Murphy v Gooch: CA 27 Jun 2007

The unmarried parties had sought an order from the court as to their respective interests in their former family home.
Held:The judge had been incorrect to make his decsion based on the principles of equitable accounting. He should have used the 1996 Act.
Lightman J summarised the effect of the 1996 Act: ‘section 12 of the 1996 Act confers on beneficiaries entitled to an interest in possession a right to occupy land available for his occupation. Section 13 confers on trustees, where there are two or more of such beneficiaries, the power (1) to exclude or restrict the entitlement to occupation of any one or more (but not all) of such beneficiaries; (2) to impose conditions on any beneficiary in relation to his entitlement to occupy, including conditions requiring him: (a) to pay outgoings and expenses in relation to the land; and (b) where the entitlement of another beneficiary to occupy land under section 12 has been excluded or restricted, to make payments by way of compensation to the beneficiary whose entitlement has been excluded or restricted and to forego any payment or other benefit to which he would otherwise be entitled under the trust so as to benefit that beneficiary. This section is designed to confer on trustees power to regulate and set the terms for future occupation of trust land. Section 14 confers power on the court on application by trustees or others interested to make such orders as it thinks fit: (a) relating to any of the trustees’ functions (which includes their functions under section 13); and (b) to declare the nature or extent of a person’s interest in property subject to the trust. It must be under the latter of these two powers that the statutory jurisdiction is conferred on the court to take accounts between co-owners.
Under the previous equitable doctrine the court was concerned only with considerations relevant to achieving a just result between the parties. The statutory innovation is section 15, which requires the court in determining all applications for an order under section 14 to include amongst the other matters to which it has regard: (1) in all cases (so far as applicable) the four matters referred to by Baroness Hale; (2) in the case of applications relating to the exercise by trustees of the powers conferred by section 13 the circumstances and wishes of each of the beneficiaries who is (or apart from any previous exercise by the trustees would be) entitled to occupy the land under section 12; and (3) in case of any other application (other than one relating to the conveyance of land to beneficiaries absolutely entitled) the circumstances and wishes of any beneficiaries of full age entitled to an interest in possession. The wider ambit of relevant considerations means that the task of the court must now be, not merely to do justice between the parties, but to do justice between the parties with due regard to the relevant statutory considerations and in particular (where applicable) the welfare of the minor, the interests of secured creditors and the circumstances and wishes of the beneficiaries specified.’


Lightman J, Mummery LJ, Sedley LJ


[2007] EWCA Civ 603




Trusts of Land and Appointment of Trustees Act 1996 14


England and Wales


Citedin Re Pavlou (A Bankrupt) ChD 17-Mar-1993
Mr and Mrs Pavlou bought a house for andpound;12,500 with a mortgage of andpound;9,500. After the husband left, the wife remained in sole occupation, and paid the mortgage instalments as they fell due. Thirteen years after the marriage Mrs Pavlou . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedByford v Butler; In re Byford deceased ChD 10-Jun-2003
The house was owned in joint names. The husband became bankrupt, and the wife continued to pay the mortgage as to interest and capital. The trustee sought a declaration as to the ownership of the interests in the house. After the husband died, the . .
Lists of cited by and citing cases may be incomplete.

Land, Trusts

Updated: 11 July 2022; Ref: scu.253706