Albert Court (Westminster) Management Company Ltd (in a representative capacity for and on behalf of its officers, employees and contractors) v Marcel Nasser Fetaimia
| Jurisdiction | England & Wales |
| Judgment Date | 27 June 2022 |
| Neutral Citation | [2022] EWHC 1657 (QB) |
| Docket Number | Case No: QB-2021-002232 |
| Year | 2022 |
| Court | Queen's Bench Division |
[2022] EWHC 1657 (QB)
HHJ Sarah Richardson
(Ssitting as a Judge of the High Court)
Case No: QB-2021-002232
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Thomas Daniel (instructed by Russell-Cook LLP) for the Claimants
The Defendants appeared in person
Hearing dates: 9–13 May 2022 and 16–17 May 2022
APPROVED JUDGMENT
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date for hand-down is deemed to be 27 June 2022.
Introduction
Albert Court is an imposing and prestigious mansion block built during the reign of Queen Victoria and located on Prince Consort Road, London. It is adjacent to the Royal Albert Hall. There are 107 apartments located within Albert Court. Two of the apartments are occupied respectively by the resident maintenance manager (the Fourth Claimant, Mr Timothy Murray) and the head porter (Mr Fabrice Jacquemard). They are both employees of the First Claimant (which is the management company that manages Albert Court on behalf of the freehold owner and the lessees of the apartments and which I shall refer to as “ACM” in this judgment). Apartment 5A is occupied by the Defendants, Mr and Mrs Fetaimia and their children.
The Claimants seek injunctive relief against the Defendants pursuant to the Protection from Harassment Act 1997 (“PFHA 1997”). The claim arises from various alleged acts of harassment which it is said the Defendants have undertaken against ACM, its directors, employees, contractors, other leaseholders and legal representatives over a period of time between November 2019 and 10 February 2022. Further details of the Claimants' allegations and the Defendants' position are set out in paragraphs 12 to 16 below.
ACM acts in a representative capacity on behalf of its officers, employees and contractors. The Second, Third and Fifth Claimants (Mr Aarons, Mr Rubie and Ms Kerman) are three of the directors of ACM. The other directors of ACM are Lady Noelle Kristin Dowd Leitch, Mr Leander McCormick-Goodhart, Mr Patrick George Burke, Mr Colin Alfred Thomas Reen and Mr Paul Henry Van Hasbroeck. Mr Peter Kenneth Merriman is the company secretary of ACM. Mr Merriman is a property manager by profession and he is also retained, through his limited company, as the Property Director for ACM. With the exception of Mr Merriman all of the directors own at least one property located in Albert Court.
Mr Aarons also acts in a representative capacity on behalf of the officers, employees and contractors of ACM. The Sixth Claimant, Mr Greenwood, is a chartered surveyor appointed by ACM as its Maintenance Director. He is not registered at Companies House as a director of ACM and as such whilst his role includes the title “director” he is not a director for the purposes of the Companies Acts.
Proceedings were issued on 9 June 2021 and an interim injunction applied for against both Defendants. At a hearing before Bourne J on 18 June 2021 the Defendants offered undertakings to the court pending a return date or further order. They sought a return date as at that juncture they opposed the First and Second Claimants acting in any representative capacity. That return date eventually took place on 13 January 2022 before Mr Richard Smith, sitting as a Deputy Judge of the High Court. Shortly before the return date the Defendants indicated that they no longer sought to argue that the First and Second Claimants could not act in a representative capacity. At the hearing on 13 January 2022 the Defendants renewed their undertakings to the court until trial or further order. What was (or was not said) by Mrs Fetaimia at the hearing before the Deputy High Court judge is one of many issues in dispute before this court.
The lease to Apartment 5A is held by Dondore Inc., a BVI registered company. As a result of litigation heard in the Chancery Division by Ms Amanda Tipples QC (as she then was) under neutral citation [2018] EWHC 1832 (Ch) Mrs Fetaimia has the benefit of a declaration that the 100% shareholding in Dondore Inc was held by Mr Richard Hitt on trust for her. Mr Hitt was the opposing party in the Chancery Division litigation. Mrs Fetaimia also has the benefit of a share transfer document signed on behalf of Mr Hitt by Master Teverson on 30 April 2019, pursuant to which the 100% shareholding was transferred to her. That document was executed within this jurisdiction in relation to a company registered under the laws of the British Virgin Islands.
Dondore Inc. was placed into liquidation in the British Virgin Islands (“BVI”) on 18 November 2019 as a result of a petition presented against it by ACM. This petition was founded on a judgment debt obtained by ACM against Dondore Inc in the County Court sitting at Wandsworth on 31 May 2019 for the sum of £11,470.32. This sum was paid in full by Dondore Inc on 18 October 2019 (prior to the date that the company was placed in liquidation). The petition was also based on interest on this judgment debt, further service and maintenance charges that had fallen due after the judgment was entered and the legal costs of ACM in pursuing proceedings in the County Court sitting in Wandsworth for forfeiture of the lease and possession of Flat 5A. Those proceedings (which were in fact issued in the name of the freeholder, Albert Court (Westminster) Freehold Limited) were dismissed by an order dated 21 October 2019 which also made no order as to costs.
The petition in the BVI was supported by Mr Richard Hitt, who in an affidavit deposed that he was the sole director and sole shareholder of Dondore Inc. and claimed to be owed a sum in excess of £1.2 million from the company.
The Second Defendant, Mrs Fetaimia, was seemingly unaware of the ongoing insolvency proceedings relating to Dondore Inc at the date of the winding up order. On 30 July 2020 Mrs Fetaimia applied in the BVI to be recognised as the shareholder of Dondore Inc. On the same date Jack J made an order that the register of Dondore Inc. be rectified to show Mrs Fetaimia as the sole shareholder. On 9 September 2020 Mrs Fetaimia applied to the Court of Appeal in the BVI for an extension of time within which to appeal the order of Jack J dated 18 November 2019 (which placed Dondore Inc. into compulsory liquidation). That application was acceded to by the Court of Appeal in the BVI on 23 November 2020, on condition that Mrs Fetaimia pay ACM's costs of the application for an extension of time to appeal. Those costs were later agreed in the sum of $75,000 (USD) plus $10,000 (USD) for the costs of the costs assessment, making a total agreed sum of $85,000 (USD).
The appeal to the Court of Appeal in the BVI is yet to be heard. In his judgment Jack J ordered that save for the $85,000 USD quantified and agreed in relation to the application for an extension of time to appeal, the costs of the petitioner (ACM) be costs in the liquidation.
The liquidation of Dondore Inc in the BVI is therefore the subject of ongoing litigation in that jurisdiction. At the outset of the hearing before me I was provided with a judgment from Mr Justice Jack. It would be inappropriate for this Court to make any comments in relation to the merits of the ongoing appeal in the BVI. Having read, seen and heard the voluminous evidence in the present case it would however be unrealistic to suggest that there is no nexus between some of the events that have occurred in the BVI and the events that occurred in the present case.
The Claimants' allegations and the Defendants' position
The Claimants' case is based on a number of actions on the part of the Defendants which they allege amount to conduct which the Defendants knew, or ought to have known amounted to harassment. These actions consist of:
(a) specific incidents which the Claimants are able to put dates on. These were initially set out in the continuation sheet to the Claim Form, which was issued on 9 June 2021. The Claimants later incorporated the incidents set out in the continuation sheet and incidents that it is said have occurred after the claim was issued into a document headed “Claimants' schedule of incidents with specific dates”. A copy of this document is attached to this judgment as Annex 1. I have numbered the allegations for ease of reference. Where I refer in this judgment to a numbered allegation, it is a reference to the numbering on this schedule. The earliest incident on the schedule is November 2019 and the last is 10 February 2022. In the events that happened the Fifth Claimant (Ms Kerman) was unable to attend court to give evidence and the Claimants did not pursue allegation 8 that in September 2020 Mrs Fetaimia made offensive and intimidating remarks to the Fifth Claimant. All other allegations were pursued at trial;
(b) allegations that the Defendants have acted in a threatening and intimidating way towards the officers, staff and contractors of the First Claimant, including making threats towards the Claimants and acting in an offensive, aggressive and threatening way towards the cleaning and porterage staff and making false allegations of bribery, fraud, theft and corruption against the directors of the First Claimant to the directors, other residents of Albert Court and...
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