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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Le Foe v Le Foe & Anor [2001] EWCA Civ 1870 (29 November 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1870.html Cite as: [2001] EWCA Civ 1870

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Mr Nicholas Mostyn QC)

		The Royal Courts of Justice The Strand London Thursday 29 November 2001

Thursday 29 November 2001

1. LORD JUSTICE WARD: There are three applications before me today. One is by Mrs Le Foe for a stay of execution of the order of Mr Nicholas Mostyn QC made in proceedings between husband and wife, and between husband and wife and the building society. That order provided, among other things, that the former matrimonial home should be sold forthwith at the best price reasonably obtainable subject to certain additional terms, including that the two flats which constitute that property be sold separately unless the parties agree otherwise, and that the building society be permitted to carry out works to the property to partition it into its constituent flats. The building society were to have the conduct of the sale and all aspects of marketing the property were left to them. The price was to be as agreed or determined by the court.
2. The judge ordered that pending the sale the wife was to cooperate, to take steps as may reasonably be requested by the building society to effect the sale at the best price reasonably obtainable, to obtain the consent of the freeholder to partitioning, to deliver up the keys and not to let anyone else occupy the property.
3. The judge then ordered that out of the proceeds of sale the costs of the sale were to be paid first; then any amount of outgoings was to be paid to the building society; that £228,000 should be paid to the building society in part discharge of the mortgage debt (which at the time stood at some £890,000 by a separate judgment made in the claim relating to possession); and that the husband was then to lose his half of the balance, but the wife should get her money out of the property.
4. What in fact the judge was doing is shown in paragraph 82 of his judgment, where he indicated what he would have done had the husband not behaved in the disreputable way that he did. The judge would have wanted to give the wife some £670,000 or 52 per cent of the net assets. What he was able to achieve for her was substantially that, save for some £12,500. So he put her in the position, as nearly as possible, as she would have been in had he a free hand to divide the assets.
5. In many ways his judgment was generous to the wife, in the favourable view he took of the law to boost her equitable interest in the property to 50 per cent and in giving her a half of the joint assets of this long marriage, to which she had made her full contribution, and generous to her in the sense that he endeavoured to recompense her as fully as he could for the dishonest behaviour of the husband.
6. When the matter came before me as an application for permission to appeal, I heard Mrs Le Foe in person. I was persuaded, reluctantly, that she might have room to argue whether the judge was correct in some of his views of this matter: was she in actual occupation at the time of the creation of the charge; did she have an interest that overrode the Woolwich and to what extent; and was there a voidable disposition under section 37 of the Matrimonial Causes Act? Those arguments appeared, and still appear, to me to be capable of being advanced, although I bear in mind what is said in the skeleton argument of Mr Harrison on the husband's behalf, supported by Mr Wilson for the building society, that there are perhaps more formidable difficulties in her way than were apparent to me when I granted permission. There is some authority which the wife would have to distinguish, at least.
7. But today the arithmetic is analysed for me and I am convinced by Mr Harrison, supported by Mr Wilson, that even if the wife were successful in the limited appeal which I have permitted, in the absence of any appeal against the ancillary relief order she would gain nothing of any substance. I am now persuaded, therefore, that the arguments, although both possible and interesting, would be academic. If I granted permission to the building society to challenge the judge's finding that Mrs Le Foe's beneficial interest is not as much as a half share of the property, her position would be rendered even more unfavourable because, instead of getting her money out of the sale, she may have to chase the husband.
8. The difficulty, furthermore, is that interest on this mortgage clocks up at £6,000 a month. Although I might have been able to get a hearing for an hour and a half next week or soon, this case, at the present rate of progress, would take a day or so to sort out. There would be a delay of possibly another two months. There would be another £12,000 of interest and the pot is being reduced every second that the clock ticks.
9. I am persuaded by the arguments that there is nothing of real importance or substance for Mrs Le Foe to gain from the appeal, and I regret that I was persuaded to grant the permission on the last occasion. To proceed now would be disproportionate and that is, I am now satisfied, a compelling reason why I should discharge that order.
10. I do so with the same sympathy that I felt for Mrs Le Foe on the last occasion. This has been her home and her mother's home. There is huge emotional investment in it. She has been reluctant to face the reality of her predicament so builders may be moving in next week and she is ill-prepared to take them. She wishes me to try and negotiate extensions of time to negotiate where partitions should be put and so forth. I have no power to do so. She wishes me to persuade the building society to accept her friend's offer. I have no power to do so. She must put her prospective buyers in direct touch with the building society.
11. So I come to the unhappy but firm conclusion that this litigation should end and in consequence of that I will accede to the husband's application to discharge the permission to appeal. The result is that Mrs Le Foe's appeal will no longer go forward. So far as the building society's application for permission to appeal is concerned, I do not believe that they still make it, but even if they do they are out of time and I am not prepared to extend time. I dismiss their application for permission to appeal as well.
12. So permission is refused, to appeal anything. It follows that the application for a stay is dismissed. The respondent's application for permission is dismissed. I do not know that the husband has technically made his application to discharge my earlier grant of permission, but I have in fact dealt with it and the order covers that.
13. The court expresses gratitude to Mr Scott Collins, who has been acting without fee for Mrs Le Foe. He has picked up these papers, he has mastered them, he has given the robust advice that there is nothing for Mrs Le Foe to gain from this save the protection of her emotional security which is, of course, an interest I cannot protect. The court wishes to express its gratitude to him for acting at short notice competently and correctly and giving good sound advice, and I am very grateful to him.
ORDER: Application for stay of execution refused. Application for discharge of the permission to appeal allowed.