Newlon Housing Trust v Alsulaimen

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. For the reasons he gives I would allow the appeal.

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hoffmann. I agree with it, and for the reasons which he has given I too would allow the appeal.

The respondents, whom I shall call the husband and the wife, held a joint assured weekly tenancy of a flat in Edmonton owned by the appellant, the Newlon Housing Trust ("the Trust"). In April 1995 the wife left the husband. On 1 November 1995 she gave the Trust notice to quit the premises expiring on 4 December 1995. The effect of the notice was to bring the tenancy to an end on that date: see Hammersmith and Fulham London Borough Council v. Monk [1992] 1 A.C. 478. On 28 March 1996 the Trust commenced proceedings for possession against the husband, who had continued to live in the flat. At the hearing before his Honour Judge Tibber in the Edmonton County Court on 6 June 1996, the husband asked for an adjournment on the ground that he proposed to make an application under section 24 of the Matrimonial Causes Act 1973 for a property adjustment order, transferring the joint tenancy into his sole name. The judge refused an adjournment on the ground that the application was made too late. But the Court of Appeal reversed his decision, saying that the husband had a good prospect of obtaining a transfer of the tenancy and that justice required that he should be given an opportunity to pursue his application.

The joint tenancy had terminated by the expiry of the notice to quit six months before the matter came before Judge Tibber. An application for its transfer into the name of the husband could succeed only if it could somehow be revived. Before the Court of Appeal it was conceded that this could be done by means of an order under section 37(2)(b) of the Act. ÓKÓ**ÓK Section 37(2) reads as follows:

"Where proceedings for financial relief are brought by one person against another, the court may, on the application of the first-mentioned person - (a)if it is satisfied that the other party to the proceedings is, with the intention of defeating the claim for financial relief, about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for restraining the other party from so doing or otherwise for protecting the claim; (b)if it is satisfied that the other party has, with that intention, made a reviewable disposition and that if the disposition were set aside financial relief or different financial relief would be granted to the applicant, make an order setting aside the disposition; (c)… and an application for the purposes of (b) above shall be made in the proceedings for the financial relief in question.

Subsection (4) defines a "reviewable disposition" as any disposition otherwise than for valuable consideration to a person who takes in good faith and does not have notice of the intention to defeat the applicant's claim for financial relief. Subsection (6) provides that "disposition" does not include any provision contained in a will or codicil:

"but, with that exception, includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise."

The concession before the Court of Appeal was that the court could make an order setting aside the termination of the tenancy on the ground that it was a "disposition" of property by the wife made with the intention of defeating the husband's claim for a property adjustment order. Your Lordships gave Mr. Andrew Arden Q.C., who appeared for the Trust, leave to withdraw this concession and he submitted that the termination of a tenancy by the effluxion of a notice to quit was not a disposition of property at all. It followed that the Court had no power to resurrect the joint tenancy and accordingly there was no property in respect of which an adjustment order could be made. In those circumstances, there could be no defence to the claim for possession.

The question is therefore whether the termination of a tenancy can be a disposition of property. "Disposition" is a familiar enough word in the law of property and ordinarily means an act by which someone ceases to be the owner of that property in law or in equity: see the formulation by Mr. R.O. Wilberforce Q.C. in Grey v. Inland Revenue Commissioners [1960] A.C. 1,18. In some contexts it may include the case in which the property ceases to exist. It is unnecessary to decide whether it has such an extended meaning in this case. There are contrary indications, namely that section 37 contemplates, first, that the disposition will be capable of being set aside and secondly, that the beneficiary of the disposition may be able to show that he took in good faith and without notice. On the other hand, I feel sure that "disposition" was intended to include the surrender of a subsisting proprietary interest, such as a tenancy for years or for life, so as to merge in the reversion or remainder: see Inland Revenue Commissioners v. Buchanan [1958] Ch. 289per Lord Goddard C.J. at p. 296. But, be that all as it may, I think it is essential to the notion of a disposition of property in this context that there is property of which the disponor disposes, whether to someone else or not. It is this property which the court can restore to his estate by setting aside the disposition.

One asks, then, whether the effect of the termination of the tenancy by notice was to dispose of any property belonging to the wife. What property did she hold at the time she gave the notice? The answer is: a joint interest in a weekly tenancy of the flat. In considering the nature of that interest, it is important to bear in mind that, in English law, rights of property in land are...