Robert Michael Alfred Grandison v Merle Cecilia Joseph
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cohen |
| Judgment Date | 01 April 2019 |
| Neutral Citation | [2019] EWHC 977 (Fam) |
| Docket Number | Case No: 2018/0173 |
| Court | Family Division |
| Date | 01 April 2019 |
[2019] EWHC 977 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON APPEAL FROM THE FAMILY
COURT SITTING AT BROMLEY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cohen
Case No: 2018/0173
Mr F Feehan QC (instructed by Stowe Family Law) for the Appellant
Mr A Bojarski (instructed by Winckworth Sherwood) for the Respondent
Hearing date: 1 st April 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Honourable
On 23 rd October 2018 Her Honour Judge Redgrave sitting at the family court at Bromley ordered that unless Mr Grandison, now the appellant husband, by 23 rd April 2019 transferred the legal title to 42 properties from either the joint names of the parties or the wife's name into his sole name and obtained the release of his former wife from her obligations under the mortgages on the properties the properties shall be placed on the market for sale.
The husband seeks to appeal on three grounds as follows:
i) That there was no requirement in the underlying order requiring him to transfer the legal, as opposed to beneficial, ownership of the properties from either the wife's name or joint names into his own name;
ii) That the judge was wrong to place a time limit on the requirement that he use his best endeavours to obtain the wife's release of her obligations under the mortgage and/or that he had failed to use his best endeavours;
iii) That the judge should not have ordered a sale under Section 24A of the Matrimonial Causes Act 1973 as it amounted to a major variation of the final order in the case.
Background
The parties commenced their cohabitation in 1990. They did not marry until 2006 and the marriage broke down in 2009. During the course of the relationship the parties built up a portfolio of 127 properties, most if not all of them heavily mortgaged.
Upon the breakdown of the marriage and in the course of financial proceedings in 2013 they agreed that the portfolio would, in broad terms, be divided equally between them in terms of value and income. They reached heads of agreement but fell out as to how the agreement was to be implemented and in particular how the properties were to be divided between them. This eventually led to a hearing before District Judge Wilkinson in October 2014.
An additional issue was as to whether there was to be a fixed date by which each party must have secured the release of the other from joint mortgages. The District Judge found that might have the effect of forcing upon the parties the obligation either to sell their respective properties or re-mortgage them at unfavourable rates and so he declined to order that there should be a fixed date (paragraph 14(v)) of his judgment) but at paragraph 15 of his judgment he suggested that the transfers of the properties into the sole name of the parties should be achieved by 1 st March 2015, namely some 4 months after the date of his judgment. The District Judge then left it to the parties to agree the order and to draw up the overarching deed which was necessary.
Over the course of most of the next 12 months the parties were engaged in deep negotiation. Matters were not concluded until an order made on 10 th September 2015 which incorporated a deed ostensibly dated 16 th October 2015 but which plainly was in existence prior to the making of the order. The construction of the order and deed is at the core of what I have to decide.
On the same date that the order was made, the decree nisi which had been pronounced as long ago as 2011 was made absolute. Notwithstanding, I shall continue to refer to the parties as husband and wife.
The Order
i) Each party undertook to use best endeavours to procure the release of the other from any liability under the mortgage secured on the properties that were to be transferred to him/her (paragraph 6(iii) for the husband's undertaking).
ii) Paragraph 9 of the order recites “ by way of property transfers, the property portfolio shall be divided between the parties forthwith in accordance with the property schedules annexed to this order and the deed”
The schedules provided that the wife was to end up with 60 properties and the husband with 67.
The Deed
i) Paragraph 2 reads as follows, “ Exchange of properties: Ms Joseph and Mr Grandison as beneficial owners hereby transfer by way of exchange the properties set out in schedule 2 …”
ii) Paragraph 7 of the deed provided for the transfer of freehold properties and paragraph 8 for the transfer of leasehold properties.
iii) Paragraph 9 reads as follows: “ Completion: Completion of each property being transferred will take place on the first working day of the month falling at least 28 days after the date of the final order in the matrimonial proceedings in Bromley County Court”. The effect of this provision was that completion should take place on 1 st November 2015. “Completion” was not defined.
iv) Paragraph 18 recites: “ Obligations by Mr Grandison: Mr Grandison shall… (c) use his best endeavours to procure the release of Ms Joseph from any obligations to the mortgagee in respect of each mortgage that is registered against Mr Grandison's properties”.
Transfer of Title
It is the husband's case that the order and deed provided only for the transfer of the beneficial interest in the properties and not the legal interest. Mr Bojarski on behalf of the wife describes this submission as surprising. He rightly points out that it was no part of the husband's case when the wife sought to enforce the order in 2016 and Mr Feehan QC, on behalf of the husband, did not demur when I suggested that this argument had not even been considered by his client until his ingenuity alighted upon it. That does not of course absolve me from having to properly consider the argument.
Paragraph 9 of the order, set out above, is curiously drafted in the sense that it does not use the conventional words of a transfer of property order. But it is clear, in my judgment, that its intention was to be a property transfer order. It is to be noted that there was no limitation on the extent of the transfer or suggestion that it was a transfer only of a beneficial interest. If it was intended to provide only for the transfer of beneficial interest then I would expect it to say so.
Paragraph 2 of the deed is important. The parties on the signing of the deed “hereby” as beneficial owners transferred by way of exchange the properties set out in the schedule. Mr Bojarski is right in saying that the beneficial ownership transferred at the latest on the signing of the deed but indeed very probably on the making of the order. Mountney v Treharne [2002] FLR 930 is clear authority that beneficial interests are transferred at the moment when the order takes effect, namely on its making subject only to the decree absolute. In this case that would have been 10 th September 2015, the confusion only being caused by the date of the deed which appears to have been post-dated.
Mr Feehan seeks to argue that the references in the deed to completion refer to completion of the transfer of the beneficial interest only but I regard that as unsustainable. Not only was it a point not taken until 2018, which is indicative of the parties' state of understanding, but it runs plainly in the face of the wording of paragraph 2.1 of the deed where completion is provided to take place significantly after the beneficial interest had already been transferred. Completion can only refer in that context to completion of the transfer of the legal interest.
I do not consider that the references elsewhere in the deed to completion make...
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