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Carlton v Goodman [2002] EWCA Civ 545 - available on-line at www2.bailii.org - is a shared homes case in which the CA had to decide whether the legal owner of property held it on resulting trust for her deceased partner's estate.

At paras 23 ff Mummery LJ notes the Birks and Chambers v Swadling / Lord Millett v Lord B-W debate vis-a-vis the true nature of RTs, but concludes that it doesn't matter who is right because the result would be the same either way.

This debate is often portrayed as a head to head between two versions of the presumption which is made about the transferor's intention when he transfers property for no consideration -'transferor didn't intend to benefit recipient' vs 'transferor intended recipient to be his trustee'. But in fact Lord B-W says something slightly different from the second of these in Westdeutsche at [1996] AC 669, 708, namely that he thinks the key question is whether it is 'the common intention of the transferor and the recipient that the recipient should be the transferor's trustee'. And in Carlton v Goodman, Mummery LJ - along with Laws and Ward LJJ - follow this, referring to the common intention of the parties as being the relevant intention in their judgments.

In principle, though, this can't be right, and it stems from a failure to distinguish properly between resulting trusts and common intention constructive trusts. In principle, the only person whose intention should count in a resulting trust case is the intention of the transferor, whichever of the two presumptions is thought correct - a point made clearly and convincingly by Robert Chambers in his book on Resulting Trusts at p 37, text to nn 206-9, and again by John Mee in his book, The Property Rights of Cohabitees, at pp 39-43.

Charles

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Dr Charles Mitchell
Lecturer in Law
School of Law
King's College London
Strand
LONDON WC2R 2LS

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