A husband held the matrimonial home on trust for sale for himself and his wife in equal shares. The couple lived in the house. The husband and another man were in business with through a limited company, and guaranteed the its debts to the plaintiff, who obtained a default judgment against the husband under the guarantee and then a charging order absolute against the husband’s interest in the matrimonial home. The bank obtained an order that the house be sold under s. 30. The wife appealed saying that the bank’s application under s. 30 should have been dismissed or, if an order for sale should have been made, it should have been subject to conditions favourable to her.
Held: The appeal failed. ‘The bank are not claiming under Mr Byrne, they are asserting rights over his share in the proceeds of sale. Furthermore it appears to me that to accept the contention would be to defeat the whole purpose of s. 30 of the Law of Property Act, which is to enable the court as a matter of discretion to do what is equitable, fair and just. In my judgment this is wholly a matter of discretion and there is no difference in principle between the case of a trustee in bankruptcy and that of a chargee. All the circumstances must be weighed and the court must consider whose voice should in equity prevail.’ The court did not accept that as the husband could not obtain an order against his wife, the bank could be in no better position as it claimed under him.
Judges:
Parker LJ
Citations:
[1993] 1 FLR 369
Statutes:
Cited by:
Cited – Bank of Baroda v Dhillon and Dhillon CA 17-Oct-1997
A property had been bought in the husband’s name. The wife made financial contributions to repayment of the charge, and thereby acquired an interest in it. The property was later charged by the paper owner to the claimant, who sought possession . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 09 May 2022; Ref: scu.197884