Julian Richard Stevenson and Another v Surjit Singh and Others
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Richard Seymour Q.C. |
| Judgment Date | 06 November 2012 |
| Neutral Citation | [2012] EWHC 2880 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ11X02798 |
| Date | 06 November 2012 |
[2012] EWHC 2880 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Richard Seymour Q.C.
(sitting as a Judge of the High Court)
Case No: HQ11X02798
Charles Douthwaite (instructed by Fladgate LLP) for the claimants
William Willson (instructed by L. P. Evans) for the eighth defendant for the first two days of the trial only
The first defendant appeared in person
The second defendant appeared in person on the first two days of the trial only
The third, fourth, fifth, sixth, seventh, ninth and tenth defendants did not appear and were not represented.
Hearing dates: 9, 10 and 11 October 2012
Approved Judgment
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.
Introduction
This action arose out of the desire of the claimants, Mr. and Mrs. Julian Stevenson, to purchase the property known as and situate at 5, Manor House Drive, Brondesbury Park, London NW6 ( "the Property"). On 8 December 2009 Mr. Kashim Bukar Shettima was registered at HM Land Registry as the proprietor of the Property with title absolute. It was noted in the Land Certificate relating to the Property as at 13 May 2011 that Mr. Shettima had purchased the Property on 25 November 2009 at a price of £1,850,000. As at 13 May 2011 no legal charges were secured upon the Property. The Mr. Shettima who was registered as the proprietor of the Property at HM Land Registry on 8 December 2009 I shall describe in this judgment as "the True Owner". The True Owner had the same name as the fifth defendant in this action, but they were not the same person. The fifth defendant ( "the Impersonator"), who has not been traced or served with the claim form in this action, impersonated the True Owner in giving instructions to the sixth defendants, Messrs. Haque & Hausmann ( "H & H"), a firm of solicitors, to act on his behalf in the purported sale of the Property to Mr. and Mrs. Stevenson. With the instructions which it appeared to have from the Impersonator H & H ostensibly completed the sale of the Property to Mr. and Mrs. Stevenson on 8 June 2011 and received from the solicitors acting on behalf of Mr. and Mrs. Stevenson, Rae Nemazee LLP ( "RN") the purchase price ostensibly agreed for the Property, £1,250,000. In accordance with instructions given by the Impersonator H & H instructed its bankers, Barclays Bank Plc ( "Barclays"), to transfer the £1,250,000 as to £625,000 to the first defendant, Mr. Surjit Singh, the money being transferred electronically to an account ( "the Singh Account") numbered 52792740 maintained by Nationwide Building Society ( "Nationwide"); as to £565,000 to the second defendant, Mr. Richard Phillips, the money being transferred electronically to an account ( "the Phillips Account") numbered 90041335 maintained by Barclays; and as to £58,200 to the fourth defendant, Mr. Al-Amin Rahman, the money being transferred electronically to an account ( "the Rahman Account") numbered 23948803 maintained by Barclays. The balance of £1,800 H & H kept as their own fees for acting in the transaction.
In this action Mr. and Mrs. Stevenson made claims against H & H for breach of an alleged warranty "that it was authorised and instructed by the registered freehold owner of the Property to act for him on the sale of the Property to the Claimant". The claims against H & H were settled before trial by a consent order dated 19 September 2012. By the schedule to the order provision was made for a payment of £1,200,000 to be made on behalf of H & H by 4.00 p.m. on 3 October 2012 and for H & H to pay the reasonable costs of the claim of Mr. and Mrs. Stevenson against H & H. I was told that the payment provided for had been made on 3 October 2012. H & H took no part in the trial.
It was common ground that H & H transferred to an account maintained at Barclays on behalf of the solicitors acting on behalf of Mr. and Mrs. Stevenson in this action, Fladgate LLP, amounts totalling £58,200 in three transfers between 19 and 26 July 2011. The position adopted in his pleaded Defence by Mr. Rahman, who did not appear at the trial and was not represented, was that that £58,200 represented repayment by him to H & H of the amount originally transferred to him, he returning the money once it had come to his attention that the money was said to have been part of the proceeds of a fraud. That was not accepted on behalf of Mr. and Mrs. Stevenson, who pursued claims against Mr. Rahman for a total sum of £1,250,000, notwithstanding the payments totalling £58,200 which it was accepted had been received.
It will be necessary to consider in detail the explanations offered as to why these things were done, but, for the present, it is convenient to focus simply on what happened to the money respectively transferred to Mr. Singh and Mr. Phillips by H & H on 8 June 2011.
Mr. Singh spent a total of £573,627.50 purchasing 60 100 gram and 50 250 gram gold bars from Baird & Co. Ltd. ( "Baird") on 10 June 2011, as was demonstrated by an invoice issued by Baird on that date, a copy of which was put in evidence. Of the balance of £51,372.50 Mr. Singh transferred £40,000 to his sister, Mrs. S. K. Sanghera, the seventh defendant, as she accepted. Mrs. Sanghera was made a defendant in this action, but she and Mr. and Mrs. Stevenson compromised the claims against her and she took no part in the trial. The terms of settlement as between Mr. and Mrs. Stevenson and Mrs. Sanghera were embodied in a consent order dated 28 September 2012. Those terms provided, inter alia, for Mrs. Sanghera to pay an amount of £17,500 in settlement of the claim against her by 26 October 2012. I was told that that sum had not been paid by the start of the trial. It was unclear what happened to the remaining £11,372.50 of the £625,000 paid to Mr. Singh.
Mr. Phillips produced statements of the Phillips Account which showed that the sum of £565,000 was received into that account on 9 June 2011. Prior to receipt of that sum the account was overdrawn by £675.25. On 10 June he gave instructions to Barclays, as recorded in the statements of the Phillips Account, to transfer £14,095 to the ninth defendant, Mrs. Donna Zammit, the wife of the third defendant, Mr. Terence Zammit, and £98,000 to Miss Lesley Mason, his own partner. The statements of the Phillips Account put in evidence showed the following transactions which Mr. Phillips contended were relevant to what happened to the remainder of the £565,000: on 13 June 2011 £10,000 was withdrawn in cash from a branch of Barclays in Colchester, Essex, £10,000 was withdrawn in cash from a branch of Barclays in Brentwood, Essex, a payment of £16,665 was made by electronic transfer to Father J. Kelly, and a payment of £200,000 was made by electronic transfer to Freedex Ltd. ( "Freedex"), the tenth defendant; on 15 June 2011 an amount of £150,000 was transferred electronically to a company called The Lucky Falcon Ltd.; and on 17 June 2011 an amount of £50,000 was withdrawn in cash from the Colchester branch of Barclays which I have already mentioned. The various amounts which I have mentioned do not explain what happened to all of the £565,000. The sums identified thus far come to £548,760. £16,240 seemed to be unaccounted for. The transactions which I have noted were not the only transactions on the Phillips Account during the period 9 June 2011 to 17 June 2011, and the balance shown as at close of business on 17 June 2011 was £45.49. Mr. Phillips had another account at Barclays, called an Everyday Saver account ( "the Everyday Saver Account") and numbered 13835030. That account had a nil balance as at 9 June 2011. There were various transactions between the Everyday Saver Account and the Phillips Account between 13 June 2011 and 17 June 2011, but the upshot was that the balance on the Everyday Saver Account was back to nil at close of business on 17 June 2011. There were two transactions on the Everyday Saver Account between 13 June 2011 and 17 June 2011 which were not simply transfers from or to the Phillips Account, a cash withdrawal of £5,000 on 14 June 2011 and a cash withdrawal of £10,000 on 16 June 2011. Mr. Phillips said that he had withdrawn £5,000, which was part of the £565,000, in cash on 14 June 2011, and that seemed in fact to have come from the Everyday Saver Account. Mr. Phillips did not mention in his explanations as to what had happened to the £565,000 the £10,000 withdrawn from the Everyday Saver Account in cash on 16 June 2011.
By an order dated 27 February 2012 Master Fontaine directed, so far as is presently material, that:—
"Unless the Fourth Defendant do by 4 pm on Monday 12 th March 2012 give standard disclosure by list in compliance with the Order of Master Fontaine dated 25 November 2011, his Defence herein be struck out and the Claimant be at liberty to enter judgment in the sum of £1,250,000 plus interest to be assessed."
Mr. Rahman did not comply with that direction, with the consequence that his Defence was struck out. That notwithstanding, the claimants did not, in advance of the commencement of the trial, seek to enter judgment against him.
By an order dated 29 March 2012 judgment against Mrs. Zammit was entered by Master Fontaine in the sum of £18,095, together with interest, but she was given permission to defend the balance of the claims...
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