England and Wales Land Registry Adjudicator

 

PROPERTY CHAMBER

FIRST-TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

 

IN the matter of a reference from hm land registry

 

LAND REGISTRATION ACT 2002

 

REF No 2015/0578, 0579 and 0582

 

BETWEEN

 

ANDREW DENNIS KULKA

Applicant

A ND

 

(1)    SHANTI TOSAR AND KIRKI TOSAR

(2)    TECHNICAL SOFTWARE CONSULTANT LIMITED

 

Respondents

 

 

Property Address: Land on the south west side of Davey Avenue, Knowhill

Title Numbe rs: BM265346, BM312168 and BM389843

 

Before: Judge McAllister

Alfred Place

21 March 2016

 

 

Representation: The Applicant was not represented and did not attend: Peter Dodge of Counsel instructed by Heald Solicitors appeared for the Respondents

 

ORDER

 

 

 

 

The Chief Land Registrar is ordered:

 

1. To give effect to the application by the Second Respondent (Technical Software Consultants Limited) dated 12 June 2014 to register a new lease for the above property;
2. To cancel the application made by the Applicant dated 25 June 2014 to reinstate a leasehold title merged into the freehold title of the above property
3. To cancel the application made by the Applicant to replace First Respondents who are the current registered proprietors of the property.

 

FURTHER the Applicant is ordered to pay the Respondents the sum of £19,488, being costs assessed on an indemnity basis, such payment to be made by 8 April 2016 unless, by that date, the Applicant applies to set aside the above order, and sends to the Tribunal and the Respondents objections and/or representations in respect of the costs order sought by the Respondents.

 

 

REASONS

 

1.       This dispute concerns a lease ('the Lease') of '0.604 acres at Davey Avenue Knowhill Milton Keynes' ('the Site') granted on 13 July 2001 by the Commission of New Towns ('CNT') to Displayland Limited ('the Company') for a term of 125 years from 31 July 2001 for an annual rent of £1 and a premium of £209,625. The Lease was a development lease. The First Respondents, Shanti Tosar and Kirti Tosar, were named as the proposed transferees of the freehold of the Site in the Lease. On 12 April 2006 the freehold was transferred to Mr and Mrs Tosar for £1.00. The premium and the cost of developing the Site was paid by the First Respondents.

 

2.       The Applicant, Mr Kulka, was a shareholder in the Company. The Company entered into a Creditors Voluntary Liquidation on 26 July 2006. It was dissolved, it seems, on 10 December 2010.

 

3.       Mr and Mrs Toser have applied for the registration of a new lease in favour of the Second Respondent ('Technical Software'). Mr Kulka objected to this application, and further applied both to re-instate the lease in favour of the Company and to remove Mr and Mrs Toser as freeholders. Mr and Mrs Toser were registered with freehold title to the Site on 5 June 2006.

 

4.       The matters were referred to the Tribunal on 26 August 2015. On 8 January 2006 Judge Orr made an order notifying the parties that he intended to strike out Mr Kulka's applications (and to give effect to the application by the Second Respondent) unless any party objected by 22 January 2016. The reasons given for the proposed strike out were, in essence, as follows.

 

5.       Mr Kulka's applications relied on Displayland's title to the Lease. If any application is to be made in relation to the Lease, it should be made by Displayland. Displayland is in liquidation. The Tribunal has no power to re-instate the Company. In any event, the liquidator, Mr Radcliffe, satisfied himself as to the beneficial ownership of the Lease. Proceedings were issued in the Manchester District Registry. It is clear from the judgment dated 3 October 2008 of District Judge Jones that Mr Ratcliffe was satisfied that the First Respondents were entitled to the Site and that he was not able to recover the Site on behalf of the creditors. The Applicant has in any event no locus to make any application on behalf of the Company.

 

6.       The Respondents' case is and has been that the Lease was determined either as a consequence of the transfer by CNT to the First Respondents of the freehold on 12 April 2006, ('the Transfer') or by operation of law (the Company having vacated the site by the date of the transfer) or alternatively by reason of the Deed of Surrender made by the Company on 28 February 2005 in favour of the First Respondents. This operated as an equitable surrender, and the acquisition of the freehold by the First Respondents had the effect of perfecting the surrender by what is known as 'feeding the estoppel.' The Company, therefore, has no interest in the Site.

 

7.       The Applicant objected to the proposed order by letter dated 21 January 2016, a copy of which was sent to the Respondents. The grounds set out in the letter are that, first, he remains a director of the Company and can call for its restoration to the register; second that the Transfer is for various reasons invalid, and third that the liquidator was wrong in the conclusions he reached as to the ownership of the Site.

 

8.       In view of this objection (and in compliance with Rule 9(4) of the Tribunal Procedure (First Tier Tribunal) (Property Chamber) Rules 2013) ('the Rules') the parties were notified in writing by letter dated 15 February 2016 that a hearing would take place on 21 March 2016 at 10.30. The Applicant clearly received this letter, as appears below. He did not attend on 21 March. I waited until 11 15 to hear the case. Various telephone calls were made by the office during that time. The telephone was answered, it seems, by his wife, who said that she did not know where he was. In accordance with rule 34 of the Rules I was satisfied that the Applicant had been notified of the hearing.

 

9.       I was then told that he had been in touch with the office after the hearing to say that he had not been aware of the fact that he was supposed to attend, and indeed that he had been told that it was not necessary for him to attend. The letter of 15 February is clear: there was to be a hearing. I am also informed that he would not have been told by any of the staff not to attend.

 

10.   Be that as it may, I am satisfied that the appropriate course is to make the orders set out above. I have had regard to the written submissions made by the Applicant. I seems to me, however, that the Respondents are correct in their submission that the applications made by the Applicant, and his objection to the registration of a new lease in favour of the Second Respondent, are vexatious: the matter has already been considered in the proceedings brought by the liquidator. The Tribunal has no jurisdiction to re-instate the Company. As matters stand, the Company is dissolved, and the liquidator is satisfied that the Company has no interest in the Lease. The First Respondents are plainly entitled to be registered as freehold owners of the Site as a result of the transfer dated 12 April 2006, and also entitled to grant a lease to the Second Respondents.

 

11.   At the conclusion of the hearing the Respondents asked for their costs to be assessed on an indemnity basis. I have seen a Statement of Costs. It seems to me that it is appropriate to make an order on an indemnity basis. The applications and the objection were in themselves unreasonable to a high degree, and the Applicant has persisted in these proceedings notwithstanding the Respondent's clear position as set out in their Statement of Case, and notwithstanding the order of Judge Orr.

 

12.   As the Applicant did not attend, I have made an order as to costs which allows him to apply to set aside the order, and to provide reasons as to why such an order should not be made, and to make representations as to quantum. I assume, of course, that a copy of the Statement of Costs was sent to the Applicant: if not, the time for the response will be 14 days after the date on which the Statement is sent to the Applicant.

 

BY ORDER OF THE TRIBUNAL

 

Dated this 23 ^rd day of March 2016