Case No. ZZ20D65691

53.Article 6.2 states:“The parties acknowledge that Michael has signed a contract to purchase a townhouse located at 26 Downing Street, New York for a purchase price of $14.25 million, which the parties intend to utilize as their primary residence and which shall be considered a joint asset of the parties vesting at the date of closing. Michael shall be permitted to finance the purchase price by taking a mortgage on the property of up to $10 million. The contents of 26 Downing Street (or any replacement residence) shall also be considered the joint property of the parties, except for artwork which disposition shall by governed by paragraph 6.9 of this Agreement.” 54.Article 6.2.1 states:“Within thirty days from the occurrence of an Event of Marital Dissolution, if there are children of the marriage under the age of twenty-one, Alvina shall have exclusive occupancy and shall be permitted to remain in the 26 Downing Street (or if this property has been sold, in the parties’ then primary residence) until the youngest child of the marriage attains the age of twenty-one. Michael shall be responsible for making the monthly mortgage payments, payment of any real estate taxes, major repairs (subject to his being given the opportunity to arrange for such repairs), and maintaining at his expense the household staff (subject to a cap of $60,000 per year, not including a nanny, if applicable) for the 26 Downing Street (or equivalent payments for any replacement primary residence) during Alvina’s period of exclusive occupancy of the residence and Alvina shall pay all other expenses attendant to the primary residence. Alvina shall maintain the primary residence in reasonably good condition during the period of her exclusive occupancy. Upon the youngest child of the marriage attaining the age of twenty-one, the 26 Downing Street or any replacement primary residence then owned by the parties) shall be placed on the market for sale and the net proceeds of the sale, after the payment of the mortgage, broker’s fees, and all reasonable and customary clothing expenses, shall be equally divided between the parties. Michael shall not be entitled to a credit for paying down mortgage principal, if any, during Alvina’s exclusive occupancy of the residence (or otherwise).”55.When they signed the PNA on 2 March 2012 the parties were about to purchase their primary residence in Downing Street, New York for $14.25 million with borrowing of up to $10 million. They duly did so and lived there, as their primary residence until May 2017. It was sold on 25 July 2018, with net proceeds of sale of $8.8 million, 14 months after the purchase in May 2017 of the family home in London. That property was purchased for £30.2 million with a mortgage of £19.63 million, the husband putting in about £10.6 million of his own money.56.If Downing Street had been sold just before the purchase of the family home in London its net proceeds of $8.8 million would surely have been put towards the purchase price of that family home, with the husband providing that much less of his own money. It seems to me to be obvious, and in accordance with normal practice, that the proceeds of sale of the previous main family property would be put towards the purchase price of the new one. By the same token, if the new family property was in fact purchased shortly before the sale of the previous one, and bridging finance was obtained to enable that to happen, then the normal practice would be to use the proceeds of the previous home, when available, to discharge the bridging finance. It would not make any difference if the bridging finance was provided by a commercial lender, or (as here) by the purchaser using his other funds.57.I am certain that the Commuter on the Bronx Subway would say that of course the proceeds of Downing Street of $8.8 million should be treated as if they were used to purchase the London property.58.If that had happened, the husband would have put from his other funds that much less than the £10.6 million he in fact put towards the purchase of the London property. The wife’s interest in the equity of the London property would of course be the same, but that equity would encompass the proceeds of sale of 26 Downing Street. Accordingly, I agree with Mr Chamberlayne KC that were the wife to receive a credit for half the net proceeds of 26 Downing Street that would represent a double recovery. It would not reflect the fair interpretation of Article 6.2 that the proceeds of Downing Street of $8.8 million should be treated as if they were used to purchase the London property.