Matz v Matz
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CUMMING-BRUCE,LORD JUSTICE BROWNE-WILKINSON |
| Judgment Date | 09 December 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J1209-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 83/0499 |
| Date | 09 December 1983 |
[1983] EWCA Civ J1209-3
Lord Justice Cumming-Bruce
and
Lord Justice Browne-Wilkinson
83/0499
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr. Justice Vinelott)
Royal Courts of Justice
MISS J.A. PERRY (instructed by Messrs Brown & Weider) appeared on behalf of the Appellant/Defendant.
MISS S.I.B. SOLOMON (instructed by Messrs Boyce Evans and Sheppard) appeared on behalf of the Respondent/Plaintiff.
This is an appeal by a defendant in partnership proceedings commenced in the Chancery Division, from the order made by Mr. Justice Vinelott dated 20th April 1983 when he dismissed the defendant's motion that the proceedings be transferred to the Family Division of the High Court of Justice and further ordered on the plaintiff's motion that "the defendant do concur in the sale of the business carried on by the plaintiff and the defendant under the style of "Teris" at 215 Station Road Harrow, together with the goodwill, assets and effects thereof to a named purchaser for the offered purchase price of £74,000 and that all other relief sought by the plaintiff in her notice of motion dated 28th February 1983 be adjourned to the Master save that the defendant pay the plaintiff's costs of the motion." The order sought in the notice of appeal is that both orders of the learned judge be set aside and that all proceedings therein be transferred to the Family Division.
The matter arises in the context of what I regard as an unfortunate history on the part of the various professional advisers of the defendant. The parties are husband and wife. They married in 1955. They have had four children, all now of full age. In 1961 the parties purchased the freehold property at 215 Station Road which consisted of a lock-up shop with living accommodation above. The property was conveyed into joint names. Though the details are not clear and many of them are the subject of conflicting evidence in the affidavits, it appears that the shop was operated as a business, being the business of a newsagent and tobacconist by the defendant from 1961 until at the latest 1973 when the plaintiff wife became a partner in the business and the realty became an asset in the partnership. Thereafter, until the dissolution of the partnership, the business was carried on by husband and wife in the partnership.
The marriage broke down in about 1979 and the wife determined the partnership in writing on 15th December 1979. This was followed by a writ issued on 22nd February 1980 claiming the usual partnership relief, including directions for the sale of the property. On 20th October 1980 the wife presented a petition for dissolution of the marriage, with claims for financial provision by way of ancillary relief.
On 9th December 1980 the husband put in an answer and cross-petition. He also included prayers for financial provision and property adjustment. At that date the parties were still living together in the premises above the shop and again, though the details are to some degree in conflict, it appears that after the dissolution of the partnership, for a considerable time, the wife continued to play some part in relation to the accounts of the partnership business.
The parties finally separated in March 1982. The wife left 215 Station Road. The husband stayed. Some of the children went with the wife; others stayed with their father.
As a consequence, no doubt, of the fact that after the institution of proceedings for dissolution by both parties, because the parties were still living together in the matrimonial home and were apparently carrying on discussions and negotiations about the settlement of their differences, no step was taken either in the partnership proceedings or in the matrimonial proceedings until after the final separation of the parties. So it was that it was only on 7th July 1982 that the proceedings in the Chancery Division were revived by notice of continuance then served. On 10th August 1982 the wife served a supplemental petition for dissolution of marriage.
A notice of motion seeking the sale of the property was served by the wife and first came before Mr. Justice Vinelott on 21st September 1982. The wife was represented by counsel. A representative of the husband's solicitors firm attended the proceedings and satisfied the judge that the husband concurred in the sale. Having regard to that agreement, no order for sale was made and the proceedings were adjourned. Matters were put in hand for the sale of the property. A valuer was instructed who advised that the value of the realty and all the assets of the partnership, including the goodwill, had a value of £74,000 and on instructions steps were taken to find a purchaser.
There had been no agreement as to the division of the partnership proceeds, but from 1980, having regard to the affidavits of the parties and all open communications between them, there was every reason for thinking that the only dispute in relation to the division of the proceeds and winding up of the partnership related to the sum of £8,500 which the female partner had advanced by way of loan to the partnership at an earlier date. The male partner was taking the line that he was entitled to that loan in his share of the partnership proceeds. That, on the evidence before the judge, appears to have been the only formulated matter of dispute from 1980 onwards.
The learned judge made the order, the subject of a notice of appeal, which was an order that the defendant concur in the sale of the business to a named purchaser, but that purchase either went off or appeared to be at risk. As a result the learned judge made a second order on 27th May. By the terms of that order the defendant by his counsel was undertaking to "Use his best endeavours to conduct the business of newsagents and confectioners carried on by the plaintiff and the defendant under the style of Teris at 215 Station Road…. in a business-like and proper fashion maintaining a turnover and stock at their existing level with a view to the sale of the said business as a going concern", and undertaking to "Permit the plaintiff together with her solicitors to carry out an inspection of the entire premises"[at a stated time] and further undertaking to "Handover to the partnership accountant on a day before 1.6.83 all partnership books of account and all relevant documents relating to partnership assets for the plaintiffs inspection of the same And the Plaintiff…undertaking that she will return all the…partnership books of account and all relevant documents relating to partnership assets to the…accountant within 7 days after receiving the same." It was ordered "That the said business together with the goodwill assets and effects thereof be sold out of court as a going concern in such manner as the court might direct. (2) That the operation of that order should be stayed until 17.6.83 or until such time as the Court of Appeal has determined the Appeal from the Order dated 20.4.83 and this order (3) That the further hearing of the said Motion by Notice of Motion dated 8.10.82 should stand over"[to a later date] "and be retained by the Honourable Mr. Justice Vinelott". The learned judge refused leave to appeal. Shortly afterwards this court gave leave to appeal.
There was then a further application to the learned judge at a date in June and the judge made a further order. One of the features of the proceedings when the appeal came on in this court was that, in spite of the order of the learned judge that the operation of his earlier order should be stayed until the court had determined the appeal from the order of 20th May and the later order, no appeal was entered in respect of the second order. That was apparently a mistake on the part of the solicitor and this court gave leave to the appellant to file a supplementary notice of appeal appealing the second order made by the learned judge. So the proceedings came before this court in a very untidy state, but it is now possible to apprehend the real issues between the parties for the purpose of determining whether the appeal, the subject of the original notice of appeal and supplemental notice of appeal should be allowed.
Before the learned judge the first position taken up on behalf of the husband and male partner, was that there was a principle that, whenever parties to litigation in other divisions of the High Court between themselves are husband and wife and there has been notice of proceedings for financial provision under the Matrimonial Causes Act between the husband and wife, the proceedings in the Chancery Division or the Queen's Bench Division of the High Court of Justice should always be transferred pursuant to the rules of court under 0. 4 r.3 to the Family Division, so that all the issues, the subject of litigation between the parties, may be dealt with in one court, being a court in the Family Division. This proposition was advanced in reliance on the decision of this court in Williams v. Williams [1976] Ch.278. The learned judge rejected the proposition as being much too wide. It is quite clear that the learned judge was right. There is no such principle that, whenever proceedings between husband and wife have been instituted under the Matrimonial Causes Act in which one or both are preferring financial claims against the other, any other litigation between them in any other division of the High Court should, as a matter of course, be transferred to the Family Division. There is nothing in the judgments of this court in Williams v. Williams to...
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Cheung Wing Kuen, Samuel v Ip Chui Sum
...such a course will not do injustice to either party. 26. It is of course also noted that, as observed by Cumming-Bruce LJ in Matz v Matz [1984] FLR 392, there is no principle that whenever a husband and wife instituted matrimonial proceedings against each other, in which one or both are pre......
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Cheung Wing Kuen, Samuel v Ip Chui Sum
...DC proceedings pending the husband’s application to the Family Court for ancillary relief. 27. In contrast, in the case of Matz v Matz [1984] FLR 392 (cited in Chan v Yau), the parties were business partners before breakdown of relationship. A judge dismissed the husband’s application to tr......