Rundle v Rundle
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE LEGGATT |
| Judgment Date | 22 August 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0822-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 August 1991 |
| Docket Number | 91/0875 |
[1991] EWCA Civ J0822-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE THORPE)
Royal Courts of Justice
Lord Justice Purchas
and
Lord Justice Leggatt (not Present)
91/0875
MR SIMON BUCKHAVEN, instructed by Messrs Lomasney Berwick, appeared for the Applicant (respondent).
MR ROGER M. SHAWCROSS, instructed by Messrs Greenhouse Stirton & Co., appeared for the Respondent (petitioner).
1. Introduction
(a) Jean Marguerite Rundle ("the wife") presented three applications which came before me on 6th June 1991 in relation to an order of Thorpe J. of 14th December 1990. The three applications were (1) a stay of the order (2) leave to appeal from the order, appeal having been refused by Thorpe J. (3) leave to adduce further evidence on the appeal if the leave were granted.
(b) I adjourned all applications which had been made ex parte, for an inter partes hearing, to be followed by the subsequent appeal if leave were granted. I gave leave to the respondent to the application, the husband, Lloyd Thomas Rundle, to file an affidavit in reply to the affidavit filed in support of the applications.
(c) On 30th July 1991 two applications were listed for hearing since the application for a stay was no longer relevant. Regrettably owing to lack of time the court has only been able to deal with the application for leave to adduce further evidence, and had to adjourn the remaining matters until 22nd August 1991 at 10.30 am. The court consisting of Purchas and Leggatt L.JJ. then announced that the application to adduce further evidence would be refused, but that reasons would be given for the refusal on the adjourned hearing. These reasons are now given.
2. The Order of Thorpe J. of 14th December 1990
(a) For the purposes of this application it is only necessary to record in outline the background to the order. The judge concluded that such was the antipathy and tension between the parties that there should be a clean break. This was clearly fundamental to his order. The husband was a dentist in practice in a partnership based at Nos. 2 and 4, Stag Lane, in Burnt Oak, North London. He started as an assistant, but subsequently took over from the senior partner. The wife was at one time employed as the manager of the practice but difficulties arose, not only in relation to her own conduct of the business but also as a result of the husband's adultery with a dental nurse assisting him in the practice. These difficulties led to a breakdown of the marriage.
(b) There were two substantial properties involved. The Stag Lane properties were held on a business tenancy. An opportunity after the breakdown of the marriage arose to acquire the reversion of the property from the landlord. The husband had other difficulties, namely an addiction to alcohol which from time to time affected his efficiency. He started negotiating for the purchase of the freehold of the Stag Lane properties. He did not pursue this with any diligence. In the meanwhile the wife through her solicitors, who informed the husband's solicitor, approached the landlord and with the aid of a mortgage acquired the freehold. The other property was the matrimonial home known as "Little Barn", Harper Lane, Radlett. (This was a substantial property). It was owned in the joint names of the husband and wife. There were two children of the marriage, Emma who was born in January 1971, and a son called Lloyd. Lloyd, who was born in 1974, became, probably as a result of the tensions in his family, a disturbed young man and had on two occasions attempted suicide. After the separation he lived with the mother and Emma in "Little Barn".
(c) In briefest summary Thorpe J. achieved the clean break by ordering that the wife should transfer to the husband her freehold interest in the Stag Lane properties; and that the husband should transfer his half interest in "Little Barn" to the wife and should for a period of four months thereafter continue to meet the mortgage payments. There were also endowment policies taken out in connection with the mortgage, which were to be transferred to the wife.
(d) The clear intention of the judge was that the wife should be free to sell "Little Barn" and should use the proceeds partly in purchasing a home for herself and the children and partly in providing funds for investment which would produce an income to "top up" the wife's income of £6,000 or £7,000 per annum. The judge felt that the wife could increase her earnings to £10,000 per annum.
(e) In the broadest sense the figures upon which Thorpe J. based his order were an agreed market value of £315,000 for "Little Barn" which would yield a net equity free of mortgage, costs of sale etc. of £255,000 which, topped up by the surrender value of the endowment policies, came out at a figure of £263,000. Thorpe J. held that reasonable alternative accommodation could be obtained for the wife and children by spending £150,000 of the proceeds, possibly augmented by a MIRAS mortgage. This left a surplus of something of the order of £79,000 which could be invested in one way or another to produce additional income for the wife. It is important to notice that this part of the judge's scheme which was to provide for the wife was deliberately left flexible—see judgment pages 20G to 21A and 24G to 25B:
"As to needs, I think that the wife sensibly accepts the total impossibility of continuing at Little Barn. I have no doubt that the cost of rehousing her and the children is her primary need. I accept that she has a secondary need for an investment asset which will swell her earnings to enable her to maintain the sort of standard of living to which she is accustomed. How she balances the division of what she will have between roof and investment is her decision entirely, but I am quite satisfied that although it would be nice for her to have £235,000 to spend on her housing, it would be perfectly possible for her to house herself and the children for a capital outlay of £150,000 possibly augmented by a MIRAS mortgage"…
"So I have reached the conclusion that the obvious and fair solution is for the wife to have in return the husband's half-share of the home together with his half-share of the three policies of insurance. The net value of those four assets after redeeming the two mortgages and meeting the costs of sale is nearly £263,000. After paying off the extraneous liabilities the wife will have £224,000 with which to rehouse herself and to meet her future income needs by investment. I suppose putting it another way, the claim that can be identified for periodical payments to balance the disparity between her potential income and the husband's potential income is to be commuted by a capital sum that is included in the transfer to her of the husband's half of these four jointly-owned assets. As well as that capital sum she will also have the contents of Little Barn, against which the husband raises no claim, and her jewellery. I believe that her needs are manifestly met by such a package."
Events Subsequent to the Order
The wife was...
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