Trevor Anthony Antoine (Administrator of the Estate for Joseph Antoine, Deceased) v Barclays Bank UK Plc
| Jurisdiction | England & Wales |
| Judge | Lady Justice Asplin,Lord Justice Peter Jackson,Lord Justice Longmore |
| Judgment Date | 20 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2846 |
| Docket Number | Case No: A3/2018/0708 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2018 |
[2018] EWCA Civ 2846
Lord Justice Longmore
Lord Justice Peter Jackson
and
Lady Justice Asplin
Case No: A3/2018/0708
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Miss Joanna Smith QC, Sitting as a Deputy High Court Judge
HC-06C04188
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Chima Umezuruike (instructed by Riverbrooke Solicitors) for the Appellant
Mr Guy Fetherstonhaugh QC and Mr Greville Healey (instructed by TLT Solicitors) for the First Respondent
Ms Katrina Yates (instructed by the Government Legal Department) for the Second Respondent
Hearing date: 6 th December, 2018
Approved Judgment
This appeal raises the question of whether the registration of a person as registered proprietor of a property by HM Land Registry giving effect to a court order made in default of appearance and obtained by use of documents which were later held to have been forgeries, results in a “mistake” for the purposes of rectification of the Register under Land Registration Act 2002. A similar question arises in relation to a legal charge created by the registered proprietor and registered before the court order was set aside.
Having held that certain documents were forged, Miss Joanna Smith QC, sitting as a Deputy High Court Judge in the Chancery Division, Business List of the Business and Property Courts, declared that the order of Master Moncaster dated 12 July 2007 (the “2007 Order”) which was made in reliance, amongst other things, upon the forged documents was valid and effective until it was set aside by a further order dated 10 July 2008 (the “2008 Order”) and accordingly, that the registration of Mr George Taylor as proprietor of the property at 14 Mirabel Road, London SW6 7EH, (the “Property”) in accordance with the 2007 Order was not a “mistake” on the Register and neither was the registration of the legal charge granted by Mr Taylor and registered in favour of the First Respondent, Barclays Bank plc, (the “Bank”) on 29 February 2008 (the “Legal Charge”). The neutral citation for her judgment is [2018] EWHC 395 (Ch).
Background
The relevant facts are complex. I have set out only the essential facts below which I have taken from the judgment. Reference should be made to the judgment itself for a more detailed explanation of the background to this matter. The dispute relates to the registered title to the Property. It was registered in the name of Mr Antoine Joseph (“Mr Joseph”) who died in February 1996. Letters of Administration to his estate were granted to his son, Mr Trevor Antoine, (“Mr Antoine”) who is the Appellant and was the claimant in claim number HC-2016-002311 (the “2016 Claim”) which was heard together with claim number HC-06C04188, (the “2006 Claim”) to which he was a defendant.
The 2006 Claim involved a claim for relief by Mr Taylor in respect of the Property which he said had been used as security for a loan which he had made to Mr Joseph in 1987. He relied upon three documents and, amongst other things, sought by way of relief the transfer to himself of the leasehold and freehold interests in the Property (which were registered in Mr Joseph's name), or alternatively the payment of the sum of £11,000. An order for substituted service upon Mr Joseph or his personal representatives by advertisement in local newspapers in Grenada, St Lucia and Fulham was obtained. Mr Antoine as Mr Joseph's personal representative was not present or represented at the hearing of the 2006 Claim before Master Moncaster on 12 July 2007 when the Master made the 2007 Order.
By the 2007 Order it was declared that by virtue of an agreement evidenced by documents specified in the Amended Particulars of Claim, Mr Taylor was entitled to be considered as the legal mortgagee of the freehold interest in the Property. Further, amongst other things, it was ordered that Mr Joseph pay £24,003.28, defined as the Mortgage Debt, to Mr Taylor and the Mortgage Debt be considered as charged upon the freehold of the Property. It was further declared that in default of payment of the Mortgage Debt by the specified date, Mr Taylor would be absolutely entitled to all the estate and the interest of Mr Joseph in the Property and to have a transfer thereof, to be registered as the proprietor of the freehold of the Property and that the leasehold title to the Property should also vest in him.
No payment and no notice of intention to redeem the mortgage having been received by the specified date, on 11 September 2007 Mr Taylor applied to HM Land Registry by form AP1 for registration as the proprietor of both the freehold and the leasehold interests in the Property pursuant to the 2007 Order. In accordance with Rule 127(2) of the Land Registration Rules 2003, a copy of the 2007 Order was lodged with form AP1. Having sent notice of the application to Mr Joseph inviting an objection but having received none, the Chief Land Registrar (the “Registrar”) registered Mr Taylor as the proprietor with deemed effect from 14 September 2007.
The freehold and leasehold titles having been merged, in early 2008, Mr Taylor obtained a loan from a subsidiary of the Bank by way of legal mortgage which was secured on the Property by way of the Legal Charge which was registered at HM Land Registry against the freehold title with effect from 29 February 2008.
Later in 2008, Mr Antoine applied to be joined to the 2006 Claim and to set aside the 2007 Order obtained in default. By the 2008 Order, Master Moncaster set aside the 2007 Order albeit without prejudice to the rights of the Bank and the Legal Charge and ordered that the 2006 Claim should continue against Mr Antoine as personal representative of Mr Joseph. On the basis of the 2008 Order, HM Land Registry registered Mr Antoine, in his capacity as the Administrator of his father's estate, as the proprietor of the Property in place of Mr Taylor. The 2006 Claim was not pursued at that stage and Mr Taylor died in 2013. Payments under the mortgage to the Bank which was the subject of the Legal Charge ceased in July 2013.
The 2016 Claim was commenced against the Bank and the Second Respondent, the Registrar. Mr Antoine sought a declaration that two of the three documents purportedly signed by his father and which related to the 1987 transaction upon which the 2007 Order was based, were null and void. He also sought an order pursuant to paragraph 2(1)(a) of Schedule 4 to the Land Registration Act 2002 that the Register be altered as a result of mistake, by the deletion of the Legal Charge created by Mr Taylor in favour of the Bank and an order removing from the Register a Unilateral Notice in respect of a pending land action (in respect of the 2006 Claim) that was registered in favour of Mr Taylor on 19 March 2009. Mr Taylor's widow and personal representative, Mrs Athena Taylor, the Third Respondent, was joined as the Third Defendant. It was ordered that the 2006 Claim and the 2016 Claim be heard together. The Claims were heard in February of this year and judgment was given on 2 March 2018.
Relevant Legislative Framework
Before turning to the Judge's reasoning, it is helpful to have the relevant legislative framework in mind. First, it is important to note, that as the Judge pointed out at [88] of her judgment, the Land Registration Act 2002, (the “2002 Act”) is not merely a scheme for registering title. It is a scheme of title by registration. As the authors of Ruoff & Roper, Registered Conveyancing point out at para 46.001:
“The policy of the Land Registration Act 2002 is that the register should be a complete and accurate reflection of the state of the title to the registered estate at any given time. Registration not only records the effect of transactions taking effect in the general law, but actually constitutes a registered proprietor's title to a registered estate or charge. In general, therefore, the title conferred by registration should be indefeasible…”
The Register is kept by the Registrar pursuant to section 1(1) of the 2002 Act and he is bound by the Land Registration Rules 2003 (the “Rules”) in relation to the keeping of the Register.
Furthermore, section 9(1) of the Law of Property Act 1925 (the “ LPA 1925”) where relevant, provides that a vesting order made by any court or other competent authority:
“… which is made or executed for the purpose of vesting, conveying or creating a legal estate shall operate to convey or create the legal estate disposed of in like manner as if the same had been a conveyance executed by the estate owner of the legal estate to which the order … relates”.
A vesting order is thus a disposition by operation of law and is treated as a registrable disposition. Section 27(1) of the 2002 Act provides that:
“If a disposition of a registered estate … is required to be completed by registration, it does not operate at law until the relevant registration requirements are met.”
Section 27(5) provides that, subject to three exceptions which are irrelevant for the purposes of this appeal, the section applies to dispositions by operation of law. It is common ground that the 2007 Order was such a disposition.
Rule 161 of the Rules provides that an application to register a disposition by operation of law which is a registrable disposition must be accompanied by sufficient evidence of the disposition and where a vesting order has been made, the application must be accompanied by a copy of the order: see Rule 161(1) and (2). It was common ground before the Judge, and it was not suggested otherwise before us, that where an application is made to the Registrar to give effect to a vesting order, the Registrar...
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