England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE DERBY COUNTY COURT
(His Honour Judge Orrell)

		The Royal Courts of Justice The Strand London Thursday 13 December 2001

Thursday 13 December 2001

1. LORD JUSTICE LAWS: As we are proposing to grant permission in this case I will make only some brief remarks. This is a renewed application for permission to appeal against the judgment of His Honour Judge Orrell given in Derby County Court on 25 May 2001. The learned judge gave judgment in favour of the claimant for some £27,600-odd plus interest and costs. On 12 November 2001 Keene LJ refused the defendant's application for permission to appeal on the papers.
2. The essential factual background is set out by the judge at pages 1B-2C of the judgment. The claimant had an off-licence shop in the north-east. He had an acquaintance whose son, Inderjit Singh Basra, figures considerably in the tale. Another acquaintance was the defendant, Santokh Singh. Santokh had an off-licence in Leicester. To cut a long and in some ways very strange story short, the claimant was interested in obtaining a 20-year lease over the defendant's premises. There was talk about Gurdev, the father of Inderjit, or Inderjit himself acting as manager. In due course, on 28 June 1997 there was a meeting between the claimant and the defendant and the judge held (page 11 of the judgment) that the defendant Santokh knew perfectly well that the claimant was the individual who was going to purchase the business. What happened was that the claimant in various tranches paid over the monies which were later to become the judgment sum; but he never received the lease. The lease was transferred to Inderjit Basra. The claimant accordingly sued to recover the money he had paid as being money had and received by the defendant to his use. It really was an unjust enrichment case.
3. The learned judge, having rejected the defendant's evidence about what had passed between the parties, considered that that was the end of the matter. There had been a total failure of consideration for the payments made by the claimant. He said (page 11E):

"There is simply no evidence to suggest that there were any untoward arrangements between the claimant and Gurdev or Inderjit which would make it not unjust for the defendant to retain the claimant's monies where there has been complete failure of consideration."

4. Then at H:

"I find it would be unjust for the defendant to retain the sum of £27,647.69 paid to him by the claimant as the result of being induced into thinking that he was going to take a lease of twenty years years on that property and that he was buying the stock and goodwill of the business on that understanding."

5. The judge has, it seems, paid no attention to events which took place after this meeting on 28 June 1997, not least the fact that the solicitors, Messrs Parmars, apparently acting for the claimant, prepared a lease by whose terms Inderjit Basra would become the tenant. The claimant saw that draft lease with Inderjit Basra's name on it and queried the latter with Mr Parmar, but Mr Parmar seems to have insisted (I think on the claimant's own evidence) that Inderjit Basra was the proper intended tenant. Knowing those matters, the claimant nevertheless paid over first £12,500 on 8 September 1997 and then later £13,000 on 19 September: all this before the lease was in fact executed in favour of Inderjit on 29 September 1997.
6. It seems to me - and I emphasise that what I have recounted is only part of the story - that it is at least arguable in those somewhat extraordinary circumstances that it was not unjust for the defendant to retain the money that he had received from the claimant, and on that short basis it seems to me that there should here be permission to appeal. For my part I would grant permission.
7. MR JUSTICE MORLAND: I agree.
ORDER: Application granted. Execution of the judgment to be stayed pending appeal on the undertaking that the appeal will prosecuted expeditiously. Costs of the application to be in the appeal. Appeal to be heard by two judges, one of whom may be a High Court judge. (Order not part of approved judgment)