Joy Ann Potter (Applicant (Petitioner) v Kenneth Beesley Potter (Respondent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE |
| Judgment Date | 24 January 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0124-1 |
| Docket Number | 89/0043 |
| Date | 24 January 1989 |
| Court | Court of Appeal (Civil Division) |
[1989] EWCA Civ J0124-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COLCHESTER COUNTY COURT
HIS HONOUR JUDGE J.E. WILLIAMS
Royal Courts of Justice
Lord Justice Nourse
89/0043
MR. STEPHEN MILLER (instructed by Messrs Park Nelson, London Agents for Messrs Wansbroughs, Bristol) appeared on behalf of the Applicant (Petitioner.
MR. BRUCE SILVESTER (instructed by Messrs Fisher Jones & Co. Colchester) appeared on behalf of the Respondent (Respondent).
This is an inter partes application for leave to appeal from a decision of His Honour Judge Williams, given in the Colchester County Court on 10th October 1988, by which he affirmed a refusal by the registrar to make a vesting order in favour of the wife in matrimonial proceedings. That order was sought in pursuance of a consent order dated 1st December 1987, made on the wife's application for ancillary relief, a decree absolute having been granted on 7th January 1986. The first two paragraphs of the consent order were in these terms:
"1. The Petitioner do pay or cause to be paid to the Respondent by 31st May 1988 a lump sum of £6,000.
2. Upon payment by the Petitioner of the said lump sum in paragraph 1 above, the respondent do transfer all his share or interest in the former matrimonial home situate at 23 Garden Farm, West Mersea, Colchester, Essex absolutely subject to the mortgage with the Chelsea Building Society."
To cut a long story short, the wife did not pay the lump sum of £6,000 by 31st May 1988. It is said on her side that the Chelsea Building Society was a little backward in instructing solicitors to act for it in the proposed re-mortgage of the property, by which she was to raise the £6,000, and that it did not do so until about the middle of April. However, on 20th May 1988, the wife herself sent a transfer to the husband's solicitors for execution by him. It is said on his side, and it may be right, that the transfer so submitted was not in the correct form. In any event no transfer was executed and 31st May passed without payment of the money; it being perfectly obvious that the building society would not be prepared to make funds available to the wife to pay out the husband unless and until it could be assured that a duly executed transfer was being held in escrow against payment of the £6,000.
By the end of June the husband's solicitors were taking the point that the wife...
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