G v A (No 4)(Schedule 1 settlement of property): the judge has granted permission for this judgment to be published
Case No: FD 03P02333
IN THE MATTER OF THE CHILDREN ACT 1989, SCHEDULE 1
AND IN THE MATTER OF N (A CHILD)
Chester Civil Justice Centre
Before:
THE HONOURABLE MR JUSTICE PETER JACKSON
Between :
G (mother) | Applicant |
- and - | |
A (father) - and - Dr Michael Pelling (trustee) -and - Mr Ian Swycher (trustee) | Respondents |
Mr Ian Swycher appeared in person
Mr David Holden appeared with the permission of the court under the Legal Services Act 2007) for the Applicant
The Respondent father was not present but made written submissions
Dr Michael Pelling was not present but made written submissions
Hearing date: 23 November 2011
JUDGMENT
JUDGMENT: G v A (No 4)
Mr Justice Peter Jackson:
This is the fourth, and hopefully the last, in a series of judgments in this matter.
On 19 and 22 September 2011 I made orders designed to ensure that the 2005 order could finally be put into effect with the purchase of a trust property for N (10) to live in.
The father and Dr Pelling duly appealed. On 18 November the Court of Appeal refused their application for permission to appeal. In doing so, Thorpe LJ described the fact that the 2005 order had not been implemented as nothing short of shocking and expressed the hope that there would be an early conclusion.
On 20 November, Mr Swycher applied for orders to facilitate the purchase of a property, the mother having identified a new property (‘25A’) and Mr Swycher as trustee having concluded that it was suitable for the trust to buy, having consulted the father and Dr Pelling. A survey describes 25A as lying in a pleasant residential road. It has been maintained to a relatively good standard but with some items of a relatively minor nature outstanding. Woodworm in the roof needs attending to (£760). Overall, the property should be a worthwhile investment and a comfortable and pleasant residence.
The reason why a further order was needed was because Mr A and Dr Pelling had between them communicated with the solicitors instructed by Mr Swycher to handle the purchase and with the estate agents selling 25A, and with Lloyds Bank, who hold the trust funds. These communications caused those third parties to be concerned about accepting instructions from Mr Swycher alone.
Mr Swycher and the mother filed evidence charging the father and Dr Pelling with obstructing the purchase by a combination of interventions, complaints and inactions.
The mother says that N has told her that the father played him a recording of the traffic noise outside the house.
The father did not attend the hearing, which took place at short notice on circuit, but responded in writing. He said that he wanted a home to be purchased for N but objected to 25A, which he had visited. The property is too big and has worse woodworm than noted in the surveyor’s report; it also has problems with the roof and it is on a busy road. There are issues about past planning consents. Better properties are available. He had given his photographs to another surveyor, who had provided a report commenting adversely on the property and saying that it would be unwise to rely on the existing report.
Dr Pelling did not attend the hearing, but wrote to the court. He disputed that he had interfered with the purchase process and said that he could not act as a “puppet trustee” and was accordingly and thereby resigning.
Having considered the material provided by the father, Mr Swycher indicated that he would commission further advice from the surveyor about the condition of the roof. The purchase would only proceed if he was satisfied that the property remained an appropriate one for the trust to own.
I made the following orders:
UPON READING the statements of Mr Swycher and Ms G dated 20 November 2011, the emails to the Court from Dr Pelling dated 22 November and Mr A dated 23 November;
AND UPON HEARING Mr Swycher in person and Mr Holden as advocate for Ms G, who also attended the hearing;
AND UPON there being no attendance by Mr A or Dr Pelling;
AND UPON:
The Court being determined that a property is purchased for the occupation of the child without further delay
The Court having accordingly authorised Mr Swycher to act as a sole trustee to ensure that a suitable property is purchased
Dr Pelling having written to the solicitors instructed on behalf of the trust by Mr Swycher on 9 November 2011 and telephoned the estate agents on or about 18 November
Mr A having communicated with the solicitors instructed on behalf of the trust
The application by Mr A and Dr Pelling to the Court of Appeal having been dismissed on 18 November 2011
Dr Pelling having resigned as a trustee of the [name] Settlement on 22 November
The Court being anxious to prevent a property purchase being hindered by actions taken by or on behalf of Mr A or Dr Pelling
IT IS ORDERED AND DECLARED THAT:
Mr Ian Swycher, acting alone as sole trustee, is hereby empowered to take all necessary and incidental steps to complete the purchase of a trust property, both generally and in the specific respects provided in this order.
Mr Swycher acted lawfully on behalf of the trust in making payments of £720 and £500.
Dr Pelling acted lawfully in lawfully on behalf of the trust in making payments totalling £118.45.
Mr Swycher and any person or organization acting on his instructions shall be indemnified by the trust against any liability for any act carried out in good faith.
In particular:
Lloyds Bank plc may accept instructions from Mr Swycher acting alone as trustee of the [name] Settlement in relation to the payment out of sums from the trust account in connection with a purchase of trust property, and shall not accept instructions from Mr A or Dr Pelling.
Solicitors instructed by Mr Swycher (whether [name] or any other solicitors instructed by Mr Swycher) may accept instructions from Mr Swycher acting alone as trustee of the [name] Settlement in relation to the property purchase, whether or not Mr Swycher is a connected person within the meaning of the trust deed dated 11 May 2011, and shall not accept instructions from Mr A or Dr Pelling.
HM Land Registry may register any trust property in the sole name of Ian Swycher as trustee notwithstanding the absence of a second trustee, and shall not accept instructions from Mr A or Dr Pelling.
In the event that, notwithstanding the terms of this order, either Lloyds Bank or the solicitors or HM Land Registry or any other like person or body requires any document to be signed on behalf of the trust, the same shall be signed as a matter of urgency by the District Judge of the Day on a without notice application being made by Mr Swycher.
Mr Swycher is at liberty to seek any further directions in connection with the purchase of the property by making written application to Mr Justice Peter Jackson, copying it to Ms G and Mr A.
Mr A and Dr Michael Pelling are each prohibited until further order from communicating either directly or indirectly with the seller, seller’s agents, trust solicitors or Lloyds Bank plc in relation to the property [25A]. This order does not prevent Mr A from communicating with Mr Swycher as trustee.
Following the purchase of a trust property, Ms G, Mr A and Mr Swycher shall agree upon whether a second trustee should be appointed in place of Dr Pelling. Failing agreement, the matter shall be determined on application by Mr Justice Peter Jackson.
Costs and expenses:
Mr Swycher and Ms G having sought an order for costs in the sum of £215.20 against Mr A and Dr Pelling in respect of the costs of today, and Dr Pelling having sought reimbursement of the sum of £118.45 as referred to at paragraph 3 above:
Mr A and Dr Pelling shall pay the costs of Mr Swycher and Ms G in the total sum of £215.20 within 14 days of service upon them of this order.
Within 14 days of the above order for costs being satisfied in full, the trust shall reimburse Dr Pelling in the total sum of £118.45.
It is unnecessary to justify these orders in detail. Whether or not it was their intention, the actions of the father and Dr Pelling continued in a manner that could be foreseen to serve as a deterrent to the smooth achievement of a purchase. Orders to assist Mr Swycher were necessary.
As to the suitability of the property, the father has in effect lost the right to have a determining view. The mother says that it is a nice property and that N is excited to be moving there. The time has come for her view and that of Mr Swycher to prevail, whether in relation to this property purchase or any other.
Since receipt of my order, Dr Pelling asks to be discharged as a party, and I shall so order.
He also notes that paragraph 9 of the order is unusual and should be explained. It is an unusual order but these are – thankfully – unusual circumstances. The deed of settlement provides for the father as settlor to nominate a trustee. In the light of the court’s experience of the manner in which Dr Pelling carried out that role, it will need to be satisfied that any replacement trustee will act in accordance with the trust’s objectives.
The reason for the modest order for costs against the father and Dr Pelling is that the application was made necessary by their actions following my September orders.