Argyle Building Society (Plaintiff v (1) David Hammond (First Defendant) (2) Claire Madeleine Hammond (Second Defendant) (3) Michael Derek Steed (Third Defendant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE |
| Judgment Date | 18 October 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J1018-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0370 Case No. 83 07839 |
| Date | 18 October 1984 |
[1984] EWCA Civ J1018-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BARNET COUNTY COURT
(HIS HONOUR JUDGE GOLDSTONE)
Royal Courts of Justice
Lord Justice Lawton
Lord Justice Slade
and
Sir David Cairns
84/0370
Case No. 82 00573
Case No. 83 07839
MR. ANDREW WALKER (instructed by Messrs. Colin Bishop & Co, Solicitors, London N3 1HH) appeared on behalf of the Third Defendant (Respondent) in Case No. 82 00573 and on behalf of the Second Defendant (Respondent) in Case No. 83 07839
MR. JAMES LECKIE (instructed by Messrs. Warrens, Solicitors, London WC1N 2AT) appeared on behalf of the Plaintiff (Respondent) in Case No. 82 00573
MR. JAMES LECKIE (instructed by Messrs. Braby & Waller, Solicitors, London EC4A 4DS) appeared on behalf of the Plaintiff (Respondenet) in Case No. 83 07839
This is the judgment of the court on an appeal by Mr. Michael Derek Steed from an order of His Honour Judge Goldstone made at the trial of two actions in the Barnet County Court on 18th November 1983.
In the first action, Case No. 8200573, ("the Argyle action") the plaintiff was Argyle Building Society ("Argyle"). The three defendants were Mr. David Hammond, Mrs. Claire Madeleine Hammond and Mr. Steed. By his order in the Argyle action, the judge (inter alia) made an order against Mr. Steed for possession of a property known as 2 Arlow Road, Winchmore Hill, London N.21 ("the house") in favour of Argyle within a period therein specified.
In the second action, Case No. 8307839, ("the Provident action") the plaintiff was Provident Mutual Life Assurance Association ("Provident"). The three defendants were the same as the defendants in the Argyle action. By his order in the Provident action, the judge (inter alia) made a possession order in respect of the house against Mr. Steed in favour of Provident.
The appeal now before the court is an appeal by Mr. Steed against the possession order made against him in the Argyle action. He has also appealed against the possession order made against him in the Provident action, but that appeal has not been proceeded with pending the decision of the present appeal.
The relevant facts may be summarised quite shortly for present purposes. In 1964 Mr. Steed became the freehold owner of the house and was registered as proprietor of it with title absolute at H.M. Land Registry on 22nd October 1964 under Title No. MX 58720. In 1976 Mr. Steed, according to his evidence, went to live in America, leaving living in the house his mother, Mrs. Mary Steed, and also his sister, the second defendant, who subsequently married the first defendant, Mr. Hammond.
Again according to Mr. Steed's evidence, one or both of Mr. and Mrs. Hammond then conceived a fraudulent scheme for obtaining money. Mrs. Hammond, so it is alleged, went to America and there induced Mr. Steed to sign a power of attorney dated 14th April 1979 purporting to empower Mrs. Mary Steed (inter alia) to sell the house on his behalf. Mr. and Mrs. Hammond, or one of them, so Mr. Steed alleges, then arranged for the execution of what purported to be a transfer of the freehold of the house by Mrs. Mary Steed dated 4th September 1979, in exercise of her power of attorney in favour of Mr. and Mrs. Hammond. He alleges, however, that the purported signature of Mrs. Mary Steed on the transfer was a forgery.
Also on 4th September 1979, Argyle advanced a sum of £15,000 to Mr. and Mrs. Hammond on the security of a Legal Charge of the house which they executed in favour of Argyle the same day. It is not suggested on behalf of Mr. Steed that Argyle entered into this transaction with actual knowledge of the alleged forgery or otherwise than in good faith.
On 9th October 1979 Mr. and Mrs. Hammond were registered at H.M. Land Registry as joint proprietors of the house in the place of Mr. Steed. Also on 9th October 1979, the Legal Charge of 4th September 1979 in favour of Argyle was registered in the Charges Register at H.M. Land Registry.
By a Legal Charge of 24th July 1981 Mr. and Mrs. Hammond executed a Legal Charge of the house in favour of Provident to secure the repayments of an advance of £10,000 and interest. This Charge was expressed to be subject to the Legal Charge of 4th September 1979 in favour of Argyle.
Provident was registered as second chargees in the Charges Register at H.M. Land Registry on 31st July 1981.
Mr. and Mrs. Hammond defaulted in payment of the sums due to Argyle and to Provident under their respective Legal Charges.
On 1st February 1982, Argyle instituted proceedings (the Argyle action) against Mr. and Mrs. Hammond seeking an order for possession of the house. There then followed a tangled procedural history, which we think unfortunately led to considerable confusion at the trial of the two actions. This history has been set out in some detail in an affidavit dated 27th January 1984, sworn on behalf of Mr. Steed by Jennifer Mary Trust, the solicitor who at that date had the conduct of the matters on his behalf. For present purposes we think it will suffice to summarise it thus.
By January 1983, Argyle had obtained an order for possession of the house as against Mr. and Mrs. Hammond, and a warrant for possession had been issued for execution on 8th February 1983. On 8th February 1983 Mr. Steed obtained an order from the Barnet County Court staying the warrant on terms and giving him leave to be joined as a defendant to the Argyle action conditional on his filing an affidavit and satisfying the court that there was a prima facie case that he had an interest in the house.
On 21st February 1983 he swore an affidavit setting out the history of the matter from his point of view. At that stage it appears that Mr. Steed still knew no details of the transactions which had taken place. He said that the only document relating to the house which he remembered signing between the time he emigrated and the time he learned of the Argyle action was a document which Mrs. Hammond produced and led him to believe required his signature so that repairs could be effected to the roof. He said he never conveyed or intended to convey the house to the Hammonds, and that, if any loans had been raised on its security, this had been done without his knowledge or consent. Finally, he expressed his wish to intervene in the Argyle action so as "to attempt to rectify whatever was done illegally or fraudulently". No allegation of forgery was made at that stage.
On 24th March 1983 Mr. Steed was added as a defendant to the Argyle action. No direction was given on that occasion, or at any of certain subsequent interlocutory hearings in the matter, for the filing by him of any pleading by way of defence.
On 11th November 1983 Provident instituted the Provident action against all three defendants, claiming possession of the house and payment.
On 17th November 1983 the two actions came on for hearing before Judge Goldstone. We have some sympathy with him in finding himself, as he did, faced with a procedural position of some complexity, aggravated by the fact that, beyond Mr. Steed's affidavit, there was no written statement or pleading of Mr. Steed's case. From the papers originally filed on this appeal, it is very difficult indeed to discern the precise course which the hearing before him took. But we have been assisted in this respect by a full account of this given by Mr. Leckie, who appeared on behalf of Argyle at the trial, (as before us), coupled with what purports to be a note of the hearing, though the origin of this note is unknown to us and it has apparently not been approved by the learned judge himself. The obscurity of the course of the trial, and indeed of the precise nature of the orders and directions which he gave, is illustrated by the fact that there are with our papers several documents in different form which purport to represent copies of these orders and directions. We do not think that any of them are accepted by both sides on this appeal as accurately and fully embodying these orders and directions.
However, while Mr. Walker, who now appears for Mr.Steed, did not represent him at the hearing before Judge Goldstone, we think it is now more or less common ground that the hearing broadly took the following course. While Argyle, Provident and Mr. Steed were each represented by separate counsel, Mr. and Mrs. Hammond appeared in person. On the first day of the hearing (17th November 1983), by consent of all parties, it was agreed that both actions should be heard together and that the evidence in the one case should be evidence in the other. It was also agreed that matters should begin by Provident opening its case agianst the Hammonds and that, after the completion of that opening, Argyle should open its case against Mr.Steed. On Provident's application, Mr. and Mrs. Hammond accepted that it had a right to a possession order against them. Particulars of the mortgage arrears were produced. The judge accordingly made a monetary order and an order for possession against Mr. and Mrs. Hammond in favour of Provident.
Mr. Leckie then proceeded to open the Argyle action against Mr. Steed. In the absence of any pleading from Mr. Steed, the judge by consent directed that his affidavit of 21st February...
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