Panama Sports Horse (UK) Ltd v Gisburne Park Estate Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos |
| Judgment Date | 17 April 2015 |
| Neutral Citation | [2015] EWCA Civ 517 |
| Date | 17 April 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2015/1104 |
[2015] EWCA Civ 517
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER DISTRICT REGISTRY, CHANCERY DIVISION
HIS HONOUR JUDGE PELLING, QC
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Vos
Case No: A2/2015/1104
Mr Mark Halliwell (instructed by The Associate Firm) appeared on behalf of the Appellant.
Ms Raquel Angello QC and Ms Victoria Roberts and Mr D Liliy (instructed by Bishop & Co Solicitors) appeared on behalf of the Respondent.
This is an application for permission to appeal the order of His Honour Judge Pelling QC, which was made on 17 March 2015, on appeal from District Judge Khan, who had ordered, on 16 December 2014, that the company, Panama Sports Horses (UK) Limited, which I shall call "the company," should be wound up. There is also an application for a stay of the winding up order, which, as appeared during the course of argument, is only likely to be granted, if permission to appeal is also granted.
The petition was originally presented by Morgan Sterling Finance Limited, but the company's landlord, Gisburne Park Estates Limited was eventually substituted as the petitioner. I shall call Gisburne Park Estates Limited "the landlord." It is now accepted, for the purposes of this hearing, at least, that the company owes some £55,000 in arrears of rent to the landlord. This is a second appeal, at least in most part, so the appellant needs to satisfy the court that the appeal raises an important point of principle or practice, or that there is come compelling reason for the appeal to be heard.
The chronological background to this application is far from completely straightforward. I shall, therefore, have to deal with a number of events, which may not, at first sight, seem to be relevant. The company's lease of a dwelling house and some 70 acres of land at Stables Cottage, Gisburne Park, Clitheroe, in the county of Lancashire, BB7 4HU ("the property"), began on 1 January 2006 for a period of 15 years, at an initial, but reviewable, rent of £3,687.50 per annum. On 3 July 2012, the rent was reviewed after some considerable dispute, to a rent of £38,515 per annum. On 6 June 2013, a petition to wind up the company was presented by Morgan Sterling Finance Limited, in respect of an assigned judgment debt, amounting to some £1,704 odd.
On 30 September 2013, two important events happened. First, the company's landlord purported to forfeit the company's lease of the property. The landlord purportedly re-entered and re-took possession, not only of the 70 acres of land and the buildings that were being used for the horse business of the company, but also of a dwelling house, which was at the time, occupied by the sole director of the company, Ms Carol Richardson, and her husband Mr Nick Saville.
Also on 30 September 2013, District Judge Obodai made an order winding up the company on the petition of Morgan Sterling Finance Limited. The company immediately, on the very same day, filed an appellant's notice appealing that decision. Thereafter there was obviously a great deal of frenetic activity, very little of which is reported in the papers before me, which culminated on 1 November 2013 with the company obtaining an injunction against the landlord allowing the company and its director, Ms Carol Richardson, and her husband, Mr Saville, to return to the property on 2 November 2013 so as to occupy the dwelling house.
As far as it appears from the papers, there was no order allowing the company to re-occupy the 70 acres or the associated business buildings. The company claims, in a statement from Miss Richardson dated 27 October 2014, that it ceased to trade on 30 September 2013. That evidence can be found at page 242 of the main bundle of documents. It is strange, to say the least, that notwithstanding the large claims for losses made by the company the trading is said to have ceased and no express account is taken of that ceasing to trade in the costs allegedly incurred and paid by the company after that date.
On 5 November 2013 the landlord issued a claim for possession against Ms Richardson and her husband, and in that action she filed a counter claim for damages in the sum of £126,871.88 and produced a schedule of losses in the same form as later reappeared as a schedule of losses claimed by the company. On 17 January 2014, His Honour Judge Bird allowed the appeal by the company against the District Judge's winding up order. On that occasion, Judge Bird substituted the landlord as the petitioning creditor, and adjourned the petition to be re-advertised and gave further directions.
On 7 March 2014, the company issued proceedings against the landlord for relief from forfeiture and claimed damages in the self-same sum of £126,871.88, using the same schedule of loss to which I have already referred as had been advanced by Ms Richardson and her husband personally. Matters then proceeded until, in late November 2014, or possibly early December 2014, District Judge Khan made an interlocutory order, requiring the company to serve schedules identifying its alleged loss with greater particularity. It appears that no such schedules were served in advance of the hearing, which took place before District Judge Khan on 15 December 2014.
At that hearing, the District Judge made a winding up order against the company, on the basis of the landlord's claim for rent, the landlord of course having been substituted as the petitioning creditor. He held that the company's cross-claim had no real prospect of success. He said that the company had no real prospect of establishing the following matters: first, that the landlord had waived its right of re-entry by accepting a payment of current (as opposed to arrears of) rent on 16 August 2013;...
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