Avis v Turner & Anor

The trustee in bankruptcy may apply for an order for sale under section 14 of the Trusts of Land and Appointment of Trustees Act 1996, and section 335A of the Insolvency Act 1986 applies to such an application, notwithstanding a prior matrimonial order postponing sale. The court retains jurisdiction to order sale, and the interests of creditors prevail unless exceptional circumstances are shown.

Parties: Appellant: Vivienne Joan Avis; Respondent: Charles Hamilton Turner; Respondent: Edmund Charles Avis
Jurisdiction: England and Wales
Judgment Date: 19 July 2007
Procedural Posture: Civil Appeal / Appeal From High Court to Court of Appeal
Outcome: appeal dismissed
Legal Topics: Trusts of Land, Bankruptcy Trustee Powers, Matrimonial Property Adjustment, Order for Sale of Matrimonial Home, Statutory Interpretation

Bankruptcy Family Law Property Law Trusts of Land Bankruptcy Trustee Powers Matrimonial Property Adjustment Order for Sale of Matrimonial Home Statutory Interpretation

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Parties

Vivienne Joan Avis

Appellant

Charles Hamilton Turner

Respondent

Edmund Charles Avis

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court to Court of Appeal

Legal Issues

1 Whether a trustee in bankruptcy can obtain an order for sale of a former matrimonial home where a prior matrimonial order postpones sale until specified events
2 Whether section 335A of the Insolvency Act 1986 applies to override the postponement in the matrimonial order
3 Whether section 283(5) of the Insolvency Act 1986 prevents the trustee from seeking sale

Ratio Decidendi

Court Disposition

appeal dismissed

Orders

Appeal dismissed; application for sale to proceed to hearing on the merits before the district judge or High Court.