QUEEN'S BENCH DIVISION
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
Strand, London, WC2A 2LL |
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B e f o r e :
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Landmark Mortgages Limited |
Claimant and Appellant |
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Yamin Bamrah (Personal Representative for the Estate of Mavinder Singh Bamrah) Yasmin Bamrah |
Defendants and Respondents |
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Yamin Bamrah appeared in person
Hearing dates: 25th July 2017
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Crown Copyright ©
Mr Justice Turner :
INTRODUCTION
THE REASONING BELOW
"20 I exhibit for the Court's reference at [CS1/31-34], an up-to-date payment history, correct as at November 2016. The Court will note that, following the Deceased's death on 22 November 2009, there was a long period when no payments were made to the account. However, in March 2011, the Second Defendant began making payments towards the mortgage account which continued intermittently until July 2012, when I am advised by the Claimant's solicitors, the Second Defendant first raised the allegation that she had an interest in the Property. I exhibit at [CS1/355], copies of various payment stubs provided by the Second Defendant, evidencing various payments which she made towards the mortgage account with the Claimant."
"62 Either there was an error in the payment history or in Mr Smith's paragraph 20 that the finding I can make in relation to the figures is that the arrears should be £1,000 less than set out…
63 As the Defendant expressly put the Claimant to proof of the outstanding figures the Claimant should have provided a breakdown of the composition of the £355,457.54 so that the amounts attributable to interests (sic.) and legal fees and other costs could be verified by the court. Normally, however, the court would accept the computerised figures provided by the mortgage company but in this instance there is a demonstrable error either in the payment history or in Mr Smith's paragraph 20 which casts doubt on the Claimant's figures. Thus they cannot be accepted by the court in the absence of a proper breakdown setting out the precise details of the increases in charges over and above the £200,000 loan."
FLAWS IN THE REASONING BELOW
i) Mr Smith expressly states in paragraph 20 that the payments continued intermittently until July 2012. This is entirely consistent with the transaction statement which records the last cheque from Mrs Bamrah to have been credited on 3 July 2012. This must relate to the stub dated 26 June 2012. It follows that Mr Smith was not accepting that any cheques were received thereafter and this is entirely consistent with the fact that two of the three controversial stubs were dated later than this and the remaining one was undated. He was not accepting, therefore, that the three stubs identifying Mrs Bamrah as the payee related to cheques paid to Northern Rock.
ii) Mr Smith did not state in his witness statement that all of the stubs which featured in the photocopied page disclosed by Mrs Bamrah related to payments received by Northern Rock but merely that various stubs evidenced various payments. Indeed, Mr Smith's knowledge was derived entirely from his company's computer records including the transaction account. He would, therefore, have had access to no evidence whatsoever upon which he could possibly have made the concession attributed to him by the Judge. Indeed, his evidence on the source of his information is recorded in the Judge's judgment thus:
"53 As to the source of information in the system he said that it comes from his company's computer not from the computers of Northern Rock or Landmark and that his company gets the information as to payment by updates from the bank if there is a transfer in and that would apply to the NatWest transfers. As to the cheques on page 166 to Northern Rock he said "they would notify our finance department" but he did not know how that notification would be done."iii) The Judge appears to have failed to spot the very significant fact that the three controversial stubs do not name Northern Rock as the payee and record nothing attributing the payments to the mortgage. Had she done so, it is almost inconceivable that she would not have referred to the fact in her judgment. This omission is so obviously relevant that it would seem likely that the Judge had simply proceeded on the assumption that the cheque stubs had identified Northern Rock as the payee and not Mrs Bamrah herself. Indeed, this explanation is made more likely by the fact that in the passage quoted above she refers to the stubs as "cheques … to Northern Rock".
iv) The Judge's conclusions relating to the cheques are entirely based upon the purported admission by Mr Smith. With respect to Mrs Bamrah's evidence, she found her to be "an unreliable witness" and expressly rejected her claims to have made other payments. It is to be noted that Mrs Bamrah could easily have disclosed her bank statements over the relevant period and this would have resolved the question but she neither disclosed them at trial nor sought permission to introduce them on this appeal. Over the limited period in respect of which Mrs Bamrah did disclose her bank statements, they were entirely accurately reflected in the transaction statement.
POSSESSION
"Additional powers of court in action by mortgagee for possession of dwelling-house.
(1) Where the mortgagee under a mortgage of land which consists of or includes a dwelling-house brings an action in which he claims possession of the mortgaged property…the court may exercise any of the powers conferred on it by subsection (2) below if it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any other obligation arising under or by virtue of the mortgage.
(2) The court—
(a) may adjourn the proceedings, or
(b) on giving judgment, or making an order, for delivery of possession of the mortgaged property, or at any time before the execution of such judgment or order, may—
(i) stay or suspend execution of the judgment or order, or
(ii) postpone the date for delivery of possession,
for such period or periods as the court thinks reasonable.
(3) Any such adjournment, stay, suspension or postponement as is referred to in subsection (2) above may be made subject to such conditions with regard to payment by the mortgagor of any sum secured by the mortgage or the remedying of any default as the court thinks fit."