England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice, Strand, London WC2A 2LL.
		2nd October 2014.

Thursday, 2^nd October 2014.

JUDGMENT:

MR JUSTICE HOLMAN:

1. This was listed today, with 30 minutes allowed, as an application for permission to appeal from the decision and order of District Judge Walker made on 11 July 2014. In the event, this hearing today has occupied very considerably more than 30 minutes and probably, now, at least two hours.
2. It all arises out of, and relates to, an order for ancillary relief made by Deputy District Judge Nicholes as long ago as 25 November 2011. That order required the sale forthwith, at the best price reasonably obtainable, of the matrimonial home at 131 Harlesden Gardens, London NW10 4HB. That is a property in which both these parties have lived for very many years and, indeed, in which they continue both to live, notwithstanding the divorce between them. There has been a huge wrangle since then, first, with regard to the precise content of the substantive order for ancillary relief; and second, with regard to sale and, in particular, attaining the best sale price.
3. The wrangle in relation to the content of the substantive order arises briefly as follows. In her judgment of November 2011, Deputy District Judge Nicholes took an agreed equity in the property at that time, after deducting estimated costs of sale (there was no mortgage), of £417,000. Her clear starting point was that that should be divided evenly between the parties, which, on those figures, would give each £208,500. However, the deputy district judge considered and held that the wife would in fact need £220,000, at the property prices then prevailing, in order to purchase a suitable alternative property for herself. She said, in paragraph 28 of her judgment:

"I say that [the wife] should have £220,000 to buy a property, which means that she will be getting £12,000 more from the former matrimonial home than does the husband."

4. In the proceedings immediately after the ex tempore judgment that day, counsel for the husband asked the deputy district judge to make provision for the additional £12,000 by way of a percentage in case there were fluctuations in the selling price. That was immediately agreed to by both counsel for the wife and also the deputy district judge herself. The contemporary verbatim transcript clearly indicates that counsel for the wife rapidly calculated that, in order to produce £220,000 to the wife out of the estimated net proceeds of sale of £417,000, she would actually need 52.7 percent of the net selling price. Accordingly, the order as drawn clearly provides that, after deduction of the normal costs of sale, the net proceeds should be applied, first, as to 52.7 percent to the wife; and then, as to the balance, to the husband.
5. Fairly soon after that order was made, the husband clearly did engage in correspondence and communications with both the court and, ultimately, Deputy District Judge Nicholes, contending that the correct way in which the order should have been expressed was not that the wife should receive 52.7 percent, but rather that the wife should receive 2.7 percent, and then the balance evenly divided between the parties. It is right to say that, if calculated arithmetically, that approach would produce, on any given net proceeds of sale, slightly less for the wife and slightly more for the husband than simply paying to the wife a straight 52.7 percent.
6. One of the matters which the husband is currently seeking to do is vary or alter the actual order of Deputy District Judge Nicholes, effectively pursuant to the slip rule. This appears to have been in issue before District Judge Walker on 11 July 2014, for I have seen a formal application by the husband seeking that outcome. I have not seen a transcript of the judgment of District Judge Walker, but this aspect of the case is not very obviously addressed by the terms of the formal order save in the sense that the formal order did not vary the language of the original order of 25 November 2011.
7. In any event, it seems to me that this particular point is absolutely hopeless. The suggestion is that the original order of 25 November 2011 should be amended under the slip rule because, it is submitted, it does not give effect accurately to what the deputy district judge actually said in her judgment. In my view, however, in a situation such as this, particularly when a judge gives an ex tempore judgment at the end of a long day, the judgment needs to be considered in conjunction with the exchanges between the judge and counsel immediately after the judgment.
8. Effectively and realistically, both the judgment itself and the ensuing exchanges needs to be read as a coherent whole in order to establish what the judge finally intended at the conclusion of the hearing in question. When that is done, it is, to my mind, absolutely clear that the final intention of the judge definitely was that the wife should receive 52.7 percent of the net proceeds of sale, and the husband the balance. That is what the order itself says and provides, and there is no accidental slip or omission. Insofar as the application for permission to appeal relates to that aspect, it is, to my mind, completely hopeless.
9. The other issues which were before District Judge Walker in July related to the gross selling price. At that stage the wife, who has conduct of the sale, had obtained an offer at £620,000. The husband seemed to consider that he had, or could obtain, an offer at £625,000 and so desired sale to be at that slightly higher figure. The district judge was clearly against him on that and ordered that the property be sold forthwith to the buyer obtained by the wife, for the sum of £620,000.
10. I have not seen a transcript of the judgment and reasons of the district judge, and I am quite unwilling today to say that there was anything wrong with her approach as of 11 July 2014, or to give permission to appeal from her decision and order. But we are nearly three months further on and, in a fluctuating property market, matters have clearly moved on on the ground. Today, the husband produced a letter from a firm of estate agents indicating that they have found a buyer who is ready, willing and able to exchange contracts within seven days, with completion 28 days thereafter, at a gross selling price of £635,000, namely £15,000 more than the figure fixed in the order of District Judge Walker in July. £15,000 is of course a significant sum, which would give to the husband and wife, respectively, about £7,000 and £8,000 more than they would, respectively, receive if the property were sold for £620,000.
11. Very fortunately indeed, the conveyancing solicitor, Mr Fryer, has attended today and is in court. Over an extended lunch break, he has been able to establish that that does appear to be a genuine offer at £635,000 by prospective purchasers who are ready, willing and able to purchase at that sum with rapid exchange and completion. He has also established that the prospective purchaser whom the wife had identified, who was previously offering to purchase for £620,000, is ready, willing and able to match that offer. So the position now appears to be that there are at least two prospective purchasers ready, willing and able to exchange contracts rapidly, with completion 28 days thereafter, in the gross sum of £635,000.
12. In those circumstances, without in any sense at all granting permission to appeal from the order of District Judge Walker of 11 July 2014, it seems to me right and appropriate that I should myself exercise the continuing powers of the court (there now being, of course, a single Family Court) to give and vary directions as to the sale and implementation of the original order dated 25 November 2011.
13. There is another twist, which is that the husband has said, today, that he would like to match those offers, and himself purchase the property at a gross price of £635,000. He must of course have the opportunity of doing so if he is genuinely able, with the same speed, to exchange contracts and produce the required amount to buy out the wife on a gross selling price of £635,000.
14. Accordingly, I propose to make orders today, not by way of appeal but in further exercise of the general powers of the court, that Mr Fryer shall simultaneously send contracts as soon as practicable to each of the two buyers who have been referred to today and also to the husband as a purchaser. The contract shall be for a gross selling price of £635,000, with completion 28 days after exchange of contracts. The sale shall be to the first person, which may include the husband, who signs and exchanges the contract. I leave in full force and effect the direction of District Judge Walker that, in the event that the husband, as vendor, refuses to sign any document required, it shall be signed by a district judge.
15. There has been concern expressed today that the husband, who clearly does not want to sell or move from this property, may drag his feet when the moment comes for completion. In order to ensure that there really is vacant possession by the contractual time and date for completion, and to give to Mr Fryer an opportunity to take action if either party has failed fully to give possession, I propose to add a direction that both parties must totally vacate the property not later than 5.00 p.m. on the day immediately preceding the contractual date of completion. Obviously, if the eventual contractual purchaser is the husband himself, then he will not himself have to vacate.
16. Those are my reasons for the order which I propose to make.