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The judge had continued, 'so this is a case where it is not possible to ascertain by direct evidence or by inference what the parties’ actual intention was as to the shares they would own in the property after the split' (para ).
'there is no evidence that, using lay person’s language, the Claimant and the Defendant later formed an actual common intention that their shares would change. There was no specific agreement as to a variation of the shares on the split' (para ).
'…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 ... the court is driven to impute an intention to the parties which they may never have had.'
'in principle, it should be open to a court to take account of financial contributions to the maintenance of children (or lack of them) as part of the financial history of the parties save in circumstances where it is clear that to do so would result in double liability.' (para )
'What can at least be said is that an exercise of equitable accounting is not to be confused with an enquiry as to the extent of the parties’ respective beneficial interests in the property in question. Questions of equitable accounting only arise once the extent of the parties’ beneficial interests has been determined, since the requirement to account (where it exists) is a reflection of and derives from those beneficial interests' (§ 64 at 885)
“In my judgment, the judge erred in this paragraph of the judgment. She imputed an intention to the parties for the first stage of the two stage analysis rather than identifying an actual agreement made by them that Mr Harris should have any beneficial interest in Sunnyside Farm.” (para )Clearly, in that case the intention which it was impermissible to impute was one of the establishment of a beneficial interest, as distinct from a variation in quantification of an existing beneficial interest.
'it is impossible in the circumstances of this case to infer that nonetheless (unbeknown to themselves) the parties did in fact make an agreement by their conduct.'The distinction, however, is a fine one: the court was content to find an agreement (by conduct) to vary in Barnes v Phillips but not an agreement (by conduct) to share in Capehorn v Harris.