England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/07/2006

Mr Justice Kitchin :

Introduction

1. This is a family dispute. The first defendant ("Badrul") and the first claimant ("Ziaul") are respectively the third and fourth sons of the late Haji Shamsul Hoque Choudhury ("Shamsul"), who died on 8 February 1996, and of his wife ("Sufia"), the third claimant. The second claimant ("Rockshonara") is the only surviving daughter of Shamsul and Sufia. An elder daughter, Rowshonara, died in 1994. Shamsul and Sufia had two older sons namely Haji Jainul Islam Choudhury ("Jainul") and Haji Nazrul Islam Choudhury ("Nazrul"). The second defendant ("Saleha") is the wife of Badrul. The former third defendant ("Mahabubur"), who died in 2002, was the father of Saleha and the brother of Sufia. The fourth defendant ("HSHC") is a family owned company now controlled by Badrul and Saleha, but in which Ziaul, Badrul and Saleha are the shareholders.
2. In this action the claimants contend that they and Badrul traded in partnership from October 1997 until about August 2004 when the partnership was dissolved and they are entitled to have the affairs of the partnership wound up and the assets divided. Alternatively they contend that Badrul acted as a trustee of their assets from about October 1997 and they are entitled to an order that the trust be wound up and the assets divided, such assets to include assets held by Saleha and HSHC. This latter contention was developed and refined as I shall relate hereafter. All these allegations are denied by the defendants.

Background

3. The parties helpfully prepared an agreed case summary from which the following is largely taken.
4. For a number of years prior to September 1997 Jainul and Badrul (and arguably Nazrul) carried on business in partnership as residential and commercial landlords and restaurateurs under the name "the Hoque Group". The claimants say that this was understood to be for the benefit also of Ziaul, Rockshonara and Sufia, that is to say the family members who were the heirs of Shamsul under Shariat law (namely, Jainul, Nazrul, Badrul, Ziaul, Rockshonara and Sufia: "the Choudhury Family"). Saleha and Mahabubur (at least nominally) were involved in the business. The Hoque Group and the Choudhury Family members owned assets in both England and Bangladesh.
5. After the death of Shamsul differences arose between Jainul and Nazrul on the one hand and Badrul on the other as regards the future of the business. The claimants took Badrul's side. As the differences could not be resolved, Jainul and Nazrul wanted to make a division of the Hoque Group assets and other Choudhury Family assets and go their own way.
6. The Hoque Group partnership was dissolved in or around September 1997. There was a dispute as to the extent and appropriate division of the Hoque Group and other Choudhury Family assets. With a view to avoiding litigation the members of the Choudhury Family agreed to submit the dispute to mediation under Shariat law.
7. On 2 October 1997 a meeting was held at the family home 29 Malzeard Road, Luton. At the meeting, with the assistance of the Head Imam of the Bury Park Mosque (as interpreter of Shariat Law) and other community leaders (as mediators), agreement was reached ("the 1997 Agreement") between the members of the Choudhury Family as to the extent of the Hoque Group partnership assets and other Choudhury Family assets and as to the shares to be taken by each Choudhury Family member. The claimants say, and I accept, that their interests at the meeting were looked after by Badrul.
8. Saleha and Mahabubur were not parties to this 1997 Agreement. Nevertheless, certain assets in their names were treated as Choudhury Family assets for the purposes of the agreement. The claimants say that the reason for this was that the assets were acquired with Choudhury Family funds and that Saleha and Mahabubur held them only as nominees. Dealings under the name of Mahabubur (who lived in India) were conducted by Badrul using a power of attorney. The defendants say that, in truth, the assets were acquired with Mahabubur's funds. Be that as it may, it is common ground that those assets (or other assets derived from them) are now under the control of Badrul and Saleha, allegedly as a result of gifts made during Mahabubur's lifetime.
9. Under the terms of the 1997 Agreement the assets were divided into two parts: the first part comprised the interests of Jainul and Nazrul and the second part comprised the interests of the remaining Choudhury Family members, each in accordance with Shariat law as declared by the Imam. The division so declared and agreed upon was one eighth to Sufia (as widow of Shamsul); to each of the four sons two shares in the remainder; and to the daughter one share in the remainder (collectively "the Shariat shares"). Agreement was also reached as to which assets were to be allocated to the two factions and for the transfers of funds designed to give effect to the division.
10. Thereafter further disputes arose as regards the extent and value of certain assets and generally as regards the drawing of an account to give effect to the 1997 Agreement. Accordingly Jainul and Nazrul issued proceedings against Badrul in the Luton District Registry. The action was ultimately listed for hearing before His Honour Judge Simmons at Hitchin County Court. The claimants were not parties to the action.
11. The action was settled on the terms of a Consent Order dated 28 February 2000 ("the Consent Order") designed to implement the 1997 Agreement and to resolve the outstanding issues between the parties. One provision of the Consent Order was that Ashby's, the family accountants, were to draw up a final account (the "Statement of Account"). The Statement of Account was duly drawn up and the terms of the Consent Order were implemented (save as regards the assets in Bangladesh, which remain to some extent unresolved).
12. Following the 1997 Agreement Badrul carried on business using the assets acquired under the 1997 Agreement (as subsequently implemented under the terms of the Consent Order) with a view to profit. A good deal of business was done between October 1997 and February 2000, but this was not taken into account in the Consent Order, save as regards some reallocation of rents from various properties. A great deal of business has been done since and the assets in the names of the parties are, on one estimate, worth something in the region of £4.5m gross (£3.5m net).
13. In 1997 and 2000 Ziaul and Rockshonara were students and Sufia was a housewife, with no business experience, unable to read or write in English. The claimants say that Badrul, as de facto head of "Badrul's faction" (that is to say, Badrul, Sufia, Ziaul and Rockshonara), and the only member experienced in business, was acting on behalf of himself and the claimants and by implication in partnership (referred to in the Particulars of Claim as "the New Partnership"). The claimants say that over the years they were asked to sign various documents to effect property transactions, which they did without question and, in many cases, without knowing what they were signing. They were, nevertheless, aware that the business was prospering and the number and value of the properties owned by members of Badrul's faction and Saleha were increasing.
14. At the time of the Consent Order the family home at 29 Malzeard Road was held in the name of Sufia and subject to a small mortgage of about £18,000 but otherwise free of mortgages or other encumbrances. At that time it was further agreed between the claimants and Badrul that the family home should be held in the sole name of Sufia. The mortgage on 29 Malzeard Road was discharged and the property is now free of mortgage and unencumbered.
15. Ziaul joined Badrul in business (he says in August 2003, Badrul says for only a few months in 2004) but, say the claimants, Badrul continued to direct the business activities of the members of Badrul's faction. Rockshonara and Sufia were never actively involved in the business, though there were bank accounts in Rockshonara's name that were used for business purposes.
16. The claimants say that, with a few agreed exceptions, all the Badrul faction assets and funds were treated as a single "pot" (which, together with assets derived from them, I refer to as "Badrul faction family assets") in which all members of Badrul's faction shared in the Shariat shares. Saleha held assets as part of this process; but she did not become entitled to any share of her own.
17. The claimants also say that, if there was no partnership, then Badrul was trading the family assets under a trust, mixing funds to such an extent that they should properly be treated as a single trading fund now to be distributed in accordance with the original Shariat shares (or as the Court may consider just). To that end, the claimants seek an account.
18. The defendants' case is that the assets received under the 1997 Agreement and the Consent Order were distributed and allocated in accordance with the Shariat shares and thereafter, although there were many inter party loans (all interest free to comply with the prohibition in the Koran against usury) and other dealings, the assets of the parties were kept essentially separate and each party dealt with his or her own assets. In the circumstances they say there was no partnership at all, and any trust or trusts came to end upon the distribution of the claimants' respective shares. Further, they say Mahabubur's assets should be excluded from consideration, as was agreed at the time.
19. The defendants also say that Sufia gave her house to Badrul and gave her Shariat share to Badrul and Ziaul. Likewise, the defendants say that Rockshonara gave to Badrul and Ziaul all her Shariat share, so that any marriage into which she might (at some undefined time in the future) contract would not interfere with the family business. During the course of the proceedings, and as I shall explain, the defendants accepted that these transactions must be set aside.
20. In about June 2004 Badrul's faction considered moving to a larger home. Badrul proposed that 29 Malzeard Road should be sold and the family should move to a property to be purchased in Barton-le-Clay. It is the claimants' case that Sufia told Badrul that she did not wish to move away from 29 Malzeard Road and would not agree to the sale. It is also their case that Badrul said that there was nothing Sufia could do to prevent a sale and he revealed (the claimants say for the first time) that he was now the owner of 29 Malzeard Road. Certainly the property is now registered in the name of Badrul. Sufia says she has no recollection of executing any transfer of the property and would not have done so if asked.
21. The claimants say that these were the events that gave rise to the current dispute, in which Ziaul and Rockshonara took their mother's side. By notice dated 24 August 2004, served by post upon Badrul that day, the claimants dissolved the New Partnership (if any) with immediate effect.
22. Early in September 2004 Badrul and Saleha purchased a house at 462 New Bedford Road, Luton and moved out of 29 Malzeard Road. The claimants say they then discovered that the defendants controlled the greater part (over 90%) of the Badrul faction family assets (and assets derived from them), and that such assets as were held in the names of the claimants were mostly heavily mortgaged.
23. Finally, I should say a further introductory word about HSHC. On 11 November 1998, HSHC was incorporated as a private company limited by shares. The ownership of HSHC is in dispute and there are issues as to whether Badrul has managed it in the best interests of the shareholders. The claimants say the company and its assets were part of the "pot". The defendants say that Ziaul's share is held in trust for them and that they are sole beneficial owners of the company.

Hearing of the trial and the defendants' new case

24. The action first came on for hearing on 16 May 2006. After a very short hearing it was adjourned until 17 May because witness statements had recently been exchanged by both sides which the parties needed time to consider. On 17 May the matter came back before the court. On this occasion it was drawn to my attention by counsel for the claimants and for the defendants that a large number of relevant documents had recently been discovered in the hands of Ashby's which, until that point in time, neither side had considered asking for. It was apparent that these documents were likely to be relevant to the issues in dispute and accordingly, at the request of the parties, I adjourned the matter until 22 May for them to be considered. On 22 May Mr Laughton, who appeared on behalf of the defendants, explained to me that, in the light of the documents retrieved from Ashby's, and in the light of further consideration which his clients had given to the issues, the defendants now accepted that the following three gifts should be set aside:

i) The transfer by Sufia to Badrul of 29 Malzeard Road dated 6 April 2001.

ii) The deed of gift by Sufia to Badrul and Ziaul of her Shariat share under the 1997 Agreement dated 7 April 2003.

iii) The deed of gift by Rockshonara to Badrul and Ziaul of her Shariat share under the 1997 Agreement dated 7 April 2003.

25. Further, Mr Laughton indicated that the defendants now accepted that tax returns had been filed by Ashby's on behalf of the defendants which suggested that the various properties in issue in these proceedings were owned by the parties in particular shares which were not reflected in the contentions and submissions hitherto advanced by the defendants. Mr Laughton indicated that the defendants now accepted that the position as shown in the tax returns was the true position and reflected, so it was submitted, a further agreement between the parties entered into in the autumn of 2001. To that end, the defendants submitted a revised schedule setting out, in respect of most of the properties in issue, the defendants' new position. In the light of that submission it appeared there was a real prospect of settlement. Accordingly, the trial was adjourned over until 23 May. On that day it seemed there was little prospect of the parties reaching agreement. Mr Martyn Jones therefore began to open the case on behalf of the claimants. I indicated that I was prepared to take this course on the basis that the parties agreed a list of issues for me to decide and upon the basis that the defendants would file an Amended Defence before the claimants closed their case. So the trial effectively began on 23 May. I heard submissions and evidence from 23 to 26 May and on 7 June. On 25 May the defendants served a Statement of Case in relation to the tax issues.
26. As part of their new case, the defendants submitted that whatever may have been the position before 2001, the arrangements between the parties were substantially altered by an agreement reached in the autumn of that year. It was contended that the parties agreed that the assets should be dealt with in a new way. In summary it was said that the parties agreed that what were described as existing or older properties would be held as to 50% by Badrul and Saleha, and as to 50% by the claimants. In respect of new and future properties it was contended that these were to be held as to two-thirds by Badrul and Saleha, and as to one-third by the claimants. This agreement was said to be reflected in the Tax Returns and underlying schedules submitted by the parties. It was submitted that Ziaul was intimately involved in the new arrangements and instructed Ashby's to carry them into effect and that the other claimants, namely Sufia and Rockshonara, went along with it. As such, they implicitly adopted it in the conduct of their affairs and consequently were bound by the new agreement, just as Ziaul was bound.
27. After completion of the evidence the case had to be adjourned for a further period. It resumed for closing submissions on 26 and 27 June. On 26 June it became apparent from the defendants' written closing submissions that they were abandoning the new case in the light of the evidence.

The 1997 Agreement

28. As I have indicated, the claimants and Badrul were all parties to the 1997 Agreement. It expressly specifies the shares of the Choudhury Family assets which these parties were to receive as follows: Sufia 12.5%, Badrul 19.444%, Ziaul 19.444% and Rockshonara 9.722%. Appended to the agreement is a list of assets ("the 1997 Assets Schedule"). These are divided into three groups, freehold properties, leasehold properties and cars. But it makes no mention of large sums of cash held on deposit in various Hoque Group bank accounts.
29. In relation to each asset a value is given and then, by use of columns headed "Under JIC" and "Under BIC", the schedule specifies whether the asset is allocated to Jainul's faction or to Badrul's faction. But it does not identify the particular person to whom each asset is allocated.
30. The Badrul faction family assets merit a brief comment at this stage. I will take them in turn. First, 29 High Street, Berkhamsted. This is a property which was, at the time of the 1997 Agreement, in the names of Jainul and Badrul. It comprises a restaurant called the Curry Garden, Berkhamsted and, above the restaurant, residential accommodation. The business at the restaurant is and was conducted by a limited company, Curry Garden (Berkhamsted) Limited, and Ziaul owns one quarter of the issued shares of that company. Recently the owners of the restaurant were persuaded by Badrul to sign a partial surrender of the lease of the residential accommodation above the restaurant. That led to an action in which it was alleged that the lease was surrendered as a result of the exercise by Badrul of undue influence. In the result the transaction was set aside.
31. 317 Hitchin Road, Luton was another property in which Jainul held a share and which was to be transferred to Badrul. Once again, it comprises a restaurant and, above the restaurant, residential accommodation which, in this case, is separately let. This property has a particular significance, as I shall explain. For present purposes I need only mention the following. The property was transferred into Badrul's sole name in 2000. Nevertheless Badrul maintains that he holds it on trust for Ziaul. It is Badrul's case as advanced in his defence that he has always held the property on trust for Ziaul as part of his share under the 1997 Agreement on terms that he would retain the rents and profits from the premises but provide Ziaul with a "fair and reasonable return". By this it seems Badrul means that he would pay the living expenses of Ziaul and Rockshonara. The claimants say that what Badrul has not explained is why it would not have been more appropriate for Ziaul to receive the rents and profits himself (amounting to apparently some £20,000 per annum) and pay his own living expenses.
32. 74 Dunstable Road, Luton was held in the name of Mahabubur and valued at some £60,000. Under the 1997 Agreement it was treated as an asset allocated to Badrul's faction. The property was purchased on behalf of Mahabubur by Badrul using a power of attorney given to him by Mahabubur in 1992.
33. 4 Waldeck Road, Luton was a property in Badrul's name. It was originally the offices of the Hoque Group and, more recently, has housed Badrul's offices. In addition, it seems the site has been developed and some office space let, which produces a rental income.
34. 29 Malzeard Road, Luton was the family home. The brothers agreed to sign a deed revoking an earlier trust deed with the result that the property would pass to Badrul's faction and into the name of Sufia.
35. Finally, I can deal with 33 Saxon Road, Luton and 113 Biscot Road, Luton together. These properties were already in the name of Ziaul.
36. In relation to leasehold properties, four restaurants are identified. Essentially, the arrangement was that each brother would have one of the restaurants. This meant that two restaurants were allocated to Badrul's faction. The first was the 25% share in the Curry Garden, Berkhamsted. The second was the 33.3% share in the Curry Garden, Dunstable.
37. Various cars are specified. Two were allocated to Badrul's faction. The first, a Toyota Starlet was, so the defendants say, given to Rockshonara. The claimants say that it was another asset allocated to Badrul's faction and was, in fact, mostly driven by Saleha. There was also a black Astra which was associated with the Curry Garden, Berkhamsted.
38. The schedule reveals that the totals of the distributed assets resulted in a need for an adjustment. It was therefore agreed that Badrul would pay Jainul £37,996.
39. As I have mentioned, in addition to the assets listed in the schedule, the 1997 Agreement covered cash held in various bank accounts of the Hoque Group. The cash deposits amounted something in the region of £320,000. These also fell to be distributed, after deduction of appropriate debts and tax liabilities.

The Consent Order

40. Despite the terms of the 1997 Agreement it is clear that Badrul and Jainul were unable to agree as to how the assets should, in fact, be transferred. Hence the substantial dispute to which I have referred developed between them and litigation ensued. It is also accepted that in or about June 1998 Badrul withdrew some £300,000 from the Hoque Group bank accounts and paid it into his own account. This represented virtually the whole balance of those accounts. In December 1998 Badrul repaid the sum of £272,000 but had, in the meantime, bought a Lexus motor vehicle for some £29,000. It is Badrul's case that that some of money represented a gift made to him by the claimants for looking after their interests. That is disputed by the claimants.
41. Not long thereafter a distribution was made to each faction of a sum of money from the Hoque Group accounts. Badrul received some £78,000 on behalf of his faction.
42. The dispute between Jainul and Badrul was eventually resolved by the terms of the Consent Order made on 28 February 2000. The only parties to the Consent Order were Jainul, Nazrul and Badrul. The claimants say that they understood that Badrul was representing their interests. It is a substantial document and the following clauses are of particular note.
43. Clause 1 provided that Ashby's were to draw up an account – "the Statement of Account" - of all family and partnership assets and liabilities.
44. Clause 2 provided that the purpose of the account was to divide up all the assets of the Choudhury Family and to distribute the assets of the Hoque Group partnership.
45. By clause 3, the account was to be drawn so as to ensure that the final net assets distribution was in accordance with the following agreed percentages:

i) a total of 61.11% to Badrul's faction and

ii) a total of 38.89% to Jainul's faction.

46. The Consent Order had appended to it a schedule ("the Agreed Assets Schedule") and clause 6 provided that in drawing the account the assets set out in the Agreed Assets Schedule should be dealt with in accordance with its terms.
47. Similarly, by clause 8 the parties agreed that all necessary steps should be taken to bring about the transfer of properties or businesses between the Choudhury Family members in accordance with the Agreed Assets Schedule.
48. Clauses 21 and 22 provided that 74 Dunstable Road and sums held in the accounts of Mahabubur and Saleha were to be treated as assets held by Badrul's faction.
49. Clause 24 dealt with 113 Biscot Road and 33 Saxon Road. The sum of £2,000 in respect of mortgage and other expenses on those properties was to be paid by or accounted for by Jainul to Ziaul in the taking of the account. Similarly, clause 36 said that the Astra motor vehicle should be bought into the account at a value of £3,000 as part of Ziaul's share.
50. Turning to the Agreed Assets Schedule, this identified most of the assets referred to in the 1997 Agreement and it specified as follows. 29 Malzeard Road was to go to Sufia. 113 Biscot Road, 33 Saxon Road and the 25% share in The Curry Garden, Berkhamsted were to go to Ziaul. The Toyota Starlet was to go to Rockshonara. 29 High Street, Berkhamsted, 317 Hitchin Road, 33.33% share of The Curry Garden, Dunstable and a personalised registration (241 BOD) were to go to Badrul.
51. There is a substantial dispute between the parties as to the consequences and effect of this schedule. The defendants say that it constituted a clear allocation to particular individuals of particular assets. The claimants, on the other hand, submit, to my mind with some force, that this cannot be so for the following reasons. First, the claimants were not parties to the Consent Order. Secondly, the schedule does not include all the assets which were to go to Badrul's faction. Moreover, by this time, other properties had been bought. In particular, there is no mention of the following further properties to which I refer in more detail later in this judgment: 71 Bishopscote Road, Luton, 25 St Margaret's Avenue, Luton, 21-21A High Street, Hemel Hempstead and 4 Waldeck Road, Luton. Nor is there any mention of the Lexus car which Badrul had bought or of the monies in the Hoque Group accounts. Finally and significantly, it is specified that 317 Hitchin Road was to go "to Badrul" whereas Badrul himself maintains that it was agreed between himself and Ziaul that he was to hold this property on trust for Ziaul.
52. Pursuant to the Consent Order Ashby's did indeed produce the Statement of Account. For the first time this identified all of the assets of the Choudhury Family as of 1997 and the particular liabilities which had been incurred. Now once again 74 Dunstable Road and monies held in Mahabubur and Saleha's accounts were all treated as assets of the family. The upshot of the account was that Badrul's faction was due a sum slightly in excess of £80,000. That has been duly paid out to Badrul. It must be considered in addition to the sum of about £78,000 paid out to Badrul as an interim payment.

The witnesses

53. On behalf of the claimants I heard evidence from Sufia, Rockshonara, Ziaul, Nazrul and Jainul. In addition, I have read a witness statement of Mr Ataur Rahman who was not required to attend for cross-examination.
54. Sufia gave evidence before me through an interpreter. She is 67 years old and clearly suffering from ill health. She has diabetes and a heart condition. She made three witness statements in the proceedings. In the course of her examination in chief it became apparent that her witness statements were largely prepared for her and then read to her by a translator. Nevertheless, in the light of her evidence as a whole, I am satisfied that the contents of those witness statements did represent her own evidence. I am also satisfied that she gave her evidence before me fairly and honestly. She had some difficulty recalling at once all of the matters to which she had referred. Nevertheless, when particular paragraphs of her statements were drawn to her attention, she confirmed their contents as being accurate, her recollection having been refreshed.
55. I will deal with Sufia's evidence in relation to particular issues as and when they arise in this judgment. Nevertheless I would make the following observations at the outset. Sufia was clear that the Badrul faction family assets were looked after by Badrul as the senior member of the family. He was thought be an educated man, and the members of the family had faith in him. He was trusted to deal with the assets on behalf of the family, and Sufia and other members of the family would sign any document as and when required by him.
56. Sufia was of the view that the family home, 29 Malzeard Road, was in her own name and her own personal property. The rest of the property, with the exception of 7 St Ethelbert's Avenue, Luton, remained in the pool to be given to whom ever needed it at whatever time it was needed.
57. Sufia explained that she would never have given her share under the 1997 Agreement to Ziaul and Badrul. She has five children, four boys and one girl, and would never have thought it appropriate to give her money to only two of her sons. Similarly, she understood that she was the owner of 29 Malzeard Road. She had signed the papers which apparently resulted in the transfer of the property to Badrul. In doing so, Sufia did not question Badrul's authority, but nevertheless understood that she was and remained the sole owner until the true circumstances were explained to her when the parties fell out in 2004. So far as she was concerned, it was a property in her name, left to her, and it would remain in her name until her death. She was devastated and scared when she was told by Badrul in 2004 that she would have to leave the family home because it was in his name and he could do what he wanted with it.
58. Rockshonara made three witness statements and supplemented the evidence given in those statements with further evidence in chief. She was cross-examined with some care and sensitivity by Mr Laughton. In the light of that cross-examination I have no doubt that Rockshonara is entirely honest. She gave her evidence fairly and in a measured manner. At various points she became upset when asked questions about the relationship between herself and her brother, Badrul, and the relationship between Badrul and her mother, Sufia. She clearly found the family dispute and, in particular Badrul's treatment of Sufia, extremely distressing. At the time of the 1997 Agreement Rockshonara was 18 years old. She agreed to the terms of that agreement essentially because her mother, Sufia, told her to. It was her understanding that she was to get a share of the assets of the family. Until the matters giving rise to this dispute arose in 2004, Rockshonara looked up to her brother Badrul. So far as she was concerned, he was the individual responsible for looking after the assets of the family. She would do as she was told by him. She considered that her responsibility was to look after her mother, Sufia. She explained that when, in 2004, Badrul began to insist that Sufia leave the family home and became increasingly aggressive, she became very distressed. The memory of those events caused her further distress which was clearly evident during the course of her cross-examination.
59. Ziaul made five witness statements and substantially supplemented the evidence given in those statements with further evidence in chief. In 1997 he was a student at De Montford University in Leicester, studying for a degree in accounting and finance. He graduated in June 1998. From June 1999 until July 2003 he worked for various accountancy firms. Badrul encouraged him to work outside the family business on the basis that he would gain valuable experience. In August 2003 he joined the family business as, as he described it, Badrul's right hand man. In the meantime, Badrul had exercised total control of the businesses and properties in their names. He explained that it was his understanding that members of Badrul's faction were simply working together for the common good and that he, Ziaul, had no idea why transactions were funded in a particular way. As far as he was concerned, Badrul knew and that was enough.
60. Ziaul confirmed the evidence of Sufia and Rockshonara as to the events in 2004. Badrul wanted to sell the family home but Sufia did not want to move. Eventually there was a big argument in the course of which Badrul said that they would have to do what he wanted because he was now the owner of the property.
61. Although I broadly accept Ziaul's evidence I formed the view that he was less than candid in certain respects. In particular I am satisfied that, despite the impression which he sought to give, Ziaul was involved with the preparation of submissions to Ashby's following the Consent Order and in preparing the tax returns for each member of the family. Similarly, he participated in the preparation of schedules of allocations of income from the family properties to different members of the family and in the preparation of the company accounts for HSHC. I have reached the conclusion that Ziaul was closely involved in the business from about 2001. These are all matters which I have taken into account in assessing the weight that I can attach to his evidence. Nevertheless, I have no doubt that Badrul was the person who directed the dealings in the various properties to which I refer later in this judgment.
62. Nazrul gave evidence through an interpreter and the substance of that evidence was set out in two witness statements. I am satisfied that Nazrul gave his evidence to me honestly.
63. Nazrul explained under cross examination that, prior to the death of his father, the assets and income of the family were pooled. He and other members of the family viewed all the assets as being held by their father on trust for members of the family. It was only in 1997 that shares were allocated to each individual member of the family. This did not, however, include wives or grandchildren. Different properties were placed in different individuals' names at the instigation of their father or on the say so of Badrul. As money was earned, it was invested in further properties.
64. Jainul made two witness statements and again gave evidence before me through an interpreter. As in the case of Nazrul, I formed the view that he gave his evidence honestly and carefully. Jainul gave evidence in relation to the period before the 1997 Agreement which was to much the same effect as that of Nazrul. The family property and other assets were seen as falling into one pot. It belonged, so Jainul understood, to the whole family but fell to be distributed in accordance with their father's wishes. After his father died the assets of the family were divided in accordance with the 1997 Agreement. The idea was that each child would receive a portion of the assets. At that time a significant number of the properties were held in the names of Jainul and Badrul. The Consent Order was entered into with a view to resolving the differences between Jainul, Nazrul and Badrul. Pursuant to the Consent Order the assets were divided between the two factions, Nazrul and Jainul on the one hand and Badrul on the other. Nothing more was agreed.
65. On behalf of the defendants I heard evidence from Badrul, Saleha, Mr Syed Muhith and Mr Abdul Motin.
66. Badrul gave evidence in seven witness statements and he supplemented that evidence in examination in chief. I formed the view that Badrul is an extremely forceful personality and is firmly of the view that it is through his efforts that the assets generally held by the members of Badrul's faction have substantially increased in value.
67. There is a sharp conflict of fact between Badrul and the claimants in relation to a number of issues which I have to decide. It was submitted on behalf of the claimants that where there is such a conflict then I should prefer the evidence of the claimants over that of Badrul even though it was, to some extent, supported by that of Mr Motin.
68. Three particular matters were relied upon by the claimants in support of this submission. The first concerns the ownership of 29 Malzeard Road. By the defendants' Statement of Case relating to tax treatment (which was served in the course of the trial in the circumstances I have related) it was asserted that in late 2001 an oral agreement was made between the claimants and Badrul and Saleha at 29 Malzeard Road pursuant to which it was agreed, inter alia, that 29 Malzeard Road would thereafter be held by Sufia on her own account. No mention of this agreement was made in Badrul's witness statements. Moreover, it is inconsistent with the evidence which Badrul gave in his fifth witness statement that the house was transferred into his name (in April 2001) because Sufia had decided that she would live with Badrul and Saleha for the rest of her life and wished to give them the house.
69. The second matter concerns the reason for the breakdown in the relationship between the claimants and Badrul in June 2004. Here, as I have indicated, there was a substantial dispute on the evidence. It was the claimants' position that the breakdown occurred because Badrul revealed that 29 Malzeard Road was in his name and put pressure on Sufia to leave the house. This, say the claimants, went on for several weeks until Badrul became quite threatening. Ziaul says that there was finally a big argument at which he said it was up to Sufia whether she wanted to sell the house. At that point Badrul revealed that he could do what he wanted because 29 Malzeard Road was now in his name. This version of events was supported by Sufia and Rockshonara. Sufia, as I have said, was clear that she would never have agreed to transfer 29 Malzeard Road to Badrul nor to the transfer to her share of the assets to Ziaul and Badrul. Similarly, Rockshonara explained that she signed the deed without reading or understanding it. They both confirmed Ziaul's evidence as to why the relationship broke down in 2004.
70. Badrul on the other hand said that Ziaul had expressed dissatisfaction to Sufia about him getting the house. This was discussed in 2003, at which point Sufia decided the house should go in equal shares to Badrul, Ziaul, Rockshonara and Saleha. He explained that Rockshonara and Sufia decided to give their assets to Ziaul and him jointly but that 29 Malzeard Road was not transferred into his and Ziaul's names due to Ziaul's concerns at the time about getting married and possible divorce claims. Accordingly, Badrul said, 29 Malzeard Road remained registered in his sole name. In 2004 the whole family was happy to move out of 29 Malzeard Road until Ziaul announced that he did not want to go ahead.
71. Mr Muhith is the cousin of Badrul, Ziaul and Rockshonara. He gave evidence that he was contacted by Sufia in June 2004 and asked to come to the house because Badrul and Ziaul had an argument. He said that Ziaul admitted that he had behaved badly with Badrul and had physically assaulted him. In my judgment Mr Muhith gave his evidence honestly and fairly and I accept what he said. Nevertheless he was not witness to the actual dispute.
72. Mr Motin also gave evidence on behalf of the defendants. He explained that he had been a friend of the Choudhury family since 1976 and has been in business since 1980 as a driving instructor. He said that he witnessed the signing by Sufia of the transfer deed of 29 Malzeard Road to Badrul in April 2001 and the transfer deeds signed by Sufia and Rockshonara in April 2003. It was his evidence that he was not aware of Sufia or any other family member signing a document with any reluctance and without knowing at least in general terms what the document was about.
73. After careful consideration I have reached the conclusion that I must accept the claimants' evidence and reject the evidence of Badrul on all these points. I formed the view that the evidence of Rockshonara and Sufia was entirely credible and compelling. Further, it seems to me there is again an inconsistency between the position which Badrul sought to maintain in his witness statements and the agreement that he said all the parties entered into in late 2001. I can see no way to reconcile Badrul's evidence that, on the one hand, it was agreed between the parties in late 2001 that Sufia would hold 29 Malzeard Road on her own account with, on the other hand, Badrul's evidence that in about 2003 Ziaul expressed dissatisfaction to Sufia about Badrul getting the house. In considering this issue I have also taken into account the evidence of Mr Motin. I have reached the conclusion that Mr Motin's evidence is best explained on the basis that he was unable to recall accurately what happened at the various meetings and to what extent the signatories understood or did not understand the various documents that they were signing.
74. The final matter particularly relied upon by the claimants relates to 317 Hitchin Road. As I have indicated, Badrul's position is that this property was and is held on trust by Badrul for Ziaul. In his defence Badrul said that it was agreed between him and Ziaul that the property would be held in his name and that in return he would provide to Ziaul a "reasonable return" on the money used. In his witness statement, however, Badrul's position was rather different. There he said that the agreement was that Badrul would carry on business using the income from the property and would account to Ziaul for that income less expenses paid for him. Once again it seems to me that these are inconsistent positions and cast doubt upon Badrul's credibility as a whole. I return to consider this property later in this judgment.
75. Having heard all of the witnesses give their evidence I have grave doubts as to the reliability of Badrul as a witness. I have reached the conclusion that I must approach his evidence with considerable caution. Where there is a conflict of fact on the evidence between Badrul on the one hand and Sufia and Rockshonara on the other, I have no hesitation in preferring the latter.
76. Saleha gave evidence in the form of a witness statement and also supplemented that evidence with further evidence in chief. I formed the view that she generally gave her evidence in a straightforward and honest way. However, I gained the clear impression from her evidence as a whole that she had little knowledge or understanding of the purchase of properties, why properties were put into particular individuals' names or how the purchase monies were derived. She left all these matters to Badrul. She simply did not get involved in the business.

The List of Issues

77. Against this background I can now consider the list of issues which the parties have invited me to decide. In some cases the issue is now agreed. Nevertheless I will take them in turn and set them all out so as to present a complete picture.

Issue 1

78. The parties are agreed that the starting point for the trial is the 1997 Agreement, at which the claimants, Badrul, Jainul and Nazrul reached agreement as to the basis of division of Choudhury Family assets held both in England and Bangladesh.

Issue 2

79. Agreement was reached as to a division of United Kingdom assets and this was recorded in the 1997 Assets Schedule shortly afterwards.

Issue 3

80. The values assigned to the various assets were values estimated by the parties as at the 2 October 1997 and, as I have indicated, there were also funds held in various bank accounts.

Issue 4

81. Although two versions of the 1997 Assets Schedule exist, the agreed version records that £37,996.00 was payable by Badrul to Jainul.

Issue 5

82. The claimants contend that 74 Dunstable Road, Luton was a family asset. In support of this contention the claimants rely on the following matters. First, I am satisfied that significant funds used for the purchase were derived from the Curry Garden, Letchworth which was run by Jainul and Nazrul. Secondly, 74 Dunstable Road is, as I have indicated, specifically mentioned in the 1997 Assets Schedule as one of the assets belonging to the Choudhury Family and which fell to be distributed following the 1997 Agreement. Thirdly, the property was specifically identified in clause 1 of the Consent Order as one of the properties to be included in the taking of the account and subject to distribution between the Choudhury Family members and treated as an asset held by Badrul's faction. Similarly it is identified specifically in the Ashby's Statement of Account of family assets. The claimants fairly point out that at this time Mahabubur was still alive and Badrul had access to his documents and was said at the time to be in regular contact with Mahabubur by telephone. In these circumstances it is submitted that the treatment of 74 Dunstable Road as a Choudhury Family asset reflected the truth.
83. These are, I believe, very powerful points. Nevertheless they must be balanced against the following matters raised by the defendants. The story begins back in 1992 when Mahabubur visited the United Kingdom bringing money with him. In that same year 191 Biscot Road was purchased in his name. I accept the submissions advanced on behalf of the defendants that there is no evidence to suggest that Mahabubur did not pay for that property himself. In 1994, 191 Biscot Road was sold and 113 Biscot Road was purchased in Mahabubur's name. Once again, the defendants say there is nothing to rebut the reasonable supposition that this was purchased using Mahabubur's assets. Later in 1994, 113 Biscot Road was sold to Ziaul, and £40,000 was retained by Girling Solicitors. That sum was put towards the purchase of 74 Dunstable Road. The purchase price was £75,000 and, say the defendants, the only real dispute can therefore be as to the derivation of the balance of £35,000.
84. In my judgment the ability of the defendants to follow £40,000 back to Mahabubur in 1992 is determinative in relation to that sum of money. Despite the persuasive submissions advanced on behalf of the claimants, I have reached the conclusion that £40,000 of the purchase monies for 74 Dunstable Road were indeed Mahabubur's monies. However, I have no doubt that the balance of £35,000 was a Choudhury Family asset. I accept the evidence of Nazrul and Jainul that the monies came from the Curry Garden, Letchworth and their evidence was supported by a copy bank statement from that business in disclosure. Further, the weight of the evidence was that Mahabubur was not a wealthy man and it is most unlikely that he would have had any further assets to contribute towards the purchase of 74 Dunstable Road in 1997.

Issue 6

85. The parties agree that the Assets Schedule shows that the 1997 Agreement called for a number of transfers of property and other documentation. It is also agreed that with the exception of one or two matters, for instance the leasehold share in the Curry Garden, Dunstable, these transfers did not take place until after the Consent Order in February 2000.

Issue 7

86. The claimants say that meanwhile, from 2 October 1997 to 28 February 2000, Badrul's faction (on one hand) and Jainul and Nazrul (on the other) traded such assets as were in their respective power and control; that during this period neither faction accounted to the other for rent or profits and that none of the claimants exercised any control over the assets, leaving such matters as affected their respective interests entirely to Badrul. Save that it is accepted that neither faction accounted to the other for rental profits, these submissions are disputed by the defendants.
87. This brings me to the heart of the dispute between the parties. The starting point is the 1997 Agreement. As I have explained, this had appended to it the 1997 Assets Schedule which allocated certain properties to Jainul's faction and certain properties to Badrul's faction. Other assets, and in particular the cash deposits held in the Hoque Group accounts were not mentioned. Nevertheless, the agreement records the specific shares held by members of the Choudhury Family in all the family assets. At this time Rockshonara and Ziaul were both students and Sufia had no business experience and was unable to read or write in English. I am quite satisfied having heard the evidence that all three claimants looked to Badrul to decide how the Badrul faction family assets should be dealt with and left it to him to deal with those assets on their behalf and to the best advantage of Badrul's faction as a whole. Indeed Badrul himself accepted that, after the Consent Order, the claimants were content to allow him to look after their assets and money, that Ziaul and Rockshonara were several years younger than him and were students, his mother was a housewife who did not have business experience or contacts or a willingness to deal with assets and that the claimants all wished Badrul to look after their assets as he saw fit. That, he says, he has done.
88. The claimants have contended that the relationship between themselves and Badrul constituted a partnership, "the New Partnership". In the light of the evidence I did not understand this submission to be at the forefront of the claimants' case. In my judgment they were right to adopt that course. I do not see how the relationship between the claimants and Badrul could be characterised as one subsisting between persons carrying on a business in common with a view to profit. They have produced no joint accounts, they have never held themselves out as carrying on business together, there are no documents recording any partnership, they have not issued any invoices or other documents suggesting that they are carrying on business together and they have never held meetings together to determine how the business of the partnership should be conducted. I therefore reject this aspect of the claimants' case.
89. Nevertheless, I am satisfied on the evidence that each of the claimants and Badrul held the property and other assets to which they held title (that is to say, the Badrul faction family assets) on trust for each other in the particular shares and proportions set out in the 1997 Agreement – the Shariat shares. This remained the position until any particular property or asset was allocated to a particular individual in satisfaction or part satisfaction of that individual's Shariat share (as did indeed happen to the limited extent I describe hereafter). I accept that the 1997 Agreement provided that the family assets were "to be divided in the following proportions". I do not however accept that it was the intention of the claimants and Badrul that each individual would become possessed of his or her particular Shariat share of the family assets. On the contrary, I am satisfied that it was the common intention of Badrul and the claimants that there should be a continued "pot" in which all the members of the faction would have a share. The 1997 Agreement and Assets Schedule simply allocated particular assets to one or other faction. They did not have the effect of allocating particular assets to particular individuals within Badrul's faction. The relationship between the claimants and Badrul was such that they each clearly understood and intended that Badrul would direct how the Badrul faction family assets should be dealt with for the mutual benefit of the members of Badrul's faction and that there was to be no general allocation of particular assets to particular individuals at that time. The assets allocated to Badrul's faction were held by members of that faction for and on behalf of each other in the Shariat shares so that Badrul (and, subsequently, Badrul with Ziaul's assistance) could control how they were dealt with for their mutual benefit. Thereafter, as I shall explain, the claimants relied on Badrul to conduct such dealings and he duly did so, albeit with the result that, by 2004, most of the valuable assets were held by him and Saleha.
90. Over the course of the following 2½ years I accept the evidence of the claimants that Badrul arranged various property dealings. I can summarise them as follows.
91. First, 33 Saxon Road and 113 Biscot Road were in the names of Ziaul as of October 1997. I accept the evidence of Ziaul that Badrul decided that those properties should be sold and the proceeds put towards the purchase of 71 Bishopscote Road, Luton. Ziaul was the legal owner of this latter property although, for the reasons I have given, I conclude that he held that property on behalf of the members of Badrul's faction in proportion to their Shariat shares. Subsequently, further dealings were entered into in respect of 71 Bishopscote Road which I detail later in this judgment. Once again those dealings were entered into at Badrul's instigation.
92. Secondly, in September 1999, 25 St Margaret's Avenue, Luton was bought in Rockshonara's name at a price of £ 68,750. The property was refurbished at a cost of some £6,700. Badrul says that he provided the entire funds for this purchase and development in satisfaction of Rockshonara's Shariat share. I do not accept this evidence. Rockshonara gave evidence, which I accept, that she had no idea how this property came to be in her name, save that it was something arranged by Badrul. So far as she was concerned, it was something which was owned by the family, that is to say Badrul, Ziaul, Sufia and herself. Subsequently it was transferred to Ziaul at the request of Badrul in January 2002, without any money changing hands.
93. Secondly, it is clear that some £21,000 used to purchase the property came from an account in Rockshonara's own name. Badrul says that this sum of money was beneficially owned by himself. The claimants say, on the other hand, that £9,000 of this sum of money came from Ziaul. Moreover, £13,500 apparently came from an account opened in the name of Rockshonara to receive her child benefit payments. What is clear to me is that on any basis substantial monies came from Rockshonara's own accounts for this purchase and the transaction is another confirmation that assets were put into the names of individual members of Badrul's faction irrespective of whether or not those assets were owned by that member. I cannot determine in this trial precisely how these monies were sourced. Nevertheless I am quite satisfied that the purchase of this property in Rockshonara's name did not constitute a partial satisfaction of Rockshonara's Shariat share.
94. Thirdly, Badrul arranged various transactions with 74 Dunstable Road. On 2 August 1999, 74 Dunstable Road was transferred by Mahabubur to Saleha. The defendants attach a value of £60,000 to this property as of 1997. In October 1999, Saleha sold the property for £92,000 achieving a £32,000 profit. A proportion of these monies represent Badrul faction family assets for the reasons I have given.
95. Fourthly, in September 1999, Badrul received a cash distribution from the Hoque Group accounts of £78,574. Once again, and consistent with my findings, Badrul did not distribute those monies but retained them.
96. Then, on 10 December 1999 Badrul purchased 21-21A High Street, Hemel Hempstead at a purchase price of £134,500. The funds were derived from a number of sources. They included the £78,574 from the Hoque Group accounts and £30,000 from Saleha's account, being monies received from the sale of 74 Dunstable Road. In addition monies were derived from rents from the Curry Garden, Berkhamsted and the Baltistan Restaurant at 317 Hitchin Road. In my judgment it is clear that, save in so far as monies were derived from Mahabubur through 74 Dunstable Road, 21-21A High Street, Hemel Hempstead represented another property bought at the instigation of Badrul and using Badrul faction family assets and was, accordingly, held by Badrul for and on behalf of the Badrul faction members in their Shariat shares.
97. Finally I should mention, if only to dispose of it, 7, The Crossway, Farley Hill, Luton. This was apparently purchased by Badrul in November 1998 and sold in 2000 after planning permission had been gained at a profit of some £7,000 or £9,000. There are no materials before me to suggest that any Badrul faction family assets were used in connection with this purchase and it is Badrul's case that the money has not in fact been recovered from the purchaser to date and is not anticipated to be recovered in the future. I need say no more about it.
98. It is convenient at this point to mention the other properties which the defendants say form part of the original allocation under the 1997 Agreement in satisfaction of the parties' Shariat shares.
99. In relation to Ziaul I have already dealt with 33 Saxon Road and 113 Biscot Road. Two other properties are said to have been allocated to Ziaul, 317 Hitchin Road and the 25% share in the Curry Garden, Berkhamsted.
100. As to 317 Hitchin Road, this was transferred by Badrul and Jainul into Badrul's sole name in 2000 or 2001. It is the defendants' case that although the property was always held in whole or in part by Badrul, Ziaul and Badrul nevertheless agreed that the property was allocated to Ziaul but that Badrul should receive the rental income and in return pay for all Ziaul's and Rockshonara's expenses, including pocket expenses, food, accommodation, holidays and the balance being adjusted in cash. The rental income was paid into Badrul's bank account. Subsequently Badrul charged the property to secure a loan of £300,000. Of this £240,000 was used towards the purchase price of 462 New Bedford Road, and £60,000 was lent to HSHC in order to purchase 27 Turners Road South. I return to these transactions later in this judgment. Ziaul disputes that there was ever any such agreement. Moreover he disputes that he ever gave his consent to the use of 317 Hitchin Road to fund the purchase of 462 New Bedford Road.
101. I have reached the conclusion that Ziaul's evidence on these points is to be preferred. It seems to me to be inherently unlikely that 317 Hitchin Road was ever allocated in the way that the defendants suggest. If it had been allocated then the natural thing to do would have been to transfer it into Ziaul's name. Further, I can see no point in Ziaul and Badrul reaching an agreement for the disposal of rental income in the way that Badrul suggests. If the property had been registered in Ziaul's name and treated as his own then he could have paid for his own expenses, food, accommodation, holidays and the like. Finally, there never has been any adjustment of balances, nor have any accounts been kept. Overall I am satisfied that this property was never allocated to Ziaul and there was never any agreement between Badrul and Ziaul as the defendants contend.
102. The final property said to have been allocated to Ziaul is the 25% share in the Curry Garden, Berkhamsted. It is correct that profits and dividends have been received by Ziaul and deposited in his bank account. This is certainly an indication that this property was allocated to Ziaul in a part satisfaction of his Shariat share. Nevertheless, I have once again reached the conclusion that the claimants' evidence on this point is to be preferred. It does not seem to me to be inconsistent with that position that particular profits or dividends were received by Ziaul. What becomes increasingly apparent as all of the transactions entered into by the Badrul faction members are considered is that although monies were paid into the accounts of particular members of the faction that did not mean that those monies were to be treated as theirs alone. If monies were needed to fund another property transaction then one member of the faction would simply transfer funds to another, as necessary.
103. As for Rockshonara, she had no properties in her name or said to have been allocated to her at the date of the 1997 Agreement. I have already dealt with the purchase of St Margaret's Avenue in 1999.
104. As for Sufia, she was the legal owner of 29 Malzeard Road, the family home, before 1997 and remained the owner until the property was transferred to Badrul in the circumstances I have described. I return to consider whether or not this property was allocated to Sufia in part satisfaction of her Shariat share later in this judgment.
105. Finally, as to Badrul, he says that he was allocated three properties, namely 29 High Street, Berkhamsted, 4 Waldeck Road and a 33.3% share in the Curry Garden, Dunstable. I explain the subsequent transactions in relation to these properties later in this judgment. The fact that they were in Badrul's name as of 1997 does not seem to me to advance the matter one way or the other. At this stage therefore I need say no more about them.

Issue 8

106. This brings me to the Consent Order. The parties are agreed that the Consent Order provided the mechanism for apportioning the disputed assets into two funds and that the interests of the claimants were under Badrul's share. The parties also agreed that the values assigned by Ashby's to the properties in the Statement of Account were October 1997 values. Ashby's also included assets not included in the original 1997 Assets Schedule but existing as at October 1997. There were also adjustments to reflect subsequent events, such as the incidence of tax and interest.

Issue 9

107. The parties are agreed that 74 Dunstable Road was treated as a family asset assigned to Badrul's share. The parties also treated as family assets sums in bank accounts held by Saleha (£12,307) and Mahabubur (£20,000). I have already dealt with 74 Dunstable Road. As for the sums held in the bank accounts, I have no persuasive evidence that those sums were derived from Mahabubur. As I have explained, the monies derived from the sale of 191 Biscot Road were used to purchase 113 Biscot Road and, in due course, 74 Dunstable Road. On the evidence as a whole I have reached the conclusion that it is likely that the monies held in the bank accounts were properly treated as family assets and fell to be distributed in accordance with the Shariat shares.

Issue 10

108. By the 28 February 2000 and as a result of savings and reinvestment, the assets under Badrul's control were considerably more valuable than on 2 October 1997. Further, those assets included additional properties purchased with accrued profits, in so far as they were purchased by one or more of the parties.

Issue 11

109. The claimants say that all the assets were derived from Choudhury Family assets and were accumulated on the understanding that Badrul held them for himself and for the claimants in the Shariat shares declared in the 1997 Agreement. This is disputed by the defendants. I have dealt with certain additional properties, namely 25 St Margaret's Avenue, 21-21A High Street, Hemel Hempstead and 7 The Crossway earlier in this judgment. As for 71 Bishopscote Road I have also taken into account the evidence of Ziaul that the sums for this purchase came from his accounts and were derived from the net proceeds of sale of 33 Saxon Road and 113 Biscot Road, that he received the rents and that all expenditure on the property was paid for by him. Nevertheless, and for much the same reasons that I have given in relation to the Curry Garden Berkhamsted, I do not believe this is inconsistent with the claimants' overall case that this property was held by Ziaul for other members of the Badrul faction in proportion to the Shariat shares. This evidence must be seen in the context of the other evidence, which I have accepted, that Ziaul considered that the whole faction was working together for the common good, under Badrul's direction. Badrul had become acting head of the family and was in total control of the businesses and properties in the names of individual members of the faction. If monies were required for a particular purpose then they were used for that purpose.
110. Secondly, Badrul says that he borrowed monies from third parties and earned income from consultancy work, all of which was ploughed back into his own investments. I have to say that the evidence on this point is very sketchy. Badrul confirmed in the course of his cross examination that he had borrowed money from third parties but he would not disclose the sums of money involved, or the names of the third parties. Further, in relation to the particular properties to which I have referred it is not at all clear where monies borrowed from third parties could have been applied. Nevertheless, I accept that in taking any account it would be right that monies derived from third parties should be taken into consideration. I cannot carry out such an exercise in the course of this judgment because I do not have the relevant details. A tracing exercise must be carried out in the account.

Issue 12

111. The parties agree that all their assets as of the 28 February 2000 must be ascertained and taken into account.

Issue 13

112. The claimants contend the proper basis for the final account is the implied agreement or arrangement between the claimants and Badrul as regards beneficial ownership of and future dealings with the assets after 28 February 2000. The defendants dispute that there was any such general agreement or arrangement, save as specifically set out in relation to specific assets such as 317 Hitchin Road. I return to this in considering issues 16 and 17 below.

Issue 14

113. The parties are agreed that the critical period in ascertaining the nature of the arrangements is the period surrounding and immediately following the date of the Consent Order.

Issue 15

114. The parties are also agreed that it is necessary to consider whether and to what extent (if at all) the initial arrangements were varied, either generally or in relation to particular items of expenditure.

Issues 16 & 17

115. The claimants say that there was no distribution of assets following the Consent Order, nor was there any agreement for such distribution. Further, Taylor Walton drew up the Agreed Assets Schedule appended to the Consent Order and the claimants were not parties to that document. These matters are heavily disputed by the defendants. They say that some assets were already in the correct names, and thus no transaction was necessary to fulfil the distribution. Other properties were purchased or transferred and Badrul's faction agreed the final division of their 61.11% of the assets at a meeting at the family home in early 2001. Further, they dispute the claimants' contention in relation to the Consent Order. They say the Agreed Assets Schedule and the Statement of Account accurately reflected what had previously been agreed.
116. Once again, I have reached the general conclusion that the claimants' submissions on these points are to be preferred, for all of the following reasons. First, the Consent Order must be seen against the background of the 1997 Agreement and the events which followed it. I have concluded that the 1997 Agreement did not constitute a general allocation of assets to individual members of Badrul's faction. Nor was there any such general allocation in the 2½ years which followed. Over that time Badrul controlled and directed the business affairs of the members of the faction.
117. Secondly, Badrul had, by this time, used the cash distribution from the Hoque Group accounts of £78,574 to assist in the purchase of 21-21A High Street, Hemel Hempstead. Moreover, 74 Dunstable Road had been transferred from Mahabubur to Saleha and then sold releasing yet further monies which were used to purchase 21-21A High Street, Hemel Hempstead. The further sums of £20,000 and £12,307 which were said by the defendants to be Mahabubur's monies have also to be brought into the account. In the result the overall value of the assets allocated to Badrul's faction was substantially greater than it was in 1997. No attempt had been made to allocate these additional monies to individual members of the faction.
118. Thirdly, I am entirely content to accept that the Statement of Account to the Consent Order was drawn up by Ahsby's and that Ziaul was involved in the preparation of submissions to Ashby's. Nevertheless the claimants were not parties to that Consent Order.
119. Fourthly, there are certainly aspects of the Consent Order which, taken together with the Agreed Assets Schedule suggest an individual allocation. I have in mind the following aspects in particular. Clause 6 provided that in drawing the account the assets set out in the schedule were to be dealt with in accordance with that schedule and clause 8 provided that all necessary legal steps should be taken to bring about the transfer of properties or businesses between the members of the family in accordance with the schedule. Moreover, although the claimants were not parties to the Consent Order, clause 14 provided that Ashby's were to send copies of their draft accounts to the claimants, who were at liberty to apply to be joined as parties for the purpose of the taking of the accounts. Further, they were at liberty to make written submissions to Ashby's as to adjustments or alterations to the account. Moreover, other indications suggest that individuals were to retain or obtain particular assets, namely:

i) Pursuant to clause 7, the endowment policy which had previously been security for the mortgage over 38 Malzeard Road was declared to be the personal property of Badrul;

ii) Pursuant to clause 24, the sum of £2,000 in respect of the mortgage and other expenses on 113 Biscot Road and in respect of 33 Saxon Road were to be paid by or accounted for by Jainul to Ziaul in the taking of the account;

iii) Pursuant to clause 36, the black Astra should be brought into the account at a value of £3,000 as part of Ziaul's share.

120. Against these matters I must take into account clause 3 of the Consent Order which specified that the account should be drawn so as to ensure the final net asset distribution was in accordance with the following agreed percentages:

i) A total of 61.11% to (collectively) Sufia, Badrul, Ziaul and Rockshonara (that is to say Badrul's faction);

ii) A total of 38.89% to (collectively) Jainul and Nazrul (referred to as Jainul's faction).

and such adjusting payments as were required to achieve that percentage should be placed in the account. This suggests that there was indeed to be a distribution of assets, but only to Badrul's faction and to Jainul's faction.

121. Turning to the Agreed Assets Schedule, this does specify that particular assets were to go to particular individuals. Nevertheless, in my judgment, it can fairly be seen as a clarification of the faction to which particular properties were to go. I also think it is highly significant that it does not include all the assets which existed as at that date, and in particular does not include 71 Bishopscote Road, 25 St Margaret's Avenue, 21-21A High Street, Hemel Hempstead or Waldeck Road. I also think it important that 317 Hitchin Road is specified as being a property to go to Badrul when, on Badrul's case, it was a property allocated to Ziaul.
122. Taking all these matters together, I have reached the conclusion that the Consent Order and attached Agreed Assets Schedule, when seen in context, did not constitute an individual allocation of assets but rather an agreement between Jainul and Nazrul on the one hand and Badrul on the other as to how the assets were to be divided between the two factions.
123. In my judgment this conclusion is supported by a number of other matters on which the claimants rely. First, subsequent transactions reveal that Badrul maintained his control over the Badrul faction family assets. In closing I was provided by the claimants with a number of schedules which I can summarise in the following broad terms.
124. First, I was provided with a schedule showing the movement of funds between Badrul and Ziaul for property transactions. On any basis it is clear that by 2004 Ziaul had provided to Badrul a sum in excess of £200,000. These monies were used over the years by Badrul to fund the purchase of further properties.
125. Secondly, I was provided with a schedule of the movement of other funds between Badrul and Ziaul which reveals that Ziaul paid some £42,000 towards Badrul's costs of the county court proceedings.
126. Thirdly, it is I think highly material that Badrul himself has given evidence that the claimants allowed him to look after their assets and money as he thought fit, and that he duly did so.
127. Finally, and following the production of the Ashby's Statement of Account there was a further distribution of some £80,000 to Badrul's faction which once again has never been allocated to particular individuals.
128. I must also deal with the contention advanced on behalf of the defendants that Badrul's faction agreed the final division of their 61.11% of the assets at a meeting at the family home in early 2001. Having heard and considered the evidence of each of the claimants and of Badrul, I am satisfied that no such meeting ever took place.
129. In summary, I conclude that the Consent Order did not alter the position in relation to the distribution of assets to individual members of Badrul's faction. In my judgment those assets were held by the claimants and Badrul and Saleha for and on behalf of the members of the Badrul faction in proportion to their Shariat shares (and subject to the specific exceptions I address later in this judgment).

Issue 18.

130. The claimants say that the Toyota Starlet (valued at £7,500 in 1997) was registered in Badrul's name and driven primarily by Saleha (not by Rockshonara) until 2005. This is agreed by the defendants, save that they say the car was driven primarily by Rockshonara. They say it was registered in Badrul's name in order to reduce the insurance premium. Doing the best I can on the evidence I have reached the conclusion that this was never an allocation to Rockshonara. It was a car purchased for the use of the family and primarily used by Saleha.

Issue 19.

131. The claimants say 113 Biscot Road was sold on the instructions, alternatively on the advice of Badrul, and the net proceeds of sale reinvested in other property. The defendants dispute that the sale was on Badrul's instructions or on his advice and say that Ziaul made his own independent decision to sell the property although Badrul assisted in the mechanics of the sale. I have already dealt with this property earlier in this judgment. I have reached the conclusion that, as in the case of the properties generally, the decisions to sell and buy were taken at Badrul's instigation.

Issue 20.

132. The claimants contend that 29 Malzeard Road (the family home) was transferred to Sufia and the mortgage paid off (as all agreed should be done). The property was a family asset to be retained by Sufia on any subsequent distribution but meanwhile to provide a home for the family. This is disputed by the defendants who say that the property remained in Sufia's name and was therefore assumed to have been distributed to her.
133. I have not found this an easy matter to determine but, in the end, I have reached the conclusion that 29 Malzeard Road was allocated to Sufia in partial satisfaction of her Shariat share under the 1997 Agreement. I reach this conclusion in the light of the consistent evidence of all of the parties that the property was understood to form part of the share allocated to Sufia. Further, the property was originally held in trust pursuant to Shamsul's will. It was agreed that the trust deed should be revoked and the property held by Sufia, and this was duly done. I have also found particularly persuasive Sufia's own evidence. She clearly expressed the view that the house was in her name and was her own personal property. Accordingly, references in this judgment to Badrul faction family assets being held on behalf of Badrul faction members in proportion to their Shariat shares must be read subject to this conclusion. The rest of the property, with the exception of 7 St Ethelbert's Avenue, remained in the pool.

Issue 21

134. The claimants contend that 317 Hitchin Road was a family asset which happened to be held in the name of Badrul. The defendants say that the property was formerly in the names of Jainul and Badrul and formed a part of the assets distributed to Badrul's faction under the Consent Order. The transfer to Badrul was registered on 30 June 2000. Thus far there is nothing between them. Thereafter, the defendants say, it was agreed between Badrul and Ziaul that Badrul held it on trust for Ziaul.
135. It follows from the findings I have already made that I reject this last submission advanced on behalf of the defendants. In my judgment it is clear that 317 Hitchin Road was another asset held by Badrul for and on behalf of the other members of Badrul's faction in proportion to their Shariat shares.

Issue 22

136. The claimants say that the bulk of the assets assigned to Badrul's faction were trading assets and it was common ground that trading should continue under Badrul's direction. The former is agreed by the defendants but it is not agreed that there was any such common ground. The defendants' case is that each asset was separately owned, but that Badrul assisted Ziaul and Rockshonara with their dealings with their assets.
137. Again, it follows from my earlier findings that I accept the submissions advanced on behalf of the claimants. In my judgment it was indeed common ground that trading should continue under Badrul's direction and that is precisely what happened.

Issue 23

138. Thereafter, say the claimants, the trading assets were, in effect, treated as a single trading fund, cash and assets being transferred between the parties as Badrul thought best. This is not agreed by the defendants but, again, and for the reasons I have given, I accept the submissions advanced on behalf of the claimants.

Issue 24

139. The claimants say that it now appears that Badrul was pursuing a policy of gathering assets into the hands of himself and Saleha; that until June 2004 Badrul gave the claimants to understand that he was working for them all and that the claimants assumed that, save as otherwise agreed, assets were accruing in the Shariat shares. The defendants dispute these contentions and say that, even on the claimants' primary case, it mattered not in whose names particular properties were, so that it would be inconsistent to criticise Badrul on this ground.
140. As to this point, I have no doubt that the effect of Badrul's dealings was indeed to gather assets into the hands of himself and his wife Saleha. However I accept the submission which the defendants advance that it mattered not in whose names particular properties were because the parties understood that there had been no general allocation of assets to members of the faction. The defendants also say that Badrul was the experienced property dealer and assisted each claimant with the investment of his or her portfolio. This is an important concession but it does not go far enough. Badrul's involvement went a great deal further than assisting each claimant. He directed what should be done with the properties irrespective of who held legal title. Finally, the defendants say that the submission made by the claimants that they assumed that, save as otherwise agreed, assets were accruing in the Shariat shares was wholly unrealistic, particularly given that Badrul was plainly the only member of the family active in the property business, and therefore the one likely to make the most out of his own share. Once again it seems to me that this is an important concession. It is one that conforms with my own view of the evidence that Badrul was the only member of the family active in the property business, although he was from about 2001 assisted by Ziaul. Nevertheless, I am quite satisfied that he was carrying on those dealings on behalf of the other members of the faction.

Issue 25

141. The defendants contend that living and other expenses were drawn from the common fund as necessary under Badrul's direction but that there was no suggestion that any such drawings would affect the original apportionment of capital. Further, they say that as a family man with a wife and children, Badrul drew more than anyone else. The defendants accept these contentions to a point. In particular Badrul accepts that he supported the claimants financially, as was expected of him, but that the assets were never pooled. Further, the defendants say that in relation to the larger purchases and, in particular, cars, these can only be explained in the terms of a partial distribution. Further, the defendants do not accept that Badrul drew more than anyone else from the common fund by way of living and other personal expenses although he does accept that as his portfolio of assets increased, his income obviously increased.
142. In my judgment it emerges from the evidence as a whole that living and other personal expenses were indeed drawn from the common fund as necessary, but broadly under Badrul's direction. Further I accept the submission that such drawings did not affect the original apportionment of capital. I also accept that as a family man with a wife and children it is inevitable that Badrul must have drawn more than anyone else, but again this did not affect the apportionment of capital. Cars, however, require separate consideration. I have already dealt with the Toyota Starlet car which, it was said, was allocated to Rockshonara. I have rejected that contention. In relation to Ziaul and Badrul, the position is rather different. Ziaul accepts that he took possession of a black Astra car valued in 1997 at £3,000 and on its sale received the proceeds. Further, in February 2001, and with Badrul's approval, he ordered a Saab car at a cost of £23,212.54. This was delivered in about May 2001. It was Ziaul's evidence that this was family money and that he purchased it with Badrul's consent because he was the head of the family. Ziaul expressly said that personal possessions, once bought, belong to the family member in question and that he regarded the cars in this light. He said it was reasonable for Badrul to have the Lexus car and for himself to have the Saab. In these circumstances it seems to me that the purchase by Ziaul of the Saab motorcar must be regarded as a distribution in partial satisfaction of his Shariat share. Similarly, the purchase by Badrul of the Lexus car in July 1998 for £29,000 must also be regarded as a distribution to Badrul in partial satisfaction of his Shariat share. As in the case of 29 Malzeard Road, references in this judgment to Badrul faction family assets being held on behalf of Badrul faction members in proportion to their Shariat shares must be read subject to these conclusions.

Issue 26

143. The parties are agreed that, in so far as they were aware of the details, they considered that the arrangements made from time to time to deal with expenditure were fair and reasonable to all concerned. This is entirely consistent with the matters that I have addressed in relation to issue 25.

Issue 27

144. The claimants understood that assets were put into the name of Saleha to save tax and not with the intention of transferring to her a beneficial interest in capital. This is disputed by the defendants. Nevertheless it seems to me to be clear from the matters to which I have already referred that Saleha had no interest or say in the way the properties of the family were bought and sold. Save in so far as monies were derived from Mahabubur in the way that I have indicated it is clear, in my judgment, that Saleha held any properties in her name on trust for and on behalf of Badrul's faction.

Issue 28

145. This issue concerns 7 St Ethelbert's Avenue. The claimants say there was only one substantial agreement relating to the removal of capital from the common fund, namely that Rockshonara should be given 7 St Ethelbert's Avenue as a gift from the family as a whole bearing in mind that, as a daughter, her allocated share of the family assets was only one-half of the share allocated to each of her brothers. This has given rise to a substantial dispute between the parties. The defendants say that this property was not a gift and constituted an allocation to Rockshonara of her share under the 1997 Agreement, although it was generous, bearing in mind that she had not contributed to the family assets in any way.
146. 7 St Ethelbert's Avenue was bought in May 2002 for £74,000. A total of £36,900 was derived from Rockshonara's own bank accounts. This, say the claimants, was funded as to £9,900 from a longstanding balance held in the account and from six deposits totalling £27,000. Ziaul provided £38,465 funded by three cash deposits totalling £14,500; about £9,600 from his Lloyds TSB Classic account and £12,250 from his Cahoot account. Crucially the claimants say that £27,000 was derived from Jainul and Nazrul and was given in proportion to their 38.89% Shariat share.
147. The claimants' position is supported by the evidence of Jainul and Nazrul who both told me that they contributed £27,000 at the request of their mother. The claimants' case was also supported by evidence from Ziaul and Sufia. Conversely, Badrul told me that there was never any intention to make a gift to Rockshonara outside the scope of the 1997 Agreement. Further, it was submitted that Jainul and Nazrul lied about their ever having made a contribution: a submission supported by the fact that there is no mention of any such contribution in Ziaul's fifth witness statement or in the witness statements of Jainul and Nazrul. On the contrary, Ziaul said in his fifth witness statement that the funds for the purchase came entirely from Rockshonara and from funds under his control. Similarly, Jainul said in his first witness statement that the gift of 7 St Ethelberts Avenue to Rockshonara did not come as a surprise to him because she received less than the sons and consequently Sufia wanted to top up her share. I have to say that it is very curious indeed that none of the witnesses for the claimants mentioned the payment by Jainul and Nazrul of the £27,000 at an early stage. This is a powerful point in the defendants favour. Nevertheless I do not feel able to reject the evidence of Jainul, Nazrul, Sufia and Ziaul which they gave under cross examination. It was a consistent feature of their evidence that Sufia was concerned to ensure that Rockshonara received an additional benefit in the light of her reduced allocation under the 1997 Agreement. Moreover, the £27,000 does indeed correspond to the Shariat share of Jainul and Nazrul. Having heard the witnesses give their evidence and in the light of the concerns that I have as to the reliance which I can place upon Badrul's evidence, I have reached the conclusion that the version of events advanced on behalf of the claimants is the correct one. I conclude that Rockshonara was given 7 St Ethelbert's Avenue as a gift from the family as a whole in the light of the fact that her allocated share of the family assets was only one-half of the share allocated to each of her brothers.

Issue 29

148. The claimants say that Badrul controlled the investment of the common fund even after Ziaul became a working partner in August 2003. This is disputed by the defendants. Broadly, I accept the claimants' contention in relation to this issue. I have no doubt, as I have already indicated, that Ziaul did become much more active in the business from 2001 than he was prepared to admit. Nevertheless I have reached the clear conclusion in the light of the evidence that Badrul still retained control over the investment of the Badrul faction family assets.

Issue 30

149. The claimants contend that they trusted Badrul and would sign documents at Badrul's request without questioning, and in some cases without understanding their purpose. The defendants accept that the claimants trusted Badrul, but otherwise do not agree with this contention. It is pointed out, with some force, that Rockshonara and Ziaul were university graduates. Ziaul was a trainee account and Rockshonara a trainee solicitor. The defendants say it is simply not open to persons in such cases to plead ignorance or ineptitude. They also say that although Sufia is in a different position because she cannot speak or read English she nevertheless knew what she was signing.
150. I have reached the conclusion that the submissions advanced by the defendants underestimate the power that Badrul exerted over the family. I have no doubt that what Badrul required to be done was indeed done. Nevertheless I do accept the defendants' submission that as from 2001 Ziaul would have well understood the nature of the transactions which he was engaging in. Rockshonara, on the other hand, kept quite separate from any business decisions, had no control over what happened to monies in her accounts and would sign what she was told to sign. Likewise, Sufia did what she was told, believing that she was acting in the best interests of Badrul's faction.

Issue 31

151. Both parties agree that the claimants would from time to time receive monies into their bank accounts and transfer to Badrul or to each other or, at the direction of Badrul, to third parties, monies from those bank accounts, including in some cases monies earned by them from outside sources. The parties disagree, however, as to whether or not these transfers were executed for the purpose of investment in the common fund. Importantly, Badrul accepts that he would request Rockshonara and Ziaul to transfer monies out to third parties (usually solicitors) for the purpose of the purchase of properties by Badrul. The defendants say that Rockshonara and Ziaul always understood and consented to such arrangements.
152. I think it is likely that Ziaul and Rockshonara did understand and consent to the transfers of monies out to third parties. Nevertheless they did so at Badrul's instigation and on the clear understanding that these monies were to be used for the purpose of investing in properties for the general benefit of members of Badrul's faction.

Issues 32 & 33

153. These issues concern the transfer of 29 Malzeard Road and the transfers of Sufia's and Rockshonara's shares of the common fund. The claimants say that Sufia put a mark on the transfer of 29 Malzeard Road to Badrul which she would never have done had she understood its effect. Further, Sufia and Rockshonara signed deeds of gift purporting to give their shares of the common fund to Badrul and Ziaul, but in each case without understanding that the effect thereof would be to deprive them of their beneficial interests in the common fund. The defendants accept that the transfers were indeed executed by Sufia and Rockshonara but dispute that they did not understand the effect of what they were doing. They say that Sufia decided to transfer 29 Malzeard Road to Badrul because he had looked after her and her husband all his life. It is also said that at the same time Sufia decided to pass her shares to Badrul. As to the transfer of the shares of the common fund, it is said that Rockshonara drafted the deeds of gift which were discussed between Sufia, Rockshonara and Badrul before execution. Once again these points raise a conflict of evidence between the claimants and Badrul. As I have foreshadowed earlier in this judgment, I have no hesitation in rejecting Badrul's account and accepting the account of Rockshonara and Sufia. In so far as Rockshonara and Sufia had any understanding of what they were doing, it was to execute documents which would have the effect of transferring assets to Badrul so that he could use them for the general benefit of Badrul's faction. I have no doubt at all that they would not have executed any such documents on the understanding that the property or assets would be used for Badrul's own purposes or for Badrul's and Ziaul's own purposes.

Issues 34 to 38

154. HSHC was not in existence in 1997. It was incorporated on 11 November 1998 with two issued shares which were, on that day, transferred to Badrul and Ziaul. The claimants say that the company was set up as a tax efficient vehicle to provide management services for the family properties and to refurbish new properties to be passed on to the family members. As I have indicated earlier in this judgment, Ziaul was active in relation to the affairs of the company and fulfilled the duties of company secretary without pay or other reward. In the spring of 2004 Badrul told Ziaul to issue two further shares, one for Rockshonara and one for Sufia. Badrul then insisted that the shares be registered in the names of himself and Saleha. In the result Badrul owns 50% of the shares, Saleha 25% and Ziaul 25%. In these circumstances the claimants contend that Ziaul, Badrul and Saleha own their shares on trust for the members of Badrul's faction and in proportion to their Shariat shares. It is also contended that the purchases of assets held by the company were funded out of the family assets, nominally by way of loans.
155. The defendants say that HSHC was originally set up as a business financial consultancy only and only later did it diversify into property ownership. They say that the additional shares were issued in the name of Badrul and Saleha with Ziaul's consent, and indeed that he completed the necessary forms for Companies House. Finally it is said that the shares were not held on trust for the members of Badrul's faction and, moreover, that the loans to the company were real and were declared as such in the company's accounts. Accordingly, it is submitted, it cannot now be said that the monies passed under some different legal arrangement, such as a resulting trust. It said there is no basis upon which the company's assets can be found to be held other than by the company itself.
156. I accept the submissions advanced on behalf of the defendants as to the loans to HSHC. In cross examination Ziaul accepted that the loans were genuine and for the large part have been repaid. The position in relation to the shareholding in HSHC is, however, different. I am satisfied that Ziaul and Badrul used the company as a vehicle to purchase properties on behalf of the family and to generally increase the value of the family portfolio so far as possible. In particular, in the year 2002, 56 Wickstead Avenue, 43 St Catherine's Avenue and 12 Olma Road were all purchased in the name of the company. Subsequently, 43 St Catherine's Avenue and 12 Olma Road were transferred to Ziaul and Badrul respectively. In the light of the evidence and the conclusions that I have reached as to the relationship between the parties, I believe that the assets in the name of HSHC are and have always been beneficially owned by HSHC. However, I believe that the shares in HSHC are and always were held on trust for the members of Badrul's faction. This position is confirmed by the changes that took place in 2004. Saleha never engaged herself in the business affairs of the family or of HSHC. Yet she now holds one of four issue shares. In my judgment Saleha, Ziaul and Badrul have always held their shares in HSHC on behalf of the members of Badrul's faction in proportion to their Shariat shares.

Issue 38

157. The parties agree that there is some dispute as to whether HSHC owes money to Badrul in his personal capacity or to friends of Badrul. These are matters which must be left over to the account.

Issue 39

158. The parties are similarly agreed that in the event that the claimants are substantially successful, there will be issues as regards tax liabilities, the beneficial ownership of certain assets and its regards distribution. Once again, I believe that these are matters which are best left over for further argument or, better still, dealt with on the account.

Issue 40

159. The parties are also agreed that much may emerge as regards the manner in which funds have been employed during the relevant period from an examination of the property transactions – primarily the sales and purchases of freehold properties. Again and save in so far as I have been able to deal with them in this judgment, these are matters to be addressed on the account.

Issue 41

160. The claimants say there was a wholesale mixing of funds held primarily in the names of Ziaul, Rockshonara, Badrul and Saleha. The defendants do not agree with this broad proposition. Nevertheless I am satisfied that there has been a considerable mixing of funds held in the names of all of these parties and this will inevitably lead to a complicated process of accounting.

Issue 42

161. The parties are agreed that the funds for purchases often came from more than one source and sometimes moved between bank accounts held in different names before passing to the vendor. Once again this will inevitably mean a complicated accounting process.

Issue 43

162. Similarly the parties are agreed that net proceeds of sales were generally initially paid into an account in the name of the nominal vendor but were then often transferred into accounts in other names, in some cases to fund further purchases. Once again these are issues to be dealt with on the account.

Issues 44 to 49

163. All of these issues relate to dealings in specific properties and are referred to later in this judgment.

Issue 50

164. The claimants have expressed concern that, as yet, Badrul has not disclosed any books of account showing the rents received or what became of them. They say this is an important issue and that Badrul must have accounts. The defendants on the other hand say that matters of disclosure are no longer a live issue. I accept that disclosure no longer is a live issue in relation to the matters which I have to decide. I anticipate, however, that further substantial disclosure may have to be given on the account which will follow this judgment.

Issue 51

165. This issue relates to 317-317A Hitchin Road. I have already addressed this property and the alleged agreement between Ziaul and Badrul. In relation to other loans made by Ziaul to Badrul, Badrul says that he agreed to provide a "fair return". This he says is a concept much used in Islamic business circles to avoid the forbidden practice of paying interest on loans. Badrul says that it is fundamental to such a concept that it depends on trust, and cannot be specified with precision. Badrul accepts that he remains liable to repay Ziaul whatever is found to be outstanding by way of loans, together with a fair return.
166. Whatever may be the general practice in Islamic business circles, I am satisfied, for the reasons that I have given, that the relationship between the parties, based as it was on the 1997 Agreement, was very different. I am satisfied in the circumstances of this case that the claimants and Badrul and Saleha own the Badrul faction family assets on behalf of all of the members of Badrul's faction, subject to the specific distributions and allocations that I have identified.

Issues 52 to 54

167. These raise certain ancillary issues which I can address very shortly. The first concerns disclosure and, as I have indicated, I anticipate that further disclosure will have to be given in relation to the account to be taken following this judgment. Finally, the defendants point to a Barclays joint account opened in February 2001 in the names of Ziaul, Badrul and Saleha. I am satisfied on the evidence that Ziaul was included as a matter of convenience and so as to permit Ziaul to deal with the affairs of Badrul and Saleha in the event that they had to visit Saleha's sick father in India. I am not able to determine on the evidence before me whether or not all the monies is in this account were truly the property of Badrul and Saleha. Nevertheless, it seems that Ziaul did withdraw £3,000 in August 2004 without Badrul's express consent. This a matter which must be investigated on the account.
168. Finally it is said that Badrul paid most of the family expenses, including litigation costs, refurbishment of the family home, new furniture, tax liabilities, utility bills, food and holidays. Once again, this confirms that Badrul was in control of the finances of Badrul's faction. The arrangement between the parties was that family living expenses were withdrawn as and when they were needed.

Other properties

169. I have already dealt in this judgment with properties held by the parties as of October 1997 and with the additional properties purchased by the parties between October 1997 and February 2000. I must now consider property transactions entered into by the parties after February 2000.

33-33A Dallow Road, Luton

170. This property was purchased in April 2000 for £35,000 in the name of Mahabubur. Including expenses the total outlay was £36,021.62. Funds were derived essentially from two sources. £3,500 came from a deposit account in the name of Mahabubur. More substantially, £32,491.50 came from Rockshonara's NatWest account. On 12 February 2001 Mahabubur executed a transfer of the property by way of gift to Badrul and Saleha to hold on trust for their two children. The rent was received by HSHC which owes about £5,021 in respect of such receipts.
171. It is apparent that the bulk of the funds for this purchase came from Rockshonara's account. It is also common ground that the only document ever executed by Mahabubur was a power of attorney of 1992, executed on his only trip to England. All other transactions of Mahabubur have been conducted by Badrul using that power of attorney. Mahabubur's address for banking purposes was Badrul's address. As I understand it, the defendants' explanation for this transaction is that Mahabubur lent £35,000 to enable the purchase of 25 St Margaret's Avenue in Rockshonara's name. To repay this loan Badrul put money into Rockshonara's NatWest account which was, in turn, used to pay the balance of the purchase price of 33-33A Dallow Road.
172. I have to say that I am very doubtful as to the explanation provided by the defendants in relation to its property. For the reasons I have already given in this judgment it seems to me to be most unlikely that Mahabubur had any significant funds in this jurisdiction with which to fund a property purchase in 1999 or 2000. I think it is therefore much more likely that 33-33A Dallow Road was purchased using Badrul faction family assets. Nevertheless, because this is not free from doubt it seems to me that it is a matter more appropriately left over to the hearing of the account when a further attempt can be made to trace the source of these various funds. In the absence of such further evidence I would conclude on the materials before me that 33-33A Dallow Road was purchased using monies from Badrul faction family assets.

12 Dunstable Court

173. This property was bought in Saleha's name on 7 June 2000 for a purchase price of £37,625. Together with other costs the total expenditure came to £38,189.80. These funds were derived from 5 deposits into Rockshonara's account which, say the claimants, came from Ziaul. This is disputed by the defendants who simply say that Rockshonara's account is a nominee account for Badrul. In either event it seems to me that it is overwhelmingly likely that these monies were Badrul faction family assets and I so conclude.

123 Beechwood Road, Luton

174. This property was bought in Badrul's name in August 2000 for a purchase price of £62,000. Together with other expenses the total purchase cost came to £63,351.07. These funds were derived from two accounts in Badrul's name. Nevertheless it is apparent that the purchase was substantially funded by a deposit of £60,000 from Saleha's NatWest account. On 12 September 2000 Badrul received a final settlement of some £80,000 from the Hoque Group action and on 4 October 2000 he paid the sum of £80,000 to Saleha. I accept the claimants' submission that it is clear that the ultimate effect of these movements of funds was that the purchase was funded by the Hoque Group monies, and hence Badrul faction family assets.

7 Hayhurst Road, Luton

175. This property was purchased on 9 November 2000 in Badrul's name. The purchase price was £60,000. Together with other expenses the total purchase costs amounted to £60,491.02. The funds were derived almost entirely from Badrul's Barclays account. £6,000 came from an HSHC account.
176. The defendants say that the £54,000 used to fund the purchase was derived from a £60,000 loan from Ziaul to Badrul. Ziaul in turn obtained the money by mortgaging 71 Bishopscote Road on 28 April 2000. It is clear to me therefore that 7 Hayhurst Road was purchased using Badrul faction family monies.

60 Capron Road, Dunstable

177. This property was purchased on 13 November 2000 for £70,000. Together with additional expenses the total cost came to £71,333.26 The monies were sourced almost entirely from Saleha's NatWest account.
178. The defendants say, and I accept, that the purchase monies were derived from the sale proceeds of 74 Dunstable Road. For the reasons I have given those monies were, in turn, taken in part from Badrul faction family assets. An accounting exercise therefore needs to be carried out to determine the extent to which this property is held by Saleha on behalf of the members of Badrul's faction.

56 Wickstead Avenue, Luton

179. This property was purchased on 23 April 2001 for £68,000. Together with other expenses the total cost amounted to £69,147.63
180. Funds for the purchase were derived almost entirely from an advance from the Abbey National secured on 7 Hayhurst Road. In addition it seems that Saleha probably provided £9,000 towards the purchase. Although there has been some suggestion that the legal owner of the property was Badrul, it appears to have been bought and sold in the course of the same year in the name of HSHC. The net proceeds of sale of £97,545.49 were paid into an HSHC account. As I shall shortly explain, the net sale proceeds funded the purchase of 12 Olma Road on 4 April 2002.

43 St Catherine's Avenue, Luton

181. This property was purchased in the name of HSHC for £63,000. Together with other expenses the total cost was £64,334.89.
182. The purchase was funded by a complicated series of contributions. First, Ziaul lent to HSHC £36,500. In addition Badrul provided some £17,000. In addition a loan of £4,000 was provided by another member of the family, Shopna Begum. All of these transactions serve to confirm in my mind that Ziaul and Badrul were controlling and directing the activities of HSHC and were doing so with a view to furthering the interests of the Badrul faction as a whole. These matters support my conclusion that Badrul and Ziaul and indeed Saleha held those shares in HSHC for and on behalf of the members of Badrul's faction.

25 St Margaret's Avenue, Luton

183. On 25 January 2002, Ziaul purchased this property from Rockshonara, but without any money changing hands. I am satisfied that this transfer took place because it was thought that it would be easier to get a mortgage if the property was in Ziaul's name. Moreover, the purchase price was notionally £60,000 which was apparently a substantial undervalue, given that the property was purchased on 21 September 1999 for £68,750 and improved at a cost of in excess of £6,600. I am satisfied that thereafter Ziaul mortgaged the property to Abbey National and lent the net proceeds of in excess of £84,000 to HSHC. The loan was repaid to Ziaul on 8 March 2004 and Ziaul then deposited an identical sum into the triple joint account that he held with Badrul and Saleha. This was used for the purchase of 53 Black Swan Lane, as I relate later in this judgment. Once again, this set of transactions confirms my conclusion that Ziaul and Badrul and, later, Saleha held their shares in HSHC for and on behalf of members of the faction; further, they were dealing with all these properties for the general benefit of members of Badrul's faction.

12 Olma Road, Dunstable

184. This was another property purchased in the name of HSHC in April 2002 for £85,000 at a total cost, including expenses of £86,580.01 The purchase monies were derived from the sale proceeds of 56 Wickstead Avenue. The property was sold on to Badrul on 5 March 2004 for £130,000.

7 St Ethelbert's Avenue

185. This property was purchased on 14 May 2002 for £74,000. I have dealt with the derivation of funds earlier in this judgment and my conclusions as to the basis upon which it was owned by Rockshonara. For the reasons I have given I have concluded that Rockshonara held this property outside the scope of the 1997 Agreement.

12 Dunstable Court

186. I have already dealt with the original purchase of 12 Dunstable Court by Saleha. On 2 August 2002 it was bought from Saleha by HSHC for £46,000. Subsequently it was sold on to Badrul and Ziaul on 17 September 2002. This is the transaction to which I next refer.

12 Dunstable Court (Ziaul/Badrul)

187. On 17 September 2002 the property was bought from HSHC by Ziaul and Badrul for £59,000 which, together with other expenses, gave rise to a total cost of £59,266.63 The defendants say that the property is held by Ziaul on trust for Badrul who pays the mortgage and receives the rent. The mortgage secures an advance of in excess of £70,000 which was paid into the triple account in the names of Ziaul, Badrul and Saleha. £59,000 of this was used to pay the outstanding purchase price and the remainder, in excess of £11,000, was retained by Badrul. The defendants say that the mortgage advance was paid into the triple joint account but used to fund the purchase of 52 Black Swan Lane. Once again, this set of transactions confirms my conclusions that Ziaul and Badrul would transfer properties into and out of HSHC and thereafter into the name of such member of the faction, as they considered expedient from time to time. As in the case of the other properties to which I have referred, I have no doubt that Ziaul and Badrul held the property not on trust for Badrul but on trust for the members of Badrul's faction.

72 Wellington Street, Luton

188. This property was bought in Badrul's name on 6 January 2003 for the price of £126,800 which, together with other expenses, gave rise to a total purchase cost of £129,401.90. The purchase was effected by means of a loan of £94,480 and deposits from Badrul's accounts of a total of some £34,000. I have no specific information to enable me to determine the source of the monies provided by Badrul for this purchase. On the other hand, Badrul has provided no information to suggest that he had any substantial source of monies other than from the family. In the circumstances it seems to me that this is a matter best left over to the account although I would observe that unless Badrul provides some cogent evidence of an alternative source of funds the inference that I would draw on the materials before me is that the funds must have been derived directly or indirectly from the Badrul faction family assets.

39 Beverley Road, Luton

189. This property was purchased in Saleha's name on 9 May 2003 for £96,000. Together with other costs the total purchase costs amounted to £96,288.88. A mortgage advance of some £85,000 was secured and the balance of funds came from the triple joint account. I am satisfied that the triple joint account was not funded to any significant extent by Saleha and, moreover, the registering of the property in her name was no more than a matter of convenience. I am satisfied that this property purchase was funded using the Badrul faction family assets.

43 St Catherine's Avenue, Luton

190. On 9 June 2003 Ziaul bought the above property from HSHC for a purchase price of £129,975 which, together with other expenses, produced a total cost of £132,085.13 It is notable that the price was over twice what HSHC had paid some two years earlier. The purchase was funded by a mortgage of some £110,000 and a deposit of £20,000 derived from the triple joint account. The defendants say that Ziaul owned the property on behalf of Badrul who rented it out in his own name with Ziaul's knowledge and approval. The claimants say that £10,000 of that deposit was derived from Ziaul's own Cahoot account, which I accept. Once again, I am satisfied, that far from Ziaul holding his interest in the property on trust for Badrul, he holds it on trust for all the members of Badrul's faction. It was bought with the Badrul faction family assets.

21 Broad Oak Court, Luton

191. This property was bought on 2 July 2003 in Ziaul's name for £92,500. Together with other expenses, the total cost of the purchase amounted to £94,176. The funds were derived in large part from a mortgage advance of some £76,200 and, as to the balance, from funds drawn on the triple joint account. The defendants say that the property is beneficially owned by Badrul who rented it out with Ziaul's knowledge and approval. Once again, it seems to me that this is another of the properties purchased using Badrul faction family assets and was held by Ziaul for and on behalf of the other members of Badrul's faction.

40-42 Queen Street, Haverhill

192. This property was bought in June 2003 in the joint names of Ziaul, Badrul and Saleha for a purchase price of £235,587.50. Together with other expenses the total costs amounted to £241,294.84. Funds were derived from a loan from the Norwich & Peterborough Building Society of some £150,000 and, as to the large part of the balance, from the triple joint account.
193. The defendants say that the sole beneficial owner of the property is Badrul and that the rental income for the property is paid into an account in the names of Badrul and Saleha. Nevertheless, I am satisfied that once again this is another property which Badrul and Saleha hold for and on behalf of the members of Badrul's faction. It was bought using Badrul faction family assets. This is further confirmed by the fact that a substantial portion of the funds were in fact provided by Ziaul. Badrul claims that he borrowed the money from Ziaul, which he has always accepted must be returned with a fair return. I do not accept the defendants' position in this regard. Once again the nature of the transaction confirms that all the parties understood that the property was being bought for the benefit of the members of Badrul's faction.

71 Bishopscote Road, Luton

194. On 5 September 2003 Ziaul transferred the ownership of this property to Badrul. The price was notionally £150,000. The defendants' position is that only £100,000 changed hands because Ziaul owed Badrul £50,000 in connection with 7 St Ethelbert's Avenue and the development costs of 71 Bishopscote Road. As for the balance of £100,000, Ziaul provided this from his own funds and paid it into the triple joint account. In the result, Ziaul provided Badrul the funds to acquire the property. In my judgment the nature of this transaction shows once again that it was the clear intention of the members of Badrul's faction that properties were bought and sold for the benefit of the members of the faction. I have no doubt that Badrul holds this property for and on behalf of the members of Badrul's faction.

12 Olma Road, Dunstable

195. On 5 March 2004 Badrul bought this property from HSHC at a purchase price of £130,000 which, with expenses, gave rise to a total cost of some £132,209.88. The funds for the purchase were derived as to some £92,000 from a loan from Bristol & West and as to in excess of £40,000 from the triple joint account. Once again I conclude that Badrul held his interest in this property for and on behalf of the other members of Badrul's faction.

52 Black Swan Lane, Luton

196. This property was bought on 19 March 2004 for a purchase price of £126,995 which, with expenses, gave rise to a total cost of £129,347.37. The funds for the purchase were derived entirely from the triple joint account.
197. For like reasons to those which I have given in relation to the property already discussed, I conclude that Badrul held this property for and on behalf of the members of Badrul's faction.

6 Varna Close, Luton

198. This property was bought by HSHC on 15 April 2004. The funds for the purchase were drawn from HSHC's bank account. The rental income for the property was paid into HSHC's Abbey National account. In my judgment this property was bought and is owned by HSHC. I should say that that Badrul apparently instructed Taylor Walton to transfer the property to him, apparently in discharge of a loan that he had made to HSHC. This proposed transfer was restrained by an order made by Peter Smith J on 28 January 2005 because the proposed transfer appeared to be at an undervalue.

27 Turner's Road South, Luton

199. This property was bought on 7 June 2004 in the name of HSHC for £105,000. Funds for the purchase were derived from HSHC's own Abbey National account. In my judgment the property therefore belongs to HSHC. Once again I note that the defendants say that Badrul attempted to sell the property to Abdul Motin at an undervalue and this transaction was also restrained by a court order. It is now suggested that, in breach of arrangements agreed pursuant to the court order, the property has been charged to the extent of £110,000. I am unable to deal with this complaint in the course of these proceedings.

462 New Bedford Road, Luton

200. This property was bought on 9 September 2004 for £360,000. Together with other expenses the total cost amounted to £371,915.88. The property was purchased with a loan of £92,650 secured on 123 Beechwood Road and a loan of £240,000 secured on 29 High Street Berkhamsted and 317 Hitchin Road. I have referred to all these properties earlier in this judgment. Once again, I have reached the conclusion that this property was bought on behalf of the members of Badrul's faction whereby the members of the faction agreed and understood that the Badrul faction family assets would be used by Badrul to further the interests of the members of the faction.

Properties purchased since 24 August 2004

201. I can deal with these properties collectively. They comprise 93 Highbury Road, Luton; 47 Dorrington Close, Luton; 123 Whipperley Way, Luton; 346 Dallow Road, Luton and 4 Coyney Green, Luton. The first three of these properties were bought in the name of Ziaul and have now been sold. That leaves 346 Dallow Road in the name of Ziaul and 4 Coyney Green in the name of Rockshonara.
202. The claimants say that these properties were bought using monies borrowed against 7 St Ethelbert's Avenue which I have found to be Rockshonara's property alone. On that assumption the defendants can have no interest in them.

Conclusion

203. In summary I conclude:

i) The 1997 Agreement was a new settlement.

ii) The 1997 Agreement involved each family member taking a beneficial share in the family assets.

iii) Pursuant to the 1997 Agreement and the Consent Order assets were allocated to Jainul's faction and Badrul's faction.

iv) Thereafter there was only a limited allocation of particular assets to members of Badrul's faction. In particular, the family home, 29 Malzeard Avenue, was allocated to Sufia in partial satisfaction of her share and certain cars were allocated to Ziaul and Badrul in partial satisfaction of their shares.

v) 7 St Ethelbert's Avenue was a gift to Rockshonara and outside the scope of the 1997 Agreement and the Consent Order.

vi) HSHC did not hold property for and on behalf of the members of Badrul's faction.

vii) The shares in HSHC were held for and on behalf of the members of Badrul's faction.

viii) Subject to the foregoing, Ziaul and latterly Badrul and Ziaul together dealt with the Badrul faction family assets with a view to increasing their value for the benefit of the members of Badrul's faction and members of the faction held their interest in the various properties allocated to the faction at the outset and bought in the course of those dealings on trust for and on behalf of the members of the faction in proportion to their Shariat shares, but subject to the allocations to which I have referred.

ix) At various times Badrul faction family assets were placed in the name of Saleha and she, likewise, held those assets for and on behalf of the members of Badrul's faction;

x) Certain limited funds were derived from Mahabubur and do not fall to be considered as Badrul faction family assets; nor do moneys (if any) acquired by Badrul by way of loans from third parties.

204. Clearly various accounts and enquiries must be taken in the light of this judgment and I will hear further argument in the event that the parties are unable to agree.