England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(Mr Justice Kirkwood)

		Royal Courts of Justice Strand London WC2 Thursday 15th November, 2001

1. LORD JUSTICE THORPE: This is a renewed application for permission to appeal the order of Kirkwood J explained in a judgment delivered extempore on 22nd August 2001. The effect of the judge's order was to confirm that the proper implementation of an order made in ancillary relief by Connell J earlier that year, and subsequently slightly altered by an order of Judge Sleeman, enabled the sale of the former matrimonial home to proceed to purchasers, Mr and Mrs MacCuish, at a sum of £265,000.
2. In refusing the application for permission provisionally on paper I said:

"In my opinion the judge's construction of the prior order was correct. [That of course is a reference to the order of Connell J.] On such evidence as was before the court he was entitled to conclude that Mr & Mrs MacCuish were in a financial position to exchange and complete within a reasonable time. Insofar as the judge exercised a discretion his reasoning is not open to criticism."

3. In renewing this application Mr Mehana in person has asserted that the judge was misled at the hearing in August. He particularly draws attention to the question posed by his counsel at the conclusion of judgment. Counsel said to the court:

"In relation to the offer from the MacCuishes, would you care to make some observations as to why my Lord prefers the interpretation that that is a cash offer?"

4. The judge was under no obligation to answer the question, but he did so succinctly. He said:

"It is said in the correspondence, both by the solicitors and, I understand it, by the estate agent."

5. There can be no doubt that the judge was precisely right in his recollection, for on 27th June the agents, Anscombe & Ringland, had communicated by fax to the wife's solicitors the following information:

"We understand that Mr & Mrs MacCuish are moving down from Aberdeen and therefore have sold their property in Aberdeen and are able to proceed unencumbered to an exchange of contracts."

6. That information was relayed to Mr Mehana's solicitors in a letter of 6th July, the contents of which I need not read since they add nothing to what had been said in the fax from Anscombe & Ringland.
7. Mr Mehana says that was misleading, since his subsequent enquiries reveal that the MacCuishes have been resident in London for upwards of 13 years and that there is no evidence that that London residence has been sold. Technically then the information from Anscombe & Ringland may have been either inaccurate or misleading. But there is evidence to suggest that the MacCuishes are indeed in a position to exchange and complete, since they have or may have obtained bridging finance. There is no doubt that they have exchanged contracts for the purchase. There is no doubt that the original completion date was 16th November, and there seems to be no doubt that the MacCuishes were willing and able to complete on that date. However, Mr Mehana has learned that the wife for her convenience has asked the MacCuishes to postpone completion until 16th January to enable her to complete the purchase of her next home. That arrangement is solely for her benefit and, I am prepared to assume, is to the disbenefit of Mr Mehana, since the consequence is that he will be kept out of his share of the purchase price for an eight-week period.
8. The order for sale gives the wife's solicitors the conduct, and there is nothing within the order that expressly prevents her from delaying completion for her own advantage. It may be that Mr Mehana has some claim to compensation in the form of interest on the monies due to him over an eight-week period. But whether or not he has that entitlement could only be established, absent agreement between the parties, by the court of trial, namely the Family Division. There is nothing in the material which Mr Mehana has produced this morning that would begin to justify admitting the issue for appeal by the full court.
9. The order made by the judge on 22nd August was fully reasoned. I see no flaw in the judgment on the date that it was delivered, and subsequent events suggest to me nothing more than the possibility that Mr Mehana has some entitlement arising out of a delay of the completion to suit only the convenience of his wife.
10. For those reasons, this renewed application for permission to appeal is refused.