England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(HER HONOUR JUDGE PLUMSTEAD)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th May 2010

Lord Justice Ward:

1. This is an application for permission to appeal the orders made by HHJ Plumstead on 19 October 2009. She dismissed the applicant's application dated 16 March for a stay of execution at paragraph 5 of the order she made on 23 January 2009; alternatively for a temporary extension of time for her to complete an application for assistance under the government mortgage rescue scheme.
2. This is a sad story, as the judge herself recognised. Her former husband was made bankrupt on 15 February 2006. There has been some attempt made by the applicant to set that bankruptcy order aside, but that application together with the Trustee's application for an order of the sale of the matrimonial home came before HHJ Plumstead on 20 January. She upheld the bankruptcy order as she made an order for sale of the property and ordered that possession be delivered by 17 March 2009.
3. The applicant is distressed by those orders. She submits to me that the bankruptcy should never have been made because at the time it was made the respondent husband was not insolvent. There was enough money in the property to cover his debts. Be that as it may, the order has been made and there is no appeal before me, not that I am suggesting that an appeal would be successful. It is simply a fact that Mrs Yankah has to accept as things stand at present.
4. The order for possession likewise seems to me to have been inevitable even though the court would have had and did have sympathy for the applicant, who lives in the property with the four children of the family. Two are at university but the other two, aged 12 and nine, both have special educational needs and the suffering if this order is enforced is likely to be significant.
5. There was no appeal against the judge's order of 20 January 2009. Instead the applicant made this application relying in particular upon the plans Barnet Council have to implement the mortgage rescue scheme in the borough. That had not proceeded too far by the time the matter was before the judge. Mrs Yankah has today handed me a letter dated 14 May from the London Borough of Barnet confirming that they still have plans to implement the scheme; that Metropolitan Housing Partnership have been appointed as the housing association to work with the Council when the scheme is in place; the Barnet Citizens Advice Bureau is the money advice agency which will be integral to the scheme; and senior managers are in the process of finalising the framework and the procedures. But, and it remains a sad but, the scheme will not be functioning within the next few months. It seems that the applicant is eligible for housing assistance and will be in receipt of housing benefit which would enable her to enjoy the benefits of the scheme. It operates on properties currently worth around £300,000 and much would depend on the value of this particular property.
6. Unfortunately the letter concludes:
(Checked to audio – document not included in bundle)

"Therefore if you are ultimately approved for the scheme the whole process is likely to take several months so you would need to ensure that you are able to remain in the property during this period without the threat of a notice of eviction being served by the court."

7. With the best will in the world and with great sympathy for the applicant I simply do not see that there is any real prospect of success in this application. This involved an exercise of discretion by the judge and it is plain to me that she viewed the matter sympathetically, but given the passage of time, and it is now, I observe, some 17 months or so since the order was made, the order is still not enforced and the Trustee cannot be kept waiting for ever. The interests of the children are not paramount in these circumstances, the interests of the family have to be balanced against the interests of the Trustees and in these unhappy circumstances the Trustee's interest has been held by the courts to prevail.
8. The application for permission to appeal is therefore, I regret to say, quite without merit and has to be refused.
9. I add this postscript, which the applicant can convey to the Trustee in Bankruptcy. He has been waiting a long time, I appreciate that, but he might like to take a careful judgment as to whether or not he has a prospect of selling a vacant property at a good enough price to cover the outstanding mortgage and provide something for the creditors of the bankrupt, having regard to the expenses that he has no doubt already incurred in pursuing his entitlement. Will he sell the property more quickly than the applicant can do so under this scheme? Will he get any more money for his creditors if the property is vacant than he would if it was sold under the scheme? Would he be prepared to allow the applicant to remain in possession and sell the property with the benefit of it being occupied rather than being an empty shell? All of these are commercial questions calling for the Trustee's judgment, not the court's judgment. Whether the applicant can cast herself on the mercy of the Trustee is therefore a matter for the Trustee but regrettably I cannot assist her. I must dismiss the application.
10. I will direct that a transcript of this judgment be provided at public expense.

Order: Application refused