England and Wales High Court (Administrative Court) Decisions

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

		Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS
		12 March 2018

1. JUDGE BARKER: By a decision letter dated 8 July 2016, the Land Registrar for the Fylde and Birkenhead Offices, wrote to Ms Senada Ziga who is the owner and controller of Sensar Limited and to Mr Adil Razoq who is the owner and controller of Azdar Limited and stated his decision on the application they had lodged for entry of a restriction against the land at Springbank Gardens, Platt Bridge, Wigan, Lancashire, WN2 3SZ registered at HM Land Registry under title numbers GM514222 and GM554260 as follows:

"I believe that you are asking a greater level of protection than the Land Registration Act 2002 and the general law provides for. That being the case, I do not believe that you have shown sufficient grounds for a Form N consent type of restriction and I therefore give an instruction that your application be cancelled."

2. In fact this decision was expressed, and it appears intended to be concerned only with, the land under title number GM514222. This appears from both the heading to the Land Registrar's decision letter which refers only to title number GM514222 and from several passages in the decision letter itself. As to the passages, see for example at page 4 of the decision:

"Further, the documentation would need to specifically relate to the land entitled GM514222 which is the subject of this application."

"In essence powers to sell on mortgage the land entitled GM514222 would need to have been specifically limited as part of the transaction, which I believe was a joint venture."

And also see at page 5 of the decision letter where, after referring to the charging order over title GM554260, the Land Registrar said:

"Even if the charging orders did relate to this land, charging orders are insufficient to allow a Form N consent restriction as applied for."

3. There is no reason to suppose that the Land Registrar would have reached a different conclusion to the relevant land under title GM554260 than he did under GM514222 but it is clear that (1) the Land Registrar did not have the application actually fully in mind from which it follows that the case which he considered is open to question; and (2), as things stand, there is no actual decision and no reasoned decision, to cancel the application for a Form N consent restriction insofar as it relates to a title number GM554260.
4. Although the Land Registrar's decision runs to some six pages, it is not easy to discern the reasons underlying the decision to cancel the application for entry of a Form N consent restriction.
5. The Land Registrar had before him the RX1 application form received on 23 December 2014 and the documentation received with that form, which was a covering letter and sample joint venture documentation, with the other joint venture documentation being said to be in identical form. Also, the Land Registrar had correspondence and emails from the applicant's barrister and from the applicants themselves and further joint venture documentation relating to all but two of the plots the subject of the application, that is plots 1 and 2, and including joint venture documentation for a plot not expressed to be the subject of the application, that is plot 9. There were also before the Land Registrar a number of court orders made after the application was received at HM Land Registry on 23 December 2014, but before the decision on 8 July 2016, namely an ex parte freezing order for a limited period (that is until 16 February 2015) which was made on 28 January 2015; a summary judgment order made on 21 May 2015 by Knowles J CBE, granting Sensar Limited and Azdar Limited judgment against Newbury Venture Capital Limited ("NVC" or "Newbury") in the sums respectively of £252,000 and £329,000 plus interest and costs; and, an order for final charging orders dated 14 August 2015 made by His Honour Judge Cooke in respect of this summary judgment against titles GM554260 and title LAN162266 not against title GM514222.
6. The application and supporting submissions refer to the contractual arrangement by which monies were "invested" in what was described as a joint venture between NVC and Ms Ziga (Sensar Limited) and Mr Razoq (Azdar Limited). The application for the restriction was based on section 43(1) of the Land Registration Act 2002 that the applicant did not have the consent of the registered proprietor or the person entitled to be registered as such but did "otherwise have a sufficient interest in the making of the entry".
7. The submission sent in response to the requisitions raised by HM Land Registry explains that the registrar's power to enter a restriction was sought under section 42(1)(a) of the Land Registration Act "to prevent invalidity or unlawfulness in relation to dispositions of a registered estate".
8. The precise restriction sought was based on standard Form N and was expressed as follows:

"No disposition of the registered estate by the proprietor of the registered estate is to be registered without a written consent signed by either of the applicants [Mr Adil Razoq and Ms Senada Ziga of 68 Valiant Road, Albrighton, Wolverhampton WV7 3NN] or their conveyancer."

9. At the time of lodging the RX1 form, the explanation given as establishing a sufficient interest was this:

"The applicants advanced monies to the registered proprietor to develop dwellings on the estate. On representations from the registered proprietor that the applicants' beneficial interest would be protected by a first legal charge on the estates which has not yet been registered. I have seen the written JV documents which bear this out. The applicants are concerned that they will lose their security if this restriction is not entered."

10. I shall come to the joint venture documentation later in this judgment, but suffice it to say for now that such "beneficial interest" as might have arisen under that documentation was limited to a purpose for Quistclose Trust of the monies advanced to NVC which were expressly agreed to be used for the purchase and development of specific plots at the property. Thus, any trust was a resulting trust of money. As to the purpose of the trust, submissions lodged later by the applicants indicate that that purpose was fulfilled in that the money was so applied, so the trust was one of money and not a trust of land. In any event, the reference to beneficial interest does not appear to have confused or distracted the Land Registrar because the later submissions made clear that the application was primarily to prevent unlawfulness by breach of contract and fraud. This was how the Land Registrar understood the application to be advanced.
11. At page 2 of the decision, the Land Registrar referred to an email from the barrister for the appellants dated 16 June 2016 which was understood to put the basis of the application as "essentially breach of contract". The Land Registrar was also aware that the applicants claimed to be entitled to a first legal charge. This analysis was consistent with the submission of joint venture documentation describing itself as, or as including, a joint venture agreement concerning an identified plot at the registered title.
12. By 21 June 2016, the Land Registrar had been supplied with court orders which included a summary judgment order. This was a money judgment and contained no declaration or order as to trust or beneficial interest in land. If and to the extent that there was any such claim in those proceedings, it would have emerged in the judgment and have become part of the money judgment.
13. So what then were the reasons given by the Land Registrar for his decision?
14. First, the Land Registrar referred to concerns of a junior colleague who initially dealt with the application that there was nothing in the papers lodged that showed that the powers of the proprietor had been expressly limited. The Land Registrar also cited a letter from the junior colleague to Ms Ziga dated 22 June 2016 in which the writer stated that no part of the joint venture contract indicated that the registered proprietor "cannot dispose of the registered property without your consent". It also stated that "no breach of contract would give rise to a requirement that your consent is needed for any disposition". It stated also that Ms Ziga had said in a telephone conversation that she had an equitable charge and that this could be protected by a notice rather than a restriction. The junior colleague asked for an explanation of Ms Ziga's assertion that she had priority to the dispositions of the plot and also asked for an explanation of how the contracts demonstrated Ms Ziga had rights as first charge holders.
15. The letter concluded that:

"If the application proceeded, notice would be given to the proprietor and any other interested party and if a valid objection was received, the dispute would then arise and would be referred to the property tribunal unless settled by agreement."

16. These statements were implicitly endorsed by the Land Registrar in his decision of 8 July 2016 who said in his decision:

"That letter explained why it was felt that insufficient grounds for the restriction had been established."

17. The Land Registrar characterised the underlying reason for cancellation of the application for a restriction as being "in essence a difference of opinion as to the interpretation of section 42". The Land Registrar noted that there was no formal legal charge or a subsisting and extant injunction (here I interject that a freezing injunction could in certain circumstances give rise to the entry of a restriction in a different form from Form N) in any event, the freezing injunction was an interim one which was overtaken by and not continued following the money judgment. Instead, interim and then final charging orders were obtained affecting title GM554260 and another registered title but, as I have already indicated, not GM514222.
18. The Land Registrar in his decision set out section 42 of the Land Registration Act and continued :

"Unlawfulness does not relate to simple breaches of contract. It goes far beyond this. You would need to show a specific agreement or consent that sets out clearly that the powers of disposition of the registered proprietor had been restricted in some manner, further that documentation would need to specifically relate to the land in title GM514222, which is the subject of the application. In essence, powers to sell or mortgage the land in GM514222 would need to have been specifically limited as part of the transaction which was, I believe, a joint venture. You have not lodged any such documentation showing that your consent is formally required by the proprietor when dealing with the land and, as such, have not shown sufficient grounds for the title restriction applied for, that is Form N."

19. Section 40 of the Land Registration Act 2002 defines a restriction as "an entry on the register in which a disposition of a registered estate or charge made in the subject of an entry on the register". There is no statutory definition of disposition. The Land Registrar used the word "disposition" to cover dealing with the property. In everyday language, a sale of property or a charging of it would be understood to be a form of disposition of that property.
20. Section 40(2) and (3) identify the scope and ambit of a restriction. These expressly include, as eligible for entry of a restriction, the obtaining of a consent before the making of any disposition on the register.
21. The claim form for judicial review was issued on 10 October 2016. That had been filed and fee paid on 7 October plus the application was issued just within the three-month time limit.
22. Judicial review was sought on 13 grounds. All but two were misconceived or unarguable or irrelevant. The first of the arguable grounds is ground 2, that the Registrar has power under the Land Registration Act, section 42(1), to register the restriction if it appeared necessary and it must have appeared necessary to register the application. In fact, of course, the power exists not only where it is necessary but also if it is desirable. The second arguable ground is ground 10, that the claimants have shown sufficient grounds for a consent type restriction relied upon and this should be under section 42(1).
23. His Honour Judge McCahill QC considered whether to grant permission for judicial review on all 13 grounds on the papers and granted limited permission on those two grounds on the basis that the claimants, that is Sensar Limited and Azdar Limited, had provided enough information to the defendant in the Form RX1 and the joint venture documentation before the application for the restriction was cancelled in July 2016 to show, notwithstanding section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, that NVC could not sell plots 1 to 5, 7 and 8 comprised within the register without the consent of Mr Razoq and Ms Ziga. Judge McCahill presumed that they were the owners of the claimant companies. The essence of his reasoning was that it appeared at least arguable that NVC had contracted with or granted the claimants an equitable mortgage pending the formalities of a legal mortgage which restricted the sale of the related land without their consent.
24. Judge McCahill noted that the entry of a restriction might not provide any practical benefit at all to the claimants because their rights might have been overreached by subsequent sale of some or all of the relevant registered land under a pre-dating registered legal mortgage. Judge McCahill dismissed the other grounds, which included requests for backdating and varying the basis of the restriction.
25. Before turning to the documentation submitted as the basis for the restriction, I remind myself that the purpose of a restriction is to prevent disposition or dealings with a registered estate or charge, except in accordance with the terms of the restriction. By contrast, the purpose of a notice is to protect the priority of an interest affecting a registered estate or charge. Of course, a restriction may have the effect of protecting a priority, but that is not its purpose.
26. Other general points relating to the application for me to keep in mind are, first, that it is for the applicant for an entry of a restriction to establish the grounds for that entry; secondly, that the Land Registrar has no duty to assist an applicant in the preparation or promulgation of the application, rather the duty is to undertake a neutral assessment of the application as submitted; thirdly, where the application is unclear or incomplete, the Land Registrar may raise requisitions and finally neutrality is the paramount consideration for the Land Registrar and this is achieved by the maintenance of an even-handed approach to all claimed interests in the registered estate or charge.
27. In this case as to neutrality, it is relevant that the title to the subject of the application gave rise to many applications to HM Land Registry in a very short space of time and, as Miss Candlin, counsel for the Chief Land Registrar put it, the plots were or the sites were "highly controversial".
28. As to judicial review, the function of the court is to review the decision of the public authority to ensure that it was taken in accordance with the law. The court is concerned with the process followed by the decision-maker and whether the decision was one which was open to the decision-maker to make. The review is undertaken by reference to the material and evidence made available to the decision-maker prior to the decision being made. The court does not conduct a review by reference to material or evidence which could have been but was not put before the decision-maker. Further, judicial review is not usually conducted where there is uncertainty or disagreement as to the material fact or facts. In this case there was some uncertainty as to what material or evidence was before the court, but that was overcome by my ordering disclosure.
29. Finally on this point, judicial review is just that; it is the review of a decision of a public authority by a judge. It is not a hearing at which the judge is in a position or has the power to substitute his or her own view of the correct decision for that of the decision-maker; the task of a judge is to review the decision in the light of the material and evidence and contentions on which it was based.
30. I start with the Form RX1 submitted by the barrister acting for Ms Ziga and Mr Razoq. The property to be the subject of an entry of a restriction against titles GM514222 and GM554260 was identified as seven plots, plots 1 to 5, plot 7 and plot 8, Springbank Gardens, Platt Bridge, Wigan, WN2 3SZ. That appears from panels two and three of the form. The applicants for the restriction were Mr Adil Razoq and Ms Senada Ziga. That appears from panel six. No indication in the form was given that they applied other than in their personal capacities. Documents lodged with the form were described as "sample joint venture documents". The six others were said to be identical. The documentation lodged with the Form RX1 application appeared to be that or part of that relating to plot 7. However, it is common ground that before 8 July, in fact by 21 June, HM Land Registry had received the joint venture documentation for plots 3 to 5, 7 and 8. Documentation had also been received for plot 9, but as already noted, that formed no part of the application for a restriction.
31. The basis of the application for a restriction was that provided for at section 43(1)(c) of the Land Registration Act, namely that the applicants did not have the consent of the registered proprietors, but they otherwise had a sufficient interest in the making of the entry. It is common ground the rule 93 of the Land Registrations Rules 2003 provides a list of persons who would be regarded as having a sufficient interest to apply for a restriction. It is also common ground that that list is not exhaustive or exclusive. In other words, what constitutes a person having a sufficient interest is a matter of fact and degree.
32. The form of restriction sought followed Form N and sought to prohibit the disposition of the registered estate by the proprietor of the estate without a written consent signed by the Mr Razoq or Ms Ziga or their conveyancer who, as was clear from panel nine, was an identified barrister. This form of words did not distinguish between the giver of consent according to which plot might be the subject of a disposition. As already noted, the justification for the restriction was said to be the advancing of monies under a joint venture to develop dwellings on the registered estate on the basis that the applicant's beneficial interest would be protected by a first legal charge which has not been registered as yet (see panel 13). Nothing was said on the Form RX1 about the applicants having a contractual right to authorise or prohibit dispositions of the registered estate by granting or withholding --

MR RAZOQ: Really? Thank you very much, sir. All I am --

JUDGE BARKER: Be quiet. Mr Razoq, either leave the court or be quiet.

MR RAZOQ: This is not fair.

JUDGE BARKER:

33. Entirely understandably, HM Land Registry issued requisitions seeking either evidence of formal consent by the registered proprietor to the entry of a restriction in Form N, which was not the basis of the application made, or other evidence to support the entry of a Form N restriction as sought. This prompted the provision to HM Land Registrar of copies of the joint venture documentation concerning the other plots and a revising of the grounds for establishing a sufficient interest otherwise than with the registered proprietor's consent. The revised ground was that the contract had been procured by fraud and broken by NVC. This was acknowledged as the essential basis of the claim by the Land Registrar.
34. Turning to the joint venture documentation, each plot is the subject of five pages of documentation, a two page letter, a two page agreement and a separate page for electronic signature. Plots 1 to 3 were the subject of agreements dated 22 July 2014 between NVC and "Senada Ziga (Sensar Limited)" each for an investment of £60,000. Plots 4, 5, 7 and 8 were the subject of agreements dated variously between 23 July 2014 and 28 August 2014 between NVC and "Adil Razoq (Azdar Limited)" for investments of £60,000 in respect of plots 4 and 5, £40,000 in respect of plot 7, and £35,000 in respect of plot 8. The Land Registrar did not receive the agreements for plots 1 and 2.
35. The terms of the two page letter which bore a printed signature of Brendan Kealey(?) for NVC, including "A CH1 will be registered as the first legal charge against the property, ie the particular plot, which will protect your interest and stop the property being sold without your consent." The letter was addressed variously to Senada Ziga, Sensar Limited, or Adil Razoq, Azdar Limited, depending on the plot. No distinction was drawn between the natural and the incorporated person in the joint venture letter. Thus, any consent to be given by Sensar Limited was to be given by Ms Ziga and any consent to be given by Azdar Limited was to be given by Mr Razoq.
36. The two page joint venture agreement was expressed to be made between variously again Senada Ziga (Sensar Limited) or Adil Razoq (Azdar Limited) and NVC. Again, no distinction was drawn between the individual and the company. The contracts disclosed by HM Land Registry provide for individual signatures for the parties but are unsigned. It is unclear from the electronic signature page whether those signatures bear an electronic signature or not, but that is a point which would be open to clarification. That said, it was not said by the Land Registrar that the contracts were rejected because they were not signed. Moreover, they were, or appear to have been, regarded as binding by the court when, on 21 May 2015, Knowles J gave summary judgment in money sums.
37. The key terms of the contract are or include (1) acknowledgement of a receipt of the particular monetary investment; (2) an agreement that the investment will be used towards the purchase and development of costs of the plot. In fact, the land had already been purchased so the money was for the development of the plot; (3) a term that NVC would be entirely responsible for the sale of the plot; (4) a term that the investment is to be securitised against the property by a CH1 first legal charge at HM Land Registry, ie, in the future, until the plot has been sold or until the stated date, which was a date 12 months after the date of the particular agreement letter, whichever is the sooner; and, (5) agreement that the legal charge may be enforced in the event that resale of the plot has not happened by a date 12 months from the joint venture agreement.
38. As to (4) and (5), there is plainly a tension or a contradiction. When I first read the documents, I was of the view that the terms resulted in the security falling away on the earliest date on which it could be enforced. Mr Razoq made a contrary submission. Although not put in quite these terms, what Mr razoq's's submission came to was that, where the language is ambiguous or contradictory, the court should approach the construction of a commercial contract on the basis that the language should be interpreted in such a way as to make the contract work rather than make it fail. On reflection, I accept Mr Razoq's submission because to do otherwise would render the very basis of the security of no effect and the various references to security would be meaningless. That cannot be the proper construction of the provision about security.
39. It is common ground that no CH1 form ever came into existence. Form CH1 is a standard form requiring details of the title of the property, title number and address, the date of the charge, details of the borrower, details of the lender, details of the lender's address for entry on the register, optionally the nature of the title guarantee (full/limited), optionally whether specified entries are sought on the register, and optionally any further provisions, and then execution by the borrower. This is the format of the CH1 form which is the basis on which the investment was to be securitised. These terms are all covered by the content of the joint venture documentation.
40. In the amended grounds of defence prepared by the Government Legal Department and in the skeleton argument of Miss Candlin, who appears for the Chief Land Registrar, the following points are taken. First, the applicants for entry of a restriction are Mr Razoq and Ms Ziga as individuals, but the claimants for judicial review are Azdar Limited and Sensar Limited, thus, if the applicants are the correct applicants for a restriction, the claimants lack standing to bring the judicial review proceedings and vice versa. Secondly, that the joint venture agreements do not constitute a legal charge or an equitable mortgage. As to the latter point, they do not satisfy section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. Moreover, in yet further proceedings brought by the claimants in relation to plots 2 and 4 to which the Chief Land Registrar and NVC were not parties, His Honour Judge Cooke has declared that the agreements between NVC and the claimants are equitable charges.
41. As to non-compliance with section 2 of the Law of Property (Miscellaneous Provisions) Act, Miss Candlin submitted that it is not clear which is the covering letter or what constitutes the covering letter and what constitutes the agreement under the joint venture documentation. No date is specified for the legal charge, and signatures are missing.
42. Next, Miss candling submitted that the submissions made by the claimants as to the existence of a beneficial interest by way of a resulting trust or proprietary interest, were not advanced in the RX1 application or as a ground for judicial review and, in any event; they are incompatible with an argument for a legal charge and a finding of an equitable charge.
43. Miss Candlin further submittedthat the application is academic because, as was noted by Judge McCahill QC when granting permission, before the applicants submitted their RX1 form, there was already pending an application for registration under a power of sale by a mortgage in favour of Lancashire Mortgage Corporation Limited dated 28 March 2014 which was registered on 14 April and 16 June 2014, in both cases some months before the RX1 application was received at HM Land Registry (and even before the joint venture transactions).
44. Miss Candlin submitted that to the extent that the transactions therefore relate to the plots the subject of the RX1 application, the application has been over-reached and the judicial review rendered academic.
45. Next, the case was made on behalf of the Chief Land Registrar that, having had an equitable charge, the appropriate method of protection of the interest was entry of an agreed or a unilateral notice pursuant to section 42(2) of the Land Registration Act, no restriction could be entered to protect an equitable charge. Here I note the section 42(2) provides that no restriction may be entered to protect the right or claim in relation to a registered estate or charge for the purpose of protecting the priority of an interest which is or could be the subject of a notice. Equitable charges are protected under the Land Registration Act by notices not restrictions.
46. A further point was made that the Land Registrar was right to refuse entry of a restriction under section 42(1)(a) because the unlawfulness in this case is outside the unlawfulness which section 42 is designed to prevent. The unlawfulness, it was submitted, must be in the terms of the contract. Here I note that that is not consistent with the language of section 42(1) which refers to the unlawfulness by reference to dispositions not to contract. In the event, the applicants and the claimants, so the Land Registrar submits, were and are no more than unsecured creditors who are seeking to prefer themselves over other unsecured creditors.
47. Those are the arguments against the claimants in this judicial review.
48. I have not found this case an easy case to analyse or decide. In part this is because the joint venture documentation is unstructured. In part it is because the Form RX1 as completed is unclear or imprecise. In part it is because the Land Registrar did not address the RX1 and the material evidence supplied in any detail or with precision in either requisitions or in his decision. In part it is because the case has been the subject of proliferation of irrelevant and, to an extent, misconceived points taken by the claimants in their numerous written submissions and pursued in the oral argument.
49. Turning to my view of the documentation, I read the five pages of each joint venture documentation as one agreement. The two page letter begins by welcoming the contracting party to the joint venture scheme. In other words, it proceeds on the basis that the addressee is already a joint venturer and not a prospective joint venturer. Thus, the two page letter forms part of the overall joint venture agreement. The two page document which begins by describing itself as an agreement, also begins, "Further to our letter of...", whatever the date is, 22 July 2014 for example, "this letter forms the legal agreement …". The agreement does not contain an entire agreement clause. The agreement does not purport to supersede or exclude the content of the letter. There is some doubt as to whether the two pages of the agreement were signed, but one possible answer to this is, of course, that Mr Kieley's signature on the letter may be treated as the signature of NVC on the overall agreement. Evidence of whether the signatures on behalf of the claimants were on the joint venture documents before the Land Registrar is less clear, but could have been the subject of requisitions.
50. Certainly the agreement is not a legal charge, but the following are clear from the five pages of the documentation: the title numbers of the property, the address of the property, the borrower's identity (which is the company acting by its owner or controller), the named individual to give or withhold consent, the lender's identity, the lender's intended address, the title guarantee is left empty, but that is optional. Where there is a restriction to be entered, the wording should have been entered; however, that could be derived from the letter which is not in the same form as the Form N restriction, but is nevertheless a form requiring consent in the following terms, "The property is not to be sold without the consent of either Senada Ziga (Sensar Limited) or Adil Razoq (Azdar Limited)."
51. An additional provision, such as the amounts specified on the investment (that is the amount that is to be secured under each joint venture agreement) are clear also from the terms of the letter. No express date is stated, but there is no reason to suppose that a date other than the date of the joint venture documentation was intended to be the date.
52. In relation to execution, it is clear from the joint venture documents that NVC is the borrower and therefore the executing party and the letters bear a styalised signature of Mr Kiely. Thus, with a possible exception of a date, all the information required for the completion of a CH1 form is available from the joint venture documentation itself.
53. The last sentence in the joint venture letter, "A CH1 will be registered as the first legal charge against the property which will protect your interest and stop the property being sold without your consent" does not mirror the language of the restriction applied for, but it does focus on consent as a stipulation in the context of dispositions by the registered proprietor.
54. As to the Land Registrar's defence and submissions, the Land Registrar did not take any clear point on lack of standing, that is distinguishing between the individual and the company. Had that troubled the Land Registrar or the Land Registrar's junior colleague, it could easily have been the subject of a requisition, but in any event, it seems to me that the agreement was an agreement by which the consent which is the critical point for the restriction was the consent of an individual given on behalf of the company.
55. There is, however, a difficulty in that Mr Razoq's consent could not be required for plots 1, 2 or 3, and Ms Ziga's consent could not be required for plots 4, 5, 7 or 8. That is a point of lack of clarity or error in the application. On the other hand, of course, although it could have been the subject of a requisition, it was, of course, for the applicants to correctly formulate their application for an RX1 restriction.
56. On balance and notwithstanding the level of activity occupying the Land Registrar in respect of these titles, and taking into account also the duty of the applicants and the need for the Land Registrar to remain neutral, it is nevertheless, in my judgment, somewhat surprising that requisitions were not sought. However, on its own this would not be fatal to the Land Registrar's decision.
57. Notwithstanding that the nature of the security conferred by the joint venture agreements had been found to be an equitable charge and that section 42(2) of the Land Registration Act excludes the entry of a restriction to protect a right or claim in relation to a charge, section 42(1)(a) permits the entry of a restriction to prevent unlawfulness in relation to dispositions of a registered estate. Unlawfulness applies to cases of breach of contract. Unlawfulness is not defined in the statute. When a contract is made providing for a consent to be obtained before the registered proprietor disposes of a registered estate and the contracting party's consent is linked to some contractual interest of the contracting party in the disposition of that estate (such as here triggering a right to repayment of the loan or investment plus a defined profit) and further where there is a risk of breach of the contract by the registered proprietor in failing to seek or obtain consent, it is difficult to see why that should fall outside the scope of unlawfulness under section 42(1)(a) of the Land Registration Act 2002 and debar the contracting party from the entry of a restriction concerning the contracting party's consent.
58. Although the form RX1 asserts a beneficial interest, it is said to arise from the joint venture documentation and, although this was argued as a purpose trust giving rise to a beneficial interest in land, that simply, for the reasons I have already given, cannot be the case. The interest is an interest in the investment advanced.
59. As to the application itself and any restriction being academic, that may be so, but it is not clearly so. I have not been directed to any evidence that makes clear that the transfer by the Lancashire Mortgage Corporation which overreaches or may have overreached the interest subject to the RX1 relates to all seven plots the subject of the RX1 application.
60. Thus, in the final analysis, the question comes down to whether the particular restriction sought accurately identifies the consent terms agreed to. In my view, it is imprecise and so too is the basis on which the application is made. The joint venture is not a single venture but a series of joint ventures each the subject of a seperate agreement, each concerning a specific plot, and different consents are required for different plots.
61. The Form RX1 makes clear that the Land Registrar does not give legal advice. It is for the applicant for the restriction to specify the particular title and property affected and the basis on which the consent requirement arises and further, the particular consents required.
62. A Form N restriction could, and probably should, have been framed differently to identify a particular consenting party for a particular plot under the title numbers against that. Had the Land Registrar and the junior colleague recognised and accepted as potentially valid the consent provision in the joint venture letters, the precise position might have been obtained by raising the requisition on the basis that the restriction sought appeared to be incomplete or wrongly drawn. Similarly, a review of the joint venture documents provided might have prompted a requisition. Further, the documents relating to plots 1 and 2 needed to support the underlying application were missing. These are points which highlight weaknesses in the application. They deserve proper evaluation in context, which includes the circumstances in which it is appropriate and usual to raise requisitions.
63. Overall, the conclusion I have come to is that (1) as yet there has been no decision in relation to title number GM554260; (2) the consideration given to the restriction application by the Land Registrar was inadequate; and/or but (3) there appears to be a very strong likelihood that any entry of a restriction will be of limited practical value.
64. The remedy sought by this judicial review claim is firstly a declaration that the cancellation of the RX1 application form received on 23 December 2014 was unlawful and unreasonable, and secondly reinstatement and entry in the register of the applicant's RX1 form and protection of the applicant's priority from 23 December 2014.
65. Given that, first, there is as yet no actual decision in relation to the application affecting title GM554260; secondly that there is uncertainty as to whether and if so to what extent the entry applied for would be academic; and thirdly, it appears that the decision taken was not based on a sufficiently careful review of the documents lodged, supplemented by the raising of appropriate requisitions, the challenge to the decision to cancel the applications must succeed.
66. As to the appropriate order that I should make, the most appropriate course is to remit the application to the Chief Land Registrar for the Chief Land Registrar to nominate a senior Land Registrar, not someone who has participated in the decision to date, who is to give proper and urgent consideration to the application on the basis that the application was received on 23 December 2014 and in the light of the material before the Land Registrar on 8 July 2016, supplemented by copies of the joint venture documentation for plots 1 and 2.
67. When conducting this further decision-making process, the Chief Land Registrar or the person nominated by him, should notify the applicants of any entries that the Land Registry considers may overreach the restrictions applied for by the applicants.
68. On that basis, I quash the decision made on 8 July 2016 and order the making of a more certain and one that will include a decision on the land under title GM554260. That is my decision.
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