Mohammed Tahir v Faiz UL Hassan Faizi
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 25 June 2019 |
| Neutral Citation | [2019] EWHC 1627 (QB) |
| Docket Number | County Court Claim Nos: D00LU357, D0PP0115 |
| Court | Queen's Bench Division |
| Date | 25 June 2019 |
[2019] EWHC 1627 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE COUNTY COURT AT OXFORD
ORDER OF HHJ MORADIFAR DATED 28 MARCH 2019
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Murray
County Court Claim Nos: D00LU357, D0PP0115
Appeal Ref: QA-2019-000087
Mr Conor Kennedy (instructed by Landmark Legal LLP) for the Appellant
Mr Russell Wilcox (instructed by Allied Law Chambers Solicitors Ltd) for the Respondent
Hearing date: 18 June 2019
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.
THE HONOURABLE Mr Justice Murray
This is an appeal by Mr Mohammed Tahir, the appellant, against the final order of His Honour Judge Moradifar, which was approved by the judge on 28 March 2019 (“the Order”), following the trial before him on 17, 18 and 19 December 2018 in the County Court at Oxford of:
i) a claim brought by Mr Faizi Ul Hassan Faizi, the respondent, against Mr Tahir (County Court claim no D00LU357) for a declaration under section 14(2)(b) of the Trusts of Land and Appointment of Trustees Act 1996 (“the 1996 Act”) that Mr Faizi holds a one hundred per cent beneficial interest in a residential property at 3 Sutton Gardens, Luton, LU3 3AF (“the Property”), the legal title to which is held by Mr Tahir and in which Mr Faizi has resided with his family since Mr Tahir purchased the Property in 2006; and
ii) a claim brought by Mr Tahir against Mr Faizi (County Court claim no D0PP0115) under which Mr Tahir sought possession of the Property for alleged non-payment of rent.
By order of Deputy District Judge Gill dated 27 November 2017, the two claims were linked, with Mr Faizi's claim (D00LU357) to be heard as the lead claim. For the trial, Mr Faizi was listed as the first claimant, with Mr Tahir as the defendant. Oakwood Homeloans Limited (“Oakwood”) was listed as the second claimant. Oakwood is the mortgagee in respect of the loan secured on the Property (“the Mortgage”) that was entered into by Mr Tahir in November 2006 in order to purchase the property.
At the trial, Mr Faizi was represented by Mr Russell Wilcox, and Mr Tahir was represented by Mr Conor Kennedy, each of Mr Wilcox and Mr Kennedy also representing his client at this appeal. It appears that Oakwood took no active part in the trial, nor has it done so in relation to this appeal. Oakwood has separately brought proceedings to recover possession of the Property from Mr Tahir.
Following the conclusion of the trial, the judge invited further written submissions from each of Mr Wilcox and Mr Kennedy in relation to two questions that had arisen during the trial. He then took time for consideration, handing down his judgment on 14 March 2019.
In his initial order made on 19 March 2019 (and sealed by the County Court on 21 March 2019), HHJ Moradifar directed the parties to agree the terms of a final order to dispose of the proceedings, failing which they were to make brief written submissions, together with brief documentary evidence, on the question of the amount for which Mr Faizi must account to Mr Tahir in relation to mortgage payments in respect of the Property from 2015 onwards. Counsel for parties were also invited to provide a draft of the final order and to make any related other submissions on it. The parties were not able to agree the form of order and therefore made written submissions and provided alternative drafts of the proposed final order.
I was shown an email dated 28 March 2019 from the judge to counsel in which he gave brief reasons for approving the Order in the form proposed by Mr Wilcox, subject to a minor amendment in relation to the costs aspect of the Order. I note, in passing, that there was no copy of the Order as sealed by the County Court in the appeal bundles, and neither counsel had yet seen a copy as at the date of the hearing before me. Mr Wilcox suggested that it was possible that the County Court had not yet sealed the Order, given the delays that are now common in the processing of orders by the County Court.
Based, therefore, on the judge's email dated 28 March 2019, I note that, in the Order, the judge:
i) declared that:
a) Mr Faiz Ul Hassan Faizi, the respondent, is entitled to a one hundred per cent beneficial interest in the residential property at 3 Sutton Gardens, Luton, LU3 3AF (“the Property”);
b) the legal title to the Property, currently held by Mr Tahir, is held by him in trust for Mr Faizi; and
c) Mr Tahir is entitled to an account from Mr Faizi for monthly mortgage payments from 2015 onwards, which the judge found amounted to £16,257.15;
ii) dismissed Mr Tahir's related claim against Mr Faizi for possession of the Property (County Court claim number D0PP0115); and
iii) ordered that Mr Tahir pay two thirds of the costs of the action on claims D00LU357 and D0PP0115, to be subject to a detailed assessment if not agreed, with an appropriate adjustment to be made to the costs to reflect the increase in the length of the trial from two to three days and with the costs to be set off against the sum of £16,257.15 due from Mr Faizi to Mr Tahir, referred to at (i)(c) above.
Mr Tahir filed his Appellant's Notice seeking to appeal the Order on 3 April 2019.
By order made on 13 May 2019, Mr Justice Jay granted permission to appeal in respect of both of Mr Tahir's grounds of appeal. His observations on the grounds were:
“The first ground of appeal is weak: the judge found at [41] of his judgment that the Respondent's invoices did not provide sound corroborative evidence for the work undertaken. The judge found, more or less, that these invoices were not authentic.
This was a difficult case with unreliable evidence on both sides. The burden of proof was on the Respondent. I think it is arguable that the judge's essential conclusion at [45] required more supporting analysis of the evidence, particularly in the context of the law relating to constructive trusts.”
Jay J also stayed “the Order of 19th March 2019” pending determination of the appeal or further order. The intention, no doubt, was to stay the Order, which was made no earlier than 28 March 2019, rather than the order made by the judge on 19 March 2019 in which he merely gave directions for submissions on the form of final order. I understand that the parties have interpreted Jay J's order as referring to the Order, rather than the earlier directions order.
Background
The following summary of the background facts, which are undisputed except where otherwise noted, is drawn from the Judgment:
i) In 2006 Mr Faizi and his family were resident in the United Kingdom.
ii) In 2006 Mr Tahir was a resident of the United Kingdom, living in council accommodation with a son from a previous marriage. His second wife and their children were living in Uganda, and they wished to come to the United Kingdom to live with Mr Tahir. In August or September 2006 ([31] of the Judgment says “2016”, but it is clear from context that this is a typographical error and that “2006” is intended) Mr Tahir suffered an accident for which he received about £36,000 in compensation. Due to the accident, he was unable to work and relied on incapacity benefit.
iii) Mr Faizi and Mr Tahir met in 2006, although the precise timing and circumstances of their initial meeting were disputed.
iv) Mr Tahir purchased the Property on 24 November 2006 in his own name for a purchase price of £219,000, funded principally by the Mortgage in a principal amount of £208,265. Mr Tahir was registered as the legal owner of the Property on 27 December 2006 and has been the registered legal owner at all relevant times since then. The Mortgage requires repayment during the mortgage term only of interest, with principal to be repaid at the end of the term. In other words, it is an “interest-only mortgage”.
v) Mr Faizi has resided at the Property with his family since shortly after completion of the purchase on 24 November 2006. In the Autumn of 2007 Mr Faizi applied for permission to renovate and extend the property. Planning permission was granted on 28 January 2008. Mr Tahir denied any knowledge of the grant of planning permission but accepted that Mr Faizi had converted the garage to an office. There was some dispute between the parties at the trial as to the extent of other improvements made by Mr Faizi. Mr Tahir did not claim to have made any improvements to the Property himself.
vi) Between 2007 and 2010 Mr Tahir spent extensive periods of time in Uganda. During the same period Mr Faizi made mortgage payments directly to Oakwood, although he did not always manage to do so in a timely manner and some payments were missed.
vii) At other times during the period from November 2006 to 2015, Mr Faizi made more or less regular payments to Mr Tahir in respect of the Property. Mr Faizi characterised these as payments to fund Mr Tahir's payment obligations under the Mortgage, in accordance with what he alleged to be their original agreement in 2006. Mr Tahir characterised these as payments of rent owed by Mr Faizi as a tenant of the Property.
viii) On 15 September 2008 Oakwood obtained a possession order at Luton County Court requiring Mr Tahir to give possession of the Property to Oakwood. This was not enforced, and on 31 August 2016 Mr Tahir applied to set aside this order. (According to the Amended Particulars of Claim, Mr Faizi was not aware of the possession order made on 15 September 2008 until he received notice of Mr Tahir's application to set it aside. Mr Faizi applied to join the proceedings, and on 10 November 2016 the order made on 15 September 2008 was discharged. I note that...
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