Thompson v Thompson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE OLIVER,LORD JUSTICE GRIFFITHS,LORD JUSTICE BROWNE-WILKINSON |
| Judgment Date | 05 February 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0205-1 |
| Docket Number | 85/0032 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 1985 |
[1985] EWCA Civ J0205-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE ALDERSHOT & FARNHAM
COUNTY COURT (DIVORCE)
(HIS HON JUDGE McLellan)
Royal Courts of Justice,
Lord Justice Oliver
Lord Justice Griffiths
Lord Justice Browne-Wilkinson
85/0032
No. 84 D 261 T
MR DAVID H. CHRISTIE (instructed by Messrs. Gregsons) appeared on behalf of the Appellant (Petitioner-Mother).
MR ROBIN LAURIE (instructed by Messrs. Davies, Blunden & Evans) appeared on behalf of the Respondent (Respondent-Husband).
This is an appeal in matrimonial proceedings with the leave of the Judge against the dismissal, on the 28th August 1984, by His Honour Judge McLellan, sitting in the Aldershot & Farnham County Court, of the petitioner's application for an order that the former matrimonial home at 16 Fellows Road, Farnborough, Hants, be sold,
The relevant facts can be very shortly stated. The petitioner and the respondent were married on the 21st March 1964. They subsequently acquired the property mentioned as their matrimonial home and it was transferred to them, subject to a mortgage, as joint tenants. There were two children of the marriage, namely Cherie Jane, born on the 28th November 1970, and Leo David, born on the 7th November 1972. The marriage having broken down, the petitioner issued a Petition for divorce on the 29th January 1980 in the Basingstoke County Court claiming, inter alia, a Property Adjustment Order.
A Decree Nisi, dissolving the marriage, was made on the 28th March 1980, and an order made for custody of the two children to be awarded to the petitioner. The Decree was made absolute on the 13th May 1980.
In August 1980 the Petitioner, who had continued to live in the matrimonial home with the two children, remarried. On the 2nd January 1981 there was made, by Mr Registrar Baily Cox in the Basingstoke County Court, a consent order which contained, inter alia, a Property Adjustment Order under Section 24 of the Matrimonial Causes Act 1973, in relation to the matrimonial home. That was in these terms: "(2) That the property 16 Fellows-Road, Farnborough, Hampshire, should be held on trust for sale and should not be sold until the youngest child of the family Leo David Thompson reaches the age of seventeen years or finishes further eduction whichever is the later or further order. Upon sale the net proceeds of sale shall be divided equally between the Petitioner and the Respondent. (3) The Petitioner becomes responsible for the mortgage repayments and the general rates and will also be responsible for maintenance and repair work on the property".
In 1983 the petitioner became desirous, for reasons into which, at this stage, it is unnecessary to go, of moving house to another area. The youngest child of the marriage was, of course, by then only some 11 years of age. She approached the respondent with a view to selling the house, but he declined to agree, not, I think, from any inherent objection to the sale of this particular house, but because the sale would facilitate the realisation of the petitioner's desire to move to another area which would have the result of changing the children's schooling arrangements and affect the practicability of his having regular access to them.
The petitioner accordingly applied to the County Court for an order compelling the respondent to concur in the sale of the property. I put it in that way because, although the application was not, I think, in those precise terms—the notice of application is not in the bundle of documents before the Court—that was in substance the relief which she required. The matter comes before this Court solely as regards the question of jurisdiction to make the order and it is unnecessary, and would be inappropriate, to consider the merits of the petitioner's claim, or of the respondent's objection.
The matter came before the learned County Court Judge on the 28th August 1984. He declined to consider the merits of the application at all and dismissed it, holding that he had no jurisdiction to entertain it. The basis of his decision was that the order of the 2nd January 1981 was a final order made under Section 24(1) (b) of the Act of 1973. Section 31 of the Act precluded any variation of such an order except in cases of judicial separation. The words "or further order" in the order did not entitle the Court to make any substantial variation of the terms of the order, and an application to have the property sold before the youngest child attained the age of 17 was a substantial variation.
It seems to have been the learned Judge's view that the only order which could be referred to by the words "or further order" was an order under Section 30 of the Law of Property Act 1925, and there appears, at the outset, to have been some discussion as to whether the application ought specifically to have invoked that jurisdiction. That resulted in Counsel applying to amend the Notice of Application so as to seek "an order pursuant to the order dated the 2nd January 1981 enabling the petitioner to bring to an end the trust for sale attaching the property known as 16 Fellows Road Farnborough in Hampshire so that the said property may be sold forthwith". That amendment the learned Judge allowed, and no application under Section 30 was in fact pursued. Having regard to the learned Judge's approach to the case, one can understand why, for it seems to have been his view that any such application would equally have been doomed to failure on the ground that it was seeking a variation which was precluded by Section 31 of the 1973 Act.
He observed: "I hold I have no jurisdiction to entertain this application. I should say once again if I am wrong that I am prepared to consider an application for an adjournment to consider an application under Section 30 of the Law of Property Act 1925. My decision has been reached and I grant the amendment to the Notice of Application sought by Counsel at the outset of his submissions".
This was interpreted by Counsel—and, as I read the learned Judge's note of judgment, rightly interpreted—as meaning that the learned Judge was holding that, in the circumstances, he had no jurisdiction to entertain any application, however framed, leading to the sale of the property before one or other of the two events specified in the order of the 2nd January 1981, together with an intimation that, if he was wrong about that, the appropriate application would be one under Section 30. Accordingly, no application for any adjournment was made and the application was dismissed without any consideration of the merits. It is against that dismissal that the petitioner now appeals.
However, the jurisdictional issues have crystallised somewhat since the matter was before the learned Judge. Mr Laurie, who appears for the respondent, does not seek to uphold the learned Judge's decision that he had no jurisdiction to consider, on its merits, an application under Section 30 of the Law of Property Act 1925 in so far as that decision was based on a restricted interpretation of the words "or further order" in the order of the 2nd January 1981. That concession (which in my view was correctly made) is, of course, one made as to jurisdiction only and without prejudice to any submissions as to whether in fact, on the merits, an order under that section would be appropriate.
Mr Laurie does, however, rely on another and different jurisdictional point not take before the learned Judge, and it is this. He submits that the only appropriate order, if one is appropriate at all, is an order under Section 30—that is, one made in pursuance of the general equitable jurisdiction of the Court over the administration and execution of trusts. You cannot, in other words he submits, once you have got a Property Adjustment Order in the form of the Order in this case, go back to the Court simply for an order specifying some new and previously unspecified circumstance in which the trust for sale can properly be executed, without actually executing the trust. That would be doing what Section 31 of the 1973 Act forbids, namely, varying a final order under Section 24 made otherwise than on a judicial separation. The only jurisdiction capable of being exercised by the Court under the words "or further order" is the general jurisdiction to order a sale, conferred upon it by Section 17 of the Married Women's Property Act 1882 (which is no longer applicable here since more than three years has expired since the dissolution of the marriage) or by Section 30 of the Act of 1925. In making such an order, the Court is notexercising any longer the matrimonial jurisdiction under the Matrimonial Causes Act 1973, but a general equitable jurisdiction, and that jurisdiction can be exercised by the County Court, therefore, only as regards trust property of a value within the County Court's equity jurisdiction. Since the evidence in the instant case shows that the property is of a value of some £35,000 to £38,000, subject to a mortgage of a little over £1,100, it is outside the County Court's jurisdiction, and the learned Judge could not have enertained an application under Section 30 even if he had thought it appropriate to do so, except with the consent of both parties. His decision was, therefore, entirely right.
The questions which arise on this appeal, therefore, appear to me to be these:
(1) Is it permissible for a Property Adjustment Order made under Section 24 of the 1973 Act to contain a provision for the Court to make some further order in the future as to the circumstances in which the property may be sold?
(2) If so, and if the order made contains, either...
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