Court of Appeal

Published August 22, 2007

Turner and Another v Avis

Before Lord Justice Ward, Lord Justice Chadwick and Lord Justice

May Judgment July 19, 2007

Equity jurisdiction enabled a trustee in bankruptcy to enforce a trust for sale of a matrimonial home held jointly by the bankrupt and his former wife under a property adjustment order made more than twenty years ago.

The Court of Appeal so stated dismissing the appeal of Vivienne Joan Avis from Judge Pelling, QC, who, sitting as a Chancery Division judge in the Liverpool District Registry on December 13, 2006, ordered the sale of the former matrimonial home held by her and Edmund Charles Avis under a property adjustment order made in 1985 after their divorce.

The husband was adjudged bankrupt in 1989 and the trustee in bankruptcy, Charles Hamilton Turner, applied for the sale of the property in October 2005.

Mr Paul Chaisty, QC and Mr Graham Sellers for the wife; Mr Stephen Davies, QC and Mr Stefan Ramel for the trustee; the husband did not appear and was not represented.

LORD JUSTICE CHADWICK said the 1985 property adjustment order, made under section 24(1)(c) of the Matrimonial Causes Act 1973, vested the property in Mr and Mrs Avis with a power to sell, held upon trust to sell, but with power to postpone sale.

Section 14(2)(a) of the Trusts of Land and Appointment of Trustees Act 1996 conferred on the court power to make any such order as it thought fit relating to the exercise by trustees of any of their functions. That enabled the court to direct trustees to execute the trust for sale.

It would have been open to the court, on an application made by Mr Avis, if he had not been adjudged bankrupt, under section 14 of the 1996 Act, to make an order for the sale of the property.

It followed that it was open to the court to make an order for sale on an application made by the trustee in bankruptcy under section 14 of the 1996 Act, pursuant to section 335A of the Insolvency Act 1986, as inserted by the 1996 Act, which required such an application to be made to the bankruptcy court.

Solicitors: Maxwell Hodge, Liverpool; Eversheds LLP, Leeds.

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