Axnoller Events Ltd v Nihal Mohammed Kamal Brake
|England & Wales
|25 February 2022
| EWHC 365 (Ch)
|Case No: E00YE350
 EWHC 365 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: E00YE350
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Edwin Johnson QC and Niraj Modha (instructed by Stewarts Law LLP) for the Claimant
The Defendants in person
Hearing dates: 7–24 September 2021
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is my judgment on the trial of a claim, made by claim form issued on 19 November 2018, for (i) possession of West Axnoller Farm (“the Farm”), near Beaminster in Dorset (this includes the main house, which I shall call “Axnoller House” or “the house”, and associated equestrian facilities, as well as the remaining land of the original dairy farm), (ii) mesne profits and/or damages, and (iii) damages for wrongful interference with the claimant's goods. The claimant claims to be the legal owner of the fee simple estate in the Farm. The defendants do not challenge the claimant's title to the Farm, but resist the claim to possession, asserting various forms of licence or tenancy in doing so. They also deny the claims for damages.
At the request of the parties, I am giving judgment simultaneously in another action between (in effect) the same parties, called (where the defendant wholly owns the claimant in this case, and the claimants are the present defendants). That case has been colloquially referred to as the “Eviction Proceedings”, to distinguish it easily from this case, which is called the “Possession Proceedings”. Rather than refer readers of this judgment to the other judgment for certain background and other information, I am going to set out certain material in effect twice, once in each judgment, so as to make each judgment self-contained. In any event, the two cases differ in certain details, and this approach means that each judgment can be tailored to the needs of the particular case.
Regrettably, this claim is only one part of much wider litigation between the parties. Until recently, the defendants were represented by solicitors and leading and junior counsel. However, in March this year both of the defendants' counsel withdrew from the litigation generally, and in particular withdrew from representation in the present claim. The defendants' solicitors continued on the record until June 2021, when they also withdrew. The trial of this claim had previously been listed for April to May last year, but after an application to adjourn was made to me I vacated that listing and relisted it for last September: see . Because it was envisaged that the defendants would represent themselves, the first defendant Mrs Brake conducting the advocacy on behalf of both defendants, and she has a number of medical conditions, I agreed that the trial would be conducted in half days only. In fact, and either at her request or with her agreement, I sat into the afternoon on three days out of 15.
Although I shall have to return to some of the material in more detail later, I set the context for the present claim by providing some background, which refers to some of the other litigation between the parties. I have adapted this from similar statements in earlier judgments of mine.
West Axnoller Farm
In September 2004, the first defendant (then Mrs D'Arcy, but whom I shall call by her current name, Mrs Brake) acquired the Farm, near Beaminster in Dorset, from local landowners, the Vickery family (who continued to have substantial landholdings locally). This property included a substantial dwelling-house known subsequently as Axnoller House. Just outside the southern boundary of the Farm, on the other side of the private lane leading to the Farm, lies another, smaller residential property known as West Axnoller Cottage (the “cottage”). In July 2002 a Mr and Mrs White had purchased the cottage from the Vickery family and were living there when Mrs Brake bought the Farm.
In 2006 Mrs Brake began to operate a holiday letting business at the Farm, subsequently joined in partnership in 2008 by her husband, the second defendant (“Mr Brake”). Mrs Brake borrowed money from bankers Adam & Co in 2006, secured by a first legal charge on the Farm. The financial crisis of 2008 made it impossible to obtain further bank finance to expand the business being carried on at the Farm. The defendants therefore looked for an outside investor.
The “Stay in Style” Partnership
In February 2010 Mr and Mrs Brake (“the Brakes”) entered into a partnership with a limited partnership called Patley Wood Farm LLP (“PWF”), whose principal was Mrs Lorraine Brehme (“Mrs Brehme”). The partnership (known as “Stay in Style”) was to carry on the business of providing luxurious weekend and other breaks, and hosting events such as weddings. The Brakes contributed the Farm as partnership property, although still subject to the charge to Adam & Co to secure existing borrowings. With funds contributed by Mrs Brehme through PWF, on 8 April 2010 the partnership acquired the cottage, the legal title to which was transferred to the Brakes and Mrs Brehme jointly, who were registered as proprietors. At first the cottage was used as accommodation for a housekeeper and then for a personal assistant (Simon Windus) and his family. After they left in 2012 it was used (inter alia) for the Brakes and Mrs Brake's young son Tom D'Arcy to stay in when the main house was let.
Differences arose between the Brakes on the one hand and PWF on the other, as partners in Stay in Style. In accordance with the partnership agreement, these were referred to arbitration, which ended on 21 June 2013 with an award in favour of PWF, and the dissolution of the partnership. Following a failure to pay orders made against them for costs in the arbitration, the Brakes were adjudicated bankrupt on 12 May 2015. Mr Duncan Swift was appointed trustee in bankruptcy with another person, who later retired and was not replaced. The partnership itself subsequently went into administration (in 2016), and then into liquidation (in 2017).
The Sale of West Axnoller Farm
In October 2014 Adam & Co, the bank which had lent money to Mrs Brake against the security of the Farm, appointed receivers under the Law of Property Act 1925. After marketing the property, the LPA receivers sold it in July 2015 to a newly incorporated company, Sarafina Properties Limited (“Sarafina”, or “SPL”), said to be a corporate vehicle for the Hon Saffron Foster (“Mrs Foster”), a daughter of the third Lord Vestey, as well as a friend of Mrs Brake. Sarafina did not purchase the wedding and events business of the partnership. It was not the receivers' to sell. But Sarafina honoured existing bookings, and continued in the same line of business, albeit that, as explained below, for the first six months, Mrs Brake was restrained by injunction from working in it.
The involvement of Dr Guy
In February 2017 the company was sold to The Chedington Court Estate Ltd (“Chedington”), and on 18 July 2017 its name was changed to Axnoller Events Limited (“AEL”). It is the claimant in this claim. Chedington is a company owned by Dr Geoffrey Guy (“Dr Guy”) and his wife Mrs Kate Guy. I refer to Dr Guy, Chedington and AEL collectively as “the Guy Parties”. Mrs Brake was employed to continue to run the wedding and rental accommodation business as before.
However, relations between the parties unfortunately broke down, and on 8 November 2018 notice by letter was given to each of Mr and Mrs Brake of the termination of their employment. This also gave notice to them of the termination of any licence to stay overnight in Axnoller House and required them to move their possessions to the cottage by 30 November 2018. The Brakes did not do so, but continued to stay in Axnoller House. These various events led both to proceedings in the employment tribunal against Chedington and others by each of the Brakes (“the Employment Claims”), and proceedings in the County Court (later transferred to the High Court) by AEL against the Brakes and Tom D'Arcy to recover possession of the Farm (“the Possession Claim”). The latter is the claim the subject of this judgment. (Tom D'Arcy was later removed as a defendant to this claim.)
Following this, in January 2019, Mr Swift as trustee in bankruptcy entered into a transaction with the liquidators of the partnership in relation to the cottage, to acquire the liquidators' rights in it. Chedington entered into back-to-back transactions with Mr Swift in order to acquire those rights. The Brakes allege that Chedington and Mr Swift acted collusively, implementing “unlawful arrangements to create the false appearance that Chedington had acquired title to the cottage”. Chedington subsequently took possession of the cottage, the Brakes say unlawfully. They therefore commenced eviction proceedings against Chedington (“the Eviction Claim”). Those proceedings are the subject of the judgment being given simultaneously with this one. So, the position on the ground currently is that the Brakes are in occupation of the house, but seek possession of the cottage, whereas Chedington is in occupation of the cottage, and its subsidiary AEL seeks possession of the house.
In addition to all this, on 12 February 2019 the Brakes commenced insolvency proceedings (the “Liquidation Application” and the “Bankruptcy Application”) against both the liquidators of the partnership and their...
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