Range v Range

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Kerr and Henry, JJ. A.)
• Judgment Date: 21 September 1989
• Court: Court of Appeal (Cayman Islands)
• Date: 21 September 1989

Court of Appeal

(Zacca, P., Kerr and Henry, JJ. A.)

RANGE

and

RANGE

N.W. Hill, Q.C. for the appellant;

K.C. Collins for the respondent.

Cases cited:

(1) Barder v. Barder, [1988] A.C. 20; [1987] 2 All E.R. 440.

(2) Brown v. KirrageUNK(1980), 11 Fam. Law 141.

(3) de Lasala v. de Lasala, [1980] A.C. 546; [1979] 2 All E.R. 1146, dicta of Lord Diplock applied.

(4) Dinch v. Dinch, [1987] 1 W.L.R. 252; [1987] 1 All E.R. 818, dicta of Lord Oliver applied.

(5) Edgar v. Edgar, [1980] 1 W.L.R. 1410; [1980] 3 All E.R. 887.

(6) South American & Mexican Co., In re, ex p. Bank of England, ELR[1895] 1 Ch. 37.[1895] 1 Ch. 37.

(7) Thwaite v. Thwaite, [1982] Fam. 1; [1981] 2 All E.R. 789, dicta of Ormrod, L.J. applied.

Legislation construed:

Matrimonial Causes Law (Law 9 of 1976), s.23: The relevant terms of this section are set out at page 441, lines 10–13.

Family Law-divorce-financial provision-variation-all orders may be varied under Matrimonial Causes Law, s.23-jurisdiction to be sparingly exercised where order intended to be final, whether non-consensual or by consent

Family Law-divorce-financial provision-variation-no variation if wife”s assumptions of financial benefit prove erroneous when express terms of consent order clear and no financial benefit in fact results

The respondent wife applied to the Grand Court to vary a consent order for financial provision made in the course of divorce proceedings.

A consent order was made providing that (a) the former matrimonial home would ‘be sold by public auction or private treaty . . . subject to the rights of the [bank] as mortgagee’ and the net proceeds transferred to the wife ‘absolutely in full and final settlement’ of her claim for financial provision; and (b) she would then forgo all other claims for financial provision from the appellant.

Before the property was sold, the respondent believed on the basis of information supplied by the husband that she would receive approximately $100,000 as the net proceeds of sale after the repayment of the mortgage but instead she received nothing as the bank sold the property for only the amount that was due to it. Consequently, she applied to the Grand Court to vary the consent order.

The Grand Court (Harre, J.) gave judgment for the respondent and ordered the case to proceed with the filing of affidavits of means. It held that (i) the respondent had only agreed to forgo her claims for financial provision on receipt of payment of the net proceeds, subject to the rights of the bank, following a sale of the property by either public auction or private treaty, neither of which categories allowed for sale by the bank; and (ii) since no payment at all had been made to her in accordance with this agreement, there was a change of circumstances which entitled her to apply for a variation of the order.

On appeal, the appellant submitted that the consent order had finally and conclusively determined their rights, that it made a clean break between them as respects financial matters and the Grand Court had no jurisdiction to vary it or set it aside.

The respondent submitted in reply that (a) the basis of the consent order was that she would get approximately $100,000 from the sale of the matrimonial home as the consideration for forgoing her claim for other financial provision; and (b) in the circumstances in which she had

in fact received nothing, the consent order had been frustrated and it was therefore appropriate and within the jurisdiction of the court to vary it.

Held, allowing the appeal:

(1) The Grand Court had, under the Matrimonial Causes Law, s.23, the jurisdiction to vary all ancillary orders and was not precluded by the law from varying property transfer, lump sum or other apparently final orders. Nevertheless, it was a jurisdiction to be exercised sparingly where the order itself appeared to contemplate finality; in the case of a consent order in particular, it was important to remember that the legal effect of the financial arrangements agreed to by the parties ceased to depend on their agreement and was derived from the court order itself which approved them. In this respect, a judgment by consent was as much intended to put a stop to litigation between the parties as a final judgment resulting in a non-consensual order, given by the court after hearing full argument on both sides (page 441, lines 7–29; page 442, lines 3–11).

(2) In this case, the consent order had been unhappily drafted. It was always a possibility that the respondent might not receive what she anticipated because it was clear that the mortgagee had to be paid first, and the wording did not make clear that she was forgoing her claim to other financial provision only in the event of a sale agreed to by the parties. Furthermore, the valuation which had been shown to her before the consent order was made made it clear that the property”s value on a forced sale was approximately what had in fact been realised. As it was clearly and expressly intended that she would only get the balance of the proceeds after the satisfaction of the bank”s claim, the court had no jurisdiction to defeat that intention when it was found that the sale actually resulted...