Courtwood Holdings S.A. (a company registered and incorporated under the laws of Panama) v Woodley Properties and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Asplin |
| Judgment Date | 18 May 2016 |
| Neutral Citation | [2016] EWHC 1168 (Ch) |
| Docket Number | Case No: HC-2015-002163 |
| Court | Chancery Division |
| Date | 18 May 2016 |
[2016] EWHC 1168 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Rolls Building
Fetter Lane, London, EC4A 1NL
The Hon Mrs Justice Asplin DBE
Case No: HC-2015-002163
Case No: HC-2015-002636
Mark Cunningham QC and Gregory Banner (instructed by Wallace LLP) for the Claimant
Brie Stevens-Hoare QC and Harriet Ter-Berg (instructed by CMS Cameron McKenna LLP) for D1, D4, D8, D11 and D12
Thomas Robinson (instructed by Isadore Goldman) for D5 and D10
Hearing dates: 19 th, 20 th and 21 st April 2016
The first day of the hearing in this matter was the return date of the application of the Claimant, Courtwood Holdings SA, a company registered in and incorporated under the laws of Panama ("Courtwood") for a proprietary injunction and disclosure of information against the First Respondent/Defendant, Woodley Properties Limited, a company registered in and incorporated under the laws of Jersey ("WPL"). An interim injunction which was applied for without notice albeit on notice was first granted by Hildyard J on 31 July 2015. On 6 August 2015 Mann J accepted an undertaking by WPL over to the return date.
There are also a number of other applications before the Court: by two applications both dated 6 October 2015, WPL and the Fourth Defendant, the Right Honourable David Mellor, ("Mr Mellor") respectively apply to strike out the Particulars of Claim pursuant to CPR 3.4(2)(a) and/or (b) on the basis that they do not disclose a cause of action or an abuse of process or alternatively seek summary judgment pursuant to CPR 24 on the basis that Courtwood has no real prospect of succeeding on the claim and there is no other reason why the case should be disposed of at trial; the same relief is sought by the Eighth Defendant, Tamadot Capital SA, ("Tamadot"), the Eleventh Defendant, Charlestown Management Limited ("Charlestown") and the Twelfth Defendant, Chateau Management Limited ("Chateau") all three of which are companies registered and incorporated under the laws of Nevis and each of which issued applications dated 18 December 2015; once again the same relief is also sought by the Fifth and Tenth Defendants respectively being Svea Balfour ("Mrs Balfour") and Woodcock Limited, ("Woodcock"); lastly, by an application dated 1 March 2016, Courtwood seeks permission to amend the Particulars of Claim to rely on a further assignment of causes of action.
WPL, Mr Mellor, Tamadot, Charlestown and Chateau are referred to together as "the CMS or the Mellor Defendants" and it is alleged that Tamadot, Charlestown and Chateau are Mr Mellor's corporate vehicles which have received monies from the development of Sandford Farm, Woodley, Reading, Berkshire ("Sandford Farm"). The CMS/Mellor Defendants were represented before the court by Ms Stevens—Hoare QC. Mrs Balfour and Woodcock are referred to together as "the IG Defendants". Woodcock is alleged to be the corporate vehicle of Mrs and/or Mr Balfour, Mr Balfour being the Honourable Charles Balfour, the Third Defendant. The IG Defendants were represented before the Court by Mr Robinson. The IG Defendants are content to hold over their strike out/summary judgment applications pending the outcome of Courtwood's amendment application. The CMS/Mellor Defendants however, do not take the same view. They actively oppose the amendment application.
Neither the Second Defendant, Douglas Maggs, ("Mr Maggs") nor Mr Balfour appeared or were represented before the court. The same is true of the Sixth Defendant, Wharf Land Investments Limited ("Wharf") which was co-owned by Mr Maggs and Mr Mellor and of the Seventh Defendant, Night Rhythm Limited, a company incorporated under the laws of Gibraltar ("Night Rhythm") which is alleged to be Mr Maggs' corporate vehicle. The same is true of the Ninth Defendant, Kingfisher Holdings Limited, ("Kingfisher") a company incorporated and registered under the laws of Nevis which is alleged to be the corporate vehicle of Mr and/or Mrs Balfour. It has been confirmed in correspondence that Kingfisher has no objection to the amendments proposed in Courtwood's application for permission to amend the Particulars of Claim and that Night Rhythm neither opposes nor consents to the application.
Background
This dispute concerns the development of land at Sandford Farm. It was purchased in 2005 by Bound Oak Properties Limited, a company with which Mr Maggs and Mr Balfour were involved, for £9m odd and was immediately sold on to Sandford Farm Properties Limited ("SFPL") a company incorporated under the laws of Jersey, the directors of which were provided by another Jersey company for £12.25m. From the profits of the sale various payments were made including a consultancy fee to Mr Mellor trading as DM Consultancy. The balance of profits from the sale was divided between corporate vehicles in the control of Mr Maggs and Mr Mellor and Mrs Balfour's trust fund amongst others.
Thereafter, in 2005 SFPL was promoted by Mr Maggs and Mr Balfour as an investment vehicle for a property investment at Sandford Farm. It was intended to acquire planning permission and sell or refinance the land, repaying investors with a profit. Courtwood, the ultimate beneficial owner of which is Mr Giovanni Capodilista, invested in the project. Wharf which was co-owned by Mr Maggs and Mr Mellor, provided services to SFPL in relation to the development of Sandford Farm under an agreement dated 8 November 2005 (the "Property Advisory Agreement").
By early 2009 planning permission had not been granted and SFPL had run out of money. It was also in arrears of repayments to its secured lender, Abbey National Treasury Plc ("ANTS"). The holders of the majority of shares in SFPL having indicated that they had lost confidence in the board of SFPL, on 2 June 2009, SFPL's professional Jersey-based directors resigned. On 11 June 2009, Mr Maggs having written to the solicitor for some of the shareholders stating that SFPL had been "hijacked" and expressing concern that certain shareholders sought to "deprive Wharf of some or all of its interest in a successful outcome of [this] project", Wharf presented a winding up petition against SFPL. Thereafter, on 15 June 2009 ANTS appointed Law of Property Act Receivers ("LPARs") over Sandford Farm. Although no allegation is made against the LPARs, it is alleged that the winding up petition was presented with the ulterior motive of causing ANTS to appoint the LPARs.
On 19 June 2009, Mr Maggs acting on behalf of Wharf wrote to the LPARs stating amongst other things that the value of Sandford Farm would be diminished substantially should the planning appeal in relation to it which was due to commence on 23 June 2009 be withdrawn. He went on to state that it was Wharf's view that the LPARs should "engage with a credible purchaser" before the appeal, who in turn would come to terms with Wharf and enable the appeal to proceed. He went on to add that WDL had full ownership of the planning application and invited the LPARs to contact him. In this regard, it is alleged that Mr Maggs on behalf of Wharf misrepresented WDL's entitlement in relation to the planning application to the LPARs and thereby implied that the value of Sandford Farm and ANTS' security would be jeopardised unless the property was sold to an entity with which WDL was associated and that Wharf did so in its own interests and to procure a disposal of Sandford Farm to WDL.
Thereafter, on 29 June 2009, WDL, which was ultimately owned by Mr Maggs, Mr Mellor and Mr and/or Mrs Balfour, contracted to purchase Sandford Farm from the LPARs for £15 million using a facility granted to WPL by ANTS and secured by a joint personal guarantee provided by Mr Maggs, Mr Mellor and Mrs Balfour in the amount of £2.5 million. The completion date for the purchase was 30 November 2009.
On 3 November 2009 the Secretary of State recommended that residential planning permission be granted in respect of Sandford Farm. Thereafter, WPL sold part of Sandford Farm in August 2010 to Taylor Wimpey for £27 million and distributed the £12 million profit to its ultimate owners. According to evidence given by Mr Maggs during his examination under section 236 Insolvency Act 1986, the monies were divided between corporate vehicles in the control of Mr Maggs, Mr Mellor and Mr Balfour respectively. In addition, the contract between WPL and Taylor Wimpey entitled WPL to overage based on a proportion of the sale proceeds of various units built at Sandford Farm and/or all development that is permitted by an outline planning consent dated 4 March 2010 or any other planning permission which "at such time" has been implemented. Courtwood estimates the value of the overage to be in the region of £18.25 million.
It is alleged that Wharf owed fiduciary obligations to SFPL arising from the Property Advisory Agreement. Courtwood contends that in breach of its fiduciary obligations, Wharf procured the transfer of...
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Gloria Ngozi Haastrup and Another v John Adewale Haastrup and Another
...into account. Since the hearing I have also come across two further relevant decisions. They are that of Asplin J in Courtwood Holdings SA v Woodley Properties Ltd [2016] EWHC 1168 (Ch) (following Hendry in preference to Millburn-Snell), and that of Stewart J in Kimathi v Foreign and Common......
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Courtwood Holdings S.A. (a company registered and incorporated under the laws of Panama) v Woodley Properties Ltd (a company registered and incorporated under the laws of Jersey)
...of Claim on the basis that they did not disclose a cause of action, or for summary judgment. It is apparent from her judgment ( [2016] EWHC 1168 (Ch)) that among other things Ms Stevens-Hoare, no doubt picking up what Hildyard J had said, submitted that no property of SFPL passed to Woodle......