318 / 322
GAZETTE
JULY/AUGUST 1984
year before it was dated and after it
had been signed by him.
2. The Order for Possession was
obtained by collusion.
3. An Agreement of 4 May 1981 to the
compromise of the proceedings was
entered into by the Plaintiff because
of a misrepresentation by the
husband as to the value of the
property.
4. The husband's failure to pay the
instalments when they became due
and his failure to sell the property
promptly deprived the Plaintiff of
the difference between the amount
of the loan and the value of the
family home.
Counsel on behalf of the Building
Society submitted that under Section 3 of
the 1976 Act a purported Conveyance by
a spouse is expressed to be void only if the
prior consent of the other spouse is not
obtained, that there could be no
conveyance until delivery of the Deed and
that delivery of the mortgage in this case
was not effected until after the consent of
the Plaintiff had been obtained. The
Court was of opinion that that
submission was correct but indicated that
even if it were not it would be very slow to
hold that a spouse could contest the
validity of a mortgage after entering into
a settlement with the advantage of legal
advice, in which she clearly acknow-
ledged its validity.
The Court did not accept that the
allegation of collusion was sustainable.
As the husband had no defence to the
proceeding the only right given to the
Plaintiff was under Section 7 of the 1976
Act whereby the Court may decide that if
the Plaintiff were capable of paying the
arrears due and the future payments it
would be just and equitable to return the
proceedings, presumably to enable the
Plaintiff to discharge the payments due
and to become due. It had not been
suggested that the Plaintiff was in a
position to pay the arrears so that if her
legal advisers had been in Court when the
Order was sought no grounds could have
been advanced for opposing it.
The Court was satisfied from the
evidence of the Solicitor for the husband
that the Deed could not have been
executed until January 1980.
Accordingly the Court dismissed the
Plaintiffs claim against the Building
Society at the close of the Plaintiffs case.
The Court had evidence that the value
of the family home would have been
somewhere between £46,000-£59,000 at
the time of its purchase. It was clear that
the parties considered that there would be
a considerable balance to enable the
Plaintiff to purchase a house for herself
and her children after discharge of the
mortgage debt out of the proceeds of sale.
Although it was not being contested that
the husband represented the value of the
home to be £70,000 the Court did not
accept that the Plaintiff had a good
ground for a claim of £40,000 being the
amount she estimated would have been
available for the new house had the
husband's valuation been correct and he
had sold the property expeditiously. The
Plaintiff was represented at the settlement
and it was clear that it was appreciated
that money was due on the mortgage. It is
not suggested there was any mis-
representation of the amount due on foot
of the mortgage. No claim was being
made for breach of the Agreement
contained in the consent and there was no
claim to have the Agreement set aside
on the ground of fraud and misrepresen-
tation. The claims made before the Court
were made in particular under the
provisions of Section 5 sub-section 2 of
the 1976 Act. It was agreed on behalf of
the husband that no claim could lie where
the spouse had left the family home and
while the Court did not accept this
argument it was not a view which was
necessary to be decided at the present
application.
The argument on behalf of the Plaintiff
appeared to be that misrepresentation by
the husband as to the value of the family
home deprived the Plaintiff and children
of a home which would have been
purchased with the surplus of the sale
price remaining after the discharge of the
mortgage and that the misrepresentation
constituted conduct depriving the
Plaintiff of her residence in the family
home within the meaning of the sub-
Section.
The Court, firstly, indicated there was
only one family home in the case, namely
the one sold on foot of the mortgage.
Secondly, once the mortgage was validly
created the conduct of the husband relied
on must consist of his failure to pay the
instalments. Thirdly, although there is no
reference in the sub-section to "an
intention to deprive the spouse of her
residence in the family home" the Court
was of the opinion that failure to pay
instalments due on a mortgage would not
be conduct resulting in the loss of an
interest in the family home unless it were
established that the other spouse was
financially able to pay the instalments.
The only figures before the Court
indicated that the husband did not have
an income to meet the instalments.
Finally, the Court HELD that as the
amount due on foot of the mortgage at
the time of the compromise was dealt
with under the terms of the consent it
could not now be made the basis of a
claim under sub-section 2.
A.D. -v- D.D. & Irish Nationwide Building
Society - High Court (per McWilliam J.), 8
June, 1983 - unreported.
John F. Buckley
Copies of judgments in the above
cases are available on request from
the Society's Library. The
photocopying rate is lOp per page.
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