England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(HHJ FRICKER QC)

		Royal Courts of Justice Strand London WC2 Tuesday 25th September 2001

1. LORD JUSTICE KEENE: The first defendant, Mr Sadeghian, seeks permission to appeal out of time against an order of His Honour Judge Fricker QC dated 26th January 2001 sitting at York County Court. The order was one for possession of No 48 Kennerleigh Avenue, Leeds on or before 24th February 2001. The order records that the first defendant was not in attendance at the hearing, but that he was represented by counsel and solicitors. On 9th April 2001 District Judge Spencer at Leeds County Court dismissed an application by the first defendant to reenter the property.
2. This matter first came before Peter Gibson LJ on 29th August 2001, who ordered that it be heard on notice. That has meant that today I have had the advantage of hearing not only Mr Sadeghian, but also Miss Clarke, who has appeared on behalf of the Abbey National Plc, the claimant.
3. The background to this case is a little complicated, but I will try to summarise the facts as briefly as possible, bearing in mind that there is some controversy about some of the events in the past.
4. The first defendant, who is married to the second defendant, purchased 48 Kennerleigh Avenue (which I will call "the property") in 1979 or 1980. In 1990 a mortgage application was made to the claimant in the name of Theresa Veronica Bligh. Miss Bligh is, in fact, the sister of the second defendant and therefore the sister-in-law of Mr Sadeghian. The application sought a loan for the purchase of the property. The form named solicitors, Brill Palmer & Co, as acting on behalf of the applicant. They did so act, and it seems they also acted on behalf of the Abbey National. A loan of somewhere in excess of £50,000 was duly made, secured by a mortgage on the property, still in 1990.
5. There is also a contract for the sale of the property by the first defendant to Miss Bligh dated July 1990, and a transfer of this property (which is registered land) by the first defendant to her, that being dated 17th July 1990. Consequently, Miss Bligh became the registered owner of the property.
6. However, the first defendant, in a witness statement filed in some previous proceedings, paints a less straightforward picture. He says that in 1990 he was short of money and he decided initially to sell the property, but a solicitor told him that he could raise money on the house without selling it. Apparently the solicitor said to Mr Sadeghian that they needed a "buyer", and the first defendant states in that witness statement (as he has confirmed to me today) that he signed various papers so as to raise the money. In the witness statement he alleges that his sister-in-law, Miss Bligh, agreed to let her name be used, so he sent the solicitor her details. In due course, according to this witness statement, the solicitor sent the first defendant a cheque for £53,000, and, as that was more than he wanted, he withdrew £40,000 in cash and gave it to the solicitor to pay back to the Abbey National. Mr Sadeghian has told me today that the solicitor later committed suicide. The solicitor was acting for the Abbey National in the mortgage transaction. He, Mr Sadeghian, subsequently discovered that the £40,000 had not been paid over to the Abbey National as he had believed it would be.
7. I should say that Miss Bligh, in a witness statement in those same earlier proceedings, asserted her signature on the mortgage deed was a forgery and that she knew nothing about this transaction at the time. She states that she subsequently found out that the Abbey National was asserting that she owed money under a mortgage on the property. She states that her sister, the second defendant, then apologised to her and said that they had been desperate for money, and that they would send Miss Bligh money so that it could be paid into the Abbey National. She goes on to say that this happened for a time, but then the payments stopped. In any event the Abbey National brought an action for possession in September 1995, those being the earlier proceedings in which these witness statements to which I have referred were filed.
8. In 1995, Miss Bligh was the registered owner of the property. The first defendant was one of the defendants in those proceedings; and in his defence filed on his behalf it is admitted that the first defendant executed the transfer of the property to Miss Bligh in 1990. Today, Mr Sadeghian says that he knew nothing about that and that the defence was not something which he had seen.
9. By an order dated 22nd October 1998 made by consent, the Leeds County Court stayed those 1995 proceedings on terms agreed between the Abbey National and Miss Bligh. One term was that she would transfer the property forthwith to the Abbey National. She did so. The registration was finalised at the Land Registry on 6th April 1999. Thus, the Abbey National became the registered proprietor; and that was its status at the time when the county court judge made his order in the present proceedings for possession against the first and second defendants, the order against which it is now sought to appeal. I understand that the property has since been sold by the Abbey National to a third party, that taking place on 26th June 2001.
10. The present action, therefore, was not an action by a mortgagee for possession but rather one by the registered owner for possession. What the first defendant puts forward in his grounds of appeal are essentially three points. First, he emphasises that he has paid any money which he owed on the mortgage, because he paid over that £40,000 to the solicitor acting, as he understood it, for the Abbey National and he has paid the rest of the money since then. Secondly, he emphasises that the judgment in the York County Court in January 2001 was made in his absence. Finally, he contends that the property could never have properly been transferred to the Abbey National by Miss Bligh because Miss Bligh was not entitled to the property and, indeed, has said in her own statement that she was no party to that transaction.
11. Mr Sadeghian has orally told me today that he did not execute the transfer of the property in 1990 to Miss Bligh. However, he readily admits that he does not know what documents he signed in 1990. He signed a number of documents but he trusted the solicitor. He said to me at one point: "I just signed." So although he is not aware that he executed a transfer to Miss Bligh, it may be that he did indeed do so amongst the documents which he signed.
12. In any event, his problem, it seems to me, is that when the judge below made the order for possession the Abbey National Plc was the registered proprietor of this property. It had a registered title as the freeholder, and it therefore had the legal estate in the property, subject to any overriding interests. That meant, of course, that it could deal with the property as the registered owner and could dispose of the property.
13. If what the first defendant now says is true, then it may be that Mr Sadeghian has a claim for rectification of the Land Register under section 82 of the Land Registration Act 1925, but he has not sought rectification. Whether he could succeed in such a claim would depend on whether the facts showed that he was party to the alleged fraud in 1990 or was wholly innocent of it. That is not something which this court can determine because it would depend on where the truth lies about the events in 1990; and there are somewhat conflicting versions on paper about those particular events.
14. In any case it may be difficult, I have to say, for Mr Sadeghian to succeed in a claim for rectification in the light of his earlier admission in the defence in the 1995 proceedings that he executed the transfer to Miss Bligh in 1990. Even today, as I have emphasised, his position is that he does not know what documents he signed. So I do not seek to encourage Mr Sadeghian to begin proceedings for rectification of the Register; I merely indicate that that might have been an appropriate course at one stage. Certainly he may wish to take legal advice on the rectification of the Register.
15. These matters were not apparently ventilated before the county court judge, perhaps because of the first defendant's absence. But I note that directions for trial had been made on 10th October 2000, including a direction that the matter be listed for hearing in the county court between 8th January 2001 and 26th January 2001. It was so listed, and the first defendant was represented by counsel and solicitors. He can have, it seems to me, no real complaint on the score of the proceedings having taken place in his absence when he was given three months' notice of the hearing window.
16. The judge took the proper, straightforward view of the case, namely that the registered proprietor was seeking possession against persons with no established interest in the property. In the absence of any application for a rectification of the Register, he was entitled to adopt that course. It follows that there is no real prospect of any successful appeal against his order. Consequently, these applications must be dismissed.
17. Nonetheless I am very grateful to Mr Sadeghian for the clear and courteous way in which he has presented his arguments this afternoon. All that he may wish to do at this stage is to take legal advice on his current position.
ORDER: Application dismissed.