That extends to the evidence which she gave to me on this issue, which was specific and detailed.

Secondly, Mr Lomax has no direct evidence on this point. He does not say (and nor do his witnesses) that he observed the Defendants continuing to reside (to any meaningful extent) in the Old Farmhouse in the latter part of 2018 and in early 2019.

Moreover, even his amended pleaded case states that “the Option period for the option over plot F commenced on or around 25 June 2018”. In the witness box, Mr Lomax told me that this was incorrect, but it reinforces my impression that he is unsure on this point.

Thirdly, there is no dispute between the parties that meetings were held in the New Farmhouse during the latter half of 2018. I would not have expected the meetings to take place there if the Defendants were still living (wholly or partly) in the Old Farmhouse. I am not persuaded by Mr Lomax’s observation that the Defendants did not appear to be in occupation of the New Farmhouse, based on his not being offered refreshments when he visited.

Fourthly, and crucially, the available documentation overwhelmingly suggests that the Defendants moved into the New Farmhouse in mid-2018.

Mr Lomax’s letter to the Defendants dated 20 July 2018 opens with “I do wish you every happiness in your new home, and I really do hope it has been worth the wait”. In my view, that sentiment is entirely inconsistent with the Defendants not having moved into the New Farmhouse or not intending to do so imminently.

Moreover, there is a very substantial amount of contemporaneous documentation supporting the Defendants’ position on this point. Many of those documents, which are addressed to Orchard House, suggest that, from a practical or regulatory perspective, the New Farmhouse was ready to be occupied in June 2018. Those documents include a gas safety certificate, an air permeability certificate, a fire alarm certificate, an electrical installation certificate, an energy performance certificate and the certificate of practical completion. The dates of those certificates all coincide with the period immediately before the Defendants moved into the New Farmhouse, which suggests that they were obtained in preparation for their move.

I was far from convinced by Mr Lomax’s suggestion that he would have retained the documents until the New Farmhouse was handed over to the Defendants. It seems unlikely that they would have been deliberately withheld from the Defendants when they were available and when (even on Orchard House’s case) they had access to the New Farmhouse.

The invoice/receipt from the removal firm confirms that it assisted the Defendants in June 2018. The reference to a “part move” and the modest fee charged perhaps reflect that the extent of the firm’s task was not as extensive as it perhaps would ordinarily be, but, in the absence of corroborative evidence, it does not necessarily support Mr Lomax’s position.

Lastly in terms of documentation, there is the document evidencing that Ms Dimelow took leave at the end of June 2018 and her correspondence with the site manager and others at that time.

In my judgment, this documentation and its timing have provided a formidable obstacle for Orchard House to overcome on this factual question.

Moreover, the Defendants’ position on this point has been consistent. On 12 June 2020 (and, on any view, within the 2-year Option Period) Mrs Platt wrote to Mrs Davies confirming that the date of the move had been 28 June 2018.

Lastly, the date of the Defendants’ move to the New Farmhouse contended for by the Defendants is consistent with the timetable set out in the Master Agreement.

I should make clear that I accept that Ms Dimelow sought to mislead the Local Authority about the date on which she and her mother moved to the New Farmhouse, with a view to minimising their Council Tax liability. The email which she sent to the Local Authority is vague and has the hallmarks of such an approach.

As I have already indicated, I do not accept that Mrs Davies assisted Ms Dimelow in drafting the email. Ms Dimelow told me that Mrs Davies had advised her to be “woolly” in choosing her words. However, she accepted that Mrs Davies did not provide her with draft wording and that she did not “stand over” her while she drafted her email to the Local Authority.

As I have explained, I think it unlikely that Mrs Davies would have encouraged any dishonesty. Ms Dimelow has accepted that she was attempting to mislead the Local Authority. I think it likely that with the passage of time, she has confused various conversations which she had with Mrs Davies on the issue. I do not think that she has sought to mislead me concerning Mrs Davies’ involvement.

Even so, I accept that the email was not truthful in its content. It is the only credible piece of evidence which suggests that the Defendants moved into the New Farmhouse later than the Summer of 2018 and, for the reasons I have given, it does not undermine the compelling evidence to the contrary.