Analysis
The parties were previously married. In 1990, they acquired a house in London in their joint names. In April/May 2014, the wife issued an application under the Trusts of Land and Appointment of Trustees Act 1996 (‘TLATA 1996‘) seeking an order for sale of the house, together with an order that the net proceeds be distributed between herself and her husband in equal shares. The husband contested the jurisdiction of the English court to entertain the wife’s proceedings and applied for them to be dismissed or stayed. The wife argued that England and Wales had jurisdiction on the basis of the grounds set out in the Council Regulation (EC) No 44/2001 on jurisdiction and the recognition of judgments in civil and commercial matters (‘Brussels I’). Bodey J held that Art 2 did not assist the wife, because the husband was not domiciled in England and Wales. However he held that two other jurisdictional grounds were made out. First he held that there was jurisdiction under Art 22 on the basis that the TLATA proceedings had as their object rights in rem in immoveable property situated here. Second, he held that Art 5(6) applied because the husband was being sued ‘as settlor, trustee of a trust created by the operation of statute” and “the trust is domiciled’ here. The husband appealed on the ground that the TLATA proceedings had as their object rights in personam rather than rights in rem.
Held:
- 1) The proceedings in Komu v Komu before the Court of Justice of the European Union were strikingly similar. Both proceedings were designed ‘to bring about the transfer of a right of ownership in immovable property’, as the CJEU had characterised the Komu proceedings. The wife aimed to achieve the transfer of a right of ownership in the present case. It might also be said that the wife’s action resembles that in Komu in being ‘intended to ensure that [she] can protect the powers attached to [her] interest’ as one of two joint owners of the property in law and in equity. In the light of these similarities, the natural inclination would therefore be to characterise her proceedings in the same way as those in Komu, namely as having as their object rights in rem.
- 2) The essential reason for giving exclusive jurisdiction to the courts of the state where the property is situated is that those courts were best placed to ascertain the facts satisfactorily and to apply the ‘rules and practices… of the state in which the property is situated’ where they are apposite.
- 3) The wife’s claim in this case is expressed to be for, inter alia, an ‘order for sale of the property’ but, in attempting to categorise it for the purposes of Art 22, it would be wrong to concentrate overly upon the exact wording used in the claim. It might equally have been expressed as, for example, a claim for an order that the husband, as the other trustee of the property, join with the wife in selling the property or, in the alternative, the property be sold by order of the court, together with an application for all necessary directions. When it came to an order for the sale of a property, as sought by the wife, the courts of the member state in which the properties were situated would be best placed to deal with those matters.
- 4) The present case was to be distinguished from Webb. The wife was already the joint owner of the property here, whereas the father in Webb was not. The principal subject matter of the claim was to achieve a sale of the property, as it was in Komu. It would be wrong to put too much weight on the fact that the application was technically under s14 TLATA 1996 for an order relating to the exercise by a trustee of his functions, when such an application was conventionally coupled with, or followed swiftly by, an application for an order for sale by order of the court. It was fair to describe the wife, as one of the two joint owners of the property both in law and in equity, as having rights in rem which had effect erga omnes.
- 5) The substantive appeal was therefore dismissed.
- 6) The appeal of Bodey J’s costs order was to be allowed on the basis that the charging order should not have been made on the basis that it was not yet due/an unliquidated sum and therefore did not fall within s1(1) of the Charging Orders Act 1979 as money which the ‘due or to become due’. It was therefore to be dismissed.
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