England and Wales Court of Appeal (Civil Division) Decisions
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Bank Of Baroda v Rafique & Anor [1996] EWCA Civ 722 (15 October 1996)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1996/722.html
Cite as:
[1998] 1 FCR 489,
[1998] Fam Law 138,
[1998] 1 FLR 524,
[1997] NPC 457,
[1996] EWCA Civ 722,
(1998) 30 HLR 845
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BANK OF BARODA v. SYED TALHA HAMAD RAFIQUE SYEDA AKTHAR RAFIQUE [1996] EWCA Civ 722 (15th October, 1996)
IN
THE SUPREME COURT OF JUDICATURE
FC3
96/6438/H
IN
THE COURT OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM THE KINGSTON COUNTY COURT
(LORD
JUSTICE NOURSE AND MR JUSTICE CAZALET
)
Royal
Courts of Justice
Strand
London
WC2
Tuesday
15 October 1996
B
e f o r e:
THE
MASTER OF THE ROLLS
(LORD
WOOLF)
LORD
JUSTICE KENNEDY
LORD
JUSTICE PHILLIPS
-
- - - - -
BANK
OF BARODA
Plaintiffs/Applicants
-
v -
SYED
TALHA HAMAD RAFIQUE
SYEDA
AKTHAR RAFIQUE
Defendants/Respondents
-
- - - - -
(Computer
Aided Transcript of the Palantype Notes of
Smith
Bernal Reporting Limited, 180 Fleet Street,
London
EC4A 2HD
Tel:
0171 831 3183
Official
Shorthand Writers to the Court)
-
- - - - -
MR
G FEATHERSTON HAUGH
(Instructed by Lawrence Jones, London, SE1 9LH) appeared on behalf of the
Applicant.
MR
G LAWRENCE QC
(Instructed by William Heath & Co, London W2 1PX) appeared on behalf of the
Respondents.
-
- - - - -
J
U D G M E N T
(As
approved by the Court)
-
- - - - -
©Crown
Copyright
JUDGMENT
THE
MASTER OF THE ROLLS: This is an application by the plaintiffs in relation to
an appeal which has been brought by the second defendant. The plaintiffs are
seeking the removal of a stay which was granted by this court, as then
constituted, when it granted leave to appeal to the second defendant in respect
of a decision which was given in the Kingston County Court.
The
proceedings in the Kingston County Court were as to residential premises which
were occupied by the second defendant and her husband, the first defendant, in
St George's Hill. The first defendant was the registered proprietor of the
property and the second defendant had an equal equitable interest in those
premises. The premises were mortgaged to the plaintiffs who brought
proceedings for possession against the defendants. The plaintiffs also sought
an order for sale under section 30 of the Law of Property Act 1925. Those
proceedings were not defended by the husband and judgment was given against
him. The wife contested the proceedings on the basis that she ought not to be
bound by the mortgage which was procured by undue influence.
The
claim was heard over the course of three days in February of this year. The
judge came to the conclusion that the wife's defence failed on the undue
influence point and, accordingly, he gave judgment for possession but did not
deal with the alternative claim which was put forward by the plaintiffs under
section 30 of the 1925 Act.
The
wife then sought leave to appeal against the judgment, and a stay of execution
was granted by this court in addition to granting leave to appeal. At one time
the plaintiffs were intending to pursue an application to set aside the grant
of leave to appeal as well as the stay of execution. However, the plaintiffs
are now only seeking to set aside the stay.
Putting
the matter very shortly, which is all that is necessary in view of what I say
hereafter, the plaintiffs' case is that they have an unanswerable argument in
support of an order for sale; that substantial interest is being incurred in
relation to a further charge which exists on the property in favour of the
Bradford and Bingley Building Society; and, that unless the interest which is
accruing due under that other charge ceases to accumulate in consequence of a
sale, the plaintiffs' interest, in relation to their charge in respect of which
they have an unsatisfied judgment against the first defendant for some
£667,000, will be substantially reduced in value or even rendered
worthless.
The
wife contends that it would be quite wrong for the stay on a judgment for
possession to be removed because the plaintiffs would enter into possession
under the mortgage and would then be able to sell as a mortgagee in possession.
Mr Lawrence, on her behalf, submits that that is not an appropriate course for
this court to take on an application to remove a stay which has been granted by
another division of the court.
The
court is concerned that if no action is taken there will indeed be a
squandering of the value of the property, which is the asset which is at stake
in these proceedings. It is also concerned that there are separate proceedings
being brought in the Kingston County Court by the Bradford and Bingley Building
Society under their first mortgage; that the same defence which the wife raised
in the proceedings by the plaintiffs is being raised in those proceedings; and
that the outcome of those proceedings could well have an influence both on the
merits of the proceedings which have been the subject of the appeal and also
the value of the proceedings to the plaintiffs.
It
appears clear to this court that it is in everybody's interest that two things
should happen as soon as possible. The first is that there should be a proper
determination of the plaintiffs' alternative claim for an order for sale upon
which there has not yet been an adjudication. The second is the resolution of
the proceedings which are being brought by the Bradford and Bingley.
This
court is also conscious that before the present appeal is heard, a substantial
period of time is inevitably going to elapse because of the other cases which
are waiting to be heard. In those circumstances, this court explored with
counsel the possibilities of finding some solution to the present situation
which would be of benefit to all the parties involved. It appears clear to
this court that if there is going to be a sale of this property, the earlier
the sale takes place the better because of the incidents of interest to which I
have already made reference. It is also true that it would be more
satisfactory for the proceedings in the county court, brought by Bradford and
Bingley, to be determined either in conjunction with, or in connection with,
the determination of the plaintiffs' claim for an order for sale. Accordingly,
the course that we propose to take, which is not opposed by either party to the
present appeal is as follows:
1.
We will remit to the Kingston County Court, if at all practicable, to His
Honour Judge Hucker, who has heard the case already, to determine the issue as
to whether there should be an order for sale or not.
2.
We would direct the Kingston County Court to ensure that, so far as this is
practical, that the other action which is still proceeding in the Kingston
County Court comes to trial as soon as possible. If this is practical, the
trial of that other action should proceed the determination of the issue as to
sale in this action.
3.
On determining the issue as to whether there should be an order for sale in
this action, both parties should be at liberty to call any additional evidence
which is relevant to that issue, and to make any submissions which they
consider appropriate before the judge determines the same.
4.
It is the hope and expectation of this court that as the nature of the issues
between the Building Society and the second defendant, the wife, are well
identified, the matter can come on for hearing in the relatively near future.
We would hope that the court would work to a date this year.
5.
If possible that action should also be determined by Judge Hucker, who is
aware of the background because of having tried the present action, and that he
should allow time for both matters to be disposed of, if at all practicable, in
succession as I have indicated.
It
may well be that in consequence of the directions I am proposing, that it will
not be necessary for this appeal in the present case to proceed. However, that
would be a matter which would have to be decided by the parties in the light of
what happened in the County Court. In the meantime, it would seem to me,
subject to anything counsel has to say, that the present appeal should not be
listed until after the determination of the County Court proceedings.
The
other matter we would add is that for the time being the present case should
keep its place in the Court of Appeal list. This is so that the parties are not
prejudiced in consequence of this initiative by this court.
LORD
JUSTICE KENNEDY: I agree.
LORD
JUSTICE PHILLIPS: I agree.
Order:
As above. No order as to costs.
© 1996 Crown Copyright