Capital Home Loans Ltd v Angela Margaret Searles (Defendant/Applicant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten |
| Judgment Date | 05 July 2016 |
| Neutral Citation | [2016] EWCA Civ 858 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A3/2015/2103 |
| Date | 05 July 2016 |
[2016] EWCA Civ 858
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(MR JOHN BALDWIN QC)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Patten
A3/2015/2103
The Claimant/Respondent did not appear and was not represented
The Defendant/Applicant appeared in person
This is a renewed application by Ms Searles, the defendant in these proceedings, for permission to appeal against the order made by Mr John Baldwin QC, sitting as a Deputy High Court Judge in the Chancery Division, following a hearing between 8 and 11 June last year.
The proceedings in question are ones between Capital Home Loans Limited and Ms Searles to recover what the claimants allege was due to them under various mortgages of some seven properties in Ashford, Kent which Ms Searles had bought and then remortgaged to the claimant (which I will call CHL). The seven properties in question included six which were buy-to-let properties and a further property at 36 Swallowfield, which, as I understand it, is Ms Searles' home.
On 26 March 2010, on the basis of the arrears then in existence, CHL appointed a company called Touchstone to act as Law of Property Act receivers in respect of all the seven properties. The position, as I understand it, is that the six buy-to-let properties have now been sold but according to the accounts that has left a shortfall of some £422,735.65 plus interest outstanding on the various mortgage loans and it is to recover that indebtedness that these proceedings were commenced.
At the trial before Mr Baldwin, Ms Searles raised a number of issues. She challenged the right of CHL to appoint LPA receivers in respect of 19, Whitfeld Road on the basis that the mortgage in respect of that property was not at the relevant time in arrears. But the judge held that there was nothing in that objection to the validity of the receiver's appointment in respect of that property for the reason that under the terms of the mortgage CHL was entitled to allocate mortgage payments at its discretion between the various properties so that on the basis on which those payments had been allocated there were in fact arrears in respect of the property at 19, Whitfeld Road. But in the end nothing really turns on this because the reality of the situation is that, rightly or wrongly, receivers were appointed in respect of each of the buy-to-let properties; those properties have, as I have said, been sold; it is not alleged that they have been sold at an undervalue; and that has left a shortfall of £422,735. Even had the receivers not been validly appointed in respect of 19, Whitfeld Road so that Ms Searles arguably would have a claim for damages in respect of the sale of that property, she has in fact suffered no loss because even taking the value of the property into account there is, as I have said, a significant shortfall.
The argument before me this morning has really turned on the other aspect of the litigation which was determined at the trial, that is to say Ms Searles' counterclaim against CHL for damages for what she, I think, says amounts to the mismanagement of the property by the receivers.
The judge dismissed that counterclaim essentially because he decided on the evidence that the receivers had never ceased to be the agent of Ms Searles, the mortgagor, and had not become the agent, as she alleged, of CHL, the mortgagee, so that any claim that might exist...
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