Salim Moosa & Ors v Karim Issa Mawji
| Court | Chancery Division |
| Judge | Mr. Ian Karet |
| Neutral Citation | [2024] EWHC 1638 (Ch) |
| Date | 28 June 2024 |
| Year | 2024 |
| Counsel | Mr. Edward Brown Kc,Mr. Alex Riddiford,Mr. Simon Atkinson,Mr. Theo Dixon,Mr . Edward Brown Kc |
Neutral Citation Number: [2024] EWHC 1638 (ChD)
Claim No. PT-2020-000449
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
7 Rolls Buildings
Fetter Lane
London, EC4A 1NL
Date: 28 June 2024
Before:
Mr. Ian Karet sitting as a Deputy Judge of the Chancery Division
Between:
(1) SALIM MOOSA
(2) SHAUKAT MOOSA
(3) GOOLAM HOOSEN MOOSA
Claimants
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KARIM ISSA MAWJI
Defendant
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MR. EDWARD BROWN KC and MR. ALEX RIDDIFORD (instructed by Rahman
Ravelli) for the Claimants
MR. SIMON ATKINSON and MR. THEO DIXON (instructed by Teacher Stern) for the
Defendant
Hearing dates: 8, 11-15, 19-20 March 2024
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APPROVED JUDGMENT
This judgment was handed down remotely at 10.30 am on 28 June 2024 by circulation to the parties
or their representatives by email and by release to The National Archives.
.............................
Approved judgment Moosa & Others v Mawji
Mr Ian Karet sitting as a Deputy Judge of the Chancery Division
Mr Ian Karet:
Introduction
1. This is my judgment following the trial of an action brought by three brothers against their
former real estate adviser in which they seek an account in common form and other relief.
The events concerned go back over twenty years and cover property developments in the UK,
Germany and South Africa.
2. The Claimants (the “Moosas”) claim that in July 2000 they appointed the Defendant (“Mr
Mawji”) as their agent in respect of a portfolio of properties in England. By virtue of that
appointment Mr Mawji owed them personally fiduciary, contractual and common law duties.
Mr Mawji denies the claim.
3. The Moosas say that in breach of his appointment Mr Mawji has failed to account to them in
respect of his dealings with their investments. They make particular claims in respect of six
specific projects. Five of those are in England and one is in Germany (the “Schedule
Projects”). The Moosas make a further claim in respect of a property in South Africa
(“Mystic River”). The histories of these projects are complex and I will address each
separately in due course.
4. Mr Edward Brown KC and Mr Alex Riddiford appeared for the Moosas. Mr Simon Atkinson
and Mr Theo Dixon appeared for Mr Mawji.
5. The parties’ relationship stretches back to 1998. I have taken various dates from the parties’
agreed chronology. The parties referred to many entities that played some role in the
extended history. I have considered carefully the chronology and dramatis personae and
extracted the information that is necessary for me to dispose of the case. A complete history
of the parties’ relationship is beyond the scope of this judgment.
6. The Moosas are successful businessmen based in South Africa. I will with no disrespect refer
to them by their first names.
7. It is common ground that the Moosas and their extended family had by 1998 a property
portfolio in England. It had been overseen by their cousin Razak Moosa. The family held
each property through a standalone offshore company. The shares were held by a Guernsey
corporate services provider, Saffery Champness. Razak lived in London between 1986 and
1996. He then returned to South Africa and instructed an accountant to handle the UK
business.
8. Mr Atkinson noted that it was Razak’s companies that provided property management
services up to 2000, and that it was not Razak himself who handled the business. I disagree
and accept that Razak oversaw matters.
9. In 1997 the Moosas decided to separate their interests from the rest of the family group. Up to
2000 they used two entities to hold their investments. The first was a Panamanian entity
Fenchurch Enterprises Inc (“Fenchurch”). The second was a BVI entity Mavedene Limited
(“Mavedene”).
10. The Moosas were thus looking for someone to handle their affairs in the UK. A family friend,
Mr Abdul Sacoor, recommended Mr Mawji to them. At that time Mr Mawji ran a company
called Montague Goldsmith Limited (“MGL”).
Approved judgment Moosa & Others v Mawji
Mr Ian Karet sitting as a Deputy Judge of the Chancery Division
11. At their first meeting in late 1998 or 1999 Shaukat explained to Mr Mawji that the Moosas
were looking for an advisor to replace Razak, and that would have to be done in stages as the
family situation was sensitive.
12. In November 1998 Graham Gower, a Director of MGL, faxed an initial report on the property
portfolio to the Moosas. Later, on a date which was unclear from the evidence, a further
report was created which listed eight property-owning companies holding 10 freehold
properties producing a total annual rental income of about £1.39M. Some had more than one
tenant. A manuscript column was added to the table, headed “horse or donkey?”. Three of
the 10 were marked “H”, which meant they were to be kept. The remainder were marked “D”
and one property “?”.
13. From 1999 to mid-2000 MGL engaged in a partial management role alongside the existing
Moosa family management.
14. Mr Mawji’s evidence was that MGL (and later Montague Goldsmith AG a Swiss company
incorporated in November 2003 (“MGAG”)) offered an alternative approach to property
investment. Their clients tended to own portfolios of properties; MGL focused on capital
appreciation of assets under management. Some properties would be considered as assets to
“hold and enhance” and there would also be new investments.
15. For new investments, the approach was by way of Mr Mawji’s “private equity model”. In this
model MGL would set up a new entity to own an investment which would be owned and
managed by MGL. A client would make an investment by way of a loan which would carry
interest. The client would be entitled to 50% of any profit on the sale of the asset and MGL
would retain 50% of the profit as its payment.
16. In July 2000 there was a meeting at which the Moosas say that Mr Mawji was appointed to
manage the properties and that a fiduciary obligation was created such that from this time
onwards Mr Mawji owed a duty to the Moosas. Mr Mawji says that the result of the meeting
was instead that MGL was appointed to a full managing agent role, and that he did not agree
any personal obligation.
17. While it occurred at an early stage in the parties’ relationship, this meeting is important. It
will be important to determine whether Mr Mawji was a fiduciary when later transactions
which are in dispute were undertaken. Mr Atkinson submitted that if the Moosas did not
succeed in showing that Mr Mawji owed the Moosas a personal obligation to account then
the accounting claim would fail in its entirety.
18. I note at this point that the Moosas have claimed only against Mr Mawji and not against the
companies in which he was involved. In March 2004 Mr Mawji resigned as a director of
MGL, and it was dissolved in 2012. MGL’s role was taken over by MGAG. In July 2009,
MGAG entered into voluntary solvent liquidation.
19. Mr Brown made the point that in the light of these events the relationship must have been
directly between the Moosas and Mr Mawji because there is no evidence that the Moosas
were informed of the change of entities involved. I do not think that this is conclusive of what
the parties agreed in 2000. It does appear, however, that there were a number of changes of
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