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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Cheval Bridging Finance Ltd v Bhasin & Anor [2008] EWCA Civ 1613 (12 December 2008) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2008/1613.html Cite as: [2008] EWCA Civ 1613 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRENTFORD COUNTY COURT
(HIS HONOUR JUDGE MARCUS EDWARDS)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE WILSON
and
LORD JUSTICE LONGMORE
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CHEVAL BRIDGING FINANCE LTD |
Respondent |
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| - and - |
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BHASIN & ANR |
Appellant |
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WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss N Sandells (instructed by Brightstone Law) appeared on behalf of the Respondent.
____________________
Crown Copyright ©
Lord Justice Lawrence Collins:
Cheval
, the respondent, which is a small commercial lender specialising in subprime loans to persons who may have problems with repayment.
Cheval
Bridging Finance money. Meanwhile, during the course of 2006 Mrs Bhasin was arranging to repurchase the property from Mr and Mrs Hastings and was able to arrange for a new mortgage in her sole name. She instructed solicitors in that connection in about May 2006 with an anticipated completion date of August 2006. She was not informed of the existence of the mortgage with
Cheval
, nor that Mr and Mrs Hastings were in arrears with the mortgage of the property until she received a letter from
Cheval
's solicitors concerning repossession of the property at about the end of July 2006.
Cheval
against Mr and Mrs Hastings to enforce the mortgage in August 2006. Mrs Bhasin was notified of the proceedings and she was granted permission by the court to be joined and to file a defence in the action. Mr and Mrs Hastings did not defend the mortgage proceedings but did appear at the hearings. In August 2007 Mrs Bhasin issued proceedings against Mr and Mrs Hastings and Kings Solicitors for damages for breach of trust and fiduciary duty.
Cheval
was not joined as a party, either section 36 of the 1970 Act, or under CPR 3.1.
Cheval
in order to avoid its enforcement of the charging orders which
Cheval
had obtained against him.
Cheval
concedes that she could be regarded as the mortgagor and it would have been for
Cheval
to take the point that she had no standing under section 36. It seems to me that what the court must have had in mind on the permission application was that if she had no standing under section 36, that might have strengthened her claim for relief under CPR 3.1 or the inherent jurisdiction, but
Cheval
maintains its concession that Mrs Bhasin is a mortgagor for the purposes of section 36. Section 39(1) provides that "mortgagor" includes any person deriving title under the original mortgagor. The basis of
Cheval
's concession is this. Mrs Bhasin's claim is that she sold the property to Mr and Mrs Hastings on terms and that Mr and Mrs Hastings hold the property on trust for her to transfer it back if certain conditions are met. Consequently a new beneficial interest came into being on the transfer to Mr and Mrs Hastings, and that interest was carved out of Mr and Mrs Hastings' legal title to the property or derived therefrom. Consequently it is at least arguable that Mrs Bhasin is a person deriving title from the original mortgagor, in this case Mr and Mrs Hastings.
Cheval
have a charging order. He has an equity of about £117,000 on three properties but a very large deficiency indeed on his residence in Brookmans Park.
Cheval
have a judgment against him for more than £500,000.
Cheval
; and thirdly Mr and Mrs Hastings would pay to
Cheval
the balance between £226,000 and the present value of the property.
Cheval
, the court was told, refused the offer because Mrs Bhasin could not show that Mr and Mrs Hastings agreed. There was no evidence that either Mrs Bhasin or Mr and Mrs Hastings could make the payments referred to in the proposal and there was no commitment to a timescale.
Cheval is, of course, in the wholly legitimate business of maximising its recoveries, but having been paid £100,000 by Mr Hastings, it has the prospect, with Mrs Bhasin's £226,000, of recovering at least the original amount advanced as recently as 2006 and, given Mr Hastings' keenness to preserve his home, perhaps the prospect of further recovery from him. I would hope that in these circumstances that an accommodation might be reached which would enable Mrs Bhasin to retain her home.
Lord Justice Wilson:
Lord Justice Longmore:
Order: Appeal dismissed.