Re Holliday (A Bankrupt)ex parte Trustee of the Property of the Bankrupt v Holliday
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,SIR DAVID CAIRNS |
| Judgment Date | 09 May 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0509-3 |
| Docket Number | No. 1934 of 1977 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 1980 |
In the Matter of the Law of Property Act, 1925
and
In the Matter of Malcolm Arthur Holliday, A Bankrupt
[1980] EWCA Civ J0509-3
Lord Justice Buckley
and
Sir David Cairns
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice Chancery Division In Bankruptcy
(Mr. Justice Foster)
MR. V. S. MUIR HUNTER Q. C. and MR. GRAHAM GARNER (instructed by Messrs. Jefferies, Solicitors, Southend-on-Sea, SS2 6DG) appeared on behalf of the Second Respondent (Appellant).
MR. R. C. PRYOR (instructed by Messrs. William Heath & Co., Solicitors, London W21 PX) appeared on behalf of the Applicant (Respondent).
THE BANKRUPT appeared in person.
This appeal was before this court in October last, when the court was constituted of Sir David Cairns, the late Lord Justice Goff and myself. We then held, amongst other things, that it wan not open to Mrs. Holliday to obtain a property adjustment order under the Matrimonial Causes Act 1973 against Mr. Holliday's trustee in bankruptcy, the trustee not being amenable to that jurisdiction and so, the matrimonial home being vested in the two parties, Mr. and Mrs. Holliday, as joint tenants on a statutory trust for sale for the benefit of themselves in equal, shares, the problem arose as to whether or not the trustee in bankruptcy was justified in pressing for an immediate sale of the property. At the conclusion of his judgment, Lord Justice Goff said: "So we have to decide having regard to all the circumstances, including the fact that there are young children and that the debtor was made bankrupt on his own petition, whose voice, that of the trustee seeking to realize the debtor's share for the benefit of his creditors or that of the wife seeking to preserve a home for herself and the children, ought in equity to prevail". The evidence at that time was not, in the view of the court, very full upon the circumstances relevant to the consideration I have just referred to; accordingly the appeal was stood over for the parties to adduce further evidence as they might think fit and for us to deal with that question on a later occasion.
In the interval, most unhappily Lord Justice Goff has died, but the parties have agreed mutually to the matter now being disposed of by Sir David Cairns and myself.
The former matrimonial home, No. 9 Woodgrange Close, Thorpe Bay, Essex, is, as I have said, vested in Mr. and Mrs. Hollidayas joint tenants upon the statutory trust for sale, and in trust for themselves in equal shares beneficially. Mr. Holliday has been adjudicated bankrupt upon his own petition. We are told, that it is necessary for a sum of approximately £7,500 to be found to discharge the obligations and the expenses under that bankruptcy.
The house is said to be worth something of the order of £33,000 to £34,000. There is a mortgage on it, the principal amount of which is now £6,864, so the value of the equity of redemption may be taken to be of the order of £26,500, one half of which would be £13,250. The matrimonial home is a three bedroomed house, comprising two sitting rooms and a kitchen and, no doubt, what are usually referred to as the usual offices. The family consists of Mrs. Holliday and three children by her marriage to Mr. Holliday, a son who is now about 15 years old, a daughter, who will be 12 in June next, and a younger daughter who is now a little over 7 years old. With a family of that composition, Mrs. Holliday really needs a three-bedroomed house and that she has at 9. Woodgrange Close. The children are attending schools in the near neighbourhood of that house, and the evidence indicates that to buy another house of comparable capacity in that neighbourhood would cost somewhere between £20,000 and £25,000. Mrs. Holliday is without capital; her present income is I think of the order of £87 a week. Mr. Holliday has remarried; he is living with his wife, the lady for whom he left Mrs. Holliday, in another house; he is employed and is earning quite a reasonably good salary.
In these circumstances we have to consider how we should exercise our discretion under section 30 of the Law of PropertyAct 1925, which provides that if the trustees for sale refuse to sell, or to exercise any of the powers conferred by either of the preceding two sections, or any requisite consent cannot be obtained, any person interested may apply to the court for a vesting or other order for giving effect to the proposed transaction, or for an order directing the trustees for sale to give effect thereto, and the court may make such order as it thinks fit. There is no specific transaction in view at the moment, but the trustee in bankruptcy submits that the house should be sold for the benefit of Mr. Holliday's...
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