England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/05/2015

Mr. Justice Holgate:

1. The Second Defendants are the Trustees for the Walford Maritime Limited Pension and Life Assurance Plan ("the Trustees"). They are, and for many years have been, the freehold owners of the Vauxhall Cross Island site ("the site") lying to the South East side of the Wandsworth Road, London, SW8. Their ownership is registered under title TGL 18067.
2. The site has the benefit of a planning permission granted on appeal by the Secretary of State for Communities and Local Government in August 2012. The permission is for a mixed use development of over 600,000 sq ft in the form of two towers, one with 39 floors and the other with 30 floors above ground level. The value of the undeveloped site with the benefit of this permission is said to exceed £100 million.
3. The First Claimant, Mr. Ariel Zeckler, is a Solicitor who has had over 20 years experience in commercial property law. He specialises in creating opportunities for property investors by operating as a partner in commercial ventures (see paragraph 5 of Particulars of Claim). The Second Claimant Mr. James Barrymore is an experienced property developer (see paragraph 6 of Particulars of Claim).
4. The Particulars of Claim set out the background over a very long period and contain detail which it is unnecessary for me to recite in this judgment. The matters to which I refer are not in dispute.
5. By 2009 previous deals for the sale of the site had fallen through. The First Claimant suggested to Mr. Andrew Hurst, one of the Trustees, and acting throughout on behalf of the Trustees, that he had identified and would be able to introduce a suitable purchaser of the site. That turned out to be the First Defendant, Kylun Limited ("Kylun"). By August 2009 Mr. Zeckler had been in touch with other potential participants, Mr. Kunal Tulsiani and Mr. Amin Ali, the fifth and sixth Defendants, as well as Mr Barrymore.
6. In summary, the intention was for the four participants to purchase the site from the Trustees and to sell on to a sub-purchaser within a relatively short period after exchanging contracts with the Trustees in order to realise an immediate profit.
7. The four participants agreed to use companies registered in the Turks and Caicos Islands as the vehicles for entering into various legal agreements. The First Claimant Mr. Zeckler used Tempest Limited ("Tempest") as his vehicle. He accepts that he is and was at all material times the sole beneficiary of all the shares in the company.
8. The vehicle used by the Second Claimant and the Fifth and Sixth Defendants was Kylun Limited (see para 51 of the Particulars of Claim).
9. On 18 September 2009 Tempest and Kylun entered into a profit-sharing agreement. It was envisaged (see recitals (1) to (4)) that Kylun would enter into a contract to buy the site for £22.5 million conditional upon planning permission being obtained by no later than 1 October 2011, that Kylun would provide the deposit monies under that contract (£0.75 million), legal fees and the finance to complete the planning application (£150,000) and that both parties would thereafter manage the project, including the pursuit of the application for planning permission. The body of the agreement provided for the sharing of profits arising in two alternative scenarios, first where a sub-sale took place within 10 weeks of exchange of contracts with the Trustees and second where Kylun had to complete the purchase of the site before selling on. In either case, it was agreed that Tempest, not the First Claimant Mr. Zeckler, would obtain a substantial share of the profits.
10. Also on 18 September 2009 Kylun entered into a conditional contract to purchase the site from the Trustees. The contract and the supplemental deeds of variation are not before the Court. But the essential provisions and their consequences have been set out in the Defence of the Second Defendants and are not disputed by the Claimants. The original agreement required a defined planning application to be submitted to Lambeth LBC by no later than 1 March 2010. Completion of the purchase was conditional upon (inter alia) the obtaining of a defined planning permission, but subject to a longstop date of 1 October 2011. The longstop date was also specified as a "termination date" so that if the contract did not become unconditional by that date, then the contract was treated as terminated with immediate effect (clause 12.2). Clause 12.3 also provided that the contract was to terminate on 1 October 2011 regardless of the planning position and regardless of any other provision.
11. Finally, on 18 September 2009 a written agreement was made between the Trustees and Tempest whereby in the event of all the conditions of the contract of the same date for the sale of the site being fully satisfied, the Trustees would pay Tempest a fee of £500,000. This has been referred to as a finder's fee, or an introduction fee. It was agreed that the fee would only be paid once certain conditions had been "met in full" including:-

"1. All conditions of "The Agreement" have been met in full and the Contract has completed with the Conveyance of the Site and full payment of the consideration within the agreed timescales set out in "The Agreement".

2. The Trustees or Trustees Solicitors have received cleared funds of £22.5m (including any deposits paid)."

"The Agreement" was defined so as to refer to the contract dated 18 September 2009 between the Trustees and Kylun for the sale of the Vauxhall Cross Island Site.

12. During the hearing it was common ground that the relevant planning application was not submitted by 1 March 2010 and that an "event of default" arose under the 2009 sale agreement entitling the Trustees to rescind that agreement (at that stage the sale agreement dated 18 September 2009 had been varied by a First Supplemental Agreement dated 23 October 2009 but nothing turns on that). That position was discussed at a meeting between the relevant parties on 6 March 2010 and a re-negotiation took place resulting in the Second Supplemental Agreement between Kylun and the Trustees dated 21 May 2010. Mr. Zeckler signed this agreement on behalf of Kylun.
13. The new agreement converted the original conditional contract into an unconditional contract, under which Kylun was to complete the purchase of the site on 1 March 2011 in consideration of a payment of £22.5million. Paragraph 86 of the Trustees' defence states that no new introduction fee agreement was offered by the Trustees, or sought by Mr. Zeckler, or agreed between these parties, in the event of the purchase being completed in accordance with the second supplemental agreement. The Claimant's Particulars of Claim do not suggest otherwise.
14. By 1 March 2011 planning permission had not been obtained and Kylun decided not to complete the purchase of the site under the Second Supplemental Agreement. Accordingly, that sale and purchase agreement lapsed.
15. The Second Defendants have explained that various discussions then took place for the sale of the site involving Kylun and other separate parties. Subsequently on 11 January 2012 a Deed of Release was entered into formally terminating the Second Supplemental Contract. On the same date Wendover Investments Limited (a company in which certain of the Trustees are involved) entered into a collaboration and profit sharing agreement with Kylun.
16. On 14 February 2012 the Trustees entered into a charge by way of legal mortgage of the site with Kylun in order to secure loan facilities made available by Kylun to Wendover.
17. On 8 March 2012 the Trustees granted an option to Vauxhall Properties Limited ("Vauxhall"), the Third Defendant, for the purchase of the site. It is said by the Claimants that Vauxhall is beneficially owned by the Sixth Defendant or by his father.
18. The present proceedings were commenced by a Claim Form issued on behalf of both Claimants on 26 February 2015. Paragraph 10 asserts that the First, Second, Fifth and Sixth Defendants entered into the 2012 agreements for the sole purpose of denying Mr. Zeckler his fee of £0.5 million and denying both Claimants their respective shares of profits in accordance with the Profit Share Agreement dated 18 September 2009. Paragraphs 11 and 12 seek a declaration that the Claimants are entitled to shares in the profits to be made by the First, Third, Fifth and Sixth Defendants. Paragraph 14 seeks damages for breach of fiduciary duties as against the same Defendants. The Claimants also seek damages for breach of the 2009 profit share agreement from the Fifth and Sixth Defendants. The only specific money claim brought against the Trustees is for the introduction fee of £0.5 million said to be due to the First Claimant.
19. At paragraph 15 both the First and Second Claimants ask for a legal charge to be registered over the site.
20. The Claim Form did not indicate any legal basis upon which the Claimants could be entitled to a legal charge over the site.
21. At paragraph 16 both of the Claimants ask for entry 7 on the Charges Register of Title TGL 18067 relating to the site, which entry concerns the option granted to Vauxhall dated 8 March 2012, to be varied so that the option would operate in favour of both Claimants and Vauxhall jointly.
22. Particulars of Claim were served on 1 April 2015, with statements of truth signed by each of the Claimants.
23. The Introduction Agreement made on 18 September 2009 was dealt with in paragraphs 56 to 57, 96 and 106 of the Particulars of Claim. Paragraph 57 pleads that the agreement was for the fee of £0.5 million to be paid if the 2009 contract for sale to Kylun was completed. Originally a letter setting out the arrangement provided for the payment to be made to Mr. Zeckler personally. But he specifically asked for the letter to be replaced by a second version setting out the agreement as being made with, and consequently the fee being payable to, Tempest. Paragraph 96 of the Particulars of Claim has to be read in the light of paragraph 57.
24. Paragraph 96 also alleges that it was an implied term of the agreement "that the Second Defendant would not act in a manner that was contrary to or had the effect of frustrating the performance of conditions contained within the said agreement, such conditions being precedent to the Claimant's entitlement to an introduction fee."
25. During the hearing Mr. Zeckler confirmed that the words "said agreement" referred to the Introduction Agreement. In other words, the allegation is that the Trustees were obliged not to prevent satisfaction of the conditions contained in the Introduction Agreement between Tempest and the Trustees.
26. In paragraph 106 of the Particulars of Claim the First Claimant contends that if the Trustees had not signed the January 2012 Deed of Release then it is highly likely that Kylun would have completed its purchase of this site. Thus, the entering into of the Deed of Release by the Trustees caused Mr. Zeckler to lose the opportunity to receive the introduction fee of £0.5 million.
27. The Particulars of Claim also allege various breaches of the 2009 profit sharing agreement and of fiduciary duties. At the hearing Mr. Zeckler confirmed that none of these further matters involve a claim against the Trustees. The only money claim against the Trustees pleaded in the Particulars of Claim is the claim for the introduction fee of £0.5 million. In the same vein paragraph 81 of the Particulars of Claim alleges that it suited the Trustees to enter into the "re-structuring" which substituted Vauxhall for Kylun in order to avoid their obligation to pay the introduction fee of £0.5 million.
28. It should be noted, however, that the claim in respect of the introduction fee depends upon the continuing subsistence of the purchase agreement to which the 2009 Introduction Fee Agreement related.
29. In the section of the Particulars of Claim dealing with the relief sought, both the First and Second Claimants continue to seek a charge over the site in order to "protect the Claimants interest pending sale of the property". However, Mr. Zeckler accepted that the Particulars do not set out any basis for advancing that claim.
30. Although the Claim Form was issued on 26 February 2015, it was not served on the Trustees until 18 March 2015. There was no pre-action letter beforehand. In the meantime on 2 March 2015 a UN1 application was made on behalf of the First Claimant by his brother, Jonathan Zeckler, a solicitor in the firm Ezran Law to enter a unilateral notice on the Trustees' title TGL 18067. The application was accompanied by the Claim Form in the High Court. Mr. Jonathan Zeckler certified that his brother had an interest in the Trustees' property, namely a pending land action based solely upon paragraph 15 of the Claim Form, namely the claim to have a legal charge placed upon the Trustees' property. Plainly it was unsatisfactory for that certificate to be given in circumstances where the Claim Form did not explain how any entitlement to a legal charge arose. The application for the unilateral notice was received by the Land Registry on 4 March 2015. The notice is now shown on the Trustees' title in order to protect the alleged pending land action in respect of their property.
31. There are two applications by the Trustees before the Court, both issued on 28 April 2015. The first seeks an order pursuant to paragraph 2 of Schedule 4 of the Land Registration Act 2002 and/or the Court's inherent jurisdiction to cancel and vacate the unilateral notice, on the grounds that the First Claimant does not have an interest in the site which could be protected by such a notice.
32. The second application is made under CPR 3.4(2)(a) to strike out the Claim Form and Particulars of Claim in so far as they advance a claim against the Second Defendants, alternatively a claim to a legal charge over the Second Defendants' site. The Trustees submit that the claims made are an abuse of process and/or vexatious.
33. Despite some initial ambiguity as to the return dates stamped on the application forms, Mr. Zeckler soon ascertained that the applications were listed to be heard on 12 May 2015. He then made an urgent application on 7 May 2015 before Green J in the Interim Applications Court to vacate the hearing. In his skeleton argument he said that he only became aware of the applications on 2 May and did not receive the bundles for the hearing until 6 May. He said that the three working days remaining before the hearing would allow insufficient time to prepare, that he wished to call evidence from 9 witnesses, and that the time estimate would need to be increased from 5 hours to 5 days.
34. Mr. Zeckler also relied upon the unfortunate ill health of the Second Claimant, who is said to be in the middle of a course of chemotherapy, and the latter's inability to prepare for the hearing on 12 May. That point was repeated in Mr. Zeckler's skeleton for yesterday's hearing. I should say straight away that it is a bad point which should never have been taken. At the hearing Mr. Zeckler accepted that Mr. Barrymore has no interest in the claim for the introduction fee or the supposed pending land action based upon that claim. He confirmed that there is no pleaded money claim by Mr. Barrymore against the Trustees. But Mr. Barrymore has joined in making the non-specific claims in paragraphs 15 and 16 of the Claim Form (see paragraphs 19 and 21 above).
35. Green J ordered that the hearings listed for 12 May be turned into a directions hearing with a 2 hour time estimate.
36. However, on 8 May the Trustees appeared by Counsel, Mr. Tanney, before Green J asking that his order made on the previous day be set aside. That application was supported by a skeleton argument and the fourth witness statement of Mr. Alan Ashley, the Solicitor acting for the Trustees. The Trustees submitted that the claims made against them were unfounded in law, that no live evidence would be needed and that the Claimants were simply seeking to re-run arguments which had previously been made by Tempest in earlier proceedings struck out on 27 February 2015.
37. On that occasion Mr. Zeckler also appeared before the Judge, who approved an order signed by both parties so that:-

i) The hearing on 12 May 2012 would be listed for one day; and

ii) It would be a matter for the judge hearing the matter to decide whether to hear the applications or any parts thereof or instead to give directions for the future conduct of the applications.

38. Thus, it was plain to Mr. Zeckler that the applications might be fully effective on 12 May 2015 and that he should be prepared to deal with them on that basis. In effect he has taken the lead role in this litigation.
39. Mr. Zeckler provided a skeleton argument and a bundle of documents on the morning of the hearing on 12 May. He did not suggest that he needed an adjournment in order to deal with the first application concerned with the unilateral notice. Instead, he put forward an alternative proposal for consideration at the hearing. As for the second application dealing with the strike out, Mr. Zeckler asked for it to be dismissed and, if not dismissed, adjourned with directions for disclosure of specific documents and an exchange of witness statements.
40. In relation to the second application leading Counsel for the Trustees, Ms. Janet Bignell QC, submitted that the issue of strike out could and should be dealt with as a matter of legal submission. On the material before the Court I agreed with that submission, but indicated that the Court would keep the matter of an adjournment under review in case anything was raised during the hearing which would cause a different view to be taken. However, nothing was said during the hearing which, in my judgment, could have justified an adjournment.
41. Before I deal with the two applications, it is necessary to summarise the proceedings brought by Tempest.
42. As I have mentioned already, Mr. Zeckler accepted during the hearing that the present proceedings against the Trustees involve substantially the same claims and supporting material as those previously made by Tempest against the Trustees in HQ14X03951. Likewise in the earlier proceedings essentially the same claims were made against the other Defendants as are put forward in the present pleadings.
43. There is no real dispute about what took place in the Tempest proceedings. The Claim was issued on 26 September 2014 and the Particulars of Claim served on 7 October 2014. They were subsequently amended. The Particulars of Claim were supported by a Statement of Truth signed by Mr. Zeckler. Tempest was represented not only by Mischon de Reya, but also by leading and junior counsel. Their instructions came from Mr. Zeckler.
44. There was some ambiguity in the pleadings as to the extent of the claim against the Trustees, a matter which had to be clarified. Thus, the amended Particulars settled by leading counsel made it plain that as against the Trustees, Tempest was seeking to recover simply for the loss of the introduction fee.
45. The Trustees served a defence to Tempest's claim involving substantially the same arguments as are set out in their defence in the present proceedings.
46. It is to be noted that although the earlier proceedings raised essentially the same issues, Tempest did not go so far as to seek to have a legal charge placed upon the site or to claim that it was entitled to rely upon the 2012 option.
47. On 23 December 2014 the Trustees made an application for security for costs against Tempest. The other Defendants did likewise. Tempest did not serve any witness statement in reply.
48. By a consent order dated 6 February 2015 Tempest was ordered to pay security for the Trustees' costs in the sum of £150,000 to be paid into Court by 27 February 2015. The claim was stayed in the meantime and was to be struck out without further order if the security was not provided. Security for costs was also ordered in favour of the other Defendants. Tempest failed to provide the security ordered and also to pay the costs ordered. The Claim was struck out on 27 February 2015.
49. Before that point was reached Mr. Jonathan Zeckler of Ezran Law certified two applications made by Tempest for unilateral notices. The first application was made on 5 January 2015 and related to undertakings given by the other Defendants, not the Trustees, not to transfer out of the jurisdiction £14 million of their receipts from any sale of the site. Not surprisingly the Land Registry rejected the application. It was misconceived.
50. Undaunted, a second application for a unilateral notice was made on 13 January 2015. On this occasion it was said that Tempest was interested in the Trustees' site because of its ongoing High Court proceedings. The Land Registry sought information as to the basis of the application. Tempest did not reply. Instead, the Trustees' Solicitors provided the Land Registry with the pleadings. Having seen that the claim against the Trustees was simply a money claim, the Land Registry decided that there was no entitlement to register a pending land action and rejected the application.
51. I deal first with the application to cancel the unilateral notice. Having regard to the analysis of the authorities contained in the skeleton of Ms Bignell QC dated 4 May 2015, Mr. Zeckler agreed that the Court has jurisdiction to make the order sought. Likewise there was no dispute as to the principles which should be applied.
52. In Nugent v Nugent [2014] 3 WLR 59 Morgan J reviewed the case law on the extent of the Court's inherent jurisdiction to vacate a caution prior to the enactment of the Land Registration Act 2002 (paragraphs 31 to 41). He concluded that that jurisdiction had not been removed by the enactment of the 2002 statute and continues to apply to the registration of unilateral notices (paragraphs 42 to 49). He held that a distinction is to be drawn between two categories of case (see paragraph 49). Firstly, there are cases in which the claim upon which the notice is based is unsustainable. In that situation there is no justification for the notice and the Court may order its cancellation. Secondly, in cases where the claim is "well arguable", the Court approaches the matter as if the party entering the notice had sought an interim injunction pending trial. The Court has to balance the interests of the parties. On the one hand, there may be injustice to the landowner through being unable to deal with his land if ultimately the basis for the notice is rejected and on the other, there may be prejudice to the beneficiary of the notice if ultimately he succeeds in his claim but in the meantime the notice has been cancelled. In most cases in the second category the practice is to require the beneficiary to give an undertaking in damages as a condition of the court allowing the notice to remain in place. That in turn may require an assessment of the undertaking, for example the financial ability of the beneficiary to compensate the landowner if the loss should turn out to be substantial.
53. In this case I have reached the clear conclusion that the circumstances fall within the first category in Nugent, that the basis of the notice is "unsustainable" and therefore the notice must be cancelled. It is improperly inhibiting the ability of the Trustees to deal with their property and immediate relief is fully justified. The basis for the notice is unsustainable for a number of separate reasons.
54. First, it was conceded by Mr. Zeckler during the hearing that the only claim in the present proceedings against the Trustees upon which the unilateral notice is based is a money claim, namely for the introduction fee. Such a claim is not a proprietary claim. Although paragraph 15 of the Claim Form seeks a legal charge over the site, Mr Zeckler accepted that the written fee agreement dated 18 September 2009 did not contain or create any such right and that the Particulars of Claim did not explain how any such right could have arisen. He did not remedy that defect during his oral submissions.
55. A "pending land action" means "any action or proceeding pending in court relating to land or any interest in or charge on land" (section 17(1) of the Land Charges Act 1972 and section 87(1) of the Land Registration Act 2002).
56. It is now accepted by Mr. Zeckler in Court, and in my judgment rightly, that the money claim in the present proceedings is not a pending land action. There is no scope for arguing the contrary. Accordingly, it must follow inexorably that the registration of the notice on that sole basis is unsustainable and the notice must be vacated. The First Claimant was not entitled to have the notice registered. That is a sufficient ground upon which the Court should accede to the Trustees' first application (see also Albany Construction Company Ltd v Cunningham [2004] EWHC 3392 (Ch); Haslemere Estates Ltd v Baker [1982] 1 WLR 1109). But there are additional grounds.
57. The second reason is that any money claim against the Trustees for the introduction fee could only be a claim by Tempest and not by Mr. Zeckler. In paragraph 14 of the Particulars of Claim in the Tempest proceedings Mr. Zeckler, who signed the statement of truth, said that the agreement was for the fee to be paid to Tempest and that the agreement was made "with Mr. Zeckler on behalf of [Tempest]". The pleading relied upon the same letter dated 18 September 2009 as is now relied upon in paragraph 96 of the Particulars of Claim in the present proceedings. Mr. Zeckler accepts that the express terms of the agreement were entirely contained within the letter.
58. Mr. Zeckler's sole response to this fundamental difficulty is that he is the sole beneficial owner of the shares of the company and that he should be allowed to pierce the veil of incorporation. But he had to accept that the written agreement was redrafted at his request so as to be a contract with Tempest rather than with himself personally (see paragraph 57 of the Particulars of Claim in the present case). There may have been a number of reasons for this, but from Mr. Zeckler's perspective there was at least a tax advantage in structuring the arrangement so that payments would be made to his off-shore company. Similarly, the 2009 profit sharing agreement was made with Tempest, not Mr. Zeckler. Mr. Zeckler advanced no case, and referred to no authority, which would enable him to pierce the corporate veil.
59. Third, it is accepted by Mr. Zeckler that the introduction fee would only be payable if the conditions contained in the letter of 18 September 2009 were fully satisfied. The letter referred to the original sale agreement between the Trustees and Kylun in 2009. The Trustees have pleaded that the fee agreement was not amended so as to cover the subsequent agreements, in particular the 2010 agreement. There is no suggestion by the Claimants that the Trustees and Kylun were not entitled to vary the 2009 agreement. There is no suggestion by Mr. Zeckler that the fee agreement was amended so as to apply in the event of completion taking place under subsequent agreements. Kylun did not purchase the site pursuant to the 2009 purchase agreement. In particular, they did not purchase the site before the longstop date of 1 October 2011. Thus, there is no entitlement to be paid the fee in relation to completion of the purchase under the 2009 agreement in its original form.
60. Fourth, even if the 2009 fee agreement was varied so as to cover the subsequent purchase agreements by Kylun, or is to be interpreted so as to have that effect, the 21 May 2010 agreement was unconditional and terminated in the event of completion not taking place by 1 March 2011. As a matter of fact completion did not take place by that date and so the Trustees say that the Kylun purchase agreement, whether in its original form or as varied in 2010, fell away. Mr. Zeckler has not disputed that analysis. I agree with it and therefore the claim to the introduction fee based upon completion under the 2010 supplemental agreement is unsustainable.
61. For completeness, I mention the implied term pleaded in paragraph 96 of the Particulars of Claim. Even assuming for the sake of argument that the implication of that term is justifiable, it does not assist the First Claimant in the case he puts forward. The implied term would only have obliged the Trustees not to frustrate the conditions contained in the 2009 fee agreement. It is not suggested that the Trustees breached that requirement. Indeed, the contrary would be unarguable. Put simply, Kylun failed to complete the purchase in accordance with the agreement referred to in those conditions.
62. At the hearing Mr. Zeckler raised an entirely new basis in an attempt to sustain the unilateral notice. It appears that this argument appeared for the first time the day before the hearing in a letter dated 11 May 2015 sent by Mr. Zeckler to the Land Registry. He relies upon paragraph 16 of the Claim Form in which both Claimants seek to vary entry 7 in the Charges Register of Title TGL 18067 so that the rights under the option granted by the Trustees on 8 March 2012 to Vauxhall would be held jointly also with the Claimants. The short answer to that argument is that the unilateral notice was not based upon paragraph 16 of the Claim Form at all. It was based solely upon paragraph 15 of that Claim seeking a legal charge over the site. The purpose of the application to the Land Registry was simply to secure payment of the introduction fee.
63. I also accept the submission by Ms Bignell QC that paragraph 16 of the Claim Form is not a claim against the Trustees. It is a claim against the Third Defendant. The agreement dated 8 March 2012 was not a conditional contract for the sale of the site, in other words a sale potentially enforceable by the Trustees. Instead, it was an option granting rights to the Third Defendant. Mr. Zeckler's complaint is that there is an overlap between the persons controlling Vauxhall and certain of the investors, namely the 5^th and 6^th Defendants, controlling Kylun, and that those persons have entered into this arrangement in breach of fiduciary duties owed to the Claimants. No such claim is made against the Trustees. Indeed, Mr. Zeckler accepted at the hearing that the Trustees had been entitled to enter into the 2012 Deed of Release, subject only to his allegation that that should not deprive him of his introduction fee, and that they had been entitled to enter into the 2012 option agreement. I would also add that the fiduciary obligations relied upon by Mr. Zeckler stem from the 2009 profit sharing agreement entered into between Tempest and Kylun. So far as he is concerned, the fiduciary obligations relied upon were owed, as the Particulars of Claim in the Tempest proceedings made clear, to Tempest.
64. For these independent reasons it is plain that the basis for the unilateral notice was and remains unsustainable. Strictly speaking, therefore, it is unnecessary for me to deal with the Court's jurisdiction under the second heading in Nugent, namely cases where a beneficiary's claim is found to be arguable. However, if it had been necessary for me to do so, I would have decided that the balance of convenience lies firmly in favour of the Trustees. First, I accept the substance of the evidence in Mr. Ashley's witness statements that the unilateral notice is an impediment to the contracts for sale now due to be exchanged in mid-June. Second, the property remains on the market exposed to competitive bids. The notice continues to inhibit the proper marketing of the site. Third, the planning permission is due to expire in August 2015 unless implemented beforehand. The works needed to achieve implementation are said to be significant and will have to be carried out by the Trustees. The notice creates considerable uncertainty for the Trustees as regards the sale of their site. Fourth, Mr. Zeckler is unable to provide an undertaking in damages. Fifth, the alternative undertaking suggested yesterday at paragraph 14 of Mr. Zeckler's skeleton has not been shown to be effective in order to protect the position of the Trustees. It is a last minute suggestion. It is not clear to me why, if the terms suggested were to be imposed, the unilateral notice would even be necessary. Sixth, Mr. Zeckler's claim is simply a money claim and there is no reason to think that enforcement would be problematic against a UK-based pension fund.
65. I conclude that the first application must succeed and the unilateral notice must be cancelled.
66. In the light of the reasoning already set out above, I can deal with the second application, the application to strike out, more briefly. In my judgment the Trustees are entitled to have the claim against them struck out under CPR 3.4(2)(a). The money claim simply relates to the introduction fee of £500,000. As I have explained already, there are several reasons as to why that claim is wholly unarguable which I need not repeat.
67. In paragraph 15 of the Claim Form Mr. Zeckler and Mr. Barrymore ask the Court to impose a charge upon the property. But, as I have mentioned, Mr. Zeckler accepts that the fee agreement did not create any right to a charge and he has been unable to explain how any such right could subsequently have arisen. So far as both Claimants are concerned, neither the Claim Form nor the Particulars of Claim explain how they are entitled to any charge over the Trustees' property.
68. Yesterday Mr. Zeckler sought to rely upon paragraph 16 of the Claim Form. But he was unable to explain, despite the several opportunities given to him by the Court to do so, how any such claim can be pursued by the First and Second Claimants against the Trustees or how that claim would entitle the Claimants to a charge over the site.
69. For completeness I should record that the Claim does not seek to raise any tortious claim against the Trustees. Mr. Zeckler confirmed at the hearing that that is the Claimants' position.
70. I am also satisfied that the claim by Mr. Zeckler against the Trustees should be struck out on the further basis that it is an abuse of the process of court. Mr. Zeckler accepts that the money claim is the same as that which was previously brought by Tempest and was struck on 27 February 2015. The present claim was begun at the moment when the Tempest claim was about to be struck out. Mr. Zeckler has not explained why, so far as his claim is concerned, it should be seen as anything other than an attempt to circumvent the striking out of the proceedings brought by Tempest against the Trustees. Of course I say nothing about the position of Mr. Barrymore or the other Defendants in this respect.