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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wormall v Wormall [2004] EWCA Civ 1643 (25 November 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1643.html Cite as: [2004] EWCA Civ 1643 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT
(RECORDER KATE THIRLWALL QC)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE JONATHAN PARKER
LORD JUSTICE NEUBERGER
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ROBERT WORMALL | Claimant/Appellant | |
-v- | ||
JILL WORMALL | Defendant/Respondent |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS PENELOPE REED (instructed by Messrs Burges Salmon, Bristol, BS1 4AH) appeared on behalf of the Respondent
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Crown Copyright ©
"9. The family lived happily in the farmhouse at Ibstock Grange. Mr Wormall [Robert] farmed, with the assistance of his wife. Mrs Wormall senior [Robert's mother] moved to a bungalow in the grounds. She continues to live there. She is now in her eighties. As a result of this dispute she no longer sees her granddaughter [Jill].
10. It is plain, and it is not in dispute, that this family has always lived beyond its means. The claimant ran the farm on an ever increasing overdraft. In 1989 he decided, and his wife accepted, that the farm would be sold, the debts paid off and the family would move to Scotland where land was cheaper and they could begin farming again without debt.
11. The farm was put for auction by EA Lane on 8.9.89. It was divided into 4 lots: the main farm being the farmhouse, bungalow and other buildings together with over 368 acres of land, and 3 other parcels of land of 62.81, 30.20, and 5 acres respectively, all of which had separate access. In the event the main farm did not sell. The other lots were sold and the monies raised (some £242,000) were used to reduce the claimant's bank overdraft at that time. The move to Scotland did not take place. The land agent, Mr Lane, gave evidence. He said, and I accept, that the farm remained on the books of EA Lane from that time, but it was not actively marketed.
12. The claimant continued to farm but the business continued to make a loss most years. The bank overdraft increased annually."
"After 40 years of farming, [Robert] wanted to retire from arable farming. He intended, said, to do some contracting work but his days of full-scale farming were at an end. To retire he had to reduce the farm overdraft. The only way to do was to sell land."
"80. It is unlikely, in my judgment, that claimant ever said to the defendant in terms that she could use the land and buildings for as long as she wanted. It is much more likely, and I find, that the defendant assumed that this was the case on the basis that she believed at that time that the land and buildings would belong to the family for the foreseeable future. Neither she, nor anyone else, foresaw that her parents' marriage would break down and the farm would be divided.
81. I find that it was reasonable for the defendant to assume, on the basis of encouragement and assurances given to her by her father in 1990, 1993 and 1994, that she would be able to continue to occupy the land and buildings for the purposes of her business for as long as the land and buildings belonged to the family."
"83. Has the defendant suffered detriment (or will she do so) as a result of her father's change of position. The time at which detriment is to be judged is the date upon which the owner of the land seeks to change his position (see Gillett v Holt at page 2320). In this case that was in August 2002 when the first letter was written to the defendant on the claimant's behalf.
84. The defendant has undoubtedly suffered and will suffer detriment as a result of her father's change of position. She has been working at her business for years. Recently she has begun to make money out of it. If she has to leave Ibstock Grange she will have to start again. She will, at the very least, need to find new premises, develop her clientele again -- unless she finds alternative premises that are reasonably close by."
"86. The defendant suffers further detriment since she leaves behind the fruits of her own labour in the form of the maintenance and building that she has carried out or paid for herself (as well as the general farm work she carried out over the years) all on the understanding that she would be able to continue with her business at Ibstock Grange.
87. The defendant's equestrian skills, business experience and contacts are all still available to her but I am quite sure that the loss of the use of the land and buildings at Ibstock Grange will be detrimental to her."
"Given my findings it is quite unconscionable, in my view, that the claimant should now, many years later seek to remove from his daughter much of the wherewithal to continue her business. I accept that but for her father's (and indeed her mother's) generosity in the first place she would never have had the opportunity to run a business like this on her own account, nor would she have been able to develop her business as she has done. She has been able to make money as a result, in part of the financial and other support her father has given her over and above the provision of land and buildings. But, as a result of her father's words and actions the defendant has reasonably assumed that she would be able to continue to use the land and buildings while they belonged to the family. I am satisfied therefore that it would be unconscionable for the defendant to assert his strict rights now."
"94. I have found that the defendant was entitled reasonably to expect that she would be able to continue her business from the farm land and buildings for as long as the farm belonged to the family. In practice that meant that while the family functioned as a family and finances permitted the farm to be retained, the defendant would be able to use it.
95. The divorce, coupled with continued financial difficulties before that, mean that the farm will be disposed of to provide for the two spouses. Whether there is a sale to a third party or a transfer between the spouses matters not for these purposes. The farm (even if retained by one or other spouse) will no longer be the family farm."
"In my judgment equity can be satisfied if the defendant is able to continue at Ibstock Grange for the immediate future, while the financial matters between the claimant and Mrs Wormall are resolved. It is of course possible that the financial matters may not resolve speedily, and certainty as to the future is desirable here. I shall order therefore that the defendant be entitled to continue to use the land and buildings at Ibstock Grange for the purposes of her business until six months after the date upon which the final order is made in the proceedings for ancillary financial relief between the claimant and Mrs Wormall, or 12 months from today's date, whichever is the sooner."
"97. I now consider whether the defendant is entitled to a sum to compensate her for the loss of the land and buildings. Had it not been for the breakdown of her parents marriage she could have continued to run her business from Ibstock Grange for the foreseeable future, as she had reasonably expected. I am satisfied that she should be compensated for her early departure. As both counsel submitted the assessment of such a payment has to be somewhat rough and ready. The defendant submits that she should be entitled to 20% of the proceeds of sale (which would be approximately £160,000, assuming that the valuation of £800,000 given by the claimant is accurate). That, in my view, is far too much. It is the equivalent of 10 years profit at the rate achieved in the year to March 2003. The claimant's suggested £5,000 is far too little and does nothing to compensate the defendant for the loss of her premises which has been brought about by the breakdown of her parents' marriage."
"98. In my view a sum of £50,000 will fairly compensate her. It is the equivalent of 12 months' turnover at current rates. It will give her a cushion in the transfer of her business from Ibstock Grange elsewhere (if that is what she decides to do). It will also allow her to pay for equivalent facilities for at least a year, while she builds up her business again. I bear in mind that there seems to be no dispute about her entitlement to retain eg the removable stables and the treadmill.
99. The sum of £50,000 will, I apprehend, be taken into account when the matrimonial assets have been considered. In effect, therefore, it comes from both parents. In my view it is rights that it should do so since it is their divorce which requires her to move her business elsewhere."
Order: Appeal allowed. Undertaken to be given by Robert Wormall to keep Jill Wormall informed as to progress of any disposal of the property. Respondent to remain on the property for the purposes of her business until the disposal of the property, but to give up possession as at the date determined by a modified form of declaration. Respondent to pay the appellant's costs of the appeal, but she will retain her order for costs in the court below, such costs to be subject to detailed assessment. Liberty to both parties to apply to a recorder or a judge of the Northampton County Court.
Counsel to draw up agreed minute of order.