Sukhvinder Kimyani and Others v Devinder Sandhu
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Newey |
| Judgment Date | 17 May 2017 |
| Neutral Citation | [2017] EWHC 1302 (Ch) |
| Docket Number | Case No HC-2010-000047 |
| Court | Chancery Division |
| Date | 17 May 2017 |
[2017] EWHC 1302 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Mr. Justice Newey
Case No HC-2010-000047
Mr. G. Roseman (instructed by Julian Philip & Co) appeared on behalf of the Applicants.
Mr. M. Watson-Gandy (instructed by Bhogal Partners) appeared on behalf of the Respondent.
JUDGMENT (As approved by the Judge)
I have before me a committal application. The application is made in the context of a dispute between the Respondent to the application, Mrs. Devinder Sandhu, and siblings of hers, who are the Claimants. All four are children of the late Darshan Gill. The underlying proceedings concern the estate of Darshan Gill.
In March 2017, the Claimants applied for a freezing injunction to be made against Mrs. Sandhu. The application was initially made on a without notice basis to Warren J, who, on 30 th March, granted a freezing injunction with a return date of 6 th April.
The matter returned to court on 6 th April before Marcus Smith J. On that occasion, the Claimants were represented by Mr. Gideon Roseman, who also appears for them today. Mrs. Sandhu, who was also present, had the assistance of a representative under the CLIPS scheme.
At the conclusion of the hearing, Marcus Smith J granted further relief. His order contained paragraphs dealing with the provision of information. Among other things, paragraph 12.1 of the order required Mrs. Sandhu, by 12 o'clock on 11 th April, to inform the Claimants' solicitors of all her assets worldwide exceeding £1,000 in value. Paragraph 13 provided for an affidavit to be sworn and served by 12pm on 18 th April setting out a variety of matters, including all bank accounts that Mrs. Sandhu had used between the beginning of 2014 and the date of the order, any interests she had enjoyed in property since January 2014 and, of particular significance, by paragraph 13.3:
"the current location of the sum of £270,000 that the Second Respondent states he paid to the First Respondent and/or if the same has been paid into any bank account full details of the said bank account(s). In the event that the First Respondent states that the monies and/or any part of the same have been paid to a third party, she is to provide full details, including their contact details, being their home and/or business address, mobile phone number and email address (if any)."
I should add that the "First Respondent" was Mrs. Sandhu and the "Second Respondent" a Mr. Cameron Gill, to whom I shall refer again in a moment.
I should also mention specifically paragraph 15 of the order, which required Mrs. Sandhu, by 12pm on 18 th April, to swear and serve an affidavit:
"providing a full and detailed explanation as to the transfer of the First Respondent's interest in the property known as 36 West View, Feltham, TW14 8PR …"
That explanation was to include the following information:
"15.1 the relationship between the First Respondent and Second Respondent, including whether they are related by blood and/or in law;
15.2 whether the transfer between the said Respondents on 26 January 2017 was for any consideration;
15.3 whether if the transfer was for consideration, the method by which the said consideration was paid to the First Respondent; and
15.4 whether if the transfer was for consideration and monies were paid to the First Respondent, the current location of the monies in question, including full details of any bank account into which the same have been deposited, including the name of the bank, the account number, the sort code and the name of the account holder."
Mr. Roseman told me, and I accept, that Marcus Smith J took care to ensure that Mrs. Sandhu was aware of the terms of the order, including by asking Mr. Roseman to read it out, with Mrs. Sandhu having been supplied with a copy of it.
Paragraphs 13.3 and 15 of the order, as will be apparent, referred to the transfer of a property known as 36 West View and its proceeds of sale. Mr. Gill has explained in an affidavit, sworn on 11 th May, that he purchased 36 West View from Mrs. Sandhu earlier this year. He states in the affidavit that the agreed consideration was a total of £390,000, with an amount of £270,000 to be paid in cash and the remainder to be taken in land in Spain, and that payment of the cash element was to be made in four equal instalments of £67,000. Exhibited to his affidavit are a contract dated 5 th January 2017, specifying the sale price as £390,000, comprising cash of £270,000 plus land worth £120,000, and four cash receipts which appear to evidence four payments of £67,000 each between 7 th February and 9 th March. It is the proceeds of that sale that are at the heart of the Claimants' concerns.
As I have mentioned, Marcus Smith J's order provided for certain information to be supplied by 11 th April and affidavit evidence to follow by 18 th April. In the event, neither deadline was complied with and neither information nor affidavit evidence had been forthcoming by 21 st April, when the present application was initiated.
The freezing injunction application came back to court on 25 th April, before me. Mrs. Sandhu initially sought an adjournment. She tendered a witness statement, in which she said:
"I was advised that, due to the nature of the case, I require the assistance of a solicitors' firm. In my submission, the freezing injunction should be seen within the context of all parties' actions over the eight years this matter has lasted. I have made certain submissions in my affidavit in response to the freezing injunction dated and filed 18 th April 2017 … but was advised by Mr. Simpson that these should be investigated by a solicitor and supported by evidence."
The reference to "Mr. Simpson" is explained by an earlier passage in the witness statement, where Mrs. Sandhu said:
"On 24 April 2017, I telephone Bhogal Partners Solicitors, 174 High Street, Hounslow TW3 1BQ. They were keen to help me and will have represent me if granted an adjournment but they could not react on such late notice. They recommended David Simpson of counsel, whom I contacted yesterday evening."
The committal application first came before the court last Thursday, 11 th May 2017. Late in the afternoon of the previous day, the Claimants' solicitors were sent an affidavit of Mrs. Sandhu, together with a letter in which Mrs. Sandhu's solicitors said:
"[Y]ou will note from our client's affidavit that all issues raised in the court orders of 30.03.2017 and 06.04.2017 have been addressed and we do not see the need for the hearing listed tomorrow to go ahead.
We would therefore propose to know whether your clients are prepared to withdraw their said application as listed for hearing tomorrow given that we have not had a response to our previous email referring to the same."
The affidavit sought to respond to various provisions in the order of Marcus Smith J. In doing so, Mrs. Sandhu said, in paragraph 6:
'However, I am advised by my solicitors that a contractual right to land is regarded in law as an asset, whether one has received the land. The consideration for the purchase by Cameron Gill of 36 West View, Feltham TW14 8PR … was £270,000 plus the promise of land in Spain to the value of £120,000. I have not been provided with any land in Spain but the contractual right to it exists. I no longer have the £270,000 or any part of it.'
In paragraph 11 of her affidavit, Mrs. Sandhu said:
"I repeat that my only asset valued at more than £1,000 is the promise of land in Spain to the value of £120,000."
In the course of paragraph 16, Mrs. Sandhu said:
"(a) the £270,000 was paid in cash. It was not paid into a bank account because the Applicants had frozen my accounts;
(b) I no longer have the £270,000 or any of it. £35,000 went to pay off the outstanding mortgage on 35 Spinney Drive, £78,000 went to pay off the outstanding mortgage on 36 West View, and £110,000 was used to pay my husband for his share of 36 West View. I still owe my daughter £110,000. By making the said payments from the £270,000, I have merely satisfied priority claims to the funds, so have not contrived to put them out of reach of the Applicants.
(c) I have apportioned and distributed equal shares in the £53,000 to my four children, as 36 West View had been held on trust for them.
(d) My children have volunteered to help me with legal expenses and have spent £9,000 on my lawyers and will likely have to pay another £12,000 from the £53,000."
One difficulty with this as a satisfactory explanation emerges from paragraph 9 of Mr. Gill's affidavit of 11 th May. He said this:
"Following the payment of the monies to Mrs. Sandhu, it was to be arranged by my agent, Vinicius Juan, that Mrs. Sandhu would travel to Spain for the completion of the land transfer portion of the sale/purchase. I now understand, from Mr. Juan, that this did not take place, and that Mrs. Sandhu instead accepted payment of the outstanding amount of £120,000 by bank draft."
There was a long list before Birss J on 11 th May and, thus, plenty of time for discussions to take place between the parties. As to those, I have the benefit of evidence from Mr. Paul Prentice, a partner in the Claimants' solicitors. He both supplied a witness statement and went into the witness box to be cross-examined. His witness statement, which he testified to the truth of in his oral evidence, included these passages:
"26. During the course of my discussions with Mr. Simpson [who was...
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