England and Wales Land Registry Adjudicator

 

 

REF/2013/0403

 

PROPERTY CHAMBER, LAND REGISTRATION DIVISION,

FIRST-TIER TRIBUNAL

 

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

BETWEEN

 

(1)    AMARJIT SINGH DHAMI

(2)    HARJIT KAUR DHAMI

 

APPLICANT(S)

 

and

 

 

(1)    THE MORTGAGE BUSINESS PLC

(2)    SUREKHA CHOUHAN & SUBASH MORAR CHOUHAN

RESPONDENT(S)

 

 

Property Address: 64 Trevino Drive, Leicester, LE4 7PH

 

Title Number: LT86482

 

 

 

Made By: Judge Michelle Stevens-Hoare QC

Sitting at: 10 Alfred Place, London, WC1E 7LR

 

 

ORDER

 

Upon hearing Solicitor for the Applicants, Counsel for the First Respondent and the Second Respondent in person.

 

And Upon considering the file in these matters including the Witness Statement of Andrew Stevenson dated 10 January 2014.

 

 

 

 

IT IS ORDERED THAT:

 

 

1. The Chief Land Registrar is to cancel the Applicants’ application dated 29 November 2012;

 

2. Any application for costs should be filed and served by 23 May 2014; such application should include any submissions and a schedule of the costs claimed;

 

3. Any response to an application for costs should be filed and served by 20 June 2014.

 

 

REASONS

 

1. By an application dated 29 November 2012 the Applicants applied to alter the registered title of 64 Trevino Drive, Leicester (“the Property”). At that time the Second Respondents were the registered proprietors and the First Respondent had a first legal charge registered against the Second Respondents’ title. Both the First and Second Respondents objected to the application. The application, subject to both objections was referred to this tribunal, then the Adjudicator to the Land Registry, on 29 May 2013 and the two matters were consolidated.
2. The Applicants were the registered proprietors of the Property from about October 1978 until 1 July 2009. The property was transferred to the Second Respondents as a result of a TR1 dated 28 May 2009. The purchase by the Second Respondents, as funded with money raised by a mortgage with the First Respondent, was also granted on 28 May 2009. The Second Respondents granted a tenancy to the Applicants on the same day. There was an existing charge over the Property in favour of G E Money dating from 2004 which it appears was redeemed with funds provided by the First Respondent.
3. The Applicants allege that they were completely unaware of the 2004 and 2009 transaction and that all documentation was forged by their son. The Applicant’s son went to the Police to confess his fraud in March 2012. The Applicants claim that was the first they knew of the transactions or their son’s activities.
4. The Second Respondent disputes the allegations of forgery and gives some evidence of the Applicants having knowledge of the transactions. The First Respondent inevitably has no direct knowledge of these matters but challenges the Applicants’ account putting the Applicants’ to proof of the forgery including the suggestion they had no part in it and took no benefit from it. The circumstances of the 2004 mortgage are highly relevant to the First Respondent’s case because if the Applicants were a party to that advance or took any benefit from it there may be subrogated rights.
5. The Applicants commenced this application relying on the evidence of their son, who is a self confessed fraudster. The Respondents had long suggested that the most important evidence in this case will be expert handwriting evidence and the Applicants’ bank statements particularly for 2004 and 2009.
6. The progress of this matter since May 2013 is a sorry tale of failings on the part of the Applicants. After an extension of time the Applicants’ statement of case was received on 2 August 2013. The Respondents Statements of Case were received on 5 September and 8 October 2013. On 22 October 2013 directions were given which required all parties to give disclosure by 12 November 2013. By those directions the Applicant was ordered to disclose, within the same time frame (i) sufficient documents to show what bank accounts they held in 2004-5 and 2009 and (ii) such copy bank accounts as were in their possession, power or control for those years. Further they, along with the Respondents were ordered to provide orders, pleadings and witness statements from possession proceedings previously taken against them by the Second Respondent.
7. By 28 November 2013, more than two weeks after the time provided for by the directions, the Applicants had not complied with any of those disclosure obligations. As a result an unless order was made requiring compliance by 12 December 2013. The sanction imposed was the cancellation of the application.
8. On 12 December 2013, the last day for compliance with the unless order, the Applicants served various documents. That documentation did not include the specific documents and banks statements the Applicants had been ordered to disclose.
9. On 2 January 2014 although the Applicants were in breach of the original order by more than 7 weeks and the unless order by 3 weeks an order was made that gave them a further chance to remedy those breaches by 14 January 2014. The order identified the breaches. It provided that the Applicants must personally provide a statement verified by a statement of truth indicating what attempts they had made, when, with what response, what the problems were, when they expected to have the necessary copies and if that was not possible, why not. The order expressly recorded the expectation that relevant correspondence would be attached. The order recorded that the application to strike out was in the circumstances premature and noted that the Tribunal would give further directions after 4pm on 14 January 2014.
10. Since the 2 January 2014 order the Applicants have not complied with their outstanding disclosure obligations or the order that they personally provide a witness statement. A witness statement by the Applicants’ solicitors, Mr Stevenson was received by the tribunal on 13 January 2014. In that witness statement Mr Stevenson indicated that he had had a heart attack in August 2013 and any delay in dealing with the matter from August to December 2013 was his responsibility not the Applicants. That witness statement refers to efforts in February/March and August 2013 and then on 13 December 2013 to recover copies of some bank statements from the Police who seized them as part of the criminal investigation. The witness statement does not make clear what bank statements the police had nor does it indicate anything more was done after 13 December 2013 to pursue the matter with the Police. The witness statement also indicates that as a result of a request made by Mr Stevenson Nat West Bank indicated the Applicants would have to attend their local branch and deal with an updated mandate before bank statements could be provided. It is unclear when Mr Stevenson first made the request of Nat West although I note their letter dated 6 January 2014 refers to his request as “recent”.
11. Thereafter, in light of the Applicants’ ongoing failure to comply with the disclosure directions made in October 2013, this matter was listed for a case management conference and unsurprisingly the First Respondent revived its application for sanction in the unless order to be implemented. The Second Respondent supported that application at the hearing.
12. The Second Respondent indicated that whilst they had to continue paying the mortgage to the First Respondent they had not been receiving rent from the Applicants or their son for some considerable time. The First Respondent points out that failure to provide the required information and documentation about bank accounts and bank statements was preventing it from properly evaluating and preparing its own case. The Respondents also question the failure of the Applicants to provide the information and explanations ordered and their apparent failure to make any attempt to obtain copy bank statements from the bank until shortly before 6 January 2014. The Respondents also rely on the Applicants failure comply or make any progress towards complying with the orders made by the hearing on 16 April 2014, which was 3 months after the 14 January 2014 deadline. Both Respondents have incurred cost because of the Applicants’ failure to give proper disclosure and comply with orders.
13. The Applicants offered no challenge to the Respondents’ assertions and analysis of the situation. The Applicants proposals were that a requirement order be made against Nat West although no evidence was produced or details given of what steps had actually been taken since the 6 January 2014 letter to obtain the correct bank statements.
14. Whilst Mr Stevenson’s witness statement provides some indication for the reasons for the Applicants’ failure to provide the disclosure they were ordered to provide that witness statement is clearly insufficient. In relates to a period of about 2 months from the date of the original order and does not address the period of 3 ½ months since. It does not provide the extensive information and explanations ordered. It is does not explain why the Applicants failed to provide a witness statement as ordered. It does not explain why no one else dealt with this matter whilst Mr Stevenson was unwell. It reveals that, in fact, the Applicants and/or their solicitor had done very little between late October 2013 and 10 January 2014 to comply with the original direction, unless order and subsequent order. Further Mr Stevenson and the Applicants attended the hearing on 16 April 2014 with no evidence or explanation as to why they had failed in the preceding 3 months to address the Applicants default and remedy them even in part.
15. I should make it clear, as I did at the hearing, that the principles in relation to relief against sanctions that operate under the CPR do not apply in this jurisdiction.
16. Nevertheless apply the overriding objective that applies in this jurisdiction, as set out in rule 3 of the applicable rules, I have no doubt that I should exercise my powers under rule 8 and rule 9 and implement the sanctions in the order of 28 November 2013. The overriding objective requires me to deal with the matter fairly and justly which includes dealing with the matter proportionately given the anticipated costs and resources of the parties, avoiding unnecessary formality, enabling parties to participate fully as far as possible and avoid delay as far as is compatible with a proper consideration of the issues.
17. The Applicants commenced this matter. It is the Applicants’ failures that have blocked the ability of the tribunal to proceed with the matter. The Applicants have consistently failed to do what is in their power to do. The Respondents have been put to expense by those failings and more importantly their interests in the Property have effectively been in suspense in the interim which is only to the benefit of the Applicants. The impact on the Respondents and the tribunal is not affected by whether the failings are those of the Applicants themselves or their solicitors. If some or all of the failings are those of their solicitors the Applicants will have their remedy elsewhere. Given the Applicants’ extraordinary failure to comply with the original order, the unless order, the further chance they were given or to make use of the further months that waiting for a hearing in this matter afforded them the point at which they should be given more time had been passed. Having taken account of all the circumstances I am satisfied I should order that the application be cancelled.

 

 

 

Dated this 23 April 2014

 

 

 

 

 

 

By Order of The Tribunal

 

 

 

Note: The parties’ attention is drawn to paragraph 3(7) of Schedule 3 (Transitional and saving provisions) of the Transfer of Functions Order which provides that an order for costs may only be made if, and to the extent that, an order could have been made before 1st July 2013. The Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003 (S.I.2003 No. 2171) as amended by The Adjudicator to HM Land Registry (Practice and Procedure) (Amendment) Rules 2008 (S.I. 2008 No.1731) made no provision for an order for costs to carry interest. Any claim for interest would have to be made under some other statutory provision or authority.