Gurdial Singh Verma v Raj Rani and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WAITE,LORD JUSTICE MILLETT,LORD JUSTICE STUART-SMITH,Order |
| Judgment Date | 14 March 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0314-2 |
| Date | 14 March 1995 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCRTI 94/0128/F |
[1995] EWCA Civ J0314-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(Appeal of First Respondent from order of Birmingham County Court)
Before: Lord Justice Stuart-Smith Lord Justice Waite and Lord Justice Millett
CCRTI 94/0128/F
MR. G. SPOLLON (instructed by Brendan Flemming, Birmingham) appeared on behalf of the Appellant.
MR. D. HICKMAN (instructed by Bemrose & Ling, Derby) appeared on behalf of the Respondent.
(As Approved)
Tuesday, 14 March 1995
This is an appeal from an order made in financial proceedings between husband and wife by His Honour Judge Alan Taylor in Birmingham County Court on 16 September 1993.
The main outline of his findings can be summarised in this way. After a marriage that had lasted for 34 years the spouses,
both now in their mid fifties, found themselves at divorce with limited means. The husband was living in rented accommodation and his evidence that he was now dependent on Income Support was not disputed. The wife —according to the judge's findings in proceedings under section 30 of the Law of Property Act which he heard immediately before the matrimonial proceedings —owned a half share with one of the adult sons of the marriage in a property in which she was at the date of the hearing living with that son. It was a property treated as having a net equity of £62,000 of which her share —if that be an accurate quantification of the equity —would be £31,000. The wife, although she had been found by the judge to have received at one time £20,000 from the antecedent property transactions, was by
the date of the hearing herself also dependent on Income Support. The judge regarded the case as one that called for a clean break order. Neither side objected to that, nor do I understand any objection to a clean break in principle to be maintained by either side today.
The method of achieving it which commended itself to the judge was to direct that the wife should keep her interest in the house and pay her husband a lump sum of £18,000 —to be raised, in default of payment within 6 months, by a sale of the property. The wife now appeals from that order on the ground that it would in effect render her homeless. She has no independent funds from which to raise the lump sum. If she is forced to raise it by submitting to a sale of the house and paying it out of her half share of the proceeds of sale, the monies left to her would be insufficient to enable her to buy alternative accommodation.
She does not challenge the principle of the judge's decision to award a lump sum to her husband. What she does seek to challenge by way of appeal is firstly quantum —she says £18,000 was too high a figure —and secondly the timing at which it is to become payable. She says that the proper order for the judge to have made was to direct that the lump sum should be charged on her interest in the house and not realised until her death or earlier departure from the property or her cohabiting with another person there.
The facts now need to be mentioned in a little more detail. The husband and wife were married in India in 1956 and came to this country a year or two later. Their two sons Jeevan and Surinder and their one daughter are now all adults.
The husband and wife first acquired a home in Derby in their joint names. That was eventually sold, and the proceeds were invested in a property 7 Little Gorway, Walsall which was bought in the joint names of the wife and the elder son Jeevan.
During their days in Derby, the husband and Surinder had bought an additional property in Normanton Road for business purposes. That was later sold, and from part of the proceeds of sale the wife received —according to the judge's findings —a sum of £20,000. He made no explicit finding, however, that any of that sum is still in her hands.
The judge also found that the mortgage with which the purchase of 7 Little Gorway had been financed became reduced when Surinder contributed £20,000 from his own share of the proceeds of sale of the commercial property at Normanton Road to paying off that amount from the mortgage charged on 7 Little Gorway.
The hearing that was listed before the judge in September 1993 was one at which proceedings by the husband asserting a beneficial interest in 7 Little Gorway and consequent orders for sale under section 30 of the Law of Property Act were directed to be heard first and then immediately followed by the hearing of his claim against the wife for financial relief in their matrimonial proceedings. (I should say that in those matrimonial proceedings there has now been a decree absolute of divorce.) It was expected that the total hearing would last three days.
The judge heard a great deal of evidence. He found it extremely difficult to know whom to believe and who should be disbelieved. Having had an opportunity of seeing a transcription of the evidence, it is easy to sympathise with the predicament in which he found himself in that respect. He was faced with a problematic case. It was problematic not only because of the difficulties of assessing credibility, but also because of the difficulty of tracing what had happened to the proceeds of the various property transactions with which he was concerned and finding out what funds remain available at this day.
The two matters before him were, of course, of an essentially different character. In the section 30 proceedings he had to determine as best he could where the property rights of the parties lay. In the matrimonial proceedings the exercise was largely discretionary. He had to call to mind all the numerous considerations which the court is required to take into account by section 25 of the Matrimonial Causes Act 1973.
The son Jeevan had been joined as a party to both sets of proceedings, and he was represented before the judge by counsel. Although, as I have said, the two sets of proceedings were essentially different in character, there was bound to be a good deal of common ground as regards the evidence to be heard in each, and it is thoroughly understandable that they were listed for consecutive hearing and that the judge should have wished to take an overall view of both.
When counsel came to their closing submissions at the end of the first stage, Mr. Spollon, on behalf of the wife, said (and I quote from page 46 of the transcript):
"Your honour, I think before we turn to the question of ancillary relief, there had better be, with respect, a determination of the section 30 application" -
to which the judge replied,
"I am prepared to hear your submissions about it and also give you my view about it, and I shan't give a judgment as such because it seems to me, having got a family matter like this, the whole thing has got to be tied up one way or the other."
Counsel in the case interpreted that —with every justification in my view —as a ruling by the judge that he was not prepared to deal separately with the discretionary questions that arose on the ancillary application but was insisting on...
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