Crick v Crick & Ors

The judge records in paragraph 2 of his judgment that the parties are agreed that the property should be sold, but that they were not agreed as to the proportions in which the proceeds of sale should be distributed. The judge took as his starting point the provisions of sections 46 to 47 of the Administration of Estates Act 1925, which provided that the property was held on trust in equal parts for all adult children living at the time of the sole surviving parent's death. The question then for the judge was whether there should be any variation in those shares. Mr Trevor Crick said that he had made improvements to the house and that those improvements should enhance his share.

The judge listed the improvements which Mr Trevor Crick had told him about in paragraph 7 of his judgment. They came to about £16,000. Mr Trevor Crick says that that is an underestimate, that he in fact spent rather more than that and he wished to put material before me to support that assertion.

The general rule is that on an appeal an appellant cannot put in additional evidence unless stringent criteria are satisfied, and the first of those criteria is that the evidence could not reasonably have been available for trial. This is material which Mr Trevor Crick has and which evidently pre-dates the trial because the expenditure was incurred before the trial and it is simply not open to him on an appeal to attack the judge's finding.

The judge found that the estate also included £19,000 in cash and that half of that was spent on improvements that Mr Trevor Crick had commissioned. Effectively, therefore, the judge found that all four siblings contributed equally to those improvements since the improvements were at least partially financed by money to which they were jointly entitled.

Mr Trevor Crick had also lived in the house for a number of years without having made any payment for his occupation. His father died in 2006 so the period of occupation is little short of a decade, and that the judge took into account in deciding that no further adjustment to the one-quarter share should be made.

Mr Trevor Crick argues that that was impermissible for the judge to do that because, he says, section 12 of the Trusts of Land and Appointment of Trustees Act 1996 (which is usually called "TLATA") gives a beneficiary who is beneficially entitled to an interest in possession in land the right to occupy the land. However, section 13 deals with the position where two or more beneficiaries are entitled to occupy, and that provides that the trustees may exclude or restrict the entitlement to any one or more, but not all of them. Subsection (6) of that section goes on to say that where the entitlement of any beneficiary to occupy land has been excluded or restricted, then conditions may be imposed, including conditions requiring the making of payments.

Mr Trevor Crick argues that there was no exclusion as such and that his siblings were free to come and live with him in the house if they wished and therefore the judge should not have taken into account his occupation.

I do not think that that point has any real prospect of success. The fact is that Mr Trevor Crick was not charged an occupation rent, and even under the judge's order was not charged an occupation rent. The fact is that he, that is Mr Trevor Crick, wishes to enhance his share through the mechanism of equity by reason of the improvements which he claimed to have carried out, and in my judgment the judge was fully entitled in rejecting that equitable claim to take into account the benefit that Mr Trevor Crick had had from living in the house.

Mr Trevor Crick also argues that the mechanics by which the judge ordered the house to be sold were not open to him. He says that giving the conduct of the sale to the claimant, one of his brothers, contravenes section 27(2) of the Law of Property Act 1925, which provides that the proceeds of sale must be paid to two trustees unless the trustee is a trust corporation.

However, the judge’s order has not appointed any new trustees. What the judge has done is to give conduct of the sale to the claimant's solicitor. All the trustees remain trustees under the judge's order and, since the judge has ordered a sale under section 14 of TLATA, they are all bound by that order. There is no question but that the court may order a sale under section 14: section 14 entitles the court to make any such order relating to the exercise by the trustees of any of their functions as the court sees fit. Under section 6 of TLATA the powers of the trustees are all the powers of an absolute owner, and plainly that includes a power to sell. It follows therefore that on an application under section 14 the court has ample power to order a sale.

Under the Trustee Act 1925, section 47, when such an order is made all the trustees are bound by it and that would override any restriction in the Land Registry precluding the registration of a disposition. I might add at this point that a disposition is not simply a state of mind or an attitude, as suggested in the written grounds of appeal. A disposition means a formal transfer or creation of an interest in land.

If the sale proceeds as the judge's order envisages, then all trustees will be bound. The court has power to appoint somebody to convey if a trustee refuses to concur in a sale, and that is what the judge has done in paragraph 4 of his order. He has not appointed the claimant's solicitor as a trustee, but merely as an agent of the trustees to convey. Mr Trevor Crick argues that that could not be done because the claimant's solicitor would be in breach of the Solicitor's Conduct Rules because of a conflict of interest. The conflict of interest which he identifies is that, as one might expect, the solicitor will charge a fee for his conveyancing services. That is not what these rules are aimed at at all: those are aimed a situation where a solicitor derives a collateral advantage from his position as a fiduciary. The question of a conflict of interest does not arise because the solicitor will in any event be acting under an order of the court.

In my judgment, there are no real prospects of success in any of the points that Mr Trevor Crick wishes to raise, either those which are in writing or those which he has developed orally. The judge gave a judgment that in legal terms was impeccable. There is no real prospect of challenging his factual findings and the order for costs that he eventually made was well within his discretion. For those reasons, therefore, I refuse permission to appeal.