Case No: B5/2014/0777
Neutral Citation Number: [2015] EWCA Civ 72
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HER HONOUR JUDGE FABER
3CL 10298
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/02/2015
Before :

LORD JUSTICE MOORE-BICK
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE TOMLINSON 
and
LADY JUSTICE KING 
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Between :

	Kamarah Kathleen Inessah Graham-York
	Appellant	
	-	and –
		
	(1)	Adrian York (Personal Representative of the Estate of Norton Brian York) & Ors
(2)	Leeds Building Society	

Respondents	

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Mr Richard Power (instructed by Quality Solicitors Orion) for the Appellant
Miss Sarah Haren (instructed by Russell-Cooke LLP) for the First Respondent
Miss Sheelagh Putnam (instructed by Optima Legal) for the Second Respondent

Hearing date : 12 November 2014
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Judgment
Tomlinson LJ: 
Introduction
1.	Miss Graham-York lived with the late Norton Brian York between 1976 and his death in 2009. They were not married. From 1985 until 2009 they lived together at 17 Marlborough Road, London W4, “the property”. The property was upon his purchase of it in 1983 registered in the sole name of Norton York. It remained so registered, and is and has at all material times been mortgaged by Norton York to a mortgagee lender, since 1990 that lender being the Leeds Building Society, “the Building Society”.
2.	After Norton York’s death Miss Graham-York continued to live and still lives at the property. She appears to have no or no significant income. On 8 January 2011 the Building Society issued proceedings in the Brentford County Court against Adrian York as personal representative of Norton York’s estate. Adrian York is the son of Norton York, born of a relationship which preceded that with Miss Graham-York. Adrian York was not on good terms with his late father, by whom he considered both he and his mother had been abandoned when he was a small child. Similarly, Adrian York is not on good terms with Miss Graham-York. After the death of Norton York mortgage arrears developed and as at 6th January 2011 amounted to £58,283.14. The Building Society sought judgment in respect of the entire indebtedness secured by the mortgage over the property, then £449,561.62, and an order for possession. Unsurprisingly, Adrian York, at this stage the sole defendant to the proceedings, did not contest the claim. On 7 February 2011 District Judge Allen gave judgment for the sum of £449,722 and ordered Adrian York to give the Building Society possession of the property on or before 9 March 2011.
3.	At this point Miss Graham-York applied to be joined to the proceedings. After various interlocutory skirmishes concerning attempted enforcement of the warrant for possession, on 25 August 2011 District Judge Plaskhow directed that Miss Graham-York be joined to the proceedings as Second Defendant. Thereupon she resisted the claim of the Building Society for possession and brought a third party counterclaim against Adrian York alleging that she had a beneficial interest in the property. Her contention was that that interest arose out of a constructive trust giving effect to the common intention of her and the deceased Norton York, and that since she was already in actual occupation of the property when in October 1990 Norton York executed the charge in favour of the Building Society upon which it now relies, her interest was an overriding interest taking priority over the mortgage to which she was not party.
4.	After further seemingly interminable interlocutory skirmishes the matter came before his Honour Judge Dight at The Central London County Court on 13 September 2013. At this hearing Miss Graham-York was represented by Counsel.  Judge Dight made an order for possession in favour of the Building Society and ordered the property to be sold. The date for possession was to be fixed after trial. The Order of Judge Dight does not identify the subject matter of the trial for which the judge proceeded to give directions, although the issues may of course have been clear to the parties before him. There was no appeal in respect of any aspect of his Order.
5.	On 3 December 2013, after the adjournment of an earlier fixture, the matter came on for trial before Her Honour Judge Diana Faber, again sitting at The Central London County Court. The trial occupied 5 days. The judge records at the outset of her first, reserved, judgment, dated and made available to the parties on 24 January 2014, that the issues for determination as identified by then counsel  for Miss Graham-York, Mr Bernard Devlin, were:-
“1) Does the Second Defendant have a beneficial interest in 17 Marlborough Road (called in this judgment “the property”)? 2) Was there an express agreement or arrangement made between her and the deceased that she should be beneficially entitled? Alternatively can a common intention that the Second Defendant would be beneficially entitled be inferred or imputed? 3) Is the claimant entitled to be subrogated to the rights of Barclays Bank under its charge of 15th October 1982? 4) Is the Second Defendant entitled to an order postponing the date of possession?  If so for what period and on what terms?”
The judge appears to have handed down judgment on 19 February 2014, on which occasion she heard further argument and delivered a second, extempore, judgment.
6.	The outcome of the trial, as reflected in Judge Faber’s Order of 19 February 2014, was that the judge determined that Miss Graham-York has a beneficial interest in the property to the extent of 25% of its value. She directed that Miss Graham-York give the Building Society possession of the property on or before 8 March 2014. The net proceeds of sale, i.e. the proceeds of sale less the costs of and incidental to the sale, Judge Dight having already ordered sale, were to be applied in such manner that the Building Society is entitled to retain all sums due and owing upon redemption of the mortgage and Miss Graham-York is entitled to 25% of the balance remaining. The further 75% was to be paid into court or otherwise secured pending determination of disputed probate proceedings in the High Court between Adrian York and Miss Graham-York.
7.	Miss Graham-York appeals to this court on two points. First, she says that the judge erred in not determining that her interest in the property was equal in value to that of the deceased Norton York, i.e. the Judge should have found that the property was held in equal shares of 50%. Second, she says that the judge erred in directing that 25% of the net proceeds of sale of the property should be paid to her after, rather than before, payment of the amounts owed to the Building Society by the deceased Norton York.
8.	Neither the judge nor we were supplied with any evidence as to the value of the property, the true extent of which will of course only become apparent on sale, which from the point of view of the Building Society has been long delayed, not least by this appeal. It is said by the Building Society that Miss Graham-York has refused to permit it to carry out a valuation of the property. The only evidence of “value” is an offer for purchase at £1.2 million made in August 2011. I have already recorded that Miss Graham-York appears to have no significant source of income. She has continued to live at the property since the death of Norton York and it is common ground that she has not paid interest as it has fallen due. Her sole contribution to payment of the mortgage debt since 2009 has been a single lump sum payment of £4000. The extent to which she contributed to the servicing of the mortgage before 2009 is a contentious issue about which the judge made findings to which I must revert. Whatever the value of the property, it is obvious that, if Miss Graham-York’s proportionate share, whatever it is, is to be paid to her before satisfaction of the claim of the Building Society, then her recovery will be proportionately greater than that consequent upon the Order made by the judge, which in effect awards her a 25% share subject to mortgage.  Similarly, resolution of the second point could affect the question whether the Building Society recoups the entirety of the amount secured by the mortgage, including of course the costs of the proceedings to which it is entitled pursuant to the mortgage deed, although by the end of the hearing Mr Richard Power for Miss Graham-York accepted that the Building Society is entitled to recover everything that it is owed. The amount outstanding at the date of the hearing, inclusive of most but not all of the Building Society’s costs, was £632,681.67, therefore in excess of a 50% share of an assumed value of £1.2 million. The property is said by Adrian York now to be worth in the region of £1.75 million. The second point therefore ultimately resolved into a debate whether the estate is obliged to indemnify Miss Graham-York to the extent that her interest is diminished by satisfaction of the mortgagee’s claim.
The First Issue
9.	Neither Adrian York nor the Building Society challenge the judge’s finding that Miss Graham-York is entitled to a beneficial interest in the property. Adrian York submits that the judge correctly evaluated its extent at 25%, an evaluation which, in refusing permission to appeal to this court, the judge described as a “generous estimate” – the emphasis is that of the judge. The Building Society was unconcerned with the evaluation of the extent of the beneficial interest of Miss Graham-York since it was its contention, and ultimately it seems common ground, that it is entitled to recoup itself out of the net proceeds of sale in respect of all outstanding indebtedness secured by the mortgage.  The argument on this issue therefore resolved into the question whether the judge was right to conclude that “a fair reflection of [Miss Graham-York’s] contributions financial and non-financial over the years would be a 25% beneficial interest in the property” – [43]. Mr Power’s contention was that 50% would have been a fair reflection. Indeed he went so far as to submit, as in my view he had to, that the judge could not properly have reached a conclusion other than that the property was held in equal beneficial shares.
The Judge’s Findings of Fact
10.	The following is largely taken from the judgment, although I have supplemented the judge’s sparse findings in a manner which I understand to be non-controversial.
(1) Norton York and Miss Graham-York began to live together in 1976.
(2) They had two children: Lawrence, born in 1977, who was brought up by his grandmother; and Ilona, born in 1978, whom they brought up themselves.
(3) Although the judge does not employ this description herself, it is clear that the relationship between Norton York and Miss Graham-York was dysfunctional. Miss Graham-York was intelligent but vulnerable, suffering symptoms of both Asperger’s syndrome and post traumatic stress disorder. Norton York had a controlling nature and “threatening proclivities”. At one stage in her judgment, [10], the judge described evidence given by Adrian York as supportive of the allegation made by Miss Graham-York as to the deceased’s proclivity for violence. Miss Graham-York was under his control and would have done whatever he wanted her to do.

(4) The judge heard evidence from Miss Graham-York, Adrian York and Mrs Ilona Gidney, as the daughter has become. She found all three of them to be unreliable witnesses and attributed to each of them specific instances of dishonesty in their evidence.

(5) During the period 1976-1985 Miss Graham-York earned fees as a singer in a group either led or promoted by Norton York. She also during that same period did some performances of her own including at least one for the BBC. She sang on at least one recording made by Norton York. Apart from the fact that her fee for performances in Norton York’s group was £100, the judge was unable, because of the paucity of supporting documentary evidence, to make any finding as to the amount of these earnings. The judge did find that whatever Miss Graham-York earned would have been handed to Norton York had he demanded it and that she would have allowed him to collect fees on her behalf. Some fees were paid directly to her–an example being payments from the BBC. The judge was unable to make any finding as to the extent of her contribution to the household expenses or to the acquisition of the property during this period.

(6) The property was purchased in the sole name of Norton York in late 1982 for £55,000. It was purchased with the assistance of a mortgage loan of the order of £45,000 from Barclays Bank, as Miss Graham-York then knew. The mortgage deed is dated 15 October 1982.

(7) The judge accepted that during the period 1976-1985 Miss Graham-York worked and contributed her earnings to the joint expenditure of the home, first elsewhere and then, from 1985, at the property. The couple did not move into the property until 1985, but its purchase fell within this period. The judge found that Miss Graham-York’s earnings from performances with Norton York’s band and on her own account would have materially assisted in the purchase of the property.

(8) The property was remortgaged in 1990 to the Building Society. The mortgage was an interest only mortgage. The mortgage advance, £274,295, was used, at any rate in part, to redeem sums owed to two other lenders, Barclays and possibly Canadian Imperial Bank of Commerce, “CIBC”. It would appear that Norton York had obtained a loan in the sum of £164,000 odd from CIBC in or about 1988. Repayment thereof was secured by a mortgage which was never registered. It seems plain that Miss Graham-York knew of the remortgage to the Building Society, the judge recording her answer in cross examination “that she was not told the details of it”. The judge made no finding as to the detail of her knowledge in this regard.

(9) So far as concerns the period after 1985, the only findings made by the judge were:
(1) At some point Miss Graham-York had a cake baking business;
(2) For a couple of years she developed a line of health food supplements:
(3) The judge seems to have accepted that these business enterprises, or possibly a single business enterprise, generated income of the order of £30,000;
(4) Save for the foregoing, there is no evidence of substantial financial contribution by Miss Graham-York to the joint expenditure of the home. She did however cook the family meals, and, jointly with Norton York, looked after and brought up their daughter Ilona.

(10) Norton York evidently had a number of business ventures in addition to his interests in the music business. They were at the least in property development and letting of property. Businesses identified by the judge in her judgment include Fleetbuild, White Rose Distribution and White Rose Services. The judge was unable to accept that Miss Graham-York gave any assistance in the running of these businesses. 

(11) The judge expressly recorded her conclusion that “even if [Miss Graham-York] were telling the truth about her financial contribution during the 33 years of their cohabitation it does not amount to much” [23].

(12) The judge made no finding as to the income generated by Norton York and no express finding as to the extent of his contribution to the joint expenditure of the home. She did however find that “he would give her pin money but he paid for all the household outgoings” [28].

(13) There was no express agreement between Norton York and Miss Graham -York as to the beneficial interests in the property. Norton York said nothing to Miss Graham-York out of which there could be spelled an intention by him that the beneficial interest in the property was to be shared. Having rejected Miss Graham-York’s evidence as to alleged assurances by Norton York concerning her interest in the property, on which she allegedly relied, the judge made no findings as to any discussions between them on this point.
11.	In the light of her findings the judge then proceeded to this unchallenged conclusion, at paragraph 41:-
“Having found that her income did contribute to the family income before and at the time of the purchase of the property I can infer a common intention that she was to have a beneficial interest in the property [paragraph 61 Stack v Dowden referring to Oxley v Hiscox (sic)].”
12.	It is perhaps helpful at this point to set out in extenso paragraph 61 of Stack v Dowden, [2007] 2 A.C. 432, which appears in the speech of Baroness Hale.  Stack v Dowden was a case in which an unmarried couple lived together as man and wife for 27 years and concerned their respective beneficial interests in a property bought and registered in their joint names as the family home. Throughout the relationship the woman earned substantially more than the man, made all the payments due under the mortgage and paid the household bills. Moreover the parties had throughout their relationship kept their financial affairs rigidly separate. This explains the first sentence  of Baroness Hale’s paragraph, which reads in full:-
“Oxley v Hiscock was, of course, a different case from this. The property had been conveyed into the sole name of one of the cohabitants. The claimant had first to surmount the hurdle of showing that she had any beneficial interest at all, before showing exactly what that interest was. The first could readily be inferred from the fact each party had made some kind of financial contribution towards the purchase. As to the second, Chadwick LJ said , at para 69:
“in many such cases, the answer will be provided by evidence of what they said and did at the time of the acquisition. But, in a case where there is no evidence of any discussion between them as to the amount of the share which each was to have- and even in a case where the evidence is that there was no discussion on that point-the question still requires an answer. It must now be accepted that (at least in this court and below) the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property. And in that context, ‘the whole course of dealing between them in relation to the property’ includes the arrangements which they make from time to time in order to meet the outgoings (for example, mortgage contributions, council tax and utilities, repairs, insurance and housekeeping) which have to be met if they are to live in the property as their home”. (Emphasis supplied).
Oxley v Hiscock has been hailed by Gray & Gray, Elements of Land Law, 4th ed, p931, para 10.138, as “an important breakthrough”. The passage quoted is very similar to the view of the Law Commission in Sharing Homes, A Discussion Paper, para 4.27 on the quantification of beneficial entitlement:
“If the question really is one of the parties’ ‘common intention’, we believe that there is much to be said for adopting what has been called a ‘holistic approach’ to quantification, undertaking a survey of the whole course of dealing between the parties and taking account of all conduct which throws light on the question what shares were intended”.
That may be the preferable way of expressing what is essentially the same thought, for two reasons is is. First, it emphasises that the search is still for the result which reflects what the parties must, in the light of their conduct, be taken to have intended. Second, therefore, it does not enable the court to abandon that search in favour of the result which the court itself considers fair. For the court to impose its own view of what is fair upon the situation in which the parties find themselves would be to return to the days before Pettitt v Pettitt [1970] AC 777 without even the fig leaf of section 17 of the 1882 Act”.
13.	Applying the learning in Oxley v Hiscock, Judge Faber continued in the present case:-
“42. In a case of single ownership I can look at the whole course of dealing between the parties in order to determine the size of that interest. There is no evidence of substantial financial contributions after 1985 save for the couple of years when the health food supplement business was in operation. She did however cook the family meals and jointly with him look after their daughter.
43. In my view a fair reflection of her contributions financial and non financial over the years would be a 25% beneficial interest in the property”.
14.	It is against this last conclusion that Miss Graham-York appeals.
15.	It was submitted by Mr Power that the judge wrongly assumed that Norton York had made a substantial contribution to the purchase of the property and to the household expenditure when there was no evidence as to the extent of his contribution. It was also submitted that the judge ought to have regarded Miss Graham-York as having contributed “as much to the household as she reasonably could” from which a finding of equal beneficial interests ought to have followed. Support for the latter contention was said to be found in paragraph 69 of Baroness Hale’s speech in Stack v Dowden, where she said:-
“In law, "context is everything" and the domestic context is very different from the commercial world. Each case will turn on its own facts. Many more factors than financial contributions may be relevant to divining the parties' true intentions. These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties' relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses. When a couple are joint owners of the home and jointly liable for the mortgage, the inferences to be drawn from who pays for what may be very different from the inferences to be drawn when only one is owner of the home. The arithmetical calculation of how much was paid by each is also likely to be less important. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally. The parties' individual characters and personalities may also be a factor in deciding where their true intentions lay. In the cohabitation context, mercenary considerations may be more to the fore than they would be in marriage, but it should not be assumed that they always take pride of place over natural love and affection. At the end of the day, having taken all this into account, cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual.”
16.	I do not consider that this last passage assists Mr Power’s submission, although the paragraph as a whole is of general relevance to the enquiry.   As Lady Hale made clear, she was speaking in the latter part of paragraph 69 of her speech of the inferences which it may be possible to draw where a couple are joint owners of the home and thus jointly liable for the mortgage indebtedness.  The present is not such a case.   Sadly, and in spite of the length of the cohabitation, it is also not a case in which natural love and affection can be said to have been at the forefront of the relationship. Mercenary considerations do appear to have been to the fore, and it is not easy to reconcile the judge’s findings as to Norton York’s controlling and threatening nature with the suggestion of a ready inference of a common intention as to equality of interests. 
17.	As to the extent of Norton York’s financial contribution, there is force in the observation of Miss Sarah Haren, for Adrian York, that if the contribution from Miss Graham-York was as small as the judge found, it must follow that Norton York contributed everything else, as the judge in effect found by saying that he met all the household outgoings. Moreover, it cannot be overlooked that in Miss Graham-York’s Amended Defence and Part 20 Counterclaim, supported by her Statement of Truth, one finds the following passages:
“The Second Defendant will allege and aver that in the years from about 1976 until 1990 and thereafter, the Deceased worked very hard and he was successful in a number of businesses carried on by him and/or by companies beneficially owned, and/or controlled by him, including a property development business which enabled the Deceased to own a number of properties in the West London area. [paragraph 14]…
that through the period of her cohabitation with the Deceased he assumed sole control of all income derived from his businesses, and the sole responsibility for the management of the family and household expenditure. [paragraph 36 (xi)]”
Furthermore, in her first Witness Statement, dated 23rd August 2011, Miss Graham-York said, at paragraph 46, that “the family business….provided the wherewithal for us both to live on”.   It is true that the judge could not regard as reliable Miss Graham-York’s assertion in the same paragraph of her Witness Statement that she worked, or assisted, in that family business, but I do not consider that that renders unreliable what is effectively a statement against interest. In any event, as I discuss hereafter, what Miss Graham-York said in this regard represents the obvious reality of the situation.  In her second Witness Statement, dated 25th October 2013, Miss Graham-York said, at paragraph 15, that “when it came to financial affairs, Norton lived in his own world, a world ruled by his greed and obsession for money”.   At paragraph 19 she said that “Norton was not a kind man, but for all he was, he ensured that those close to him were maintained”.   
18.	In the end Mr Power’s submission really resolved itself into an assertion that if no common intention could be divined as to the parties’ respective interests in the property, fairness was the guide to what reasonable parties must be taken to have intended.  In that regard, four critical factors he suggested militated strongly in favour of equality:-
i)	The finding of an initial financial contribution by Miss Graham-York to the purchase of the property;
ii)	The length of cohabitation;
iii)	The contribution by way of joint bringing up of the daughter Ilona, and;
iv)	The provision by Miss Graham-York of some financial contribution to the household expenditure, both before and after 1985.
19.	This was a case in which the judge was able to make only relatively exiguous findings as to the parties’ respective contributions, a circumstance to which she expressly adverted at paragraph 42 of her judgment. As to the totality of their conduct, the judge dealt with, and rejected, some lurid allegations made by Adrian York and Mrs Ilona Gidney, but contented herself with the sparing findings summarised above as to the nature of the relationship between Norton York and Miss Graham-York. It was plainly a relationship which was abusive in every sense of that word, and Miss Graham-York for her part made grave allegations as to the violent and sexually abusive conduct of Norton York towards her throughout the relationship.   Reading between the lines, the judge evidently found it impossible to make any more detailed findings which she could regard as reliable.   The judge’s findings are perhaps in this respect unusually sparse for a case of this type.   But the judge did make the findings to which I have referred so far as concerns Miss Graham-York’s contribution, financial and non-financial, to the enterprise of acquiring and living at the property.   Had the judge recorded explicitly that the evidence was sufficient for her to deduce a common intention to share beneficial ownership but insufficient to show what shares were intended, she would I think have been on firm ground.
20.	Although the judge did not refer to it, the most authoritative modern guidance as to the proper approach in cases of this sort is to be found in the judgment jointly delivered by Lord Walker and Lady Hale in Jones v Kernott [2011] 1 A.C. 776.   This again was a case of a property bought in joint names, but the Supreme Court gave guidance as to the case of a family home put into the name of one party only.   It is convenient to set out the conclusion of Lord Walker and Lady Hale in extenso:-
“51.  In summary, therefore, the following are the principles applicable in a case such as this, where a family home is bought in the joint names of a cohabiting couple who are both responsible for any mortgage, but without any express declaration of their beneficial interests. 
(1) The starting point is that equity follows the law and they are joint tenants both in law and in equity. 
(2) That presumption can be displaced by showing (a) that the parties had a different common intention at the time when they acquired the home, or (b) that they later formed the common intention that their respective shares would change. 
(3) Their common intention is to be deduced objectively from their conduct: 
"the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party's words and conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party" (Lord Diplock in Gissing v Gissing [1971] AC 886, 906). 
Examples of the sort of evidence which might be relevant to drawing such inferences are given in Stack v Dowden, at para 69. 
(4) In those cases where it is clear either (a) that the parties did not intend joint tenancy at the outset, or (b) had changed their original intention, but it is not possible to ascertain by direct evidence or by inference what their actual intention was as to the shares in which they would own the property, "the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property": Chadwick LJ in Oxley v Hiscock [2005] Fam 211, para 69. In our judgment, "the whole course of dealing … in relation to the property" should be given a broad meaning, enabling a similar range of factors to be taken into account as may be relevant to ascertaining the parties' actual intentions.
(5) Each case will turn on its own facts. Financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended (as in case (3)) or fair (as in case (4)). 
52.  This case is not concerned with a family home which is put into the name of one party only. The starting point is different. The first issue is whether it was intended that the other party have any beneficial interest in the property at all. If he does, the second issue is what that interest is. There is no presumption of joint beneficial ownership. But their common intention has once again to be deduced objectively from their conduct. If the evidence shows a common intention to share beneficial ownership but does not show what shares were intended, the court will have to proceed as at para 51(4) and (5) above.”
21.	In an earlier passage, at paragraph 31 of their joint judgment, Lord Walker and Lady Hale said this:
“31.  In deference to the comments of Lord Neuberger and Rimer LJ, we accept that the search is primarily to ascertain the parties' actual shared intentions, whether expressed or to be inferred from their conduct. However, there are at least two exceptions. The first, which is not this case, is where the classic resulting trust presumption applies. Indeed, this would be rare in a domestic context, but might perhaps arise where domestic partners were also business partners: see Stack v Dowden, para 32. The second, which for reasons which will appear later is in our view also not this case but will arise much more frequently, is where it is clear that the beneficial interests are to be shared, but it is impossible to divine a common intention as to the proportions in which they are to be shared. In those two situations, the court is driven to impute an intention to the parties which they may never have had.”
22.	We are concerned on this appeal with just such a case as envisaged by Lord Walker and Lady Hale in their second exception. It is essential, in my judgment, to bear in mind that, in deciding in such a case what shares are fair, the court is not concerned with some form of redistributive justice.   Thus it is irrelevant that it may be thought a “fair” outcome for a woman who has endured years of abusive conduct by her partner to be allotted a substantial interest in his property on his death.   The plight of Miss Graham-York attracts sympathy, but it does not enable the court to redistribute property interests in a manner which right-minded people might think amounts to appropriate compensation.   Miss Graham-York is “entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property”.  It is these last words, which I have emphasised, which supply the confines of the enquiry as to fairness.   
23.	The judge can perhaps be criticised for omitting these qualifying words from her formulation at her paragraph 42, set out at paragraph 13 above.  But to my mind it is clear from the balance of that paragraph, and from her paragraph 43, that the judge focused on the relevant consideration, which was the extent of Miss Graham-York’s contribution, both financial and non-financial, in relation to the property which was their family home for many years.   
24.	In this regard I do not consider that reference to the evaluations made by judges in other cases is of particular assistance.   Reference was made on the appeal to Webster v Webster, [2009] 1 FLR 1240; [2008] EWHC 31(Ch), a decision of His Honour Judge Behrens. That was a case of sole legal ownership by the male partner and cohabitation for twenty seven years.   Both partners worked although the male partner had the greater income.   There was much better evidence than here of the woman’s regular contribution, which was significantly less than that of her partner. Judge Behrens did not in the event have to assess the extent of the woman’s interest, because that issue had become academic in the light of his intended disposition under the Inheritance (Provision for Family and Dependants) Act 1975, which was that the property in question should be transferred to her outright. He did however indicate that having regard to the whole history of the dealings between them it was unlikely that he would have assessed it at 50% and probable that he would have assessed it at between 33% and 40%. I note incidentally that in separate proceedings in the Chancery Division, with which we are not concerned, there are outstanding disputes concerning the validity of one or more wills of the deceased and Miss Graham-York has additionally made an application under the 1975 Act.
25.	Reference to that case does however, I consider, throw into sharp focus three features of the debate. First, as established in Oxley v Hiscock itself, at paragraph 38 of the judgment of Chadwick LJ, in the case of a property purchased in the name of one party only, even with the aid of a substantial contribution from the other, there is no presumed starting point of equality of interests. Oxley was a case of sole ownership by the man with considerable financial contribution from the woman.  It led only to a 40% share being regarded as her fair entitlement. Second, therefore, the suggestion in the present case that equality of interests is the only fair solution is quite hopeless.   Third, the judicial evaluation of the fair share is not one in respect of which there is only one right answer.  It is an exercise the outcome of which should only be disturbed by an appellate court if it falls outside the ambit of reasonable decision-making.   
26.	It is also I think possible to be led astray by the length of the cohabitation.  It is obviously true that in the normal case the non-financial contribution is likely to be proportionately greater the longer the cohabitation.   But to be set against that in the present case is the judge’s damning finding at paragraph 23 of her judgment that “even if she were telling the truth about her financial contribution during the 33 years of their cohabitation it does not amount to much”.   
27.	The woman’s financial contribution in Webster v Webster was very significantly greater than that which the judge found here, and that combined with a cohabitation of 27 years might apparently have led the judge to find as fair an entitlement in the range of 33% to 40%.   
28.	The judge in the present case, with the advantage of having heard argument and evidence over five days, regarded her evaluation of a 25% interest as “generous”. The judge directed herself properly as to the approach which she should take to the evaluative exercise.  She fell into no legal or analytical error, certainly neither of those identified at paragraph 15 above.   I can discern no principled basis upon which this court can regard her evaluation as falling outside the ambit of reasonable decision-making. Had the judge evaluated Miss Graham-York’s interest at, say, 33%, her decision would I consider have been equally unassailable, but for this court now to evaluate the interest in that way would be unprincipled, would rightly be castigated as what is in another context described as “tinkering”, and would simply encourage appeals, raising false expectations and leading to the further erosion of modest estates.   I would dismiss the appeal on the first issue.  
The second issue – the equity of exoneration 
29.	I can take this point much more shortly since by the end of the argument it had all but disappeared. As Miss Haren observed at the outset of her address on this issue, the sole relevant Ground of Appeal is that:-
“The Learned Judge ordered that 25% of the proceeds of sale of the Property should be paid to the Appellant after, rather than before, payment of the amounts owned by Norton Brian York, Deceased, to the Second Respondent [the Building Society], the Claimant in the original action, and in so doing reduced the Appellant’s beneficial interest from 25% to 12.5%.”
It follows that Mr Power’s initial argument on this part of the appeal that Miss Graham-York was “not bound by the mortgage” fell outside the permitted scope of the appeal. Furthermore the only pleaded issue was the Building Society’s request for determination by the court as to whether, and if so to what extent, any interest which Miss Graham-York might have in the property has priority over the mortgage. It was its pleaded case that Miss Graham York’s interest, if any, is an interest in the proceeds of sale after repayment to the Building Society of all sums owed under the mortgage. Miss Graham-York simply joined issue. She pleaded nothing concerning an equity of exoneration, which is the entitlement alleged in the Ground of Appeal set out above.   
30.	There are of course two entirely distinct questions:
i)	As between Miss Graham-York and the Building Society, is the mortgage binding on Miss Graham-York?
ii)	As between Miss Graham-York and the Deceased Norton York, out of whose share is the mortgage debt to be discharged?
31.	Point (i) was resolved by the concession at trial that Miss Graham-York had no overriding interest, an inevitable concession in the light of Judge Dight’s unappealed order for possession and sale. For good measure, although the point is probably academic, Judge Faber also records that it was conceded by Mr Devlin, for Miss Graham-York, at the end of his closing speech at trial that the Building Society is also entitled to be subrogated to the rights of Barclay’s Bank under its charge of 15th October 1982.   
32.	Point (ii), if it had been pleaded by Miss Graham-York, would have raised the question whether she could demonstrate that all or some of the debt secured by the mortgage charge represented lending which was not incurred for the benefit of the joint household but solely for the benefit of the deceased Norton York and/or his business interests.  If she could, there would be the possibility, although not the inevitability, that Miss Graham-York could claim to be exonerated in equity by the principal debtor, the deceased Norton York – see Fisher and Lightwood’s Law of Mortgages 13th Edition, paragraph 45.7; Paget v Paget [1898] 1 Ch. 470, particularly at 474/5 and Re Pittortou, [1985] 1 All ER 285, particularly at 288.  As Scott J observed in the latter case, whether an equity of exoneration arises depends upon the presumed intention of the parties and is highly fact-sensitive.   
33.	Paragraph 47 of the judge’s first judgment, dated 24th January 2014, and made available to the parties on or about that date, reads:-
“I will order sale to take place at any time after 7th March which is 6 weeks after handing down of the judgment. The sale is to be handled under the direction of the Claimant’s solicitors and they are to pay Ms Graham-York 25% of the net proceeds after recouping the sums owed to the Claimant and to retain the balance in an interest bearing account pending further order of the High Court in the probate proceedings.”
34.	It was only after judgment had been made available to the parties in this form that Miss Graham-York raised for the first time reliance upon an alleged equity of exoneration. The point was developed in written submissions dated 18th February 2014 drafted by Mr Devlin, to which apparently he wished to add nothing of substance when the first judgment was eventually handed down on 19th February 2014. There was however the opportunity for argument on that day with all parties represented as they had been at trial, Mr Adrian York again appearing in person. There was evidently some limited argument. It was of course far too late to raise the issue, for as the judge observed in her second, extempore, judgment of 19th February 2014, she had not been invited at trial to make any findings as to the destination or use of the mortgage proceeds, and nor had she done so.  I would not support the reasoning of the judge that the equity of exoneration was unavailable because Miss Graham-York was not party to the mortgage, but there was nonetheless no basis upon which the judge could have found the equity to be established. The onus was of course on Miss Graham-York, and she failed to discharge it. However for what it is worth the inference from such evidence as there was seems to me to point away from, rather than towards, the conclusion that the borrowing was for the benefit of Norton York alone. It was the judge’s implicit finding that Norton York was responsible for generating almost all of the income, and thus the assets, which the family unit enjoyed. It is apparent therefore that Miss Graham-York shared the benefit of the deceased’s business ventures and it would be unconscionable that she should do so without sharing the burden of the mortgage. As noted in paragraph 18 above, it was in fact her evidence that Norton York’s business ventures “provided us with the wherewithal to live on”.  The point was well made by Miss Haren that the question whether it was intended by the parties that the beneficial interest of one of them should be exonerated from the burden of the mortgage debt, is dependent upon the same factors as come into the equation when considering the whole course of dealing between the parties in relation to the property, for the purpose either of deducing their intention or of determining what is fair in relation to their respective shares of the beneficial entitlement. The judge having concluded that Miss Graham-York’s entitlement was 25%, it would be artificial and illogical not to acknowledge that that must in the circumstances be a 25% interest subject to the mortgage indebtedness from which both she and Norton York had derived benefit.  
35.	Accordingly, I would dismiss Miss Graham-York’s appeal on the second issue also.
Lady Justice King:
36.	I agree.
Lord Justice Moore-Bick:
37.	I also agree.