Steadman v Steadman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL |
| Judgment Date | 30 July 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0730-5 |
| Date | 30 July 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J0730-5
In The Supreme Court of Judicature
Court of Appeal
(On appeal from Bromley County Court, His Judge Fife.)
Lord Justice Edmund Davies
Lord Justice Roskill and
Lord Justice Scarman
MR. CONRAD DEHN, Q. C. and MR. J. PLAYFORD (instructed by Messrs. Thos. Boyd Byte & Co. Bexleyheath) appeared on "behalf of the Appellant.
MR. N. MORLAND. Q. C. and MR. N. IENNON-BOYD (instructed "by Messrs. Dowding &Dowding Orrington) appeared on "behalf of the Respondent.
Property Act 1925, and (2) as to what constitutes part performance of a contract falling within that section The parties to the proceedings were husband and wife from their marriage in August, 1962, until a decree absolute was pronounced on the 30th July, 1970. She has since remarried. It is, nevertheless, convenient to continue the practice adopted in the lower court of referring to them as husband and wife. The proceedings relate to the beneficial interest of the wife in the former matrimonial home, 9, Brookmead Close, Orpington, which I shall hereinafter refer to as "the house" This was bought in July, 1963, for £5,600 and conveyed to husband and wife jointly, both of them being parties to a mortgage for £2,100. On the 5th June, 1970, (which was between the decrees nisi and absolute granted to the wife on the ground of cruelty) the wife made an application in the Bromley County Court under section 17 of the Married Women's Property Act 1882, for an order that, inter alia, the house be sold and that she be paid a moiety of the proceeds of sale. Despite the lapse of time, these proceedings remained undetermined and this appeal relates to an interlocutory decision therein.
The husband now appeals from a decision of His Honour Judge Fife of 24th May last, reversing the interlocutory decision of his Registrar delivered in January. At the outset of the hearing before the Registrar, the husband's counsel made a preliminary objection that the wife had compromised hour section 17 claim in relation to the house by a binding agreement entered into between the parties on 2nd March, 1972, and accordingly could not pursue it. In the course of an admirably expressed judgment the Registrar held (1) that on the aforementioned date the parties made an oral agreement that (inter alia) the wife would surrender her interest in. the house for £1,500; (2) that this constituted a contract, to dispose of an interest in land within the meaning of section 40 of the Law of Property Act 1925; (3) that there was lacking the requisite note or memorandum in writing signed by the wife; but (4) that there had been such part performance of the oral agreement by the husband as to disentitle the wife to rely on the absence of a memorandum to defeat the husband'sassertion of a binding and enforceable contract. the registrar thereupon adjourned the generally, liberty to restore.
The wife appealed to the learned Judge. Her counsel did not challenge the Registrar's finding that the oral agreement had been concluded, but he disputed that there had been any sufficient part performance thereof to counterbalance the absence of a memorandum in writing. The learned judge upheld this contention and ruled "that the agreement v/as unenforceable. 'The resultant rover- sale of the Registrar's interlocutory judgment would, if it stands, mean that the hearing of the wife's section 17 application would be resumed and proceed to finality. But the husband has appealed to this court for an order that the Registrar's judgmert be restored and for a declaration that the oral agreement oi' the 2nd March, 1972, is legally enforceable. So much by way of introduction.
Let me now fill in same of the details. The house having been conveyed to the parties in their joint names, as a result of section 1 subsection (6) of the Law of Property Act, 1925, it was thereafter held by them as joint tenants on trust for sale and to hold the net proceeds on trust for themselves. But although for certain purposes of disposition and devolution the proceeds arising under such a trust are by virtue of the equitable doctrine of conversion to be considered as personality, an interest in the proceeds is nevertheless an interest in "land" as defined by section 205(1)(ix) of the 1925 Act, and as such comes within section 40 thereof. In Cooper v. Critchley (1955) Chancery, A 31, this court specifically held that as agreement by one joint tenant to sell his share to another is within section 40 and therefore requires a written memorandum duly signed by the vendor in order to be enforceable against him. I should add, how- every that the parties are alive to the point that, even were the husband unable to enforce the oral agreement owing to non-compliance with section 40, he may nevertheless be entitled to rely upon it as a defence to the life's section 17 proceedings. The old saying that "The Statute of Frauds is a shield and not a sword" is equally applicable to section 40, and it will need to be considered whether the wife can herself brush aside the oral agreement which it is now common ground she entered into, simply by relying upon the absence of any memorandum. In this context the parties will doubtless consider it prudent hereafter to refer to Thomas v. Brown (1876) 2 Q. B. D. 714, at 723, and to Professor James Williams's learned contribution to 50 Law Quarterly Review, page 523 entitled "Availability by way of defence of contracts not complying with the Statute of Frauds". But the point does not arise for present determination, and I say no more about it.
The steps culminating in the oral agreement began with the wife leaving the husband in July, 1968. Before instituting divorce proceedings, she obtained from the Bromley Magistrates an order that the husband pay £2 weekly for her maintenance and £2.10s. for the child of the marriage, who was bom in November, 1957. Having obtained her decree nisi in April, 1970, having presented her section 17 application two months later, and a decree absolute being pronounced in her favour in the following month, in October 1970 the husband made answer to her section 17 application. Thereby he disputed her claim for a moiety of the proceeds of sale and cross-claimed for some of the chattels in the house. During 1971 no court proceedings took place, but there were considerable negotiations between the parties to compromise their competing claims, the husband increasing his original offer of £750 to £1,250 to buy out his wife's interest in the house. Early in 1972 he was £194 in arrear in respect of the maintenance order and he applied to the Bromley liagistrates to vary it. Before that matter came to be considered by the Magistrates, negotiations for the compromise continued between the parties. solicitors, an offer having been made on the husband's behalf on 21st February that he would pay the wife £1,500 in respect of "all or any interest that she may have in respect of the property" on certain terms. The parties and the husband's solicitor met outside the Bromley court room on 2nd Msrch,1972, and, although the matter was strongly disputed before the Registrar, it is now common ground that before they went into court they made what the Registrar described as "a package deal". It dealt with both the wife's section 17 application and the application made by both husband and wife to the Magistrates' Court relating to maintenance which were about to be heard. Its terms were:
(a) that the wife would transfer her interest in the house to the husband for £1,500;
(b) that the existing maintenance order of £2 weekly in the wife's favour would be discharged;
(c) that the 2.50 order in the child's favour would continue;
(d) that the arrears of maintance would be remitted save as to 100, which the husband undertook to pay by 31st March, 1972.
When the case was called on the husband's solicitor told the magistrates that the parties had compromised their differences on the foregoing terms, which he then receipted, and the wife agreed that this was so. As a result the magistrates made two orders with the parties consents (1) They varied the maintenance order of 6th November, 1968, by deleting reference to any maintenance to the wife and ordering simply that the husband pay £2.50 weekly in respect of the child. (2) They adjourned the application which the wife had made for payment of the £194 arrears, "for you (the husband) to pay the sum of £100 not later than 30th March, 1972, as all the arrears except that amount have today been remitted," and adding, "If you fail to pay as directed' further proceedings will be commenced to recover the amount due."
The husband duly paid the £100 within the designated time and on 6th March his solicitors pointed out to the wife's solicitors that they should take steps to have her section 17 application withdrawn. In April they sent the wife's solicitor a conveyance of the house for execution by her. The wife shortly thereafter declined to execute it "having regard to the very much increased prices of property", and ultimately stated that she would not do so until either maintenance payments to her were brought up to date or the husband paid £2,000 for her interest in the house. That she was thereby in clear breach of her agreement is now not disputed. Jeven so, it is urged on her behalf that her she is entitled to pursue to finality/section 17 application, there admittedly being no memorandum within section 40.
In these circumstances the two questions which arise for determination are: (i) Does section 40 apply to the compromise entered into by the parties? If it does, has there been such part-performance thereof by the husband as to disentitle the wife to rely on the absence of a memorandum?
The Registrar and the judge found that section 40 did apply. But the...
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