Tigris Industries Inc. v Ghassemian (Aka Ghassemian Hamila Sartipy)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Beatson,Lady Justice Sharp |
| Judgment Date | 23 February 2016 |
| Neutral Citation | [2016] EWCA Civ 269 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 February 2016 |
| Docket Number | Case No: A3/2014/3214 |
[2016] EWCA Civ 269
IN THE COURT OF APPEAL (QUEEN'S BENCH DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(LOWER COURT JUDGE: MR JUSTICE NORRIS)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Lewison
Lord Justice Beatson
Lady Justice Sharp
Case No: A3/2014/3214
Mr Kevin Leigh (instructed by Ashfords LLP) appeared on behalf of the Applicant
Mr Jonathon Upton (instructed by Benchmark Solicitors) the Respondent
The Charging Orders Act 1979 gives the court a statutory jurisdiction to grant charging orders over land in aid of enforcing a judgment. Section 2 sets the limits to that jurisdiction. A charging order may only be made over an interest that the judgment debtor holds beneficially and, to a very limited extent, over interests which the debtor holds as trustee. Those latter interests are:
(i) the judgment or order in respect of which a charge is to be imposed was made against that person as trustee of the Trust; or
(ii) the whole beneficial interest under the Trust is held by the debtor unencumbered and for his own benefit; or
(iii) in a case where there are two or more debtors, all of whom are liable to the creditor for the same debt, they together hold beneficial interest under the Trust, unencumbered and for their own benefit.
If therefore a judgment debtor holds an interest in land on trust for a third party and has no beneficial interest of his own, no charging order may be made.
The extraordinary story in this case begins with a bogus claim to have acquired title by adverse possession of land registered in the name of Tigris Industries Inc supported by forged and fabricated documents. One of the claimants was Mr Hamila Ghassamian and another was her son, Mr Sharooz Langroody. The deputy adjudicator found that Mr Langroody had "created an elaborate and false paper trail to support his case which … simply does not stand up to scrutiny". The adjudicator awarded Tigris their costs and also ordered the payment of £60,000 on account. Neither Mrs Ghassamian nor Mr Langroody complied with that order, so Tigris applied for a charging order over a flat registered in Mrs Ghassamian's name. In fact, the name shown in the title register was "Ghassamian Hamila Sartipy".
In December 2020 an interim charging order was made. The next step in the procedure is for an application to be made to make an interim order final. If Mr Ghassamian had no beneficial interest in the flat, that would have been a complete answer to the application to confirm the interim order. However, when the application came before Deputy Master Bard on 20 June 2011 the argument put before him was that Mrs Ghassamian was not a party to the proceedings before the adjudicator and for that reason the charging order should not have been made.
As the Deputy Master put it, "the issue for today is whether the Hamila Ghassamian named in those proceedings is, or falls to be, treated as Hamila Sartipy, the defendant Tigris seeks to enforce against". After hearing evidence of identification, he held that they were one and the same. No other reason was advanced for not making the charging order final. Mrs Sartipy, as I shall now call her, applied for permission to appeal, and on 8 July 2011 Burnett J ordered that the application be heard by a judge. That application came before Spencer J on 16 September 2011.
The only point of any substance that was argued by leading counsel then appearing for Mrs Sartipy was that she should have been permitted to give evidence by way of video-link from Iran. In a comprehensive judgment, Spencer J refused permission to appeal. The next thing that happened was that Mrs Sartipy made an application to reopen the appeal under CPR Part 52.17. The grounds on which the application was made all concern the question of Mrs Sartipy's whereabouts at the time of the hearing before Deputy Master Bard. Not surprisingly, on 2 February 2012 Nicholl J refused to reopen the appeal, so the final charging order stood.
While all this was going on, Tigris issued a Part 8 claim form seeking to enforce the charging order by an order for sale. That application came before Master Teverson in the Chancery Division. The claim was issued on 23 December 2011 and was listed for a disposal hearing on 21 March 2012. Five days before the due date for that hearing solicitors apparently acting for Mrs Sartipy sent Tigris what purported to be a copy of a declaration of trust in the flat by Mrs Sartipy in favour of her late husband and a copy of her husband's will. The former bore the date 13 June 1986 and the latter bore the date 8 March 2001.
Under the terms of the declaration of trust, Mr Ghassamian owned the entire beneficial interest in the flat to the exclusion of Mrs Sartipy. Under the terms of the will, the flat was left to Mr Ghassamian's executors and trustees on very wide discretionary trusts. The argument that Mrs Sartipy now wished to advance was that she had no beneficial interest in the flat and therefore the order for sale ought to be refused. Not surprisingly, one question that arose immediately was why this defence had not been raised before. Mrs Sartipy was ordered to make a witness statement to explain her position. She duly did so, but has steadfastly refused to submit herself for cross-examination.
The case for Tigris was that both the documents on which Mrs Sartipy relied were either forgeries or shams. Mrs Sartipy failed to attend the hearing and thus her evidence was never tested. That was the issue that faced Master Teverson. He recorded in paragraph 12 of his judgment that "I acceded to a request made on behalf of Mrs Sartipy to decide whether the documents now being relied upon by her were genuine in the light of the written evidence". That was a binary question; the Master could answer "yes" or "no".
The Master held a hearing on 9 and 10 August 2012 and arranged to give a judgment on 22 September. On 14 September an application was made on Mrs Sartipy's behalf to rely on yet further evidence. This additional evidence contained what purported to be a transcript of a judgment by District Judge Madge in the West London County Court which was said to support the conclusion that the two documents were not mere forgeries.
Master Teverson allowed the evidence to be adduced and permitted Tigris an opportunity to answer it. The hearing was relisted for 26 October 2012. Master Teverson recorded in paragraph 66 of his judgment:
"I raised with counsel whether I should give directions for a trial rather than proceeding to determine the matter on the written evidence alone. Neither encouraged me to take that course. I asked Mr Upton [counsel for Mrs Sartipy] whether he wanted a further opportunity for Mrs Sartipy to attend for cross-examination in the future. Mr Upton did not invite me to give her that opportunity."
When he considered the material before him, Master Teverson was not satisfied that the declaration of trust was what it purported on its face to be. What he said in paragraph 84 of his judgment was this:
"On the evidence before me I am not satisfied that the Declaration of Trust is what it purports on its face to be. I am not satisfied it was professionally prepared by Mills Thomas. I am not satisfied it was made on about the date on which it purports on its face to have been made."
He also came to the clear conclusion that it was a sham document. He explained that by that he meant that "whenever it was made it was not genuinely intended to create a trust but was intended to be 'put in the safe for a rainy day'". Master Teverson's order contained a recital to the following effect: "AND UPON the Court not being satisfied that the Declaration of Trust and Will relied upon by the Defendant are genuine documents nor being willing to give effect to them." Mrs Sartipy appealed again and her appeal was heard by Norris J. His decision is at [2014] EWHC 3362 (Ch) and is available on BAILII. Norris J recounted the procedural history in detail, including a number of disturbing procedural features of the appeal before him which need not be described for present purposes.
He dealt first with the burden of proof. He held that the overall burden of proof was on Tigris to show that it was...
To continue reading
Request your trial
-
Ahmad Hamad Algosaibi and Brothers Company (“AHAB”) v Saad Investments Company Ltd (in Official Liquidation) (“SICL”) and Others
...Allegations”, sub-heading “Burden and Standard of Proof”. 1955 From Tigris Industries v Ghassemian (below). 1956 { W/24/13} [42] 1957 [2016] EWCA Civ 269 {R1/54/1}, a case in which the English Court of Appeal per Lewison LJ approved of the dictum of Norris J in the court below who discusse......
-
Ghassemian Hamila Sartipy (Aka Hamila Sartipy) v Tigris Industries Inc.
...has often been told. I can adopt the account given by Lewison LJ in Tigris Industries Inc v Ghassemian (aka Ghassemian Hamila Sartipy) [2016] EWCA Civ 269: “2. The extraordinary story in this case begins with a bogus claim to have acquired title by adverse possession of land registered in ......