Christopher Wood as Trustee in Bankruptcy of Keith Lowe and Administrator of the Estate of Alan Lawrence Ross (Deceased) v Keith Lowe and Others
| Jurisdiction | England & Wales |
| Judge | HH Judge Roger Kaye |
| Judgment Date | 05 May 2016 |
| Neutral Citation | [2016] EWHC 1010 (Ch) |
| Court | Chancery Division |
| Date | 05 May 2016 |
| Docket Number | Claim Nos 1273 of 2014, 1109 and 254 of 2014, 827 of 2015: |
[2016] EWHC 1010 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LEEDS DISTRICT REGISTRY
IN BANKRUPTCY
IN THE MATTER OF THE INSOLVENCY ACT 1986
RE: KEITH LOWE, ALAN LAWRENCE ROSS (DECEASED), EMMA JANE LOWE-MARSHALL and ANNE ELIZABETH LOWE
Leeds Combined Court Centre
The Courthouse,
1, Oxford Row
Leeds LS1 3BG
His Honour Judge Roger Kaye QC (Sitting as a High Court Judge)
Claim Nos 1273 of 2014, 1109 and 254 of 2014, 827 of 2015:
Simon Passfield instructed by Prodicus Legal appeared for the Applicant
The first and second respondents appeared in person
Eleanor d'Arcy instructed by Carrick Read Insolvency appeared for the third and fourth respondents
Jonathan French instructed by Lupton Fawcett Denison Till appeared for the fifth respondent on costs only
Hearing dates: 7–11 March, 11 April 2016
Hand down Judgment 5 May 2016
HTML VERSION OF JUDGMENT APPROVED
HH Judge Roger Kaye QC:
Introduction
This is another case in the sad continuing litigious saga of the complex corporate, financial, legal and property affairs of the first and second respondents, a Mr Keith Lowe ("Mr Lowe") and Mrs Anne Lowe ("Mrs Lowe") (particularly the former) and their family [1].
The instant case chiefly concerns the beneficial ownership of two properties:
• First, The Grange, Priesthorpe Road, Farsley, Pudsey, LS28 5RE currently registered (since 7 June 2004) in the sole name of Mr Lowe at HM Land Registry with freehold title absolute and comprised in title number WYK221723 [2]. It has sometimes been referred to as "Upper Grange" and "Lower Grange" (reflecting different parts of the property) but I shall refer to it simply as "The Grange". By way of an undated assignment thought to have been made on 6 November 2002 ("the 2002 Assignment") the beneficial interest in the Grange was assigned to the third respondent, Mrs Emma Lowe-Marshall (I hope she will forgive me if, for shortness sake, I refer to her as "Emma"), the daughter of Mr and Mrs Lowe, for an expressed consideration of £250. The assignment of the beneficial interest (which is not registered or noted in any way against the registered title of the Grange) was made by a Mr Peter Sargent, Mr and Mrs Lowe's then trustee in bankruptcy. The Grange is currently occupied by Emma and her husband, the fourth respondent ("Steven") and their children.
• Secondly, Belvedere Hall, Main Street, Darley, Harrogate, HG3 2QF formerly known as Walker Barn ("Belvedere Hall"). This property is also registered at HMLR and comprised in title number NYK309574. It is registered in the joint names of Mr Lowe and his wife, Mrs Anne Lowe ("Mrs Lowe") and is expressly held on trust for themselves as tenants in common in equal shares. By a Tomlin Order made in previous proceedings (also before me) on 11 February 2016 Mrs Lowe transferred all or any interest she might have in this property to the applicant (as liquidator of Capital Design Build Ltd ("CDBL")) [3].
The applicant, Mr Christopher Wood ("Mr Wood") is an insolvency practitioner employed by BHP Clough Corporate Solutions LLP of Cleckheaton, West Yorkshire. Mr Peter Sargent above-mentioned, the former trustee in bankruptcy of Mr and Mrs Lowe in their previous bankruptcy in 1996, is now a consultant in the same firm.
Mr Lowe's affairs have now been intertwined with Mr Wood for some time. Mr Wood:
• was appointed trustee in bankruptcy of Mr Lowe on 20 February 2014 following the making of a further bankruptcy order against Mr Lowe on 11 November 2013 on his own petition;
• is also the insolvent administrator (appointed on 20 November 2012) of the estate of the above-named Alan Ross, deceased ("Mr Ross"), a former close family friend of Mr and Mrs Lowe and who died on 22 October 2011;
• is also the liquidator of two corporate ventures associated with Mr Lowe or his affairs, Heating Electrical Lighting and Piping Ltd ("HELP") and CDBL.
Mr Wood now claims in the proceedings before me:-
• First, by an application dated 10 June 2015 ("the Possession Application") an order for the possession and sale of The Grange and of Belvedere Hall. Emma claims the entire beneficial interest in both properties, thus contending that Mr Wood is not entitled as he claims. In this respect she is supported by her father and mother and her husband, the fourth respondent ("Steven").
• Secondly, by an application dated 17 September 2015, an order to set aside (on grounds of material irregularity) joint individual voluntary arrangements ("IVAs") approved at a creditors' meeting on 28 July 2011 proposed by Emma and Steven ("the IVA Application"). The fifth respondent, Mr Martin Halligan, an insolvency practitioner and proprietor of MPH Recovery of Morley, Leeds, acted as nominee and supervisor of this IVA. He has taken no part in the proceedings (with the acceptance of all concerned) save on the question of costs depending on the outcome. This application was a satellite application to the Possession Application and in seeking to set aside the joint IVAs (depending on the outcome of the Possession Application) Mr Wood, as I understood it, ultimately sought recovery of property (namely the Grange and Belvedere Hall) on the footing that, if these properties were owned beneficially by Emma, and (in the case of Belvedere Hall) purchased with moneys advanced by her to her parents to facilitate the purchase, then these assets (the Grange, Belvedere Hall and the benefit of the debt owed by Mr and Mrs Lowe) ought to have been disclosed in the proposals for the IVA but were not. As the case progressed however, Mr Passfield, counsel for Mr Wood, in closing expressly abandoned pursuing this application further.
The Issue and Burdens of Proof
The remaining central issues therefore are whether the two properties are, or are not, beneficially vested in Emma.
Mr Wood's position is relatively simple:
• The Grange is registered in the sole name of Mr Lowe. But for the 2002 Assignment, the entire legal and beneficial interest in this property would vest in him as Mr Lowe's trustee in bankruptcy. Although initially inclined to challenge the validity of the 2002 Assignment (no original has been produced, that in the bundle [4] is an undated photocopy specifying the month as September but in fact is thought to have been executed or delivered on or about 6 November 2002), Mr Wood now accepts the assignment as a genuine copy executed by Mr Sargent. His case is that Emma has at all times been a nominee for her father who is the true beneficial owner.
• As to Belvedere Hall, where the property is registered in the joint names of Mr and Mrs Lowe, here the expressed beneficial interests were declared at time of acquisition by Mr and Mrs Lowe in their favour as tenants in common in equal shares. Mrs Lowe, having assigned any interest she has in this property to Mr Wood as liquidator of CDBL under a compromise of earlier proceedings (see above and below), the remaining interest of Mr Lowe vests in Mr Wood again as Mr Lowe's trustee in bankruptcy. Emma, however, now also claims that Belvedere Hall was purchased solely with moneys emanating from proceeds of sale of part of the Grange and hence is also to be regarded as her property notwithstanding it was purchased in the name of her parents and the beneficial interests declared. Her case (as advanced on her behalf by Miss d'Arcy) is based on either a constructive or resulting trust (thus avoiding the necessity for writing under s 53(2) Law of Property Act, 1925) but as regards which the declaration of trust made on the 7 October 2013 [5] ("the 2013 Trust") in her favour is confirmatory (below). Mr Wood's case is that Emma fails to demonstrate she has any such beneficial interest or if she has any such interest as with the Grange she holds as a mere nominee or cipher for her father.
Representation
Mr Wood, as mentioned, was represented by Mr Passfield. Mr and Mrs Lowe have throughout represented themselves. In practice this took the form largely of Mr Lowe, no stranger to the practice and procedure of civil courts, representing himself and his wife. I acknowledge that whatever may be said as to their conduct behind the scenes, they both presented and represented themselves throughout with dignity, politeness, and restraint.
Emma and Steven were both represented by Miss d'Arcy. Steven, joined no doubt because he and Emma (plus their children) occupy The Grange, gave evidence, but took little part in the proceedings. He did not and never has claimed any interest in the two properties.
Mr Halligan I have dealt with above.
I was much assisted by Mr Passfield and Miss d'Arcy and by Mr and Mrs Lowe in their respective written and oral opening and closing submissions, arguments, and presentation of their case for which I am grateful.
The Evidence
All parties filed witness statements.
For the applicant, I heard evidence from Mr Wood.
For the respondents I heard evidence from them all (save Mr Halligan).
I deal with much of their evidence (particularly Emma's) in the main below, but I should state at the outset that despite Mr Lowe's impeccable conduct in his manner of presentation I have treated his evidence with a degree of caution not least because he admitted and accepted that his memory was not reliable. He was on medication which, he said, affected his memory and largely meant his recollection of events was based on enlightenment from documents. Undoubtedly however he was the major influence in his family and the controlling and instrumental will and mind at least so far as their business, financial,...
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