In matrimonial proceedings a property adjustment order was made which included a provision that the property be held on trust for sale with sale being postponed until the happening of specified events and that the wife is given exclusive rights of occupation until sale. Subsequently, the husband’s trustee in bankruptcy sought an order for sale under s14 of the Trusts of Land and Appointment of Trustees Act 1996. The wife opposed the application on the basis that the trustee took the husband’s interest in the property subject to the rights conferred on her by the matrimonial order.

The Court of Appeal held that s14 enabled the court to make any order it thought fit including an order for sale, subject to consideration of the matters in s335A of the Insolvency Act 1986.

The rights conferred on the wife in the matrimonial order were not absolute rights that the property remain unsold unless and until one of the specified events occurred. They were always subject to the possibility that the court might make an order for sale. Her right to resist the sale was qualified by the rights of other persons interested in the property. The merits of the case would need to be determined to ascertain whether the circumstances of the case were exceptional so as to displace the statutory presumption under s335A that the interests of the bankrupt’s creditors outweigh all other considerations.

Vivienne Avis v Turner (trustee in bankruptcy of the property of Edmund Avis) and anor