Consolidated Finance Ltd v Bennetts
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson |
| Judgment Date | 18 March 2010 |
| Neutral Citation | [2010] EWCA Civ 446 |
| Docket Number | Case No: B5/2009/0907, |
| Date | 18 March 2010 |
| Court | Court of Appeal (Civil Division) |
[2010] EWCA Civ 446
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PENZANCE COUNTY COURT
(His Honour Judge Griggs)
Before: Lord Justice Leveson
Case No: B5/2009/0907,
B5/2009/0907(A)
The Appellant appeared in person.
The Respondent did not appear and was not represented.
Lord Justice Leveson:
This is an application for permission to appeal against the decision of HHJ Griggs on 23 March 2009 sitting in the Penzance County Court on hearing Mr Bennetts’ appeal from the decision of District Judge Thomas on 6 November 2008. The District Judge made a possession order in favour of the respondent, Consolidated Finance, from whom Mr Bennetts had borrowed a sum secured by a mortgage over his home. At an earlier hearing it was discovered that the loan agreement and legal charge recorded at the property against which the loan was to be secured as 27 Rosparvah Gardens instead of 6 Rosparvah Gardens. Questions as to the validity of the charge arose. The title against which the charge was registered was CL127617, which in fact was the title of number 6 Rosparvah Gardens. Consolidated Finance was therefore found to have a valid charge over the property. Mr Bennetts has represented himself throughout. Consolidated Finance has variously instructed solicitor agents and counsel.
The Background
Mr Bennetts was made bankrupt by order of 30 October 2007. A company called Bankruptcy Protection Fund approached him and suggested that he could borrow sufficient funds to discharge the bankruptcy with the loan secured against his property at 6 Rosparvah Gardens, Heamoor, Penzance, Cornwall (“the property”). BPF put Mr Bennetts in touch with Consolidated Finance, who in turn offered Mr Bennetts a short-term loan on security. That offer was accepted and a loan subsequently paid (according to Consolidated Finance's representative before District Judge Thomas) directly to Mr Bennetts’ solicitors in order to discharge the bankruptcy. In February or March 2008 a legal charge purportedly over the property was executed in favour of Consolidated Finance. Mr Bennetts unfortunately failed to pay the moneys due under the charge, and Consolidated Finance issued a claim for possession on or around 21 July 2008 (see paragraph 2 of the defence).
In the meantime a possession order in the form of an Unless Order was made by District Judge Thomas in respect of the property on 22 May 2008 in favour of Jolly's Drinks. Thus, unless a judgment debt of £4,804.37 was paid to Jolly's Drinks by 15 August, possession was to be delivered by 29 August. At a hearing before District Judge Middleton in September 2008, the District Judge indicated that the charge might be against the wrong property. He adjourned the possession until 6 November and extended the time for Mr Bennetts to file and serve a defence until 4.00 p.m. on 26 September. Mr Bennetts says that he did file a defence, a copy of which is included with my papers.
At the adjourned hearing before District Judge Thomas on 6 November, Mr Robertshaw appeared on behalf of Consolidated Finance and Mr Bennetts did not attend. He was then ordered to give up possession of the property by 4 December; he appealed that order. His Honour Judge Griggs, sitting at Exeter County Court on 12 December, considered Mr Bennetts’ Appellant's Notice, and ordered that execution should be stayed until he had seen District Judge Thomas's reasons for making a possession order. Permission was subsequently granted on 27 January 2009.
Judge Griggs heard the appeal on 23 March 2009. Mr Bennetts attended. Consolidated Finance was represented by a Miss Spencer. The judge dismissed the appeal, and varied District Judge Thomas's order so that the date by which possession was to be given was postponed until 20 April 2009. Permission to appeal that order was refused. The decision was appealed.
I deal first with the decision of District Judge Thomas on 6 November. The District Judge noted that Mr Bennetts had written and said that he would not be attending due to work commitments. He further observed that he knew Mr Bennetts well. Mr Robertshaw, who appeared for Consolidated Finance, took the District Judge through the background facts. He said that the question for the District Judge was whether the mistake as to the address for the property was a slip, or whether it was something so fundamental that it met the claim in its entirety. The District Judge asked how it was that a charge that refers to property A is read as attaching to property B. Mr Robertshaw explained that the title number referred to the correct property. He went on to say that Consolidated Finance registered its charge on the office copy, which has the correct address.
The District Judge gave his judgment in just one short paragraph:
“I observed some minutes ago perhaps unwisely that the claimants were and I will quote myself, ‘Stuffed’ by reference to the error in the address. It seems to me that the material question is whether the Claimant's charge is correctly registered against the correct address and the answer to that is simply yes. If it was otherwise then my earlier comment would be apt. It is not so, they are entitled to possession.”
The order records that possession was to be given on or before 4 December.
On 23 March 2009 Judge Griggs decided the appeal. He recited the procedural history of the matter, and the reasons he gave for permission to appeal; namely, that he...
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