England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE CHANCERY DIVISION
COMPANIES COURT
(Mr Anthony Mann QC
sitting as a Deputy Judge)

		The Royal Courts of Justice The Strand London Tuesday 30 April 2002

1. LADY JUSTICE ARDEN: This is an application made by the company, the first appellant, which is a company in administration, in an appeal which it has brought with two other appellants against the order of Mr Anthony Mann QC dated 27 February 2002. The company in administration seeks, among other things, to establish on appeal that a property known as 39 Farquhar Road is held on trust for the company. Among other claims, it claims that the property was in part purchased with funds of the company. Those funds were found to have been lent to Nilesh Thakrar, the first respondent.
2. The declaration is sought against all the respondents to the appeal. This application is concerned with the second respondent. By order of His Honour Judge Boggis QC it was declared on 27 June 2001 that she has a 22 per cent beneficial interest in 39 Farquhar Road. In his judgment His Honour Judge Boggis found that there was a common intention that she and her husband Nilesh Thakrar should own 39 Farquhar Road beneficially, and the judge assessed her interest at 22 per cent. However, on this appeal the case made against Surbhi Thakrar, and on the basis of which it is said that relief can be given against her, is that the company's interest in the property preceded her own interest and therefore takes priority over it.
3. Today's application is to ensure that the proceeds of sale of the property, as ordered by His Honour Judge Boggis, are held pending the outcome of the appeal. Surbhi Thakrar is living in Canada. I am satisfied that she has been duly served with the application for today and in my judgment it is right that this court should grant interim relief over the hearing of the appeal in order that the Court of Appeal may first resolve the issues arising on appeal as to the ownership of the property before any funds are paid out of the jurisdiction. Surbhi Thakrar would be protected by a cross-undertaking in damages in the court's usual form, and Mr Moverley Smith QC, who appears for the company, accepts that any liability found under that cross-undertaking would be treated as costs of the administration. It is clear from the financial information available before the court that there would be a very substantial surplus available for paying such costs.
4. As to the form of order, the appropriate form is in my judgment the first form in the draft order before me, namely that the second respondent (that is Surbhi Thakrar) should instruct her solicitors to pay into court without making any deduction such part of the proceeds of sale of the property known as 39 Farquhar Road as is paid to them by Messrs Ragge & Co pursuant to the order of HHJ Boggis QC dated 27 June 2001 and that the money should be so held until the determination of the appeal or earlier order of the court, unless otherwise agreed in writing in advance by the company's solicitors. I further order that the second respondent should be restrained from disposing or dealing with, charging or diminishing the value of the proceeds otherwise than by complying with that order until after the determination of the appeal or other order of the court unless otherwise agreed in writing in advance by the company's solicitors. So far as the costs of this application is concerned, it is appropriate that I order that they be reserved to the hearing of the appeal. Obviously, if there is a material change in circumstances or if so advised, it would be open to Surbhi Thakrar to apply to discharge this order, but the order today has been made after giving her full notice in accordance with the directions of the court of the application and I am satisfied that it is one that I should grant. I have directed the appellant within 14 days to supplement its skeleton argument so as to deal with its case against Surbhi Thakrar, that skeleton argument to be filed within 14 days and I have also given it permission to deal with any other issue if so advised, within, of course, the permission to appeal given by the judge.
ORDER: Minute of order to be prepared by counsel.