England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(MR GABRIEL MOSS QC, Sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London WC2 Monday, 16th September 2002

Monday, 16th September 2002

1. LORD JUSTICE LONGMORE: This is the second time that this matter has been before this court on a further trial of preliminary issues. The matter arises in this way. In April 1987 Mr Hanfy, Mr Assuity and Mr Debawy agreed to buy a flat known as 16 Primrose Court, 49 Price Albert Road NW8, for £77,000. The arrangement was that Mr Hanfy was to provide £25,000 through Mr Bedawy, and also to provide £10,000 to cover the costs of converting the flat. Mr Assuity was to provide £52,000, of which £17,000 was to be a loan from Mr Assuity to Mr Bedawy as Mr Bedawy's own contribution, and that 14 per cent per annum interest was to be charged on this loan. Contracts were changed in May 1987 and completion was taken on 3rd June 1987 in the name of Mr Assuity's mother, the registered title having changed since that time and now being in the name, at any rate partly if not wholly, of Mr Assuity's wife; that was done in 1993.
2. The main issue at the first hearing before Mr Gabriel Moss QC, sitting as a Deputy High Court Judge of the Chancery Division, was whether Mr Assuity was entitled to do what he had done in 1993, or whether Mr Bedawy had a beneficial interest, it having by that time been conceded that Mr Hanfy did in fact have a beneficial interest. The judge decided, on 18th January 2002, that Mr Bedawy did have a beneficial interest, and he held that the parties held that beneficial interest in a proportion, which I think was 17:35:25, and he ordered a sale and the taking of accounts. Mr Assuity was dissatisfied with that decision and applied for permission to appeal to Carnwarth LJ who, on 17th April 2002, rejected his application.
3. Various matters remained to be dealt with as a result of the hearing of the preliminary issues by Mr Moss. One particular matter which he had not dealt with was Mr Bedawy's claim that there was an agreement that he should be paid 10 per cent of the costs of conversion or refurbishment, whatever they might have been, as a management fee; so there had to be a further hearing before Mr Moss in relation to those expenses and indeed in relation to other matters.
4. On 14th May Mr Moss came to his decision in an order which was encapsulated in an order of 20th May 2002, which is an order of a fairly complicated nature that I do not propose to read in its entirety. But the essence of it was that he held that Mr Bedawy was indeed entitled to a management fee of 10 per cent of the expenses of refurbishment and that the expenses were contained in a document called the Accounts of Primrose document; and that Mr Assuity had accepted and agreed that the amounts in that document did represent the expenses in relation to the property.
5. Mr Assuity now seek permission to appeal that further decision made on those further preliminary issues. He has made a number of points to me this morning in support of that application. He says, firstly, that he never agreed the amounts in the accounts of Primrose Document. He refers to numerous documents in a skilful skeleton that he has produced for the purposes of his argument this morning. He submits that the accounts were differently stated at different times and so he could not have agreed to such accounts so differently stated. He submits that they contained duplication. He submits further that there was no mention of any 10 per cent management fee in the documents which went to support the accounts of Primrose Document itself. He further submits that there was an agreement to cap the amount spent on the conversion at £10,000, or at any rate he would not be responsible for any sums in excess of that and would not have to pay any management fee insofar as there was any excess. He submits yet further that any agreement there was revoked, and he points to a document where the word "revoked" was used. He submits also that when his wife has contributed so much to the expenses of purchasing and converting the property and is now registered on the title it cannot justifiably be taken away from her. He submits that overall he is going to find himself in a position where he is liable for up to £40,000 on a conversion which was supposed to cost only £10,000. He has, as I say, put a further skeleton argument before me this morning in which he develops all those points.
6. The difficulty from Mr Assuity's point of view is that these were matters that were gone into by Mr Moss, some of them (indeed the last two that I have mentioned) in his first judgment, the others in his second judgment. They are all matters of fact; and while one understands that Mr Assuity naturally feels very strongly about the findings which Mr Moss has made, they are all findings of fact, and no question of law can arise upon them.
7. In those circumstances this court could not conceivably take a different view from that taken by Mr Moss, and despite Mr Assuity's considerable skill in advancing the points that he has made, I regret to say that I have, for the reasons I have given, to refuse him permission to appeal in this case.
(Application refused; no order for costs).