1 C.L.R. 1982 November 29 [L. Loizou, DEMETRIADES, PIKIS, JJ.] NITSA K. MILTIADOUS, Appellant-Plaintiff, v. KRITON MILTIADOUS, Respondent-Defendant. (Civil Appeal No. 6305) 5 Husband and wife—Property—Matrimonial home—Husband sole legal owner—Wife contributed to the acquisition of the site and erection of the building—Wife claiming ownership of one half share—Legal ownership by husband of the wholeof the property held to be subject to a trust over theproperty for the benefit of the wife, to the extent of one sixth having regard to the extent of her contribution. Costs—Discretion of the Court—Outcome of the case though the first considerationto whichthe Court must haveregardnot the only one. 10 15 20 25 Shortly after their marriage in 1966 the parties planned the building of a house for the needs of the family; and they made a concerted effort in that direction byjoining efforts and pooling their resources for the common purpose. When the parties separated in 1976the propeity was registered in the name of the husband. By means of an action the appellant-wife claimed a share intheproperty and prayed for a declaration acknowledging her as the owner of one half share in the property in virtue of an agreement between the parties, or her contribution to the acquisition of the site and the erection of the building. The trial Court, after making detailed reference to the conflicting contentions, held that both parties made a contribution to the acquisition of the house but concluded that the contribution ofthe wife was meagreincompaiison tothat ofthe husband, estimated at one sixth of the whole cost; and made a declaration acknowledging the interest of the wife in the property. 797 Miltiadous v. Miltiadous 0982) Accordingly,legalownership bythehusband ofthewholeofthe property was held to be subject to a trust over the property, for thebenefit ofthewife,totheextent of onesixth. Therefore,the husband was declared to be answerable as trustee for the interest of his wife inthe property. The Courtjudged it appro- 5 priate, for the sake of avoiding further complexities in the ownership of the property to refrain from ordering registration of the share of the wife in her name. Legal ownership, the trial Court held,isnot theonly passport to theacquisition of an interest in land. Equitable interests, arising from a trust re- 10 lationship, are susceptible to precise definition, and in appropriate circumstances may become the subject of registration. Regarding costs the trial Court left each party to pay his own costs. Upon appeal the wife has not challenged the-legal premises 15 upon which apportionment was effected but disputed the apportionment made by the trial Court on the ground that it was unfair having regard to the contribution of the parties, being unwarranted by the evidence adduced before the trial Court. Also, appellant questioned the propriety of the ordei made for 20 costs. Held,
(1)that the apportionment is dependent on the contribution made by each party, direct or indirect; that it was open to the trial Court in the light of the evidence before it to find as it did; accordingly the appeal must fail. 25
(2)That the question ofcostsis*"amatter ofjudicial discretion tobeexercisedjudiciallyinthelightofthefactsofthecase; that thoughtheoutcome ofthecaseisthefirstconsiderationtowhich the Court must have regard it is not the only one; that the conduct of the parties is also relevant particularly the height of 30 the claim considered in juxtaposition to the amount awarded; that whereas in this case the outcome turned in favour of the appellant, what was achievedwasmeagreincomparison towhat was claimed; and to that extent, appellant was held, as it may be inferred, "paitly responsible for the costs occasioned"; 35 that the order ultimately made, mitigated the costs incurred by respondent on account of the inflated claim of the appellant; that consequently, this part of the appeal fails as well. Appeal dismissed. 798 I C.L.R. 5 10 Miltiadoas v. Miltiadous Cases referred to: Odyss'eos v. A. PierisEstatesLtd. andAnother
(1982)1 C.L.R. 557; Gissing v. Gissing[1970] 2 All E.R. 780; Falkoner v. Falkoner [1970] 1 W.L.R. 1333; Cooke v. Head [1972] 2 All E.R. 38; Kowalczuck v. Kowalczuck [1973] 2 All E.R. 1042; Williams& Glyn's Bank v. Boaland[1979] 2 W.L.R. 550; Dennis v. McDonald [1981] 2 All E.R. 632; Papakokkinou v. Gunther
(1982)1C.L.R. 65 at p.
- Appeal. Appeal by plaintiff against the judgment of the District Court of Nicosia (Stylianides, P.D.C. and Fr. Nicolaides, DJ.) dated the 20th August, 1981(Action No. 5144/77) whereby 15 it was declared that the defendant holds in trust for the plaintiff the l/6th share (l/12th of the whole) of the property covered by Reg. No. D.312 dated 12.11.
- G. Papatheodorou, for the appellant. A. Markides, for the respondent. 20 Cur. adv. vult. L. Loizon J.: Having heard counsel for the appellant, we consider it unnecessary to hear the respondent in reply. The appeal must be dismissed. Mr. Justice. Pikis will deliver the judgment of the Court. 25 PIKIS J.: The break-up of the marriage of the parties in 1976 led to a number of disputes including one concerning the ownership of the matrimonial house at Pallouriotissa, Nicosia. Shortly after their marriage, in 1966, or possibly earlier during theirengagement, thepartiesplanned the building of a house for 30 the needs of the family. They made, it seems, a concerted effort in that direction, joining efforts and pooling their resources for the common purpose. When the parties separated in 1976,the property was registered in the name of the husband and co-owner who had built a house on the adjoining site. 35 What really happened was that the site, on which the house of the parties was built, belonged to the husband and the third party, as co-owners, each having built a house on his portion of the site. 799 Pikis J. Miltiadous v. Miltiadous
(1982)The appellant, the wife, claimed a share in the property and raised the present proceedings for a declaration, acknowledging herastheowner ofonehalfshareinthepropertyinvirtueofan agreement between theparties,or her contribution totheacquisition of the site and the erection of the building, and an order 5 for the amendment of the register accordingly. The husband disputed herclaim,maintaininghehadshouldered thesum total ofthefinancial commitmentsfor theacquisition oftheproperty. The case was hotly contested and conflicting evidence was adduced asto the contribution and theefforts ofthepartiesfor 10 the acquisition and setting up of their family home. The trial Court, after making detailed reference to the conflicting contentions, decided that both parties made a contribution to the acquisition of the house but concluded that the contribution of the wife was meagre in comparison to that of 15 the husband, estimated at one sixth of the whole cost. Theieupon, a declaration wasmadeacknowledging the interest of the wife in the property. Accordingly, legal ownership by the husbandofthewholeofthepropertywasheldtobesubject toa trust over theproperty, for thebenefit of thewife,to the extent 20 of one sixth. Therefore, the husband was declared to be answerable as trustee for the interest of his wife in the property. TheCourtjudged itappropriate,for thesakeofavoiding further complexities in the ownership of theproperty given the interest of the thrid party, to refrain from ordering registration of the 25 shareofthewifeinhername. Legalownership,thetrialCourt held,isnot the onlypassport tothe acquisition of an interestin land. Equitable interests, arising Xrom a trust relationship, are susceptible to precise definition, and in appropriate circumstances may become the subject of registration. The trial 30 Court correctly observed that s.4 of the Immovable Property (Tenure, Registration and Valuation) Law, Cap. 224 expressly exempts trusts from the network of the law, a proposition recently affirmed by the Supreme Court in Odysseos v. A.Pieris EstatesLtd.andAnother(CivilAppealsNos.6427-28-Judgment 35 delivered on 25.10.82-not yet reported).* ~On the authorities of Gissing v.Gissing [1970]2All E.R.780, Falkoner v. Falkoner [1970] 1 W.L.R. 1333, and subsequent cases affirming the same principle, the learned trial Judges found that jurisdiction vests in the Courts to pronounce the 40 * Now reported in
(1982)1 CL.R. 557. 800 1 C.L.R. Miltiadous v. Miltiadous Pikis J. ownerinlawofimmovablepropertyasholdingpart orthewhole as a trustee for the benefit of others, where the relationship between the legalowner and thebeneficiary issuch asto justify the imputation of a resulting, implied or constructive trust. 5 The evolution of the law, after Gissing, supra, is followed by Lord Denning in his book on "The DueProcess of Law", at p.235 et seq. Theevolution wasaccomplished by reference to thelawof trusts,oneofthemostfruitful treesinthe orchardof English law,asthelearned author observes. Theexistenceof a 10 trust has been implied whenever spouses or couples in cohabitation havemade ajoint contribution to the setting upof a housefor common use. (See, Cookev.Head[1972] 2All E.R. 38; Kowalczuck v. Kowalczuck [1973] 2 All E.R. 1042; Williams &Glyn's Bank v.Boaland [1979] 2W.L.R. 550; Dennis 15 v. McDonald [1981] 2 All E.R. 632). Atrustisdeemedtoariseuponthecoincidenceoftwothings:(
- a)Thepooling of resources and/or theexertion of efforts for the acquisition of immovable property, provided the contribution made by each is substantial; and 20 (
- b)the existence of such a relationship as to justify the attribution of a common intention to enjoy the useof the property together. Thereafter, if co-habitation is terminated and the object of the enterprise is frustrated, equity requires a fair apportionment 25 according to the contribution of each to the acquisition of the property. The appellant has not challenged the legal premises upon which apportionment was effected but disputed the apportionment made by the Court on the ground that it isunfair, having 30 regard to the contribution of the parties being unwarranted by theevidence adduced before thetrial Court. In the submission of counsel for the appellant the wife was entitled to a greater portion of the common venture. Theapportionment isdependent onthecontributionmadeby 35 each party, direct or indirect. Indirect contributions, may, in appropriate circumstances, take the form of theassumption of family burdens by one party, usually the wife, that makespossible the release of funds for the finance of the acquisition. 801 Pikis J. Miltiadous v. Miltiadous
(1982)Counsel for the appellant was well aware of the difficulties that lay in the path of persuading this Court to distrub the findings offact arrived at bythe trial Court after evaluation of the evidence before it. He argued, however, that certain findings were unwarranted by the evidence, particularly the 5 findings of the trial Court, pertaining to the credibility and temperament of the wife. Our attention was drawn to the absence of any complaint on thepart of the husband about the character or disposition of his wife. The findings of the trial Court, rest on the impression formed by the Court about the 10 temperemanet and disposition of the wife and her mother, and thelackofcredibilityofpartsoftheirevidence,asthetrial Court discerned, on a consideration oftheevidenceas a whole. They were poorly impressed by the professed unawareness on the part of the wife of the fact of registration of the building site in 15 the name of her husband, an improbable eventuality of affairs given her interest in property matters. In thejudgment of the Court, she affected unawareness in order to play down the implicationsofthefacts surrounding theacquisition ofthebuilding site by her husband. 20 Another complaint about the findings of the trial Court, concerns the repayment of a loan to a co-operative society. Whereas the loan wasjointly contracted, the Court found that ithad beenessentially repaid bythehusband. Thisfindingwas, in the submission of the appellant, unwarranted in law on the basis of a statement in Underhill's Law of Trusts a d Trustees 13thed., pp.274-75,resting his submission on the obligations in law of co-debtors. Nothing that is said in Vnderhill creates anything like an irrefutable presumption that a joint debt is jointly repaid by the debtors making an equal contribution for the repayment. It was perfectly open to the Court in the light of the evidence before it to find as they did,that thehusband basically assumed responsibility for the repayment of the debt. All that is stated in Vnderhill, supra, underlines the obligations in law of co-debtors. Lastly, the appellant questioned the propriety of the order madefor costs,leavingeachpartytopayhiscostsin litigation "No order as to costs.". In support of his submission, he relied on the decision in Papakokkinou v. Gunther
(1982)1 C.L.R. 65, 79. Far from supporting his submission, the ex- 40 802 25 30 35 1 CX.Κ. Miltiabous v. Miltiadous Pikis J- position of the law, madeonthesubject of costs inthe aforesaid case,tendstosupporttheordermadeby thetrial Court. Costs, it was thereheld,is amatterofjudicial discretiontobe exercised judicially in thelight of thefacts of the case. The outcomeof 5 the case is thefirst consideration to which the Courtmust have regard, but not the only one. As we said in that case, 10 "the conductof theparties is also relevant, particularly the height of the claim considered in juxtaposition to the damages awarded. Where the plaintiffs have, by their conduct,occassioned part of the costs of the proceedings, itis legitimate for thetrial Courttodeprive them of part or the whole of their costs ." The" same holds good in this case. Whereas the outcome turnedinfavour of theappellant,what was achieved was meagre 15 in comparison to what was claimed. And to that extent, ap pellant was held, as we may infer, partly responsible for the costs occasioned. The order ultimately made, mitigated the costs incurred by respondenton accountof the inflated claim of the appellant. Consequently, this part of the appeal fails as 20 well. Accordingly, the appeal is dismissed. Respondent li mited his claim for appeal costs to out of pocket expenses, amounting to £16.-. Appellant is adjudged to pay £16.-costs. Appealdismissed. Orderfor costs as above. 803