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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bat-Sheva Goudsmid v Drewe [2002] EWCA Civ 1488 (2 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1488.html Cite as: [2002] EWCA Civ 1488

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE CHANCERY DIVISION
(MR JUSTICE LIGHTMAN)

		Royal Courts of Justice Strand London, WC2 Wednesday, 2 October 2002

Wednesday, 2 October 2002

1. LORD JUSTICE DYSON: This is an application for permission to appeal the decision by Lightman J of 20 May 2002 when he made certain orders on a summons issued by Miss Goudsmid seeking summary judgment in respect of the proceeds of sale of 30 Rotherwick Road, London NW11.
2. The background is somewhat complicated. It is unnecessary for me to go into it in detail for reasons which will become apparent. Shortly, however, the parties lived together as man and wife between 1980 and 1993. They have two children. In 1988 they purchased the property for £265,000, part of the purchase price being raised on mortgage. The parties separated in 1993. The property was sold in 1996 for £415,000 and the net proceeds of sale, which are approximately £250,000, are currently held by the vendors' solicitors, pending the outcome of the dispute which has arisen between the parties as to the ownership of those proceeds. The history is, as I have said, complicated. There were two agreements between the parties which apparently dealt with their respective rights to the proceeds of sale. The earlier one is no longer relevant (at any rate so far as Mr Drewe is concerned); the later one, however, is. That was made in April 1996. It seems from the documents that he has shown me that it probably is common ground that it was a term of that agreement that Miss Goudsmid would be entitled to all the net proceeds of sale on condition that she found a home for one of the children. Mr Drewe says that she broke that condition. She says that she did not break it; insofar as she had difficulty in fulfilling the condition, that was for reasons outside her control. There appears, therefore, to be a dispute as to whether she broke the condition. I should say that in all the material that has been placed before the court the document is not to be found.
3. The next matter to mention is the two documents of May 1996. The first is a form of transfer, dated 14 May 1996, by which Mr Drewe and Miss Goudsmid purportedly transferred the entire property (that is to say their legal and equitable interest in it) to Miss Goudsmid. It is purportedly signed by both of them and witnessed by a Mr Pendlebury. There is also a letter from Mr Drewe to Miss Goudsmid which is to be found at page 14 of the bundle, which says:

"I confirm that I have, by signing the transfer document, effectively transferred all my interest in the above property to you in consideration of the fact that I do not consider that I have any obligations to the lender, National Home Loans Plc and that you will continue to make the mortgage payments and insurance arrangements for the property.

I wish to state that I fully accept that by signing this document I am relinquishing any interest of whatsoever nature I might have in the property."

4. Mr Drewe contends that neither of those documents actually bears his signature and that they are forgeries.
5. Miss Goudsmid started proceedings in 1998 in the Willesden County Court, claiming the entire net proceeds of sale. These proceedings were transferred to the Chancery Division. Mr Drewe has not served a defence and that is a matter strongly relied upon by Miss Goudsmid. Miss Goudsmid then in 2001 issued a summons claiming summary judgment in respect of the entire proceeds of sale.
6. The matter came before Lightman J who, on 20 May 2002, made a number of orders, the first of which was that there should be a trial of the issue:

"Whether Mr Drewe signed the transfer dated 14th September 1996 or whether his signature has been forged."

7. He also ordered that, if it were decided that the signature was genuine, there should be a declaration that Miss Goudsmid was entitled to all the proceeds of sale. The hearing of that issue with an estimated time of one day is due to take place on 7 October, next Monday. Mr Drewe does not object to that part of the order of Lightman J. He accepts, as he must, that if he loses on that issue then it must follow that Miss Goudsmid is entitled to all the proceeds of sale.
8. The judge also ordered, however, the solicitors to pay to Miss Goudsmid one-half of the sum they currently hold representing the proceeds of sale, and one-half of the interest accrued. That order was to be carried into effect forthwith and not to await the outcome of the issue.
9. It is that part of the order to which Mr Drewe objects. His point can be put very simply. He submits that, if the preliminary issue is decided in his favour, then the question of entitlement to the proceeds of sale is governed by the April 1996 agreement, and will depend upon whether the condition (to which I have referred) was breached or not. He says that it was a term of that agreement, which, as I have said I have not seen, that if the condition was not fulfilled then the entire proceeds of sale were to be held in trust for their two children. In other words it is not his case that he lays claim to any part of those proceeds for himself.
10. I am in no position on the material that has been shown to me to form a view as to the strength or otherwise of Mr Drewe's case based upon the April 1996 agreement and the relevant events which occurred thereafter. If Mr Drewe is unsuccessful on the preliminary issue all of that would be of academic interest only. It does, however, seem to me, that it would not be right to require the solicitors to release any part of the proceeds of sale until judgment has been given on the preliminary issue. If Miss Goudsmid is successful on that issue, then the entire proceeds will have to be paid to her, as Mr Drewe accepts. If, however, Mr Drewe is successful, then it seems to me that further consideration needs to be given to the question whether that part of the order made by Lightman J whereby he said that half of the £250,000 should be released immediately should stand.
11. It seems to me, therefore, that I ought to adjourn this application on these conditions. If Mr Drewe is unsuccessful on the preliminary issue then he accepts that no question of appealing Lightman J's decision in relation to the release of the proceeds of sale arises. If, however, he is successful on that issue, then I direct that his application for permission to appeal should be restored for further argument. I suggest that it would be sensible if it were restored to be heard by me if possible, although I do not consider that to be essential. I also think that the application should be on notice to Miss Goudsmid, so that she can attend and give the court what further assistance she may give to enable a decision to be made as to whether or not to grant permission to appeal that part of the order of Lightman J.
(Application adjourned; no order for costs).