Davies v Davies

JurisdictionEngland & Wales
JudgeLORD JUSTICE ACKNER,SIR DAVID CAIRNS
Judgment Date24 October 1985
Judgment citation (vLex)[1985] EWCA Civ J1024-3
CourtCourt of Appeal (Civil Division)
Docket Number85/0615
Date24 October 1985

[1985] EWCA Civ J1024-3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

ON APPEAL FROM THE STAFFORD COUNTY COURT

(His Honour Judge Mander)

Royal Courts of Justice

Before:

Lord Justice Ackner

and

Sir David Cairns

85/0615

Between:
Jean Ann Davies
Respondent (Petitioner)
and
Geoffrey Hamer Davies
Appellant (Respondent)

MR. ANTHONY M. LOWE (instructed by Messrs Pickering & Butters, Stafford) appeared on behalf of the Respondent/Petitioner.

MR. DAVID R. FOSKETT (instructed by Messrs Garrard Mitchell & Co., Shrewsbury) appeared on behalf of the Appellant/Respondent.

LORD JUSTICE ACKNER
1

Mr. Davies, who is the appellant in this appeal (to whom I will refer hereafter as the "husband") is a farmer. His wife also comes from farming stock. They were married in January 1965 and have two children, a boy Nigel, who is now close on 19 years old and is working with his father in circumstances to which I will refer in a moment, and a daughter Claire, who is just over 16 and is living with her mother. Sadly in 1980—1981 the marriage broke down. The husband and wife had earlier acquired a smallholding on which they both worked which they sold in 1974 for £27,000. The husband then went into what has been loosely called a "partnership" with a Mr. Evans, a gentleman who at the time of the hearing was some 78 years of age and very wealthy. They were in fact farming Mr. Evan's property which consisted of over 700 acres of land. The marriage having broken down the husband continued to live in The Red House, Wyken, Worfield, Bridgnorth, Shropshire, which was part of Mr. Evans' property.

2

The wife left and in December 1982 she bought Old Tollgate Cottage, Erdington for £27,000. This money was advanced to her by her family, probably her sister, who took a charge on the house, being entitled to 10% interest on that advance but at no time, so far, has she asked for the payment.

3

After the decree nisi, which was granted in February 1982, the wife took proceedings for a lump sum and periodic maintenance. The matter came on before Mr. Registrar Rubery in the Stafford County Court on 22nd November 1984. The Registrar, having heard evidence, made an order in the wife's favour of a lump sum of£27,000 to be paid within six months. He made no order for periodic payments to the wife, but he made an order for the periodic payment of £25 per week in respect of the daughter, Claire.

4

That decision was appealed against and it came before His Honour Judge Mander in February this year. The learned judge heard the matter over two days and he gave a reserved judgment.

5

The wife's case was simply this. She had had to raise £27,000, her husband had capital enough to reimburse the £27,000 and he should do so. The details of her case in essence were these: the partnership in which her husband was in reality a profit-sharing farm manager would, if it was dissolved, produce a capital of some £62,000 in his favour. If it was dissolved he would have under the partnership the option to farm Little Barnsley Farm, a holding of 127 acres, which also had a farmhouse upon it. The partnership was doing badly. Accordingly it would be in his own interests for him to dissolve the partnership and, if he did so, he would be able to farm Little Barnsley Farm, live in the farmhouse, and out of the £62,000 capital he would be able to pay his wife £27,000. That case clearly satisfied the Registrar.

6

It did not, however, satisfy the learned judge. He was impressed by the point that Mr. Evans, the owner of the land which was being farmed, was a wealthy man. There was no evidence that Mr. Evans was disatisfied with Mr. Davies' activities as farm manager, or with the profitability of the venture. There was no suggestion that he, Mr. Evans, wanted to bring the matter to an end. The learned judge was therefore not prepared to conclude, as was the wife's case, that the business was doomed and therefore he should by ordering a lump sum of £27,000 as the Registrar did, indirectly forcing the husband to determine the partnership. He was also affected by the fact that the wife had not sought the husband's concurrence in the purchase of the house and, in relation to her particular need, he said, "I do not take the view that there is such an imperative need for her to have her money repaid that I must put the husband out of business in order to ensure that it is repaid".

7

There was expert evidence before the learned judge, both on behalf of the husband and the wife, that if in fact the husband did, by determining the partnership take on a tenancy at Little Barnsley Farm, he would need the whole, or the greater part, of the £62,000 capital in order to operate that farm.

8

The learned judge in his judgment dated 11th March set out in detail what I have sought to summarise. He said in terms that he allowed the appeal to the extent of quashing the lump sum order, but he went on to say this:

"I am not prepared to put the husband out of business and do not take the view that he is in a desperate financial plight. If I am wrong about that, I am able to take a course which will, to some extent, at least, protect the wife's interests."

9

The course that he decided to take on his own initiative, (it was not a course which was argued before him) was to adjourn generally the wife's application for a lump sum. In his reserved judgment he very properly said that, as this matter had not been raised before him at the hearing, he would give liberty to apply to the parties if they were so minded, to argue his entitlement to take that course. That liberty to apply was exercised by the husband, with the result that on 11th June the matter came back before the learned judge, when it was argued that he was not entitled to take the course of adjourning the wife's application for a lump sum because he had dealt with all the issues that were put before him; he had considered the wife's claim, he had dealt with the basis of that claim, and he had found against it. When adhering to the order which he had foreshadowed in his judgment in March, he said:

"As I made reference to in my previous judgment, there is a great deal of evidence and argument before me as to what the reality was, so far as the future of the husband's partnership is concerned. In adjourning, as I did, the wife's application for a lump sum, I took the view that she was entitled to the minimal protection that that would afford her, if it should unhappily be the case that the husband's expectations were frustrated and, in effect, the fears of the wife and her advisers, that his business was doomed to failure, should prove to be correct."

10

He then said that the particular circumstances which he had in mind in restoring the adjourned matter was if the husband's business failed and that thereby the capital which he found to be extensively locked up in the business might be available and thus the court would be in a position to consider the exercise of its jurisdiction and make such order, if any, as then appeared to be appropriate.

11

The complaint that is made by Mr. Foskett, who has admirably put his case before us, is simply this. Neither party sought an...

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