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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Hameed v Qayyum & Anor [2008] EWHC 2274 (Ch) (25 July 2008) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2008/2274.html Cite as: [2008] EWHC 2274 (Ch), [2009] BPIR 35 |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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A. HAMEED |
Claimant |
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- and - |
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M. QAYYUM (1) A. QAYYUM (2) |
Defendants |
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12-14 New Fetter Lane, London EC4A 1AG
Telephone No: 020 7936 6000. Fax No: 020 7427 0093
Email: [email protected]
for the Claimant.
MR C.R. SEMKEN (instructed by Messrs Dean & Dean) for the Second Defendant.
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Crown Copyright ©
HIS HONOUR JUDGE PURLE QC:
"The Property was purchased in February 1991 and registered with the Land Registry on 14th March 1991."
There is no doubt that that is correct. She goes on to say:
"The Property was purchased by me with funds provided by my husband when he was no longer intending to live or work in the UK."
"In 1990 my husband moved from London to Abu Dhabi due to the relocation of the headquarters of BCCI. This move was intended to be for an indefinite period, but at the time my husband also had plans to retire to Bangladesh."
"I did not wish to move to Abu Dhabi with my husband for personal reasons and, as I was happily settled in London where I had been residing since 1973, I also had close relatives and friends in the UK."
I have no reason to doubt that that statement is correct, but I do not think it is determinative of the issue of beneficial ownership.
"By the end of 1990 my husband was receiving a reduced salary from BBCI because they had provided him with living accommodation in Abu Dhabi. Consequently, he was unable to afford the mortgage payments of the flat that I was residing in at the time, C Gate Gardens, which was owned jointly by my husband and me. This was a large four-bedroomed flat which was too big for my own requirements."
Then in the next paragraph she says:
"My husband asked me if I would be agreeable to us giving up the C Gate Gardens flat on the basis that he would provide funds for me to purchase another smaller flat for myself. He informed me that he would do so by taking up a staff loan from BCCI and he would be responsible for the repayments. I agreed, and before leaving for Abu Dhabi he applied for the staff loan."
"I located the Property myself which I chose because it met with my requirements as it was in a central location and had security by way of a 24- hour porter service. This was important to me, as I would be living on my own."
So she would be so long as her husband was in Abu Dhabi, but that is silent as to what the position would be should he no longer be there. She continues:
"The flat was in a totally dilapidated state, which I did not mind as I also wished to refurbish it to my taste."
"The Property was purchased with the funds provided by my husband with the assistance of a BCCI staff house loan, which was applied for by my husband as he was an employee of BCCI. The loan was for £165,000 and was taken out in February 1991. The documentation for the loan was drawn up by BCCI, who required the Property to be registered in joint names. I understand that, as my husband was the BCCI employee, the loan was taken out in his sole name, and my husband assured me he would be responsible for the payments."
"I spent my own money in renovating the Property, which included renewing two bathrooms and the kitchen as well as complete rewiring and plumbing."
She then develops that and says that the costs would have been in excess of £30,000, though the records no longer exist.
"Pursuant to the said agreement, the trustee hereby declares that he holds his interest in the said property on trust for the beneficiary absolutely and recognises his contract and obligation of Meher to the beneficiary under Muslim law."
"It is not enough to say that there is no reason to suppose that the transfers were stamped. Nor is it enough to say that the circumstances raise a suspicion that the transfers were not stamped. That is not proof of anything."
"In that case, as appears from a passage in the judgment of Lord Blackburn at page 730 of the report, the Lords Justices of the English Court of Appeal permitted to be read, as evidence of the contents of the original, a copy, duly stamped as an original, of a memorandum which had been destroyed while still unstamped. It would appear, therefore, that it was the practice of the English Court of Appeal to receive such documents in evidence, and I propose to adopt and follow that practice in the present case."
That seems to me to be eminently sensible and desirable and I would therefore apply that to this case, unless compelled by authority to reach the contrary conclusion (which I am not), and accept an undertaking in appropriate form (to be discussed) from Mr Semken's solicitors to have the copy stamped and a fee to be duly tendered.
"(1) Subject to the provision hereinafter contained with respect to the creation of interests in land by parol —
(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law;
(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will;
(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will."
I apprehend that it is section 53(1)(c) which applies in the present case, but, whichever subsection it is, writing is required. Subsection (2) provides that:
"(2) This section does not affect the creation or operation of resulting, implied or constructive trusts."
"I would take this opportunity to advise further that as Mr Qayyum was involved in litigation with Mr Hameed, wherein assets belonging to him in the UK were frozen, he was in need of funds to meet legal expenses, he requested me to release him from the responsibility of holding his interest in our flat in trust for me so that he could continue to fund his legal costs. I agreed to release him of his responsibility and did this to alleviate the stress that he appeared to be under and affecting our home life. I had breast cancer and have been advised to avoid stress at all costs."
In the next paragraph she continues:
"I hope this will clarify the position and request you to kindly place both my letters before the Court."
"In about August 2004, I was under pressure to produce legal costs amounting to a further US$250,000 to cover this litigation. I was conscious of my obligation under the freezing injunction to maintain worldwide assets of US$1.025m. I therefore approached my wife to agree to revoke the Deed of Trust so that I could recover a half share in the property as I needed funds to meet my legal expenses. I only subsequently became aware that I was legitimately entitled to make withdrawals for legal expenses and representation pursuant to para 6 of the freezing injunction without the need to approach my wife for her agreement. She orally agreed. In reliance on her agreement, I paid money for legal costs. I regarded myself as owning a half share in the flat as from the date of the oral agreement. My wife confirmed the agreement in her letters of 8th & 13th July 2005" (those are the letters to which I have just referred) "to which Mr Cooper refers in … his affidavit".
He then goes on to record that his wife has now changed her position.
"With regard to my husband having a 50% beneficial interest in my flat … it was only agreed by me in response to a request by him and in what now appears to be a mistaken belief represented by him that I should not seek to rely on an agreement he made with me previously that he was holding his beneficial interest in the property for me, as he had to hold his alleged 50% beneficial interest in the property under a freezing order made by the court to withdraw monies for payment of his legal expenses."