Antoni & Anor .v Antoni & Ors (Commonwealth Of The Bahamas) [2007] UKPC 10 (26 February 2007)

Privy Council Appeal No 1 of 2006

(1) Lena Weber Antoni
(2) Peaches Limited							Appellants
v.

(1) M Kirk Antoni
(2) Melanie M Malone
(3) A. Blair Antoni	Respondents

FROM

THE COURT OF APPEAL OF THE
COMMONWEALTH OF THE BAHAMAS

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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 26th February 2007

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Present at the hearing:-

Lord Bingham of Cornhill
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
	
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		[Delivered by Lord Scott of Foscote]

1.		This appeal to the Privy Council, and indeed also the appeal to the Court of Appeal of the Commonwealth of the Bahamas, has resulted from the failure of the trial judge, Lyons J, to apply the presumption of advancement.  In order to explain the relevance and importance of the presumption to the issues in this litigation it is necessary to describe the background facts.

The Facts

2.	Dr Amado Antoni was a well-known medical practitioner practising and residing in Freeport.  He and his first wife, Margo, had three children, namely, Kirk Antoni, Melanie Malone and Blair Antoni.  They are the above-named respondents.  Besides carrying on his medical practice Dr Antoni invested in property.  He did so not in his own name but via a company, Peaches Ltd.  Peaches Ltd is the second above-named appellant.

3.	Peaches Ltd was incorporated on 17 February 1969 with an authorised share capital of $1,000 divided into 1000 shares of $1 each.  Five fully paid-up shares were issued.  For the period from incorporation until 15 January 1991 it is common ground that each of the five issued shares was held by the named shareholder for Dr Antoni as the beneficial owner.  The named shareholders were partners of or employees in, or otherwise associated in some way with, a Bahamian law firm chosen for the purpose by Dr Antoni.  From 14 January 1983 to 15 January 1991 Mr David C. Thompson was one of the nominee shareholders.  He was an attorney in full time practice first as a partner in the firm Carson Lawson and, from May 1985, as a partner in Callenders & Co. in Freeport.  He and each of the other nominee shareholders signed a declaration of trust in favour of Dr Antoni.  The evidence shows that from at least 1979 the directors of the company included Dr Antoni as President and Treasurer, Kirk Antoni as Vice-President and Secretary and Melanie Malone and her husband Donald Malone.  Peaches Ltd was, therefore, a company wholly owned by Dr Antoni and, under his control, was a family managed company.

4.	  On 15 January 1991 there was a meeting of the directors of Peaches Ltd.  A number of resolutions highly relevant to the issues in this case were passed.  Each resolution was signed by Dr Antoni, Kirk Antoni, Melanie Malone and Donald Malone.

(1)	There was a resolution that Dr Antoni’s resignation as Treasurer be accepted and that Kirk Antoni be appointed Treasurer in his place.

(2)	There was a resolution that the resignation of Mr Thompson as Assistant Secretary be accepted and that Melanie Malone be appointed Assistant Secretary in his place.

(3)	There was a resolution approving the transfer of the five shares held by Mr Thompson and the other four nominee shareholders.  The transferees were Dr Antoni, Kirk Antoni, Melanie Malone, Donald Malone and Donna Long (of whom more later).

(4)	There was a resolution that the share certificates relating to the five shares that had been transferred be cancelled and that in lieu thereof new share certificates be issued to the five transferees.

5.	Donna Long, one of the new shareholders, was a legal secretary in the Freeport offices of McKinney, Bancroft & Hughes, a Bahamian law firm which Kirk Antoni, who had recently been called to the Bar, had joined.  Donna Long signed a declaration of trust, in the same form as the declarations that had been signed by Mr Thompson and the other nominee shareholders, declaring that the beneficial owner of the share in the company that had been transferred to her was Blair Antoni (the 3rd above named respondent).  Her signature on the declaration of trust was witnessed but the witness’ signature is an indecipherable scrawl and there was no evidence identifying the witness.

6.	Donald Malone, another of the new shareholders, signed a similar declaration of trust, also dated 15 January 1991, declaring that the beneficial owner of the share that had been transferred to him was Dr Antoni.  His (Donald Malone’s) signature was witnessed by Mr Glinton, counsel before their Lordships for the 1st above-named appellant Mrs Lena Antoni.  There is undisputed, and indisputable, evidence that the declaration was not signed on 15 January 1991 but was signed on 24 November 1995 some 2½ years after Dr Antoni’s death.  The minutes of a general meeting of the company held on 24 November 1995 record that 

“Mr Donald F. Malone was asked by the Chairman [Kirk Antoni] to sign, and subsequently did sign, the Declaration of Trust in favour of the late [Dr Antoni] with respect to Share Certificate number 4 of the Company held in the name of Donald F. Malone.  Mr Malone was also asked by the Chairman to sign and did sign the Share Certificate.  Mr Malone’s signatures were witnessed by Mr Glinton.”

Mr Glinton had been present at the meeting as counsel for Mrs Lena Antoni.

7.	Dr Antoni and his wife, Margo, had separated in 1978 and concluded a formal Separation Agreement in May 1980.  She died on 4 January 1991.  In 1990 Dr Antoni had met the first Appellant.  They married on 19 January 1992.  Dr Antoni had made a Will on 1 October 1990 appointing Kirk Antoni his executor and leaving the whole of his estate to his three children but by a later Will, dated 15 December 1992, he left his whole estate to his new wife.  Dr Antoni died on 5 April 1993 and on 5 January 1994 Letters of Administration with the 1992 Will annexed were granted to Mrs Lena Antoni.

8.	In the period between 15 January 1991 and Dr Antoni’s death on 5 April 1993 the company continued to be managed by Dr Antoni and the family directors.  At the company’s Annual General Meetings on 15 January 1991, 15 January 1992 and on 15 January 1993 all the five shareholders were present and on each occasion a resolution was passed

“… that all acts performed prior to the meeting by the Directors and officers of the Company be and hereby are confirmed, ratified and approved.”

The minutes of these meetings were signed by all five shareholders.  They included, of course, Dr Antoni, the President of the company.  These resolutions were apt to validate, if validation had been necessary, the transfers of the five issued shares to the five new shareholders.

9.	The death of Dr Antoni inevitably led to the involvement of Mrs Lena Antoni in the affairs of the company.  She was, on any view, beneficially entitled to two of the five issued shares, namely the share standing in the name of Dr Antoni and the share standing in the name of Donald Malone.  An Extraordinary General Meeting was held on 8 September 1993 at which Mrs Lena Antoni was elected a director of the company, the others being Donald Malone (who was elected President), Kirk Antoni and Melanie Malone.  At this stage there does not appear to have been any dissension between Mrs Lena Antoni on the one hand and the three Antoni children on the other hand about the beneficial entitlement of the three children to the other three shares in the company.  The minutes of the company’s Annual General Meeting held on 16 January 1995, at which all five shareholders were present, does not disclose any discordant note.  A resolution was passed confirming, ratifying and approving all acts of the directors prior to the meeting.  Each shareholder, including Mrs Lena Antoni, signed the minutes.

10.	Their Lordships have already referred (in paragraph 6 above) to the meeting of the company held on 24 November 1995.  The meeting is described as the company’s Annual General Meeting although the AGM for 1995 had taken place on 16 January 1995.  The five shareholders listed as being present included Blair Antoni but did not include Donna Long.  This was the occasion on which Donald Malone signed the declaration of trust in favour of Dr Antoni (see para 6 above).  It may be that prior to this meeting the share held by Donna Long had been transferred to Blair Antoni, the beneficiary named in the declaration of trust dated 15 January 1991 that she had signed.  Immediately following the meeting on 24 November 1995 a directors’ meeting was held.  It was attended by the company’s four directors, namely Mrs Lena Antoni and the three Antoni children.  The minutes of this meeting include the following item :-

“The Directors agreed to issue the unissued shares in the Company so that the shareholding will be as follows:

	Lena Antoni			400 shares
	Kirk Antoni			200 shares
	Melanie M. Antoni		200 shares
	A Blair Antoni		200 shares”

Share certificates, dated 24 November 1995, were issued accordingly for 399, 199, 199, and 199 shares to the above named shareholders.  With the shares that they already held their respective shareholdings were brought up to the required 400, 200, 200 and 200 level.  The 995 newly issued shares, like the original five shares, were issued as fully paid-up.

11.	However, by a letter dated 7 November 1996 from Mr Glinton, who had become Mrs Lena Antoni’s lawyer about a year previously, the three Antoni children were

“… put on notice by Mrs Antoni that she intends, in the name of the Company, to challenge the authenticity of those resolutions which purport to authorise the vesting of ownership of the various shares in Mr Kirk Antoni, Mr Anthony Blair Antoni and Mrs Melanie Malone, other than as nominees of Dr [Antoni].”

The Litigation

12.	The letter referred to in the preceding paragraph was followed by some further inconclusive correspondence between Kirk Antoni and Mr Glinton and the litigation was commenced by an Originating Summons dated 23 April 1998 issued by Mr Glinton, purporting to act for Mrs Lena Antoni and for the company, both of whom were named as plaintiffs.  It is common ground that Mr Glinton had no authority from the company either to act for it or to issue proceedings on its behalf.  If it was thought necessary for the company to be a party to the proceedings the company should have been joined as a defendant.  Nothing turns on this procedural impropriety save that it is clear that no burden of costs of the litigation can be placed on the company.  It is to Mrs Lena Antoni alone that Mr Glinton must look for the payment of any fees due to him.

13.	The three Antoni children were named as defendants and the relief sought by the Originating Summons included a declaration that Mrs Lena Antoni was entitled under Dr Antoni’s Will to all the issued shares in the company.  Bearing in mind that two years previously Mrs Lena Antoni had been party to a directors’ resolution authorising the issue of 199 fully paid shares to each of the three Antoni children the oddity of this claim is obvious.  Even more remarkable is that the relief sought included a claim for a declaration that all the properties standing in the name of the company formed part of the estate of Dr Antoni.  Be that as it may, Mr Glinton, on behalf of Mrs Lena Antoni, applied ex parte for and succeeded in obtaining, on 23 April 1998, an injunction restraining the three defendants from dealing in any way with any of the property of the company and from exercising any of the powers of directors without the written consent of Mrs Lena Antoni.

14.	The Originating Summons and the ex parte application for the injunction were supported by an affidavit sworn by Mrs Lena Antoni.  The affidavit was dated 21 January 1998 some three months before the issue of the Originating Summons and the grant of the injunction.  The affidavit complained that the company was under the control of Kirk Antoni by whom Mrs Lena Antoni had been denied access to the company’s corporate records (para.5) and that the three Antoni children

“… now claim to be members and directors of Peaches and each claims to be the lawful owner of 200 of the 1000 issued shares in the Company.  For his part Kirk claims to be and has assumed the office of President of the Company, with Melanie serving as its secretary and Blair as its Treasurer” (para 7).

In para 10 of the affidavit Mrs Lena Antoni said that she believed that “… all [the shares] in Peaches were owned in the entirety by Dr [Antoni] at the time of his death …”.  She did not disclose that she had been party to the issue of 399 new shares to herself and 199 new shares to each of the three Antoni children over two years after the death of Dr Antoni.  Her case, as disclosed by her affidavit, was that both Kirk Antoni and Melanie Malone had held the share that each had received on 15 January 1991 on trust for their father, Dr Antoni, and that Donna Long had held her share not on trust for Blair Antoni but for Dr Antoni.

15.	An affidavit in response was sworn by Kirk Antoni on 2 February 2000.  He exhibited copies of the minutes of the meetings of shareholders of the company for the period 15 January 1990 to 24 November 1997 and copies of the minutes of meetings and resolutions of directors of the company for the period 15 January 1991 to 24 November 1997.  He set out some family details that are not in dispute and described the background to the resolutions of 15 January 1991 (see para 4 above) in paragraphs 6 to 10 of his affidavit.

“6.	Shortly after I returned from law school in 1989 and some two years before Doctor Amado’s marriage to the First Plaintiff he informed me that he wished to transfer his beneficial interest in one of the five issued shares of the Company to my sister Melanie, another one of the five issued shares of the Company to my brother Blair and another one of the five issued shares of the Company to me.

7.	Subsequently, on the 15th January, 1991 the five existing share certificates were cancelled and five new share certificates numbered 16, 17, 18, 19 and 20 were issued in the names Dr. Amado B. Antoni, M. Kirk Antoni, Melanie M. Malone, Donald Malone in trust for Dr. Amado Antoni and Donna M. Long in trust for Blair Antoni respectively. …..

8.	The original of each of the share certificates mentioned in paragraph 7 hereof bears the signature of Doctor Amado as President of Peaches Limited and also bears my signature as Secretary of the Company.

9.	At the time these share certificates were issued my brother Blair was residing in the United States of America where he still lives.

10.	On the 1st October, 1990 prior to issuing the five certificates mentioned in paragraph 7 hereof Doctor Amado made a Will appointing me to be the sole executor and devising all his real and personal property to me and the Second and Third Defendants equally …..”

16.	Mrs Lena Antoni swore an affidavit in reply on 3 March 2000.  She repeated her belief that 
“… both the said Donald Malone and Donna Long did at all times hold their shares as my husband’s nominees; likewise did the applicant, Mr Kirk Antoni, and his sister, the Defendant Melanie Malone”

but did not provide any evidence in support of that belief.

17.	The hearing of the Originating Summons commenced on 7 December 2000 before Lyons J.  The only evidence consisted of the three affidavits, two sworn by Mrs Lena Antoni and the other sworn by Kirk Antoni, to which reference has been made.  No notice to cross-examine either of the deponents had been given.  The judge asked about this.  The first page of the transcript of the hearing records the following exchange

“The Court:	… There will be no other evidence called?  Is there any requirement to cross-examine?
Mr Tynes:	No notice was served.
Mr Glinton:	None whatsoever”

This was a remarkable, and from Mrs Lena Antoni’s point of view an unfortunate, state of affairs.  The critical issue in the case, so far as the original five shares are concerned, was whether Dr Antoni intended his son, Kirk, and his daughter, Melanie, to hold their respective shares beneficially or to hold as trustee for him and whether he intended Donna Long to hold as trustee for him or as trustee for Blair.  Mrs Lena Antoni had no first hand knowledge, and so could give no evidence, of what Dr Antoni had had in mind at the time.  Nor did she have any evidence which would enable her to challenge the 15 January 1991 declaration of trust that Donna Long had signed.  If her case was to have any prospect of success at all, it would be necessary for the credibility of Kirk Antoni’s evidence to be challenged.  How could that be done without cross-examination of Kirk Antoni?  Their Lordships think it could not.  Originating Summons procedure, with no pleadings, with evidence given on affidavit and with no cross-examination, is an excellent form of procedure where there are no serious issues of fact or disputed evidence and the issues are ones of law.  This, however, was not such a case.  The procedure adopted was, in their Lordships’ opinion, quite inappropriate to a case where, quite apart from the effect of the presumption of advancement, disputes about the credibility of Kirk Antoni’s evidence were bound to arise.

18.	The difficulties caused by the Originating Summons procedure were plainly felt by Lyons J.  He is recorded, at page 147 of the transcript, as suggesting that the affidavits might be treated as pleadings:

“… this is a matter for both of you, counsel, is your preference to treat the affidavits as a statement of claim and defence and counterclaim, or would you rather there be a formal pleading and then we come back and treat the affidavits – we can either treat them as evidence in chief or we can simply start with the persons giving their evidence”

Mr Glinton discouraged these suggestions –

“I have some hesitancy about the originating summons as being treated as if it were a writ at this stage.  More than that, I think there is sufficient evidence and I would be prepared to say sufficient evidence before this court … To the extent that it’s necessary for the defendants to make out exactly what is their case with respect to what seems to be their position on the argument, if it’s a question of supporting it with evidence and fact, even oral evidence, that leave should be given to amend or file another affidavit supported by oral evidence.  But I don’t see this as a case which could properly be converted into a writ action…”

The gist of what Mr Glinton was saying was that he was content with the procedure and evidence as it stood but that if the defendants wanted to file further evidence they could do so.  In the event, further evidence was produced.  It took the form of an affidavit from Mr Thompson, who had acted as Dr Antoni’s lawyer and been a nominee shareholder prior to 15 January 1991.  But nothing in the affidavit illuminates Dr Antoni’s reasons for placing two of the five issued shares in the names of Kirk and Melanie and a third share in the name of Donna Long in trust for Blair.

19.	Lyons J found in favour of Mrs Lena Antoni.  He did so because he took the view that the three Antoni defendants had not discharged the burden of satisfying him on the balance of probabilities that Dr Antoni had intended them to become the beneficial owners of their respective shares.  His approach is apparent from, in particular, the following paragraphs of his judgment:

“58.… that there was a transfer of the beneficial interest is to be proven by the Defendants …

59.	To approach the matter otherwise and leave it for 	the plaintiffs to disprove the Defendants’ allegation, would be unsatisfactory and unjust.  Not only would it place the plaintiffs in a position of trying to prove a negative averment, they would have to do so without the evidence of Dr Antoni.
	……..

80.	The Defendants contend that the evidence supporting the transfer of the beneficial interest can be found in paragraphs 6, 7 and 8 of Kirk Antoni’s affidavit (and the annexures).

81.	That Dr Antoni expressed an intention in 1989 (prior, it seems, to his association with Lena Antoni), and even wrote a Will in October, 1990, states no more than that he, at the time, had a mere intention.  As it happens, he changed his mind.  The Defendants have failed to present persuasive evidence otherwise.”

20.	The approach of Lyons J was, in their Lordships’ opinion, misconceived in law.  It overlooked the relevance and importance of the presumption of advancement.  This presumption, a construct of equity, applies when a parent places assets in the name of a child and assumes that the parent intends to make a gift to the child.  It is a rebuttable evidentiary presumption.  In the absence of adequate rebuttal evidence the presumption bars the application of the converse presumption, namely, the presumption of a resulting trust.  If a person places assets of his or hers in the name of a stranger, the presumption is that the stranger holds the assets on a resulting trust for the transferor.  This, too, is a rebuttable evidentiary presumption.  It is clear from the transcript that Mr Tynes, counsel for the Antoni defendants, expressly prayed in aid the presumption of advancement (see pages 127 to 130).  But, regrettably, the judge in his judgment paid no attention to it.  He ought to have started with the evidential presumption that Dr Antoni intended to benefit Kirk and Melanie both of whom he had caused to become legal owners of their respective shares.  The judge should then have asked himself what evidence there was to rebut that presumption.  He should have concentrated on the evidence of Dr Antoni’s intentions at the time of the 15 January 1991 transactions.  Instead he paid attention to what Dr Antoni had said in his 1992 Will about his interest in the company.  It is certainly arguable that in referring to 

“my lands in the name of Peaches of which I am president and principal owner …”

Dr Antoni was indicating a belief that he was the beneficial owner of all the five issued shares in the company.  It is, however, well established that evidence to rebut the presumption of advancement cannot take the form of denials of a transferee’s beneficial ownership made by the transferor after the event.  In Shephard v Cartwright [1955] AC 431 Viscount Simonds cited with approval the following passage from Snell’s Equity, 24th Ed., p.153

“The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration ….  But subsequent declarations are admissible as evidence only against the party who made them, and not in his favour.”

Later in his speech Viscount Simonds made clear his opinion as to the approach that should have been adopted to the case.  He said this, at p 448:-

“… I think the Master of the Rolls fell into an error … which largely influenced him in the conclusion to which he came.  For he treated the appellants’ claim merely as a claim against a dead man’s estate, and therefore … as a claim in which a heavy onus lay on the claimants.  But that is not, in my opinion, the way in which the claim should be regarded.  It starts with the fact that in 1929 certain shares were placed by their father in the names of the appellants, and, that fact being admitted or proved, a presumption at once arises which it is for the respondents to rebut.  They as executors are in no stronger position than their testator would be in if he were alive.”

The other members of the Appellate Committee agreed.

21.	In relation to the shares placed in the names of Kirk Antoni and Melanie Malone, the learned trial judge fell, in their Lordships’ opinion, into the same error as that to which Viscount Simonds referred in the passage last cited.  He treated Kirk Antoni and Melanie Malone as having to discharge the evidential onus of proving that Dr Antoni had intended them to become beneficial owners of the shares that he had caused to be placed in their names.  The reverse was the case.  The presumption of advancement was plainly applicable and required evidence to be adduced by Mrs Lena Antoni establishing that Dr Antoni had not intended them to become beneficial owners of the shares but had intended them to hold on a resulting trust for himself.  It would, as the judge recognised, have been very difficult for her to do so.  She had not been party to the 15 January 1991 decisions and could pray in aid only the references by Dr Antoni in his 1992 Will to his interest in the company and in the properties owned by the company.  The judge was impressed by these references.  But he should not have been.  They were, as best, subsequent declarations by Dr Antoni and, accordingly, inadmissible as evidence in his favour.

22.	The position regarding the share placed in the name of Donna Long is quite different.  Here the presumption of advancement is irrelevant.  If it had not been for the declaration of trust in favour of Blair Antoni that Donna Long had signed, the presumption of resulting trust would have applied and Donna Long would have held her share, as her predecessor nominee shareholders had done, on trust for Dr Antoni.  But, by the declaration of trust, Donna Long declared that she held her share on trust for Blair Antoni.  And the declaration bears the date 15 January 1991 and was exhibited by Kirk Antoni to his affidavit.  It was, therefore, part of the evidence before Lyons J.

23.	If the declaration of trust is accepted at its face value, there is an end to any contention that the share was held on a resulting trust for Dr Antoni.  The only alternative hypothesis is that of a fraudulent conspiracy between Kirk Antoni and Donna Long to place in evidence a false document brought into being after 15 January 1991, and probably after Dr Antoni’s death in 1993, in order to defeat the claim by Mrs Lena Antoni, that the share had been held by Donna Long on trust for Dr Antoni.  There are, in their Lordships’ opinion, two particular reasons why that alternative hypothesis cannot be accepted.

24.	First, at a trial where, by the parties’ choice, evidence has been given by affidavit, with no request to cross-examine any defendant, it is not, in their Lordships’ opinion, open to a judge to refuse to accept admissible evidence given by a defendant where that refusal involves an inference, or is based on a belief or a suspicion, that the defendant has given perjured evidence or is guilty of a fraud.  In adversarial proceedings it is for the parties to decide whether evidence given by opponents should be challenged.  If the evidence is not challenged by those in whose interests it would be to challenge it, it is not for the judge to presume to disbelieve the evidence.  The judge’s difficulty in the present case was produced by Mr Glinton, Mrs Lena Antoni’s counsel.  Mr Glinton did not ask to cross-examine Kirk Antoni.  He did not, therefore, put to Kirk Antoni that Donna Long’s 15 January 1991 declaration of trust was a false document made after the 15 January 1991 meeting and without the instructions of Dr Antoni in trust for whom she held her share.  Nor did he sub-poena Donna Long so that he could put these questions to her.  Nonetheless he did, in his submissions to the judge, contend that the declaration of trust was 

“… suggestive of ‘back-filling’ (i.e. creating documents after the event so as to give a semblance of credence to a certain position).”  (see para 49 of Lyons J’s judgment)

Having failed to put this suggestion to Kirk Antoni in cross-examination, counsel should not have been permitted to so contend.  But the judge accepted this contention and held that the declaration of trust was not “reliable” (paras 86 and 87 of the judgment).  This conclusion, in their Lordships’ opinion, was not open to the judge in the face of Kirk Antoni’s unchallenged evidence.

25.	Secondly, Donna Long’s 15 January 1991 declaration of trust in favour of Blair Antoni was entirely consistent with the unrebutted presumption of advancement that applied to the shares placed in the names of Kirk Antoni and Melanie Malone.

26.	The Antoni children appealed to the Court of Appeal against Lyons J’s judgment.  The judgment of the court, delivered by Ganpatsingh JA on 14 April 2004, allowed the appeal and set aside Lyons J’s order.  But instead of dismissing the action the court directed that the action be remitted for a retrial before a different judge.  The court so directed because it considered Lyons J, in coming to his decision, had not adequately dealt with the core issues in the case.  Mrs Lena Antoni has appealed against the setting aside of Lyons J’s order; the Antoni children have cross-appealed against the direction for a retrial.

Conclusion

27.	Mrs Lena Antoni’s appeal against the setting aside of Lyons J’s order must be dismissed for the reasons their Lordships have already explained.  The presumption of advancement was plainly applicable to the placing of the shares in the names of Kirk Antoni and Melanie Malone and no admissible evidence in rebuttal was adduced.  Mr Glinton made the point in his written case, repeating the point that he had apparently made to the Court of Appeal, that the doctrine of advancement was never an issue on the “pleadings” – (para 9 of the judgment).  But Mr Glinton’s choice of Originating Summons procedure meant that there were no pleadings.  The doctrine of advancement was expressly raised before Lyons J by Mr Tynes.  If that came as a surprise to Mr Glinton he had no one to blame but himself.

28.	On the other hand, the cross-appeal against the direction for a re-trial must, in their Lordships’ opinion, succeed.  On the evidence before Lyons J, and applying the presumption of advancement, there is no answer to Kirk Antoni’s and Melanie Malone’s claims to be beneficially entitled to the shares standing in their respective names.  The manner in which the trial was conducted made Lyons J’s refusal to accept at its face value the declaration of trust in favour of Blair Antoni unacceptable.  It would, in their Lordships’ opinion, be grossly unfair to allow Mrs Lena Antoni who, through Mr Glinton, chose the procedure, did not seek to challenge Kirk Antoni’s evidence and did not seek to adduce evidence from Donna Long, to now try and do better at a re-trial.  This is a long running family dispute which erupted out of nowhere in 1995 and now deserves oblivion.

29.	Accordingly their Lordships will humbly advise Her Majesty that the appeal should be dismissed, the cross-appeal should be allowed and, accordingly that Mrs Lena Antoni’s action should be dismissed.  Mrs Lena Antoni must pay the costs here and below.