Grandison & Anor v Joseph

A property-transfer order made in financial remedy proceedings ordinarily requires transfer of the legal title unless it expressly limits the transfer to a beneficial interest. An obligation to use best endeavours must be construed in its contractual and factual context, but it does not generally permit a party to do nothing merely because compliance is expensive. Where one party has failed to implement a final order and thereby leaves the other exposed to mortgage liabilities, the court may order sale under Matrimonial Causes Act 1973, section 24A. Such an order implements the original order and is not necessarily a variation of it.

The parties had agreed how their substantial property portfolio was to be divided following the breakdown of their marriage. An order and accompanying deed required the properties to be divided, each party to use best endeavours to release the other from mortgage liabilities, and completion to take place after the final order.

The husband appealed an order made by the Family Court at Bromley requiring him to transfer legal title to 42 properties into his sole name and obtain the wife's release from the mortgages, failing which the properties would be sold. He argued that only beneficial interests had to be transferred, that the best-endeavours obligation did not require costly refinancing, and that the sale order impermissibly varied the original order.

1. The appeal was dismissed. Permission to appeal was granted after the appeal had been heard in full.
2. The order was properly construed as requiring transfer of the properties themselves, including the legal title. The deed showed that beneficial ownership had already transferred when the order took effect. Its provision for later completion therefore concerned completion of the legal transfer. The court rejected the argument that completion related only to beneficial interests.
3. The meaning of best endeavours does not differ between commercial and family cases, although the agreement must be construed in its particular context. Here, the obligation arose from a final financial order which one party had substantially implemented and the other had left outstanding. The husband had not taken obvious preliminary steps, including approaching the mortgagees for consent to release the wife in return for transfer of the properties. Refinancing was not the only available means; sale was also an option. The evidence did not establish that compliance was impossible, and expense alone did not discharge the obligation.
4. The Family Court had statutory power under section 24 of the Matrimonial Causes Act 1973 to order transfer without a mortgagee's consent. A court-ordered transfer was an independent act and did not itself breach the mortgage contract.
5. The order for sale under section 24A implemented the long-outstanding original order after a finding of breach. It was not a variation. The six-month period allowed for compliance was within the judge's discretion, and the husband could seek an extension from the Family Court.

• Family Court sitting at Bromley: On 23 October 2018, Her Honour Judge Redgrave ordered transfer of the outstanding properties and release of the wife from mortgage obligations, subject to sale if the requirements were not met.
• High Court (Family Division): Mr Justice Cohen granted permission to appeal but dismissed the appeal.