The Gazette 1984

GAZETTE

JULY/AUGUST 1984

year before it was dated and after it had been signed by him. 2. The Order for Possession was obtained by collusion. 3. An Agreement of 4 May 1981 to the compromise of the proceedings was entered into by the Plaintiff because of a misrepresentation by the husband as to the value of the property. 4. The husband's failure to pay the instalments when they became due and his failure to sell the property promptly deprived the Plaintiff of the difference between the amount of the loan and the value of the family home. Counsel on behalf of the Building Society submitted that under Section 3 of the 1976 Act a purported Conveyance by a spouse is expressed to be void only if the prior consent of the other spouse is not obtained, that there could be no conveyance until delivery of the Deed and that delivery of the mortgage in this case was not effected until after the consent of the Plaintiff had been obtained. The Court was of opinion that that submission was correct but indicated that even if it were not it would be very slow to hold that a spouse could contest the validity of a mortgage after entering into a settlement with the advantage of legal advice, in which she clearly acknow- ledged its validity. The Court did not accept that the allegation of collusion was sustainable. As the husband had no defence to the proceeding the only right given to the Plaintiff was under Section 7 of the 1976 Act whereby the Court may decide that if the Plaintiff were capable of paying the arrears due and the future payments it would be just and equitable to return the proceedings, presumably to enable the Plaintiff to discharge the payments due and to become due. It had not been suggested that the Plaintiff was in a position to pay the arrears so that if her legal advisers had been in Court when the Order was sought no grounds could have been advanced for opposing it. The Court was satisfied from the evidence of the Solicitor for the husband that the Deed could not have been executed until January 1980. Accordingly the Court dismissed the Plaintiffs claim against the Building Society at the close of the Plaintiffs case. The Court had evidence that the value of the family home would have been somewhere between £46,000-£59,000 at the time of its purchase. It was clear that the parties considered that there would be a considerable balance to enable the Plaintiff to purchase a house for herself and her children after discharge of the mortgage debt out of the proceeds of sale. Although it was not being contested that the husband represented the value of the home to be £70,000 the Court did not accept that the Plaintiff had a good ground for a claim of £40,000 being the

amount she estimated would have been available for the new house had the husband's valuation been correct and he had sold the property expeditiously. The Plaintiff was represented at the settlement and it was clear that it was appreciated that money was due on the mortgage. It is not suggested there was any mis- representation of the amount due on foot of the mortgage. No claim was being made for breach of the Agreement contained in the consent and there was no claim to have the Agreement set aside on the ground of fraud and misrepresen- tation. The claims made before the Court were made in particular under the provisions of Section 5 sub-section 2 of the 1976 Act. It was agreed on behalf of the husband that no claim could lie where the spouse had left the family home and while the Court did not accept this argument it was not a view which was necessary to be decided at the present application. The argument on behalf of the Plaintiff appeared to be that misrepresentation by the husband as to the value of the family home deprived the Plaintiff and children of a home which would have been purchased with the surplus of the sale price remaining after the discharge of the mortgage and that the misrepresentation constituted conduct depriving the Plaintiff of her residence in the family home within the meaning of the sub- Section. The Court, firstly, indicated there was only one family home in the case, namely the one sold on foot of the mortgage. Secondly, once the mortgage was validly created the conduct of the husband relied on must consist of his failure to pay the instalments. Thirdly, although there is no reference in the sub-section to "an intention to deprive the spouse of her residence in the family home" the Court was of the opinion that failure to pay instalments due on a mortgage would not be conduct resulting in the loss of an interest in the family home unless it were established that the other spouse was financially able to pay the instalments. The only figures before the Court indicated that the husband did not have an income to meet the instalments. Finally, the Court HELD that as the amount due on foot of the mortgage at the time of the compromise was dealt with under the terms of the consent it could not now be made the basis of a claim under sub-section 2. A.D. -v- D.D. & Irish Nationwide Building Society - High Court (per McWilliam J.), 8 June, 1983 - unreported. John F. Buckley

Copies of judgments in the above cases are available on request from the Society's Library. The photocopying rate is lOp per page.

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