– v –
The judge in the trial court held that Mrs Rutherford’s estate was entitled to a remedy based upon a constructive trust in order to compensate the expenditure that had been incurred. The judge ruled that this interest, although a legal fiction, was a correct interpretation of the law, and that the Rutherford estate was entitled to an equitable interest in the property. This equitable interest was not apparently a share of the proceeds of sale, but a form of lien1 for the money spent on improving the property. The respondent contends that the judge in this case was in error in granting a restitutionary remedy.
Appearing as litigant in person, Mr Rutherford seeks to rely on a number of authorities where expenditure on improvements had been the result of a mistake; for example, in the mistaken belief that the person incurring the expenditure would be granted a beneficial interest in the property. Further, Mr Rutherford submits that it is not right in the circumstances to limit the remedies of the estate to proprietary remedies. He submits that the contractual remedies are appropriate. For the reasons indicated, I find myself unable to accept this submission.
It seems to me Mr Rutherford would have been successful had he contended that he was entitled to a share in the property by reason of the improvements. However, in my judgment none of the cases cited by Mr Rutherford are of any assistance in the context of this appeal.
As I see it, it would be quite wrong for Mr Rock, in addition to discharging the balance of the mortgage debt without contribution from Mrs Rutherford’s estate, to be required to repay the contended sum to Mrs Rutherford’s estate.
Order: Appeal allowed with costs here and below; application for permission to appeal to the House of Lords2 refused.
1 Interest or attachment in another’s property as security for payment of an obligation
2 The highest appeal court in the UK for civil cases.