Mohammed Yusuf Chaudhary v Mohammed Ali Hadi
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL |
| Judgment Date | 03 July 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0703-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0627 |
| Date | 03 July 1992 |
[1992] EWCA Civ J0703-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WEST LONDON COUNTY COURT
(HIS HONOUR JUDGE PHELAN)
Royal Courts of Justice
Lord Justice Glidewell
92/0627
MR PASCHAL WELSH, instructed by Messrs Shuttari Paul & Co. (Southall), appeared for the Applicant (Defendant).
MR ADITYA KUMAR SEN, instructed by Messrs Kidd Rapinet (Aylesbury), appeared for the Respondent (Plaintiff).
By summons issued in the West London County Court on 27th December 1991 the plaintiff, Mr Mohammed Chaudhary, using the name Mohammed Yusuf Naz, claimed against the defendant, Mr Mohammed Ali Hadi, possession of three flats at 27 Earls Court Gardens, London, SW5. The particulars of claim alleged that the plaintiff was the owner of the premises and that two of the flats were being let to the defendant for one year from 25th May 1991 by written agreement dated 28th May 1991 at a rent in the slightly odd figure of £1,841.67 per month payable in advance. The ground on which possession was claimed was that the rent was, at the time of the summons, £11,028.69 in arrear. It was also alleged that there were other breaches of the tenancy. As to the third flat the particulars of claim alleged that the defendant was a trespasser in that flat. He had taken possession of it and purported to sublet it, and thus it was a trespass. No defence was filed in answer to that claim.
On 11th February 1992, there being no appearance by the defendant, His Honour Judge Phelan in the West London County Court gave judgment for the plaintiff. He made an order for possession of the property and he ordered the defendant to pay £23,486.91 by way of rent and mesne profits. The plaintiff's name was amended to Mohammed Chaudhary (I think omitting the Yusuf, but I am not absolutely confident about that. Yusuf is one of the names he uses, so maybe it ought to have been Mohammed Yusuf Chaudhary).
On 14th February 1992 Mr Justice Otton granted an ex parte Mareva injunction relating to the defendant's assets. On that same day, a copy of that order having been served on the defendant, he applied to set aside the judgment in default of appearance under Order 37, rule 2 of the County Court Rules. On 6th March Judge Phelan dismissed that application. On that occasion both parties were represented by counsel. At that hearing a draft defence and counterclaim was submitted to the judge. On 23rd March solicitors for the defendant applied to set aside the order of 6th March, that application being made under Order 37, rule 1 of the Rules of the Supreme Court. On 29th May Judge Phelan refused that application. Again both parties were represented by counsel.
The defendant now seeks, in chronological order, an extension of time for appealing against the judgment of 11th February 1992, an extension of time for appealing against, and leave to appeal against, the order of 6th March 1992 and leave to appeal against the order of 29th May 1992. In that case the application was made in time and no extension is needed.
The background to this somewhat tortuous claim is that on 1st March 1990 the plaintiff and the defendant entered into a written partnership agreement to carry on business under the name Ali Hassan & Co. The purpose of the business was to provide and run inexpensive bed and breakfast accommodation for the homeless to be paid for by local authority funds. It seems that most of the properties that the business occupied were in Wembley, but one of them was the Dominique Hotel which is at 36 Earls Court Gardens, SW5. On 15th June 1991 a second partnership agreement was made between the parties for the running of another business called Rio Property Services. This had the same objective and the property acquired, or one of the properties acquired, was the Queensbury Court Hotel in Queensbury Place, SW7.
The plaintiff avers—and this at least is not denied by the defendant—that he personally owns 27 Earls Court Gardens, the property the subject of these proceedings.
In 1991 there was correspondence between S. & Q. Estates, property agents acting for the plaintiff, and the defendant about the rent for 27 Earls Court Gardens. On 28th May the agents, S. & Q. Estates, wrote to Mr Hadi addressing him at 36 Earls Court Gardens, London, SW5, referring to 27 Earls Court Gardens, flat 1, the garden flat, and flat 3, the top floor flat, which I should say were the two flats that were being let to Mr Hadi:
"This is to confirm the mutual agreement with the Landlord that he has agreed; that you could spend up to £1841.67 (i.e. one month rent) for furnishing the above two flats up to a reasonable standard for 7 persons.
Please let us have receipts for the goods you buy, so that we could check and then pass on to the landlord."
Then on 20th September 1991 the agents wrote again to Mr Hadi, again at 36 Earls Court Gardens, referring to 27 Earls Court Gardens, flat 1 and flat 3:
"Further to our discussion, we are very concerned that you have not paid the rent inspite of many reminders.
You are in breach of contract on the following."
Then there is set out a list of the amounts outstanding: three months' rent (July, August and September), together with an insurance premium of £900, which comes to a total of £6,425.01; secondly, extensive damage caused to the property, which is not quantified; thirdly:
"3) Number of people staying in the flats, which is not only against our agreement but also against the Local Rules & regulations.
We request you once again to bring the rent upto date".
The letter concludes:
"Landlord and our solicitors will start legal action without any further notice; which could happen any time after our proposed meeting on 27th Sep 1991."
It seems that there was indeed a meeting on 27th September because on 30th September the agents wrote again to Mr Hadi at the same address:
"Further to our meeting Friday 27th September. These are the points which we agreed.
1. The premises will be vacated on the 10th October 1991.
2. All the damage to the property…will be rectified".
By a letter, which so far as the typescript is concerned contains no date, Mr Hadi (or apparently Mr Hadi because he did not really sign; it merely has a scrawl at the end of it above the typed signature) wrote to Mr Chaudhary in the name of Naz, saying:
"Dear Sir,
Re: The Property of 27 Earls Court Gardens SW5
I am writing this letter to you to put on the records the financial position between you and me up to date in accordance with our agreement at the time of the beginning of the tenancy.
DEPOSIT
£1840
One month in advance until 25.6.91
£1840
One month in advance till 25.7.91
£1840
The amount spent out to furnish the building…
£5660
TOTAL PAID
£10200
SEWAGE
£210 +
REPAIR THE ROOF
£370 +
TOTAL
£10780
[Then a deduction] The rent from 2.5.91–25.9.91 (4×1840)…
£7360-
BALANCE DUE [and that means a balance due from Chaudhary to Hadi]
£3420."
That letter bears in manuscript the date 16th October 1991. Somebody else has written in a different hand "July 1991". The date, as I shall say later, is of some significance.
On 22nd October the agents wrote to Mr Hadi, this time using an address in Wembley:
" Re- 27 Earls Court Gardens London SW5
We have been passed a copy of your letter dated 16,10,91 addressed to Mr M.Y. Naz.
The correct position is as follows:-
Your Tenancy agreement is only for the Top & Lower Ground Floor Flats for which the agreed Rent is £1841.60 p.m. The agreement started on 28th May 1991. So far we have only received the following two cheques. [Then the following details are given of those two cheques].
The landlord further agreed that you could spend upto one month rent (i.e. £1841) for furnishing the two flats upto a reasonable standard for 7 persons.
When we had a joint meeting with you on 27th Sep, you agreed to vacate the premises on the 10th Oct 91. You further agreed to make good all the damage…
You are in breach of contract by not paying the agreed rent by causing damage to the property; by making nuisance, by keeping more people in the property than allowed and by not following arrangements you made with us.
The landlord and our company reserve the right to take action against you for all losses suffered."
That was followed on 21st November by a letter from the plaintiff's solicitors setting out the details of the matter and recapitulating the information obtained in the agents' letter of 22nd October and saying that the itinerary shows that Mr Hadi has "expended the sum of £5,680.30 clearly in breach of what was agreed and your letter to our Client of 16th October 1991 claiming a balance of £3,420.00 in view of the foregoing is absolute nonsense." Then there are various other matters contained in that letter, including:
"We are further instructed that you have unlawfully occupied and sub-let Flat 2; the keys to which you secured from our Client as a result of fraudulent misrepresentation and in this respect, we are instructed to commence the appropriate proceedings."
The response to that came from Mr Hadi addressed to the plaintiff's solicitors on the notepaper of the Dominique Hotel, 36 Earls Court Gardens. He denied the agreement to expend up to £1,841.67 on the flat and said that Mr Chaudhary had authorised him to furnish the flats and agreed the expenditure, said that there was no overcrowding or at least if there was it was agreed, and said that he had a counterclaim and that he had agreed with Mr Chaudhary to deduct £5,680.
Now it is noticeable that, with the exception of...
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