England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19 December 2008

1. MR JUSTICE BEATSON: This is an application to vary a restraint order made on 28 January 2008 by Wyn Williams J pursuant to the powers of Part VI of the Criminal Justice Act 1988. The order was made following a trial and the conviction on 23 January 2008 of the defendant, Peter John Pomfrett, of conspiracy to cheat the Revenue. The conspiracy was a missing trader or "carousel" fraud involving computer processing units. The indictment period was April to July 2002. The loss to the Revenue during 20 days' trading between 25 June to 22 July 2002 was £24.2 million. On 28 January 2008, the day on which the restraint order was made, the defendant was sentenced to ten years' imprisonment. Prior to his conviction, he had been a successful businessman operating golf clubs, hotels, night clubs and other businesses in the Essex area. One of the golf clubs was the Woolston Hall Golf Club. The property which is the subject of this application adjoins the golf club, and most of it was formerly owned by the company associated with the golf club.
2. The order has been varied by consent on three occasions. The present application is made by the defendant's three sons, James, Darren and Danny Pomfrett. They seek to exclude two recently built houses (2 Woolston Manor Cottages and The Lodge) and a number of adjoining or nearby plots, and the process of sale of a third house (1 Woolston Manor Cottages and adjoining plots) from the order. Save for one of the properties, they are all registered in the name of one of the defendant's sons. 2 Woolston Manor Cottages is registered in the name of James Pomfrett and his partner Elizabeth Clements.
3. The properties are on Abridge Road, Chigwell, Essex and adjoin the Woolston Hall Golf Club. The plots on which the houses were built and a number of other of the plots were acquired from UK Leisure Holdings ("UKLH") or Bullwood Limited, an Isle of Man company. For the purposes of this application Mr Bodnar, on behalf of the applicants, accepted that there is a good arguable case that all the relevant transfers were executed by the defendant, whether directly or indirectly. This was because he accepted that there is a good arguable case that UKLH was controlled by the defendant, and he also controlled Bullwood Limited, the vehicle of a Pomfrett family trust in the Isle of Man. The applicants claim that the properties transferred to them are not within the provisions of Part VI of the Criminal Justice Act 1988 because they and not the defendant have both the legal and beneficial interest in these properties. It is their case that the defendant neither gifted the properties to them nor sold them at an undervalue after the commission of his offence.
4. The restraint order was made against the defendant, his wife Christine, his three sons and his daughter, his son James's partner Elizabeth Clements, and three companies, Global Active Technologies Limited, Hunt Properties (UK) Limited, and Goodmayes Estates Limited. All the defendant's assets are subject to the order. Paragraph 6 of the order states that it includes in particular the assets listed therein. The assets listed include the properties which are the subject of this application (see paragraph 6(b), 6(e), 6(f), 6(g), 6(h) and 6(i) of the order).
5. The position is complicated because of the development history of the properties. There are a total of nine plots and nine registered titles. Prior to the development there were two semi-detached houses, 1 and 2 Woolston Hall Farm Cottages, on two of these plots. In 2001, 1 Woolston Hall Farm Cottages was the home of the defendant and his wife Christine, although at some stage the defendant moved abroad for tax reasons. During 2001, James Pomfrett, who was recovering from a nervous breakdown, moved into 2 Woolston Hall Farm Cottages, the next-door cottage.
6. The evidence of James and Christine Pomfrett was that the application to build what are now 1 and 2 Woolston Manor Cottages, which, notwithstanding the term "cottage", are substantial houses, came about because 1 and 2 Woolston Hall Farm Cottages were close to Abridge Road. James Pomfrett said that the cottages were being shaken by the number of large lorries using the road, and the noise was intolerable and damaging the houses. An application was made to relocate the houses away from the road, although in the event the houses that were built were much larger and built on different plots. Outline planning permission was given on 15 December 2003. Although full planning permission was not given until 14 October 2004, work began on the sites on which the two houses were to be built in April 2004. A requirement for the development of the two new houses was that 1 and 2 Woolston Hall Farm Cottages be demolished. The plots subject to the restraint order include the sites of those houses, which have been demolished. The asset identified in paragraph 6(e) of the order is one of two strips of land to the rear of those plots which provided access to the semi-detached cottages and which now provides part of the access to 1 and 2 Woolston Manor Cottages. The restraint order identifies six of the nine plots by their Land Registry titles, and since some of the properties are identified in the order by different names to those by which they are now known, I shall identify all the plots by their Land Registry title numbers.
7. The order prohibited Darren Pomfrett from dealing with the assets identified in paragraphs 6(b) and (f) of the order, 1 Woolston Hall Farm Cottages (EX 499122) and the adjoining land (EX 747238) and 1 Woolston Manor Cottages (EX 718617). The order prohibited James Pomfrett from dealing with the asset identified in paragraph 6(e), described in the order as 2 Woolston Manor Cottages, with title number EX 750451. In fact, that title number relates to the second of the access strips behind the site of the semi-detached cottages. The title number for 2 Woolston Manor Cottages is EX 718623 and its registered owners are James Pomfrett and Elizabeth Clements. EX 718623 is identified in paragraph 6(h) as Woolston Manor House, and James Pomfrett and Elizabeth Clements are prohibited from dealing with it. James also the registered owner of plot EX 497872, the site of one of the two demolished cottages. There is no specific restriction in paragraph 6 of the order in respect of this title.
8. Danny Pomfrett is prohibited from dealing with the assets identified in paragraph 6(g) of the order, described as The Lodge, title number EX 746652. In fact, that title relates to a strip adjoining the plot on which The Lodge stands. The title number of the plot on which The Lodge stands is EX 695640. Danny is also the registered owner of a plot (EX 766727) behind his other two plots. There is no specific restriction in paragraph 6 of the order in respect of this title, but this plot was treated during the course of the hearing as subject to the restriction order.
9. On 7 April 2008, the defendant applied to vary the restraint order by excluding many of the properties identified in paragraph 6 of the order, including those registered in the names of his sons and Elizabeth Clements. On 11 June 2008, the application came before Mr Andrew Nicol QC sitting as a Deputy High Court Judge. Mr Nicol directed that Darren, James and Danny Pomfrett be joined as applicants and that the application be adjourned pending completion of the confiscation proceedings against the defendant. The defendant's three sons appealed against the latter part of his order.
10. In August, the defendant was given leave to appeal against his conviction. The confiscation proceedings had been adjourned pending that appeal. That appeal has not yet been listed for hearing. In the light of the adjournment of the confiscation proceedings, the respondent, Her Majesty's Revenue and Customs, conceded the appeal by the three sons against the adjournment of the application pending the conclusion of the confiscation proceedings. On 25 November 2008, the Court of Appeal set aside the order of the Deputy Judge and ordered that the application for a variation of the restraint order should be heard as soon as is practicable. Unfortunately, the effect of the order, to which all the parties consented, was to set aside the joinder of the defendant's three sons as applicants. At the commencement of the hearing on 10 December 2008, it was agreed by the applicants and the respondents that Darren, James and Danny Pomfrett would file a new application. That was done that day. The application by them, now before the court, only concerns the three houses and the adjoining or nearby plots of land to which I have referred.
11. The property registered in the name of Darren Pomfrett (EX 718617, EX 499122 and EX 747238) was sold on 26 October 2007 for £1.497 million. Accordingly, Darren Pomfrett's application is that the net proceeds of that transaction be excluded from the restraint order. The property registered in the name of James Pomfrett and in the names of James Pomfrett and Elizabeth Clements (EX 718623, EX 499872 and EX 750451) is on the market but has not been sold. The property registered in the name of Danny Pomfrett is not for sale. He lives in The Lodge, EX 695640, and the two other plots registered in his name (EX 746652 and EX 766727) are either part of The Lodge's garden or are greenbelt sites adjoining the garden.

The evidence

12. The evidence before me consisted of statements made by Darren Pomfrett (29 April 2008 and 6 June 2008), James Pomfrett (29 April 2008), Danny Pomfrett (29 April 2008 and 6 December 2008), Christine Pomfrett (10 June 2008 and 8 December 2008), Darren's partner Hayley Lampey (8 June 2008), Graham Taylor, a freelance architectural consultant who had been a director of Goodmayes from the late 1980s to the late 1990s and who designed 1 and 2 Woolston Manor Cottages (9 June 2008 and 8 December 2008), and a report (dated 28 March 2008 and amended 21 April 2008) from Anthony Chapman FRICS, an experienced estate agent and surveyor. These witnesses also gave evidence at the hearing. There were additionally statements in support of the application from: Elizabeth Clements, James Pomfrett's partner; Edmund Corbett, a builder; Phillip Decosimo, a fencer; David Durde, an electrician and a friend of James Pomfrett, whose evidence was that he worked in seven properties renovated by James; Bryan Courtenay, an electrician who issued the NICEIC certificates for the properties; Denny Lampey, Hayley Lampey's brother; and Leslie and Betty Perry, Christine's Pomfrett's parents.
13. The respondent relied on the statements of two Revenue officers, John Hughes (a statement made in support of the application for the restraint order) and Claire Boyce. Ms Boyce's statement, dated 23 May 2008, concerns a visit she made to the offices of Goodmayes Estates on 30 May 2007 and the discussions she had with Theresa Calvey, a director of the company, with whom the defendant's sons dealt in connection with the property. The contents of their statements were not challenged. The respondent also relied on the evidence given in chief by the defendant at his trial.

Applicable Legal Principles

14. These are usefully summarised in paragraph 9 of Mr Bodnar's skeleton argument and paragraphs 11, 13 to 17 and 19 to 23 of his written closing submissions.

Section 77(1) of the Criminal Justice Act provides:

"The High Court may by order [...] prohibit any person from dealing with any realisable property..."

Section 74(1) of the Act defines "realisable property" as:

"(a) any property held by the defendant; and

"(b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Part of this Act."

Restraint orders, whether made under the Drug Trafficking Act 1994 or the Criminal Justice Act 1988, fulfil a similar purpose to freezing orders under Part 25 of the CPR. The question for the court is whether there is a "good arguable case" that the property in question is either "held" by the defendant or constitutes a "gift" by him.

15. In the present case I am concerned with a number of transfers. The first question is whether there is a "good arguable case" that those transfers were shams. This is a question of fact. If the transfers were shams, the defendant remains their beneficial owner. Only if I conclude that there is no "good arguable case" that the transfers are shams is it necessary to consider whether there is a "good arguable case" that they fall within the statutory definition of gift in section 74(12) of the 1988 Act and, if so, whether, as required by section 74(10)(a), they were made after the date of commission of the index offences. These two questions are separate questions from that under section 74(10)(b), whether if the property is a "gift" made after the commission of the offence, it should be taken into account. That question is one for the Crown Court in the confiscation proceedings.
16. The circumstances in which a defendant is to be taken to have made a gift are set out in section 74(12) of the Criminal Justice Act 1988 in the following terms. This provides:

"(a) the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the defendant, and

"(b) in those circumstances, the preceding provisions of this section shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph (a) above bears to the value of the consideration provided by the defendant."

In other words, if the defendant transfers property for half its true value, he is to be treated as making a gift of the other half.

17. The general rule in relation to the value of property is set out in section 74(4) of the Criminal Justice Act 1988. This provides:

"Subject to the following provisions of this section, for the purposes of this Part of this Act, the value of property (other than cash) in relation to any person holding the property --

"(a) where any other person holds an interest in the property is --

"(i) the market value of the first-mentioned person's beneficial interest in the property, less

"(ii) the amount required to discharge any incumbrance (other than a charging order) on that interest; and

"(b) in any other case, is its market value."

The ascertainment of the value of a gift is specified in sections 74(7) and (8) of the Criminal Justice Act 1988:

"(7) Subject to subsection (12) below, references in this Part of this Act to the value at any time (referred to in subsection (8) as 'the material time') of a gift caught by this Part of this Act are references to --

"(a) the value of the gift to the recipient when he received it adjusted to take account of subsequent changes in the value of money; or

"(b) where subsection (8) below applies, the value there mentioned, whichever is the greater.

"(8) Subject to subsection (12) below, if at the material time he holds --

"(a) the property which he received (not being cash); or

"(b) property which, in whole or in part, directly or indirectly represents in his hands the property which he received;

"the value referred to in subsection (7) above is the value to him at the material time of the property mentioned in paragraph (a) above or, as the case may be, of the property mentioned in paragraph (b) above so far as it so represents the property which he received, but disregarding any charging order."

18. It is generally for applicants to make out their case for a variation to a restraint order. Invoking the statement of Baroness Hale of Richmond in Stack v Dowden [2007] 2 AC 432, at paragraph 56, Mr Bodnar submits that a case such as this, where the titles in the properties which are the subject of the applications are registered in the applicant's names, it is for the respondent to show that notwithstanding their legal ownership, the defendant is the beneficial owner of those properties. Stack v Dowden, however, did not concern interlocutory proceedings. Baroness Hale's statement that the onus is on the person to show that the beneficial ownership is different from the legal ownership was made in the context of a final determination of the rights of the parties. In the context of interlocutory proceedings, as Mr Bodnar accepted throughout the hearing, the test remains whether there is a "good arguable case". In the present case, that is a "good arguable case" that the property in question is either "held" by the defendant or constitutes a "gift" by him. The issue for me is whether this is so. If it is, the application to exclude the property from the restraint order fails. If it is not, the application succeeds. In the present case, the crucial factor is the credibility of the defendant's three sons.

Assessment of the witnesses

19. It is undoubtedly the case that this restraint order weighs heavily on the three sons and their partners and families. In particular, I have heard evidence of the effect on the family lives of James and Darren. Their anger at what they said was an unjustified imposition in their lives was evident.
20. In the case of all three sons, I take into account that the transactions and the arrangements they describe were made in a family context, a context in which there is likely to be more informality than in pure commercial context. I also take into account in assessing their evidence that, as builders, they may be less familiar with paperwork, and that they may have relied on their father, a very successful businessman, in relation to these matters. That said, however, Darren and James, who received payments from the family trust, and Mrs Pomfrett, their mother, in my judgment minimised their knowledge of the trust and its corporate vehicle, Bullwood. I also found the evidence of Darren, James and Danny unsatisfactory in other respects, which I will identify at appropriate points of this judgment.
21. As far as Mrs Pomfrett is concerned, her evidence was that she was not aware of her husband's business affairs and that he only discussed family matters with her. These included, for example, whether James, who had been unwell, could move in next door. She saw the acquisition by her sons of the land as follows; that their father, a builder, wanted his children to build their own houses, and that was what they did. She also said that, although a director of Goodmayes, she was only a director in a formal way and was not involved in its activities. Notwithstanding the undoubted legal duties of company directors, I accept her evidence on that. I accept that she was not closely involved with her husband's business affairs and may not have known the details of the transactions in which her sons acquired the title to the plots of land. However, in other respects I did not find her evidence satisfactory. I will also identify those matters at the appropriate points in this judgment.
22. Chris Bard, a solicitor at Tolhurst Fisher, who acted for the defendant and other members of his family, acted in many of the transactions which I have to consider. The respondent commented on the absence of any evidence from him, but did not invite me to draw any specific conclusion from that absence. I do not draw any conclusion from that absence. There may be many reasons for a solicitor who has acted in a transaction, particularly when he has acted for more than one counterparty, in not giving evidence.

Common factors

23. Whether Darren, James and Danny have beneficial interests in the properties in respect of which this application is made depends on whether they paid for the properties, the payment coming from assets which were in their possession before the period of April to July 2002 in respect of which their father was charged and convicted, and whether they paid a fair value or a sum that was substantially below that. The position of each of them differs and must be considered separately, but there are common factors. In the case of all three brothers, there is the role of Goodmayes, the relevance of their father's evidence and what Theresa Calvey said to the VAT inspector, and, in the case of Darren and James, there is the value of the plots on which 1 and 2 Woolston Manor Cottages now stand.
24. The planning application for The Lodge was made on behalf of UKLH, and the planning applications for the two other properties by Andrew Martin Associates on behalf of the defendant. The construction of 2 Woolston Manor Cottages took place between April 2004 and late 2005. That of 1 Woolston Manor Cottages took place between November 2004 and January 2006. The construction of The Lodge took place between late 2002 and a date in 2004.
25. Darren, James and Danny's evidence was that the construction of the houses was organised through the defendant's property company, Goodmayes Estates, primarily so that an NHBC certificate would be obtained, but also in order to claim back VAT on materials used in the construction. Their evidence, that Goodmayes was used because of the need for an NHBC certificate and that Goodmayes primarily provided more specialised craftsmen, was supported by Edmund Corbett. Darren and James said that Graham Taylor, the architect and surveyor who did a lot of work for the defendant and had an office in Goodmayes' premises, designed the houses and was involved throughout the process of planning to final construction. Graham Taylor said that the original instructions for the drawings for the planning application were given by the defendant, but that after outline planning permission he took instructions as to the design of the two houses from Danny and James and that, as far as he was concerned, the project to build The Lodge was a project for Danny.
26. Darren, James and Danny Pomfrett also said that a large proportion of the labour was undertaken by them. Their evidence was supported in the statements of the various people who worked on the sites, and that of Betty and Leslie Perry. The evidence of those witnesses was not challenged. Messrs Corbett, Decosimo and Courtenay had worked for the defendant and his companies, including Goodmayes. As far as they were concerned, he was not involved in the building of 1 and 2 Woolston Manor Cottages and The Lodge. The projects were not his but his son's. Edmund Corbett and Phillip Decosimo said all three boys worked extremely hard on their houses. Bryan Courtenay and Phillip Decosimo charged "mates rates", which they would not have done for the defendant who was a rich man, and Danny Lampey painted for Darren and Hayley as a favour. Betty and Leslie Perry saw their grandsons working on the house and believed the properties belonged to them. Although the defendant had sold parcels of land to their grandsons, they believed the properties were not being built for the defendant or one of his companies.
27. In May 2007, Theresa Calvey told the VAT inspector that Goodmayes was then building two luxury houses in Chigwell, and that the properties were likely to be sold before the end of 2007. The defendant in his evidence at his trial said he built two houses for each of his elder sons and another one for his younger son.

The value of the plots on which 1 and 2 Woolston Manor Cottages now stand when they were acquired by James and Darren

28. James acquired EX 718623 on 24 November 2003 and Darren acquired EX 718617 on 30 July 2004, after outline planning permission was granted, but before the grant of full planning permission. Anthony Chapman's evidence was that the £10,000 paid by James for the plot on which 2 Woolston Manor Cottages (EX 750451) was built was a realistic price to a commercial developer, and more than a fair price in the absence of planning permission. His report states that £460,000 was a reasonable value for 1 Woolston Hall Farm Cottages (EX 499122) and the plot on which 1 Woolston Manor Cottages (EX 718617) was built.
29. He gave a number of reasons for this. First, and most importantly, neither of the plots could be developed without demolishing both the semi-detached cottages (EX 499122 and EX 497872). Until those could be knocked down, the plots, which were in the greenbelt, only had agricultural value with perhaps an small uplift to allow for the hope of development, because of the high degree of risk.
30. Secondly, the value of the plots was limited because there was no access to them from the road. They could only be accessed through the other plots, including the two access strips (EX 747238 and EX 750451) behind the semi-detached cottages and, in the case of 1 Woolston Manor Cottages (EX 718617) over the plot on which 2 Woolston Manor Cottages (EX 718623) was built.
31. Additionally, as at the time of the sales only outline planning permission had been granted, there were risks as to what kind of building would be allowed. Mr Chapman said there were also significant costs in knocking down the cottages and restoring the land on which they stood, which he estimated at about £250,000. He estimated that the cost of each new building would be about £600,000. Mr Chapman's assessment of value was based on looking at each plot in isolation and separately from the land on which the semi-detached cottages stood. He accepted that, if all the land had been in the same ownership, or in ownership of people with a common purpose, the value of the plots would have changed dramatically. It appeared that his instructions were premised on the plots being in separate ownership at all material times and there being no co-operation between the owners. He accepts in paragraph 11.1 that the transfers were purely made with the intention of creating building plots for the new properties associated with the demolition of the original structure, but his report says nothing about the ownership of the nine plots he considered at the times of the individual transactions.

The defendant's evidence and what Theresa Calvey said to the VAT inspector --

32. It is submitted by Mr Bodnar that the evidence given by the defendant at his trial that he was building houses for his sons is more consistent with an intention that the properties were intended to belong beneficially to his sons than with the suggestion that the transactions were shams. It is also submitted by him that what Ms Calvey said about the business of Goodmayes is only relevant to the internal business practices of the company.
33. As far as the defendant's evidence is concerned, I do not accept Mr Bodnar's submission, which, in any event, does not go to the question of whether these transactions were gifts or transfers at a substantial undervalue. The evidence the defendant gave, on which the respondent relies, was given in chief, in response to questions by his own counsel. It is undoubtedly consistent with an intention to make gifts to his sons, because nothing is said about having sold them the land on which to build. But what is in fact said in that evidence is that the defendant used some land from the golf course to build houses for his sons.
34. As far as Ms Calvey is concerned, she was the person with whom the sons dealt during the construction. She was the person who made the payments to them and to others in respect of the properties, and she was the person who received payments from them. What she said about the nature of Goodmayes' involvement with the properties is a matter on which the Revenue is entitled to rely, at any rate at this interlocutory stage.

Darren Pomfrett

35. I have stated that he is concerned with the proceeds of sale of the three plots registered in his name (EX 499122, EX 718617 and EX 747238) which were sold on 26 October 2007 for £1.497 million.
36. 1 Woolston Hall Farm Cottages, title EX 499122, and plot EX 718617, on which 1 Woolston Manor Cottages was subsequently built, were transferred by the defendant to Darren Pomfrett on 30 July 2004. The stated value was £460,000. The Land Registry document says that Christine Pomfrett, in whose favour the defendant had made a trust on 11 February 2004, consented to the transfer. Plot EX 499122 is 0.12 acres, and the building was a two-bedroom semi-detached house. Plot EX 718617 is 0.4 acres. Plot EX 747238, the access strip behind 1 Woolston Hall Farm Cottages, was bought by Darren on 29 April 2005 for £100 from Bullwood some nine months after he had bought the other two plots. Darren said that he did not know whether Bullwood had asked for more money. He said that Chris Bard of Tolhurst Fisher told him the position had to be tidied up. He also said that his brother James knew more about the matter, although when James gave his evidence, not much was added.
37. Work on the construction of 1 Woolston Manor Cottages began in November 2004. There were three payments from Darren Pomfrett's Nationwide account to Goodmayes. The first two, of £25,000 each, were on 29 April and 18 May 2005. Darren Pomfrett's evidence is that the payments were made from what had been left from the sale by him of another property, 108 Bourne Hill. I deal with this and the evidence as to the sources of Darren's funds later in this judgment.
38. Although work on the house finished in January 2006, the third payment of £245,000 from Darren's account was made 22 months later on 29 October 2007. It was from the proceeds of the sale of the property. Goodmayes' invoice for this sum is in respect of "work carried out to design and build a house". The invoice is dated 30 October 2007, the day after the payment was made. Asked why he only paid this sum then, Darren Pomfrett said he could not pay it until he sold the property and he did not want to take out a mortgage. In the absence of evidence from Goodmayes, there is no indication as to why they did not raise the invoice until that time. As well as paying Goodmayes, on 9 January 2008, Darren paid Hayley Lampey £500,000 from the proceeds. He said this was because their relationship was then in difficulties. He considered that 50 per cent of the property was owned by her and he wanted to give her and their autistic son security. He has since used some of the proceeds of sale, with the consent of the Revenue and Customs, to buy a new property which he is renovating.
39. The question whether Darren has the beneficial interest in 1 Woolston Manor Cottages (EX 718617) and the other two plots (EX 747238 and EX 499122) depends on whether he paid for the property from assets which were in his possession before the period in 2002 in respect of which his father was charged and convicted.
40. Darren's case is that he was able to acquire and develop 1 Woolston Manor Cottages as a result of the realisation of other properties he owned before that time. He said he acquired the first of these properties, 108 Bourne Hill, in 1999 for £365,000. He said that he funded the purchase out of the proceeds of the sale of a clothes shop, a mortgage guaranteed by his mother, and a loan from his father. He refurbished and extended the house and sold it in March 2003 for £790,000, receiving as part of the price another property 34 Stone Hall Road. After refurbishing 34 Stone Hall Road, in July 2004 he exchanged that property for 1 Woolston Hall Farm Cottages (EX 499122), the nominal transfer value being stated to be £460,000.
41. Darren's case is that the £10,000 he paid for the land on which 1 Woolston Manor Cottages (EX 718617) now stands was reasonable, because without the ownership of 1 Woolston Hall Farm Cottages (EX 499122) and the access strip (EX 747238), and the cooperation of the owner of 2 Woolston Hall Farm Cottages (EX 497872) and the access strip behind it (EX 750451), and the cooperation of the owner of the land on which 2 Woolston Manor Cottages now stands (EX 718623), 1 Woolston Manor Cottages could not have been built. I refer to Anthony Chapman's evidence, that the value of the land on which 1 Woolston Manor Cottages (EX 718617) now stands was in the region of £10,000 in the circumstances, but would have been worth much more to a person who owned both the semi-detached cottages (EX 497872 and EX 499122) and the other plots.
42. It is necessary to consider the funding from the realisation of other property. 1 Woolston Hall Farm Cottages was, as I have said, acquired by exchanging it for 34 Stone Hall Road. The title for that property was registered in Darren's name. In paragraphs 8 and 14 of his first statement, he says that the Stone Hall Road property was exchanged for 1 Woolston Manor Cottages and the adjoining land "in order to satisfy the purchase price of £460,000". 34 Stone Hall Road was transferred to Darren's mother Christine. A letter from Mortemore Mackay, estate agents and valuers, dated 5 May 2004, states that the market value of 34 Stone Hall Road at that time was in the region of £475,000. Mr Chapman's report states that the transactions concerning 1 Woolston Manor Cottages, which include the exchange for 34 Stone Hall Road, "appear to be logical and at reasonable levels of value". (See paragraph 11.5)
43. Did Darren Pomfrett have the beneficial interest in 34 Stone Hall Road? He states he acquired it as part of the transaction in March 2003 in which he sold 108 Bourne Hill, the property which he had extended and modernised. The price obtained for 108 Bourne Hill was £790,000. 34 Stone Hall Road was to represent £375,000 of that sum and the balance was paid to him in cash. After payment of £113,429.39 to the Allied Irish Bank to redeem the mortgage and transaction costs, Darren received the balance of £293,292.56.
44. 108 Bourne Hill is the first of the properties registered in Darren's name. Darren said he funded the acquisition of this property, which was bought for £365,000, out of the proceeds of the sale of a clothes shop and savings. He said that he sold the clothes shop for about £90,000, and about £30,000 of this was profit. He said his father lent him £20,000, which he paid back in 2005, and he got a mortgage with the Allied Irish Bank, his father's bank, on the basis of his salary because he had had the clothes shop. He then said that his mother guaranteed the mortgage. He said that the mortgage was initially £230,000. At some time, possibly in October 2000 and May 2001, his parents paid £100,000 of the mortgage because he was having difficulty in keeping up with the payments.
45. Darren said that some of the proceeds of the sale of 108 Bourne Hill was later used for the first two payments to Goodmayes on 29 April and 18 May 2005, and that he also used the proceeds to make two payments to his father, the defendant. These sums, of £20,000 and £200,000, were paid from Darren's account with the Allied Irish Bank on 21 March 2003. Darren's evidence was that the £20,000 was the repayment of money lent by him to his father and the £200,000 was for his father to invest on his behalf in stocks and shares. He said that his father invested the money and he got it back in dribs and drabs when he needed it from Dolphin, by which he meant the stock brokers Brewin Dolphin. He got it back with a bit of profit, he said, some £10,000 to £20,000. There is an annotation by Darren on one of his bank statements showing this item, marked "lent dad", and in paragraph 17 of his first witness statement he says that from the money received from the sale of 108 Bourne Hill, he "lent" his father £200,000. When giving evidence, he said this was a figure of speech and that he gave his father the money to put into Dolphin. Darren denied that he was paying his father back the £200,000 and that his father later lent him more money.
46. Darren was asked about three payments by his father into his account made shortly after his father's arrest on 22 January 2004. These were two payments of £45,000, on 29 January and 6 February 2004, and a third payment of £20,200 on 9 February 2004, a total of £110,200. Darren said these were from the £200,000. Of the first payment, Darren said that he had asked his father for some of the money back and his father gave it to him. Of the second payment, Darren first said he asked his father for it because he needed money for the building. He was renovating 34 Stone Hall Road at that time. When, however, it was put to him that, with a balance of £44,458.73 in his account at that time he did not need the money, he said, well, he wanted the money, it was his money. Darren said that a credit of £70,000 on 9 February 2004 from Brewin Dolphin was from the stocks and shares. In the two and a half weeks after his father's arrest, Darren's account was credited with £110,200 from his father and £70,000 by way of transfer from Brewin Dolphin.
47. Although the title to 108 Bourne Hill is registered in Darren's name, his statement that he funded the deposit for this property from the sale of the clothes shop is unsupported by any documentary evidence about the shop, its sale, and how the proceeds were used. Hayley Lampey and Christine Pomfrett say nothing in their statements about Darren's contribution to the purchase price, although in cross-examination Hayley said that the deposit for the property had come from the sale of the shop.
48. Darren's general explanation for the lack of documentation and the gaps in his account was the passage of time since these events. Although he was not able to support his account by any documentary evidence, even if I assume that the purchase of Bourne Hill was entirely funded by one or both of his parents, that is not fatal to his application. The property was acquired in 1999. His parents were then free to give gifts to him. It is indeed part of his case that they paid £100,000 to reduce the mortgage on the property. His description of this as "pocket money" is, however, curious to say the least but, in the absence of any other evidence, the purchase by a parent of property which is put in the name of an adult son will be presumed to give the adult son the beneficial interest in the property.
49. What must, however, be examined is the entirety of the evidence, including what happened to the proceeds of sale. Very soon after the proceeds were received by Darren, he made two payments totalling £220,000 to his father. I have set out his explanation for these payments. His explanation of the £20,000 as a repayment of money lent by him to his father is consistent with an entry on his father's bank statement of this sum. I do not, however, find his explanation of the payment of the £200,000 satisfactory. In his witness statement and on an annotation to the bank statement, as I have noted, he describes the payment as a "loan to his father". His evidence was that it was a loan given to his father to invest for him. Even allowing for his manner of expressing himself and his relative unsophistication in financial affairs, I do not find this explanation credible. There is almost no evidence to support it. Apart from what he said in his statement and the way he annotated his bank statement, the only documentation indicating any link with Brewin Dolphin is the entry in the bank statement for 9 February 2004, indicating a transfer from Brewin Dolphin. Moreover, very soon after the transfer to the defendant of the £200,000, the defendant transferred that sum to DVD Computers, a company which the respondent submits was involved in a number of the fraudulent transactions. This is not consistent with Darren's account that the defendant was to invest the £200,000 for Darren.
50. Thirdly, although Darren's evidence was that he received the money in dribs and drabs as he needed it and he received it all with a small profit, he has not been able to show this. He relies on the two payments of £45,000 and a third payment of £20,200. Those payments total £110,200. Moreover, Darren's evidence was that he would ask the defendant for some of his money back when he needed it. He said that of the payment made of £45,000 on 6 February 2004 but then resiled from that when his bank statement was put to him. It was put to him he did not need the money in light of the large balance in that account. Even taking into account the payment from Brewin Dolphin, these payments are not consistent with the return of the £200,000 investment with a small profit. Moreover, there is no evidence from either the defendant or Brewin Dolphin to support this account. Accordingly, I do not accept that the £110,200 received by Darren from the defendant and the £70,000 transferred into his account from Brewin Dolphin in the three weeks after the defendant's arrest, was the return of money Darren had given his father for investment in March 2003.
51. For these reasons, I do not find Darren's account of the position in relation to Bourne Hill credible. Accordingly, the respondent has satisfied me that in the light of the evidence before me, there is a good arguable case that the beneficial interest in that property was not his. The position of 34 Stone Hall Road follows from this conclusion. Although registered in Darren's name, if, for the reasons I have given, there is a good arguable case that Darren was not the beneficial owner of 108 Bourne Hill, the same is true in relation to 34 Stone Hall Road, and it was 34 Stone Hall Road that was exchanged for plots EX 499122 and EX 718617, the property that was, with the access strip, sold for some £1.4 million.
52. Even if, however, part of the beneficial interest in 108 Bourne Hill was Darren's, I am not satisfied that the beneficial interest in the new house was his, on the evidence before me. The respondent has satisfied me that there was an arguable case that it was not.
53. There is no dispute that Darren carried out a considerable amount of the physical work on the new property. He was, however, employed by Goodmayes during this period, and Theresa Calvey told Claire Boyce, the VAT inspector, that Goodmayes was building two luxury homes in Chigwell, which must have been a reference to 1 and 2 Woolston Manor Cottages. This is also consistent with the evidence given by the defendant at his trial.
54. Mr Bodnar relied on the payment of £295,000 to Goodmayes. However, £250,000 of this was paid out of the proceeds of the sale and was paid 22 months after the work was completed. In those circumstances, this payment does not support the submission that there was an arms length transaction between Darren and Goodmayes and Darren and the defendant.
55. What of the two payments of £25,000 each made on 29 April and 18 May 2005? During 2005 and 2006, some £130,000 was paid into Darren's Nationwide account. Darren said the bulk of this represented reimbursement made to him in respect of purchases he had made for the construction. He was unable to support this evidence by any documentation. He had not asked Theresa Calvey for any records that Goodmayes may have had and, as I have noted, she did not give evidence. Assuming that the sums did represent reimbursement for the purchases, and in the light of the payees of some of the sums on the bank statements, some of them may well have been. In view of Darren's income, he must have used part of £110,200 received from his father in January and February 2004, and the £70,000 he received from Brewin Dolphin in February 2004 to make those purchases, and to make the two payments of £25,000 to Goodmayes. In the light of my conclusions as to his evidence about those payments, these two payments do not support the submission that he provided value for the development.
56. In summary, the respondent has satisfied me that there is a good arguable case that Darren did not have the beneficial title to Bourne Hill. Even if he had some interest in the property, I am not satisfied on the evidence before me that the extent of such interest has been adequately identified to justify a release of part of the proceeds of the sale of 1 Woolston Manor Cottages from the restraint order. There is evidence, in the form of what Theresa Calvey said to the VAT inspector, and what the defendant said at trial, that Goodmayes itself was developing the site. Darren was on the books of Goodmayes as an employee. While some of the payments by Goodmayes to him during this period may well have been for materials he bought, the fact that Goodmayes raised no invoice for the balance due to them until long after the work was completed is an indication that the transaction was not an arms length commercial arrangement between Goodmayes and Darren.
57. Darren, in giving his evidence, passionately expressed the view that the house he had built was his, funded as it was ultimately from 108 Bourne Hill, which in turn was partly acquired by him as a result of a gift from his parents. I have explained why, on the evidence before me, I do not accept that this is so. There were other aspects of Darren's evidence which, notwithstanding the strength of his feelings, I found incredible. These included the evidence that he knew nothing about his father's trial until nearly its end, and that he knew nothing about the Bullwood Trust, although he received nearly £50,000 from the trust. He said he had signed papers for this transaction but has been unable to produce them. For these reasons, his application is refused.

James Pomfrett

58. James Pomfrett is concerned with the two plots registered in his name, titles EX 497872, EX 750451, and with title EX 718623, the plot on which 2 Woolston Manor Cottages stands, and which is registered in his name and the name of Elizabeth Clements.
59. James Pomfrett had been in hospital as a result of a nervous breakdown. After leaving hospital, he lived on his own for a time, but in 2001 he moved into 2 Woolston Hall Farm Cottages (EX 497872) next door to his parents' house. He said his mother helped him and his father supported him. He states that he spent approximately £135,000 renovating the house over the next two years. No issue was taken by the respondent about that. James's evidence was that he realised that he had not paid for the property and he would have to do so. In a letter dated 24 November 2003, some two years after James had moved into the cottage and done the renovation, the defendant stated "I confirm that I agree to sell you the freehold interest in [number 2 Woolston Hall Farm Cottages]" for £175,000. The letter states that this price reflected the investment James had made in the property over two years, including a complete refurbishment, extension and other improvements. James was not able to say whether this had been discussed earlier and Christine Pomfrett could not remember when they decided the house was to be James's. The transaction was completed on 12 February 2004.
60. James and Danny Pomfrett state that the purchase price was raised by a loan of £170,000 from Danny to James. Their evidence was that Danny owed £150,000 to the defendant, and the two brothers agreed that James would pay this sum to the defendant and pay Danny the remaining £20,000, although, in the event, Danny said that he received the difference in a payment from the defendant. The loan is recorded in a document drawn up by Tolhurst Fisher, the family solicitors. The document is dated 11 February 2004, the day before completion. The agreement gives Danny a charge over the property in the event, inter alia, of James's bankruptcy. The brothers' evidence is that their father agreed to this.
61. On 29 November 2003, the title to the plot on which 2 Woolston Manor Cottages (EX 718623) now stands was transferred from UKLH to James for £10,000. James said he understood UKLH was one of his father's companies. On 29 April 2005, title to the access strip behind 2 Woolston Hall Farm Cottages (EX 750451) was transferred by Bullwood to James for £100. James said he did not know from whom he bought the strip. He did not believe it was from his father. He said that the transaction was in order to tidy up the title deed and to enable his father to sell the golf course.
62. Work on the construction of 2 Woolston Manor Cottages began towards the end of April 2004, after outline planning permission had been granted, but six months before full planning permission was granted.
63. On 5 October 2004, shortly before full planning permission was granted, James took a substantial mortgage of the property being built with the Halifax Bank. In April and May 2005, James made payments of £40,000 and £50,000 to Goodmayes. These payments were, he said, made out of the money received from the Halifax. James said that some of the cash withdrawals from his HSBC bank account in December 2005, totalling £10,500 were repayments of the loan to his father. A document prepared by him showing £75,000 was withdrawn from the account between 5 October 2004 and 21 July 2006, he said, showed payments that were probably repayments to his father.
64. 2 Woolston Manor Cottages (EX 718623) was completed in late 2005 and, on 27 April 2006, the title was transferred into the joint names of James and Elizabeth Clements. On 28 April 2006, a mortgage of £499,999 was taken out with the Woolwich Building Society. The mortgage with the Halifax was redeemed by a payment of £320,359. The balance paid to James and Elizabeth Clements was £177,240.
65. In December that year, the mortgage arrangements were changed again. A mortgage of £900,000 was taken out with the Birmingham Midshires Building Society. The mortgage with the Woolwich Building Society was redeemed, and £446,071 was paid into James's bank account. On 14 December, £250,000 was paid to Goodmayes. In December 2007, Birmingham Midshires advanced a further £50,000 in respect of the property.
66. In 1998, James Pomfrett purchased 16 Park Way, Southgate, for £308,000. He stated that he had funded the purchase from the sales of other properties he had renovated, and by a mortgage. At the time of the sale, the mortgage was £201,000. James said that his father had introduced him to the Allied Irish Bank and had either guaranteed the mortgage or a mortgage on a previous property. Asked how himself he would get a mortgage at a time when his income was approximately £7,000 a year, James said that in those days if a buyer had a substantial deposit, lenders would lend to anyone. Of the £268,000 he received on the sale of 16 Park Way in April 2001, he almost immediately used £103,000 to purchase a Mercedes CL600 car. The respondent has submitted that James was unable to give a satisfactory explanation as to how he was able to get such a large mortgage on 16 Park Way. For the reasons I shall give, the position in relation to 16 Park Way has not played a part in my decision about the three plots (EX 497872, EX 750451 and EX 718623) which, for convenience, I call 2 Woolston Manor Cottages.
67. Mr Bodnar submitted that 2 Woolston Hall Farm Cottages, EX 497872, was acquired by James for £175,000 which, according to Mr Chapman's unchallenged evidence, was a fair market value. He submitted that unless Elizabeth Clements (who was not required to attend for cross-examination) was party to an elaborate charade, the placing of the property into the joint names of her and James provides a complete answer to the suggestion of sham, and that there is no evidence she was involved in this way.
68. The question is whether the three plots making up the property were gifted by the defendant to James. Mr Bodnar submits that they were not. James and Danny said the purchase was funded by a loan of £170,000 by Danny to James. Danny had sold a property, 14 Fleming Drive, on 10 February 2004 for £240,000, and agreed to lend James £170,000. A formal loan agreement was drawn up by Tolhurst Fisher because James was unreliable with money. The agreement was drawn up and signed on 11 February 2004, the same day that the defendant made the declaration of trust in respect of 1 Woolston Hall Farm Cottages in favour of his wife Christine. One of the witnesses witnessed both documents. Their evidence, that is James and Danny's evidence, was that it was later agreed between them that James would repay £150,000 of the loan to his father because that was the sum Danny owed his father.
69. Mr Bodnar invited me to accept James Pomfrett's evidence that the loan payments were repaid to his father in the way he had said. He invited me to accept the evidence of James and Christine Pomfrett about the red book in which the defendant was said to have recorded all money transactions between himself and James, and which has gone missing, because it was likely that the defendant would have a different arrangement with James than his arrangement with his other sons because James was unreliable with money.
70. Thirdly, Mr Bodnar submitted that whether or not the loan was repaid by James to the defendant, value was paid for the acquisition of 2 Woolston Hall Farm Cottages, and the question is whether that value was gifted or loaned to James by Danny.
71. In relation to plot EX 718623, on which 2 Woolston Manor Cottages itself was built, Mr Bodnar submitted that there is no challenge to the evidence that value was paid by James. The question is only whether the value was a fair market value. Mr Bodnar invited me to accept Mr Chapman's evidence that it was. He argued that the fact that different value could have been obtained by undertaking a different transfer is irrelevant. He submitted that the question was whether the particular transfer undertaken yielded "substantially less" consideration for the defendant than he provided. All that he provided on 29 November 2003 was plot 7, and Mr Chapman's evidence was that £10,000 was a fair and possibly generous price for that plot.
72. There is in fact no evidence before me that the defendant was in fact paid for the transfer of plot EX 497872 through Tolhurst Fisher. I shall deal with the circumstances of the loan and the later arrangement about who James was to pay when considering Danny's position.
73. Setting aside those matters, although they are very material to James's position, James Pomfrett's account of the repayments that he says were made to his father is not one that enables me to be satisfied he did pay his father £75,000 in cash from his bank account.
74. First, he was not certain about the individual entries and was not able to explain why he paid in dribs and drabs, often on consecutive or nearly consecutive days.
75. Secondly, I do not accept the evidence about the red book. James said that the book went missing from his father's car at the time of his arrest. That arrest, however, was in January 2004, long before these entries would be made. Christine Pomfrett said that the defendant spoke to her on the telephone on the day of his conviction and imprisonment, and specifically mentioned the red book during the conversation. She said that the defendant told her that that red book was in his briefcase in a borrowed car he had used to get to court on that day. She said that the car was collected by a friend of a friend, neither of whom she could name, and the red book was not in the briefcase. She said that she had not taken steps to find out who these people were or to locate the red book, and had not raised the subject with the defendant, who she visited in prison every week. Given the importance of the red book to this part of the case, as showing on James's account what payments were made by his father to him and by him to his father, I do not find it credible that neither Christine Pomfrett nor James have made any enquiries about it since the end of January 2008 when the defendant was convicted.
76. Even if the £75,000 withdrawn in cash from the bank by James was paid to his father in respect of this property, that would be "substantially less" consideration than the value of the property. It is only by bringing the Mercedes into play that James is able to say that the value was paid in full. However, the letter signed by the defendant on 24 November 2003 does not mention the Mercedes as a down payment for any transaction. In any event, that letter was written over two years after July 2001, the month James said he gave the Mercedes to his father. His evidence was that his father may have forgotten about it when writing the letter. The value of the Mercedes, even if less than the £100,000 it cost James, was substantial. If James's account is correct, one would have expected either the £100,000 or whatever reduced value was appropriate to have been mentioned in the letter. The evidence of the defendant's business acumen and "hands-on attitude" given by his three sons and in Phillip Decosimo's statement (albeit in relation to the defendant's development projects) does not suggest that the defendant would have forgotten. Perhaps more significantly, in view of the value of the car, it is not credible that if it was handed over on account of this purchase, James would not have raised the point. On James's account, he would only have owed £75,000 in relation to the purchase and would have had no need to borrow £170,000 from Danny.
77. As far as the £10,000 paid for EX 718623 on which 2 Woolston Manor Cottages was built, on 24 November 2003, when the defendant wrote his letter agreeing to sell 2 Woolston Hall Farm Cottages to James, he, or companies controlled by him, owned all the other plots which were necessary for the development for which he had applied for planning permission, and for which planning permission would shortly be granted. That included 1 Woolston Hall Farm Cottages. Outline planning permission was given on 15 December 2003. The application for planning permission had been made on behalf of the defendant. Mr Chapman's evidence as to value was that without all the other plots being owned by the same person, or persons with a common aim, £10,000 was a reasonable and possibly generous price, but in the hands of a single person or a group with a common aim, the value would have changed dramatically.
78. At the time of the sale of 2 Woolston Hall Farm Cottages to James, however, all the plots were owned by the defendant or entities which, for present purposes, it is accepted were controlled by him. It is James's evidence that the application for planning permission resulted from his concerns about the effect on 1 and 2 Woolston Hall Farm Cottages from the volume of heavy goods vehicle traffic passing on the road outside them. His evidence was that he wanted the semi-detached cottages to be moved. The sale to James of the plot on which 2 Woolston Manor Cottages was later built, at a time when the planning permission was pending, very shortly before outline planning permission and very shortly after James had agreed to buy 2 Woolston Hall Farm Cottages, was therefore a sale by the defendant or an entity controlled by the defendant to a person who shared the common aim of redeveloping the properties. In these circumstances, I have concluded that the transfer of this plot was for "substantially less" consideration than the consideration provided by the transferor, UKLH, which for the purposes of this application it is accepted was controlled by the defendant.
79. If all or a proportion of the beneficial interest did not lie with James, the transfer of title to his and Elizabeth's names does not assist his case.
80. For these reasons I am satisfied that, on the evidence before me, the respondent has raised a good arguable case that James does not own the beneficial title to 1 Woolston Manor Cottages and his application must be dismissed.

Danny Pomfrett

81. Danny Pomfrett's application concerns the three plots registered in his name, The Lodge and the two adjoining plots (EX 695640, EX 746652 and EX 766727). Only one plot, EX 746652, is expressly included in the restraint order but, as I have said, for the purposes of this application, the other two plots have been treated as caught by the order.
82. On 19 June 2002, outline planning permission was obtained by UKLH to develop the plot on which The Lodge stands, EX 695640. On 30 October 2002, the plot was transferred to Danny Pomfrett for a stated price of £150,000. The evidence that this was approximately a fair market value was not challenged. The price appears to have been paid by the defendant to the vendor, UKLH, in two instalments, on 2 and 18 July 2002, shortly after outline planning permission was given, and three months before the completion of the transaction. It does not appear that Tolhurst Fisher, the family's solicitors, were involved in these payments which were made directly from the defendant's account to UKLH's account.
83. Danny's evidence was that it was agreed that the loan to his father would be repaid when another house, 14 Fleming Drive, was sold. That property was not sold until 10 February 2004. I have described the evidence that the proceeds of that sale were in part used to lend James Pomfrett £170,000 in lieu of repayment by Danny of the loan to the defendant.
84. As in the case of 1 and 2 Woolston Manor Cottages, the work on The Lodge was undertaken by the three brothers, although Goodmayes provided materials and acted in the same way as it did for the other two developments. On 10 February 2004, on completion of the sale of 14 Fleming Drive, Danny Pomfrett received a balance of £69,251.75. On 19 February 2004, £22,500 was credited to his account by way of a transfer from the defendant. Danny Pomfrett's evidence was that this was in settlement of the balance of funds that he had lent to James, the difference between the £150,000 owed to his father and the £170,000 he had lent to James. On 26 February 2004, Danny Pomfrett paid Goodmayes Estates £22,500 in settlement of an invoice dated 17 February, two days before the transfer made by the defendant to Danny. The invoice stated that it was for "work carried out to New Lodge".
85. On 5 April 2005, Danny Pomfrett bought plot EX 746652 for £1,500 from Bullwood Limited. It is not suggested that this was not a fair price. In October 2005 he deposited £15,000 with Tolhurst Fisher for the purchase of EX 766727, the next adjoining plot. Anthony Chapman's evidence was that this plot, in contrast to the neighbouring plot on which luxury apartments had been built, only has limited value because of its status as greenbelt land. The transfer was completed on 6 April 2006. Danny Pomfrett stated that the money came from his mother and would be repaid when he was able to do so.
86. I have referred to 14 Fleming Drive and to Danny Pomfrett's evidence that he was to repay the loan for the purchase of The Lodge from the proceeds of that property. The title to 14 Fleming Drive was registered in Christine Pomfrett's name. Danny Pomfrett's evidence is that Christine Pomfrett held it on trust for him because in 1999, when the property was bought, he was in his early 20s and unable to obtain a mortgage. Although the completion statement issued in respect of the sale of this property states that the client is "Mrs C A Pomfrett (for Mr D Pomfrett)" there is no other documentary support for the claim that this property was held on trust for Danny Pomfrett. In the case of 1 Woolston Hall Farm Cottages, the defendant and Mrs Pomfrett had executed a trust document. The transactions were all handled by Tolhurst Fisher. Christine Pomfrett's statement does not deal with 14 Fleming Drive and its ownership, and she did not deal with it in her oral evidence. Accordingly, the only evidence as to this is Danny's evidence.
87. In relation to plot EX 766727, Danny said that he had a rough idea about how much the land was worth as greenbelt. He thought it was less than £15,000 but did not challenge his father when he set this as the price because his mother was going to lend him the money. He said that, had it been his money initially, he may have challenged his father. He did not do so because there was no time period in which to pay his mother back and so this was less of an issue.
88. Mr Bodnar relies on the following matters to support his submission that the transaction concerning The Lodge not a sham. First, that it was a 100 square foot bungalow, and if it was intended to be a property for the defendant's personal benefit, why was something more substantial not built? Secondly, Danny Pomfrett lives in The Lodge, and Mr Bodnar asked why, if the development was intended to be for the defendant's personal financial benefit, it was not sold as soon as it was completed. Third, he relies on Danny Pomfrett's express pride in having built his own home in which he lives. Mr Bodnar submits that the defendant's comment to the jury, to which I have referred, about having built properties for his sons, is more consistent with a common intention by the defendant and Danny that the property should belong beneficially to Danny than a suggestion of sham.
89. As far as whether the properties were transferred for a significant undervalue, there is no suggestion that the prices for EX 695640, which The Lodge stands, and the adjoining plot were not fair prices. In relation to The Lodge, the question is whether value was provided.
90. For the reasons that follow, I am satisfied that the respondent has raised a good arguable case that Danny does not own the beneficial title to the Lodge and the adjoining properties. Accordingly, his application will be dismissed.
91. My reasons are: First, I am not able to conclude on the material before me that Danny was the beneficiary under a trust of 14 Fleming Drive so that any payment of money on completion was his. Secondly, the evidence of James and Danny as to the reasons for the loan by Danny to James and what happened when the arrangement changed so that James was to repay the defendant and not Danny was problematic. Although James's breakdown and his unreliability with money may explain why a formal arrangement was entered into between him and Danny, neither could explain what happened when they decided to change it so that James would repay the defendant. Their evidence, that the defendant had responded to the proposal that the arrangement be changed by simply saying "no problem" to Danny and "okay" to James, and that the solicitors were not informed, is not credible. All the evidence about the defendant was that he had a very hands-on approach to financial matters. If, as the evidence was, James was unreliable with money and so unreliable that the defendant needed to keep an account of his dealings with him in a red book, and that, in contrast to many of the other inter-family transactions, the loan between James and Danny had to be the subject of a legal charge, it is not credible that this would have been the defendant's reaction to this suggestion, or that matters would have been left in this informal way.
92. There are other aspects of Danny's evidence on this matter which are not credible. Both he and James say that Danny lent James £170,000. Danny's evidence, that, because his debt to the defendant was £150,000, the defendant then owed him £20,000 which was repaid on 19 February 2004, is not credible. The defendant paid him £22,500. That was the amount of the Goodmayes' invoice dated two days earlier. Danny said in his evidence that the defendant paid him more to enable him to pay that invoice. That explanation is, however, not credible because at that time he had a balance of just under £70,000 in his bank account.
93. I turn to the evidence about the purchase of plot EX 766727, the larger of the two plots near The Lodge. Danny's explanation, that although he thought the land was worth less than £15,000, he did not raise the question with his father because he was borrowing the money from his mother, is also unsatisfactory. If she was lending him money to purchase the property, he would have an interest in keeping the price low to minimise the amount he had to repay. I am satisfied on the evidence before me that the respondent has shown a good arguable case that this transaction was a sham. In relation to the purchase of plot EX 746652, the strip adjoining the plot on which The Lodge now stands, there was little evidence. The purchase was from a company controlled by the defendant. In the light of the remainder of the evidence in this case, I do not consider that it would be appropriate to delete any reference to this plot from the restraint order.
94. Accordingly, Danny Pomfrett's application is also dismissed.
95. MR KINNEAR: My Lord, just a few ancillary matters. Firstly, could we have leave obviously for a copy of the judgment. Could we also have leave, or I apply for leave, for transcripts of the evidence that was given in the case, for the reason that it may become relevant at a later stage in the Crown Court proceedings. If we do not get leave today, when we approach those proceedings, it may be that those proceedings will be delayed. So I would invite the court to grant leave for transcripts.
96. MR JUSTICE BEATSON: Do you have anything to observe on that matter?
97. MR BODNAR: No.
98. MR JUSTICE BEATSON: Yes, I give leave for those.
99. You are not going to get a transcript of this, I suspect, this side of the New Year.
100. MR BODNAR: I should not think it would be needed until the other side of the long vacation.
101. MR JUSTICE BEATSON: Well, I think you may have one before then, between the shorthand writer and me.
102. MR KINNEAR: My Lord, there is then the issue of costs. Can we reserve that matter? We will provide written submissions in relation to that.
103. MR JUSTICE BEATSON: Yes. My indication is, as I said the other day, and I had hoped that I might get a judgment to hand down, but I just didn't have it ready to give you on the necessary days. My preference would be that, if you decide to seek costs, you make submissions in writing, the applicants respond, I make a determination on paper, unless at that stage there is an application for the thing to be returned.
104. MR KINNEAR: Mr Bodnar and I discussed this previously. It may be that we will try and come to some sort of agreement between the parties and then present an agreed position to your Lordship.
105. MR JUSTICE BEATSON: Well, if you do that then obviously (inaudible).
106. I am grateful to both of you for your assistance. I was particularly grateful for the written submissions that you both provided.
107. MR BODNAR: My Lord, one final ancillary matter. In drawing up the order, I am the applicant, so the burden falls on me to draw up the order. I am sure your Lordship is aware, I have a great many difficulties for the rest of today and today is the last day of term.
108. MR JUSTICE BEATSON: I know. Well, what do you propose?
109. MR BODNAR: I assume that your Lordship won't be sitting after today?
110. MR JUSTICE BEATSON: I am not going to be here until 12 January. So if the issue is to get -- if an order is prepared, it is not going to be seen by me until 12 January. Does that help you?
111. MR BODNAR: That is very helpful, my Lord. Then would your Lordship excuse me to draw up an order today, and that will give us a chance to discuss the costs issue.
112. MR JUSTICE BEATSON: Yes. I will allow the order to be submitted by 12 January.
113. MR BODNAR: I am grateful, thank you.
114. MR JUSTICE BEATSON: And anything about costs, yes.
115. MR BODNAR: One final point. It may well be there are no grounds for seeking permission to appeal, but your Lordship sees my lay clients are not present today. It has been, if I may say so, a comprehensive extemporary judgment. Rather than making an application today, without any real substance, only to have it refused, if there is to be such an application, can I make it in writing to your Lordship by 12 January?
116. MR JUSTICE BEATSON: Do you have any --
117. MR KINNEAR: I have no objection to that. I am conscious of the day.
118. MR JUSTICE BEATSON: Absolutely. Yes, you may.
119. MR BODNAR: I am grateful. I am not saying there is going to be.
120. MR JUSTICE BEATSON: I can approve an order. I am tied up in meetings and then I am travelling to Sheffield in the afternoon, so if there is going to be a hearing you may have to travel --
121. MR BODNAR: No, it will be done in writing if it is to be done.
122. MR JUSTICE BEATSON: Thank you both very much.
123. Can the order go to my learned associate rather than to me --
124. MR BODNAR: Certainly.
125. MR JUSTICE BEATSON: -- because he is much more likely to keep firm clerical administrative control over it.
126. MR BODNAR: We may CC your Lordship's clerk.
127. MR JUSTICE BEATSON: Yes, you can CC her, that will be sensible.