Samad v Thompson & Anor [2008] EWHC 2809 (Ch)

[2008] EWHC 2809 (Ch)Case No HC06C01797
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/11/2008
Before
THE HONOURABLE MR JUSTICE SALES
Between
Abdul Fazel SamadClaimantDonovan ThompsonDefendantsFuerina ThompsonDefendant
Mr Russell Stone (instructed by Elliot Stephens) for ClaimantMr Paraskevakis Paraskos (instructed by LL Sassoon & Co) for DefendantsHearing Hearing dates: 21.10.08 – 29.10.08
Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................THE HONOURABLE MR JUSTICE SALES
[1]This is a claim for a declaration that the Defendants (“Mr and Mrs Thompson”) hold the leasehold property at Flat 82, 9 Albert Embankment, London SE1 7HD (“the Property”) on trust for Mr Samad, and are required now to transfer it according to his directions. Mr and Mrs Thompson are the registered legal owners of the leasehold interest in relation to the Property. Mr Samad’s case is that Mr and Mrs Thompson acquired the Property pursuant to an oral agreement that he had made with them, whereby they agreed to acquire the Property but then hold it for the benefit of Mr Samad, while he paid the deposit and covered all expenses in relation to the Property including service charges, ground rent and payments in respect of the mortgage which the Thompsons took out to pay the purchase price. Mr Samad’s case is that a resulting trust arose in relation to the Property by virtue of the fact that he has paid the whole of the costs of acquisition by providing the deposit in the sum of £38,000 and meeting all the mortgage payments. In the alternative, he says that a constructive trust arose in relation to the Property by virtue of the fact that it was acquired by the Thompsons pursuant to an express oral agreement that it would be held for his sole beneficial benefit, where he has acted to his detriment in reliance on that agreement and has at all material times been and remains ready, willing and able to discharge the Thompsons from their borrowing under the mortgage which they took out to buy the Property. In the further alternative, he claims to be entitled to the whole beneficial interest in the Property or a part thereof by virtue of a proprietary estoppel which he claims arose out of the agreement made with Mr and Mrs Thompson and acts of his own in detrimental reliance upon that agreement.[2]The Thompsons, for their part, deny that any such oral agreement as is alleged was ever made. They maintain that no resulting trust arose for the benefit of Mr Samad because(i) so far as concerned the deposit, which they accept was paid by Mr Samad, they say that was done pursuant to a particular arrangement that had been agreed with Mr Samad according to which they understood that Mr Samad or the property company which he represented, Monopoly Property Investments Ltd (“Monopoly”), had itself acquired the Property from the freeholder, was anxious to sell it on (presumably at a profit) and offered to pay the deposit as an incentive for the Thompsons to purchase the Property and(ii) as to the balance of the purchase price, they say that the money used was their money obtained by them by means of a loan from Bank of Scotland to them against the security of a mortgage given by them in respect of the Property. So far as the constructive trust claim is concerned, they deny that a constructive trust has arisen, since they deny that the oral agreement which Mr Samad alleges was ever made. They say that the payments of the mortgage sums due and the payments of service charges and ground rent by Mr Samad were pursuant to an agreement that he would sub-let the Property from them in return for such payments, which were to stand as rent only. It is common ground that Mr and Mrs Thompson at an early stage paid two monthly mortgage payments themselves. Mr Samad’s case as to those is that in due course he reimbursed Mr Thompson for those payments, so that the practical effect was that Mr Samad had paid all the mortgage payments. Mr Thompson denies that such a reimbursement arrangement was ever entered into. So far as concerns the proprietary estoppel claim, the Thompsons’ case again is one of denial of the alleged oral agreement upon which Mr Samad seeks to rely and a denial that there were any acts of detrimental reliance by Mr Samad in relation to any such agreement.[3]As appears from this summary, this is a case in which the resolution of the dispute turns critically upon conflicting evidence about oral agreements which are alleged on the one hand to have been made but which are denied on the other. Accordingly, the court’s assessment of the witnesses on both sides is central to determination of the issues which arise. Having observed the witnesses carefully in the witness box and taking account of all the circumstances of the case, I have come to clear views concerning the reliability and truthfulness of the witnesses on each side.[4]I found Mr Samad and the other witnesses called to support his case to be truthful and credible in all the essential elements of their evidence. Their version of events was corroborated by such contemporaneous documents as were available to the court. The witnesses for the Claimant also provided strong mutual corroboration for various important aspects of Mr Samad’s case.[5]On the other hand, both Mr and Mrs Thompson made an adverse impression upon me. Although Mr Thompson had been represented by lawyers at different stages in the proceedings, he had provided only limited documentation in relation to the matters relevant to the case, which was surprising. In the course of giving his evidence, he would not accept that any document had been sent to or seen by him unless he thought that it would strain credulity too far to deny it. I did not think that he was being open and frank with the court. His evidence was frequently vague and he affected not to remember significant matters. In all this he seemed to me to be a witness who was concerned to keep his powder dry so far as possible at all times so as to have a free hand to tailor his version of events to cope with any twist and turn in the case being made against him and the evidence as it was presented to the court.[6]In May 2007 Mr Thompson had provided a very summary four-page witness statement for use in the proceedings. On the first day of the trial his counsel, Mr Paraskos, informed the court that Mr Thompson would wish to supplement that witness statement. I gave leave for that to be done provided that a further witness statement was provided by him. Accordingly, on the second day of the trial, a second witness statement from Mr Thompson was provided. Both witness statements were unsatisfactory judged in the light of the way in which Mr Thompson’s case emerged in the course of the hearing.[7]At this stage, while setting out my assessment of the quality of the witnesses, it is relevant to refer to some significant matters which particularly impressed me as indications that Mr Thompson could not be relied upon as a truthful witness. In paragraphs 24 to 26 of his second witness statement Mr Thompson said the following:
“24. In relation to the payment of any stamp duty or legal fees although on the face of it there do appear to be documents indicating that a deposit and reservation fee were paid, I cannot be sure whether such money ever was paid in the first place or whether any such money if paid was ever returned to the Claimant. I believe that the stamp duty and legal fees were actually paid by us. It is denied that the HSBC account that the Claimant refers to is mine and I cannot recall any money being paid into my account. 25. It is correct that I was never given a set of keys to the Property as it was discussed just before completion that the Claimant would use the Property as a show-home. As part of the agreement the Claimant was to make the mortgage payments in lieu of rent. Additionally, the Claimant was to pay all other charges such as the service charge in relation to the Property. 26. It is correct that the £2,383 was never returned to me. I was never told that there was any surplus money and never received a completion statement. At no time did I give permission for this money to be taken or used elsewhere.”
[8]The following points should be made in relation to these paragraphs. First, in paragraph 24 Mr Thompson dealt with the question of payment of the deposit and reservation fee in respect of the acquisition of the Property. It is striking that he expresses uncertainty whether such a deposit and fee were ever paid and whether such money, if paid, was returned to Mr Samad. As the evidence emerged during the hearing, it became obvious that Mr Samad had indeed paid a reservation fee of £1,000 and the balance of the deposit in the sum of £37,000, making a total deposit of £38,000. So when Mr Thompson gave his evidence under cross-examination in the witness box, his story was changed to a version of events according to which he maintained that the Claimant had in fact paid the reservation fee and deposit, but that this was done pursuant to an arrangement with Mr Samad (who, on Mr Thompson’s version of events, was anxious to sell the Property on to Mr Thompson so as to make some form of trading profit in relation to it) whereby in order to realise that profit Mr Samad had undertaken to pay the deposit monies himself so that Mr and Mr Thompson’s acquisition of the Property could proceed. On Mr Thompson’s final version of events, then, the deposit and reservation fee were indeed paid by Mr Samad (or Monopoly) but as an incentive for Mr and Mrs Thompson to proceed with the purchase of the Property for themselves. In his closing submissions for Mr and Mrs Thompson, it was on the basis of this alleged arrangement that Mr Paraskos submitted that there could be no resulting trust, even in relation to the £38,000 which Mr Samad had clearly provided for the purchase of the Property. This version of events was a significant departure from the account given in paragraph 24 of Mr Thompson’s second witness statement. There, Mr Thompson’s position had been to affect uncertainty whether the £38,000 had been paid at all and, if it had been paid, to suggest that it might have been repaid to Mr Samad. There was no positive case that it had indeed been paid by Mr Samad, on the basis of the arrangement which was finally alleged by Mr Thompson. In respect of the arrangement which Mr Thompson finally alleged, he sought untruthfully to suggest adoption at the time of acquisition of the Property of a special arrangement which had in fact been made between Monopoly and Mr Thompson but in relation to a quite different property at a development known as Putney West and at a much later point in time: see paragraphs [72] to [75] below.[9]Second, in paragraph 24 of his second witness statement Mr Thompson denied that an HSBC account into which Mr Samad gave evidence he had paid significant sums of money totalling £20,000 was in fact Mr Thompson’s account. The significance of this was that there was evidence that a banker’s draft had been obtained drawn on the relevant HSBC account in the sum of £20,000 payable to Walter Saunders, the solicitors acting for Mr and Mrs Thompson in relation to their acquisition of the Property, to put them in funds for payment of the deposit in relation to the Property. In substance, therefore, Mr Thompson was seeking to deny or raise serious doubt as to whether Mr Samad had indeed provided the money for the payment of the deposit in respect of the Property. But in cross-examination, Mr Thompson was shown documents which meant that he was constrained to accept that the HSBC account in question was his. Indeed, he then accepted that a copy of an instruction to HSBC to issue the relevant banker’s draft for £20,000 made out to Walter Saunders drawn on that account had been signed by him. This part of paragraph 24 of his witness statement, therefore, seems to me to have been part of a deliberate effort by Mr Thompson to obfuscate and confuse matters in the hope that the court would not accept significant parts of Mr Samad’s version of events.[10]Third, in paragraph 25 of his second witness statement Mr Thompson found it necessary to answer a point which had been made by Mr Samad in his witness statement in the proceedings, namely that the keys to the Property had been given to Mr Samad and that Mr Thompson had not been provided with a set of keys upon completion. Mr Thompson sought to explain this feature of the case by suggesting that it was readily explicable because he and Mr Samad had already agreed before completion that Mr Samad should rent the Property from Mr and Mrs Thompson. Therefore, so the suggestion went, it was not to be expected that Mr Thompson would have received the keys, since Mr Samad would simply have gone straight into occupation of the Property as a tenant as soon as the transaction was completed.[11]However, this version of events from Mr Thompson conflicts with the impression that he had sought to give at earlier stages in the proceedings, in his formal defence and in paragraph 10 of his first witness statement. At paragraph 4(d) of the Defence and Counterclaim dated 6 June 2006 served on behalf of the Defendants, it was pleaded as follows:
“It is averred that after completion of the purchase the Defendants initially paid the mortgage payments. About two months after completion, and before the Property had been let, the Claimant asked the First Defendant whether he could occupy the Property on a temporary basis pending completion of a property purchase of his own. The First Defendant agreed that the Claimant could occupy the Property provided that he would discharge the mortgage repayments in lieu of rent. The Claimant accordingly took possession of the Property in or about January/February 2003 and commenced paying the mortgage repayments.”
That same pleaded case was maintained in the Amended Defence and Counterclaim served on behalf of the Defendants on 27 June 2007. In paragraph 10 of his first witness statement Mr Thompson said this:
“We paid the first two months’ mortgage, then [Mr Samad] asked if he could use the flat and make it into a show flat.”
Thus, in both the Defence and Counterclaim and in his first witness statement Mr Thompson was seeking to give the impression that the tenancy arrangement with Mr Samad had only been discussed and agreed between them after a period of time in which Mr Thompson had himself paid the mortgage payments. By this version of events, Mr Thompson sought to take advantage, so far as his case was concerned, of the fact that (as was conceded by Mr Samad) Mr Thompson had indeed paid two of the early mortgage payments due in respect of the Property. The suggestion being made was that this showed that Mr Thompson had in fact purchased the Property for himself and his wife for their own benefit and not pursuant to any arrangement with Mr Samad. As will be seen below, I do not accept that this is correct. But what is significant for present purposes is the way in which the earlier suggestion made by Mr Thompson as to how critical events took place came to be adjusted by him in paragraph 25 of his second witness statement. This affords another example, in my judgment, of Mr Thompson tailoring his evidence as he thought it suited him to meet points being made by the Claimant against him.[12]Fourth, the significance of Mr Thompson’s reference to “the £2,383” in paragraph 26 of his second witness statement needs to be explained. The completion of the purchase of the Property by Mr and Mrs Thompson took place on 7 November 2002. The transaction was originally intended to be for the purchase of the Property and an associated car park space in a car park which was to be built. However, the car park space was not ready in November 2002, and it was agreed that the part of the total contract price which should be allocated to the car park space should be £25,000, of which £2,500 would be paid at completion as a deposit and the remainder would not have to be paid until the car park space was ready. Accordingly, the contract price for the Property was reduced from £380,000 to £355,000, with an additional £2,500 paid as a deposit in relation to the car park space.[13]After completion, Walter Saunders sent Mr and Mrs Thompson a settlement account in respect of transactions in relation to the Property through Walter Saunders’ client account. The settlement account set out these figures: “Purchase price £380,000.00 Stamp Duty (3%) £11,400.00 Stamp Duty on Ground Rent” (New Lease) £100.00 Land Registration fee £300.00 Local Authority search fee £150.00 Our legal charges plus disbursements in £1,071.37 accordance with the accompanying account Landlords solicitors costs for Lease £88.13 engrossment Ground rent to 30.04.2003 £118.32 Water Charge to 30.04.2003 £81.78 Block and Estate Charge to 30.04.2003 £974.40 __________ £394,284.00 __________ DEDUCT Reservation Deposit £1,000.00 Deposit paid on exchange of Contracts £37,000.00 Mortgage Advance (Net) £336,167.00 Allowance for car parking space £22,500.00 _____________ £396,667.00 _____________ AMOUNT DUE TO YOU -£2,383.00 ______________” (The figure for the “Mortgage Advance” showed only the sum from the Bank of Scotland which came into Walter Saunders’ client account; the actual loan under the mortgage also included an application fee of £300 and another fee of £15 due to the bank, so the total loan to Mr and Mrs Thompson was £336,482). The sum of £2,383 to which Mr Thompson refers in paragraph 26 of his second witness statement is the balance on the client account of Walter Saunders after taking account of the sums paid into that account in respect of the acquisition of the Property and the sums then paid out. The settlement account indicated that the sum of £2,383 was due to Mr and Mrs Thompson, although only after taking account of the reservation deposit and deposit paid on exchange of contracts (in the total sum of £38,000), which had in fact been provided by Mr Samad. Stamp Duty (3%) £11,400.00 Stamp Duty on Ground Rent” (New Lease) £100.00 Land Registration fee £300.00 Local Authority search fee £150.00 Our legal charges plus disbursements in £1,071.37 accordance with the accompanying account Landlords solicitors costs for Lease £88.13 engrossment Ground rent to 30.04.2003 £118.32 Water Charge to 30.04.2003 £81.78 __________ £394,284.00 __________ DEDUCT Deposit paid on exchange of Contracts £37,000.00 Mortgage Advance (Net) £336,167.00 £396,667.00 _____________

Mortgage Advance (Net) £336,167.00

[14]This settlement account was enclosed under cover of a letter from Walter Saunders to Mr and Mrs Thompson dated 6 November 2002. Walter Saunders’ letter was in these terms:
“Further to this matter I advise you that we have been informed by the Developers solicitors that the parking space will not be ready for some time. Accordingly they have apportioned a figure of £25,000.00 out of the £380,000.00 purchase price for the parking space. 10% of this sum will be paid on completion of the purchase of the flat. The balance (£22,500.00) will be payable once the parking space is ready. Accordingly I now enclose our Bill of Costs and Settlement Account together with the Completion Statement issued by Barclay Homes from which you will see upon receipt of the mortgage funds we will have more than enough to complete the purchase of the flat on Thursday 7th November 2002. I understand that the balance of £2,383.00 as shown on the Settlement Account will be retained by us in our client account pending your further instructions. I enclose a Variation to Agreement for Lease document provided by the Developers solicitors. Would you both please sign where indicated and thereafter return the document to me in the SAE enclosed.”
[15]In cross-examination, Mr Thompson accepted that he had received that letter and had seen it at the time. That evidence was inconsistent with paragraph 26 of his second witness statement. No doubt with that in mind he was re-examined in relation to this letter, and he changed his story again, once more to claim that he did not think that he had seen the letter. In my judgment Mr Thompson did receive this letter. It was addressed to him and Mrs Thompson at their home address by their own solicitors. It set out details of the transaction as it was completed in which Mr Thompson would plainly have had an interest. It enclosed a variation to agreement for the Lease which appears to have been executed by Mr and Mrs Thompson in due course. I consider that his denial in his second witness statement that he received this document or knew about the surplus money was a further attempt to obfuscate and give the impression to the court that he had simply left all matters of paperwork to be dealt with by Mr Samad.[16]In my view, Mr Thompson knew very well what was happening in relation to the transaction at each stage. There was a basic inconsistency in the evidence that he gave while in the witness box. At one point, for one purpose, he told me that he ran “a tight ship” in relation to his financial affairs. But at other points in his evidence he sought to suggest that he had next to no interest in or knowledge of the details of the purchase of the Property, even though that was clearly a significant transaction affecting him and his wife. I did not believe this suggestion. In my judgment, Mr Thompson did run a tight ship so far as his financial affairs were concerned. He was actively engaged in purchasing other properties as investments on a buy-to-let basis. In order to do that he had remortgaged one of the other properties which he then owned. None of this would have been possible, it seems to me, without Mr Thompson maintaining a careful grip on and understanding of his financial affairs as they developed from time to time.[17]Accordingly, I find that Mr Thompson did have a good and detailed understanding of the nature of transactions which affected him and his wife and of the financial and legal arrangements in relation to them at each stage. The reason for his comparative lack of activity in relation to his acquisition of the Property is to be explained by the fact that he had indeed agreed with Mr Samad that he and Mrs Thompson would purchase the Property but hold it for the benefit of Mr Samad, with Mr Samad bearing the whole financial cost of the transaction. In the event, Walter Saunders agreed to treat the surplus £2,838 in their client account as Mr Samad’s money, rather than Mr and Mrs Thompson’s money, and paid it away at Mr Samad’s direction. I find that this was done with Mr Thompson’s agreement, given because he at that stage considered that the purchase of the Property was purely for Mr Samad’s benefit, with Mr Samad in substance providing all the funding for it.[18]Fifth, at paragraph 26 of his second witness statement Mr Thompson said that he thought he had paid the sum of £2,571.01 outstanding in relation to service charges in respect of the Property in late 2004. The reason for that suggestion was again to support his case that he and his wife were truly the beneficial owners of the Property rather than Mr Samad. But it emerged clearly in the course of the hearing - and ultimately Mr Thompson did not seek seriously to dispute it - that that sum due in respect of service charges had been paid in November 2004 by Monopoly on behalf of Mr Samad, and not by Mr Thompson. Again, I find that this part of Mr Thompson’s evidence in paragraph 26 of his second witness statement was put forward to the court with the aim of obfuscating matters, so as to cause confusion and falsely to suggest that Mr Thompson had borne expenses in relation to the Property which he had not.[19]Sixth, in Mr Thompson’s first witness statement (paragraph 24) he made the serious allegation that Mr Samad had sent three “heavies”, or thugs, to see him at his place of work before Easter 2004. But it became clear through examination of the evidence at trial that in 2004 Mr Thompson and Mr Samad were still in reasonably amicable discussions regarding the Property. In cross-examination, Mr Thompson sought to suggest that the thugs had in fact been sent in 2005, not 2004. It was clear that Mr Thompson had not been coerced by any such approach into abandoning his claim to the Property and he did not fear to mention it in both his witness statements, yet there was a complete absence in any correspondence before the commencement of proceedings of any claim or protest by Mr Thompson that Mr Samad had sought to exert unlawful pressure on him in this way. Mr Thompson’s evidence about the alleged incidents was vague and imprecise, changed in cross-examination and was not supported by any other evidence. In my judgment, there is no truth in this allegation. Mr Samad completely denied arranging for any such pressure to be put on Mr Thompson, and I accept his evidence. I consider that Mr Thompson’s evidence on this issue was a deliberate lie by him, in an attempt to prejudice the court’s attitude to Mr Samad and his evidence.[20]So far as concerns Mrs Thompson’s evidence, her witness statement in the proceedings did not deal with any of the central matters of fact. It referred to a “fact-find” document dated 31 July 2003 which had been completed by a mortgage broker, Sean McGeough of In House Mortgages, in relation to a different property at a development called Warwick Chambers in Kensington and in respect of a transaction which did not in the event proceed. The “fact-find” document was not itself a mortgage application but was a document prepared for the internal use of the mortgage broking company for which Mr McGeough worked. On its face it purported to have been signed by Mrs Thompson. She denied that the signature was hers, and that was the object of her witness statement. In fact it emerged in Mrs Thompson’s evidence in cross-examination that it was quite possible that she had spoken to Mr McGeough about this particular transaction, provided him with details in relation to it over the telephone and that he had filled in the form and purported to sign it on her behalf. There were similar forms in relation to Mr Thompson in respect of a property at Warwick Chambers bearing what purported to be his signature (but which he denied he had signed), and for Mr Samad’s younger brother (“Mr Abu Samad”), again in relation to a property at Warwick Chambers which Mr Abu Samad had not signed but which purported to bear his signature. For the purposes of evaluating the claim, these documents and the limited evidence given in relation to them seemed to me to be peripheral. None of them seem in fact to have been signed by the person whose signature appeared on the document. It seems probable that what happened was that Mr McGeough, in preparing these “fact-find” sheets for his own purposes in relation to the Warwick Chambers development, would fill them in using information supplied (probably over the telephone) by each of Mr and Mrs Thompson and Mr Abu Samad and then would purport to sign the documents on their behalf. It does not appear that these documents were used to secure funding from anyone and were, so far as I am aware, purely for internal use by Mr McGeough and the company for which he worked. His practice in relation to producing these documents seems strange, but I did not hear evidence from him and in any event what transpired in relation to a potential set of transactions in respect of Warwick Chambers in mid-2003 has, in my view, no bearing upon the central issues which I have to determine in relation to the claim in relation to the Property.[21]Apart from dealing with this matter, Mrs Thompson’s evidence in the witness box had as its dominant theme that in her relationship with her husband she was happy for her husband to deal with everything in relation to the purchase of the various properties in which they were jointly involved. She did not give a great deal of thought to the various property transactions in which she and her husband were involved, but was happy to let her husband deal with every aspect of them. She was happy to sign documentation in relation to the acquisition of various properties according to what Mr Thompson proposed. Her evidence was exceptionally vague in relation to all matters concerned with the acquisition of the Property. She was concerned to suggest that documentation relevant to the claim may not have been received by her and her husband. In fact, as I find below, she was aware of what was going on at every stage and understood the documentation which she signed from time to time. It is very likely (and I find) that Mr Thompson explained the nature of the transaction in respect of the Property that he had agreed to enter into to assist Mr Samad at the time that he entered into it and that Mrs Thompson was content to go along with it on the basis that Mr Thompson and Mr Samad had agreed. On her understanding at that time it was a transaction whereby Mr Thompson would be assisting Mr Samad (who was a good friend at the time), with the prospect of getting the benefit of potentially lucrative introductions to property investments via Mr Samad in return; and this would be achieved at no cost to Mr and Mrs Thompson, since Mr Samad would bear the full financial burden in respect of the Property and the proposal was that he would take the transfer of it from them, holding them harmless against all costs, within the short period of a year to eighteen months.

The chronology of relevant events

[22]In 2000 Mr Samad was a young man who was running his own business hiring out prestige cars to clients. Some of the cars he owned himself and several cars were in his possession under hire purchase agreements with finance companies. An associate in that business embezzled money from it. There was then an incident, in which that associate appears to have been badly injured. Mr Samad was charged with actual bodily harm in relation to the incident. He was then held in custody on remand for some months. In the event it appears that no evidence was offered by the prosecution at his trial. (The suggestion made on behalf of Mr Thompson was that this was because the associate had left the country and was no longer available as a witness). Mr Samad was then released from custody. However, whilst he was in prison the car hire business which he had been running collapsed. He was not able to manage its affairs while in prison and significant outstanding payments under the hire purchase agreements with hire purchase companies were not made, with the result that they took possession of the vehicles which they owned. The net effect of this was that Mr Samad’s credit rating was very badly affected. This is a matter which forms the background to the arrangement which he later entered into with Mr and Mrs Thompson.[23]Upon coming out of prison in 2001, Mr Samad took some time to go and visit family relations in Dubai. In discussions in Dubai he came up with the idea of setting up a property company on his return to the United Kingdom which would seek to negotiate special deals with property developers and builders for sales of property at discounted rates to clients which Mr Samad would introduce to them. The idea was that Mr Samad would take a commission for introducing such business.[24]At this time Mr Samad was very friendly with Mr Thompson. Mr Thompson was a car mechanic who had been involved for some time in dealings with Mr Samad in relation to his car hire company. They had struck up a friendly relationship and had become close in their dealings with each other. Mr Samad suggested to Mr Thompson that he would be able to introduce Mr Thompson to potentially lucrative property transactions. The London property market was rising strongly at this time and Mr Thompson was very interested in this proposal.[25]In May 2002 Mr Samad had decided that he wished to pursue the property opportunities that he could identify in conjunction with his brother, Mr Abu Samad. Monopoly was incorporated with the aim that it would ultimately become the trading vehicle for their business in the future. Mr Abu Samad was the sole shareholder and the sole director of Monopoly. Their mother became Company Secretary. Mr Samad’s aim was to introduce contacts to invest in the United Kingdom through Monopoly. The basic proposal was that Mr Samad would seek to introduce business to Monopoly and would be paid commission by Monopoly for doing that, while Mr Abu Samad would own the company and have the benefit of any increase in its value over time. However, it took some time for the arrangements in relation to the running of the business by Monopoly to be sorted out and Monopoly did not officially start trading until June 2003. Between May 2002 and June 2003 Mr Samad and Mr Abu Samad worked together to develop their property-related contacts and a client base and to source properties for clients in return for finder’s fees. In the course of doing this Mr Samad met Mr Jon Gow of FPD Savills, who acted as selling agents for a number of property development companies. Mr Gow was a useful contact, who informed Mr Samad of various property investment opportunities.[26]As well as seeking to build up a new business on his return to the United Kingdom, Mr Samad was also concerned to sort out his own accommodation. In 2002 he was living with his then girlfriend, but they separated and Mr Samad needed to find a place of his own to live in. At that time Mr Gow made him aware of a development at 9 Albert Embankment. Mr Samad was able to negotiate for the purchase of two flats in that development at a preferential price compared to the marketing price. Mr Samad considered that one of the flats (no. 82) would be ideal for him to purchase as his own home. He then sought to find a buyer for the other flat (no. 81) so that the transaction could proceed at the preferential price that he had negotiated. The preferential price he negotiated was available on the basis of a quick exchange. Mr Samad found a friend, Mr Edu, who was willing to buy flat81. Mr Samad paid a reservation deposit to the freehold owner of the development of £1,000 in respect of flat82. That is the £1,000 “reservation deposit” shown on the Walter Saunders settlement account set out at paragraph [13] above. The marketing price for flat 82 was £430,000, but the discounted price which Mr Samad was able to negotiate for it (together with an associated car park space) was £380,000.[27]At the time that Mr Samad was looking into acquiring flat 82 for himself he made inquiries of Mr McGeough, who was a mortgage broker known to him, to see whether it would be possible for him to obtain mortgage finance for the transaction. Mr McGeough informed him that there was no chance of doing this because of Mr Samad’s then poor credit rating. Mr Samad therefore decided that it would be necessary to find someone who could purchase the Property for him using mortgage finance obtained in their own name, but on the basis that he would service the mortgage and that they would hold the Property as property for him to be transferred to him at some later point in time. In his evidence he talked about the proposed arrangement as a nominee arrangement. However, it is clear that the substance of the arrangement which was to be proposed was that the person helping him would himself acquire the property and take out a mortgage in respect of it against an agreement with Mr Samad later to pay off the mortgage loan and have the Property transferred to himself. There was a faint suggestion made at one stage by Mr Paraskos in the course of cross-examination that this proposed arrangement was to involve fraud on the bank providing the mortgage advance, but I am satisfied that that was not in fact the case. So far as the bank would be concerned, it would be involved in a straightforward transaction with the purchaser of the Property to whom it would loan money on the security of a mortgage of the Property, and any arrangement the purchaser might have with other persons such as Mr Samad in relation to dealing with the Property would be a matter for them which did not affect the bank.[28]The first person that Mr Samad approached to act for his benefit in acquiring the Property was Mrs Mbamali. Mrs Mbamali gave evidence. She explained that she had a close relationship with Mr Samad, who was a friend of her son, and that she regarded Mr Samad as like a son. She was actively involved in acquiring buy-to-let properties and said that she would be willing to help out Mr Samad in the way that he requested if she possibly could. He explained that he was sure that his new business would take off, that he would be in a position to obtain his own finance in due course, and that he would require that the Property be transferred into his own name once he was able to arrange alternative finance within a period of about a year to eighteen months. Mrs Mbamali applied to her bank for a mortgage. However, her application encountered difficulties and it appeared that it was not something that she would be able achieve speedily. Mr Samad was anxious not to lose the opportunity to buy the Property at the discounted price he had negotiated, so he then looked around for another of his friends to act to purchase the Property for his benefit under the same arrangement. Mrs Mbamali introduced Mr Samad to her long-term solicitor, Mr Andrew Currie of Walter Saunders, in order to provide assistance in dealing with any conveyancing in relation to the Property.[29]At this stage Mr Samad had introduced Mr Thompson to an investment opportunity to purchase a buy-to-let flat in a development at New Palace Place in Westminster. Mr Thompson had remortgaged one of his properties in order to acquire finance to participate in this transaction. He put down an initial deposit and entered into a contract for the purchase of a flat at New Palace Place. The development was still being built and it was contemplated that completion would be some time in the future. Mr Thompson was grateful to Mr Samad for introducing him to this investment opportunity and was eager to be involved in future potentially lucrative investment opportunities that Mr Samad might be able to bring his way. Mr Samad regarded Mr Thompson as a close friend at this time and also felt that he had done him a favour in introducing him to the New Palace Place transaction. Accordingly, when Mrs Mbamali was unable to help him in acquiring the Property Mr Samad approached Mr Thompson and explained the situation in which he found himself, being then unable to take out a mortgage to acquire the Property. He explained that he wanted to purchase the Property as his home and asked whether Mr Thompson would be prepared to take the place of Mrs Mbamali and obtain a mortgage and acquire the Property in his own name, but on the basis that Mr Samad would pay everything in relation to the transaction including the deposit, legal fees, stamp duty and other expenses and all mortgage payments and that the Property would be transferred to Mr Samad within about a year to eighteen months. By that stage, Mr Samad said, he was confident he would be able to raise his own finance to pay off the mortgage advance to Mr Thompson. Mr Thompson agreed that he would do this in order to help out Mr Samad. This is the critical oral agreement that was made between them and I prefer the evidence of Mr Samad in support of the agreement to that of Mr Thompson, who denied that it was ever made.[30]I have considered carefully whether it is credible that Mr Thompson would have agreed to assume the burden of borrowing and a mortgage in order to acquire the Property for the benefit of Mr Samad rather than for himself. In my judgment, in the particular context of their close personal relationship at the time, this is credible and indeed what happened. From the point of view of Mr Thompson, I find that he was grateful to Mr Samad for the introduction to the New Palace Place investment, he was also eager to participate in further property investments and he regarded Mr Samad as a person with good contacts in the property world who would be in a position to bring particularly lucrative deals in Mr Thompson’s direction. Mr Thompson’s evidence was that in 2002 it was easy for him and his wife to secure mortgage finance. Mr Thompson regarded the property transactions which Mr Samad was able to tap into through his contacts as being very profitable, so I consider that he had no serious concerns so far as concerned Mr Samad’s assurance that he would be able to raise the finance to take the Property off Mr Thompson’s hands in due course. It is also striking that in August 2003 Mr Thompson himself accepts that he lent Mr Samad the sum of £37,023 to help him out in relation to another property transaction in respect of the Warwick Chambers development: see paragraphs [80] to [82] below. This demonstrates that there clearly was a very high level of trust reposed by Mr Thompson in Mr Samad at this time and that Mr Thompson was prepared to do Mr Samad very considerable favours, no doubt out of friendship but also in the hope of receiving significant benefits in return.[31]I have also considered carefully whether it is credible that Mr Samad would have entered into the arrangement he has described with Mr and Mrs Thompson without making sure that the details were recorded in writing before he provided money for the acquisition of the Property. In my judgment, it is credible. Mr Samad was a young man and inexperienced in property transactions. Mr Thompson was a close friend, and Mr Samad was used to conducting his financial relations with him on a very informal basis, on a foundation of a high degree of trust between them. Mr Samad was foolish in relation to how he entered into this transaction with Mr and Mrs Thompson, but I do not conclude from this that his evidence regarding the transaction should be disbelieved.[32]From Mr Samad’s point of view there would have been no point in pursuing a transaction along the lines which Mr Thompson said had been agreed, providing the deposit to acquire the Property but then agreeing to meet the mortgage payments and service charges by way of rent without acquiring any equity interest in the Property as a result. Mr Samad was actively involved in pursuing property investment opportunities and had a clear view that prices of properties were likely to rise strongly. Against that background it is very improbable that he would have agreed to provide Mr Thompson with a property at a very preferential discounted price which Mr Samad had himself negotiated, on the basis that Mr Samad was simply to occupy it as a tenant paying rent that would cover the mortgage payments. It is much more likely that if that was all that was on offer from Mr Thompson, Mr Samad would have chosen to seek to persuade some other client or friend to purchase the Property (or some other suitable flat) under the same basic arrangement as he had proposed to Mrs Mbamali, so as to leave him as the beneficial owner of a property for which he was going to pay all the associated costs and mortgage repayments.[33]Further, on Mr Thompson’s version of events it is inexplicable why Mr Samad should himself have paid the £38,000 deposit in respect of the Property. The proposed transaction in relation to the Property was not in the nature of the different form of transaction which took place in relation to the Putney West property which I describe below. In relation to the Property, neither Mr Samad nor Monopoly was to be the purchaser of the property from the development company which owned it (Berkeley Homes (City and East London) Ltd - “Berkeley”), with a view to selling it on as principal to a client. The nature of the transaction proposed here, as Mr Thompson knew, was that Mr Thompson should purchase the Property direct from Berkeley. In the course of such transaction there would be no point at all in Mr Samad paying the deposit unless it was indeed the arrangement between him and Mr and Mrs Thompson that they would hold the property for his benefit.[34]Moreover, Mr Thompson paid no commission or finder’s fee to Mr Samad for introducing the Property to him. In the context of a transaction where Mr Samad had negotiated such an attractive discount from the marketing price, I think that the only credible explanation for this is that Mr and Mrs Thompson did indeed agree to purchase the Property for the benefit for Mr Samad.[35]Finally, Mr Samad’s version of events is strongly corroborated by the other witnesses who gave evidence for him in the proceedings and by the documentary material available to the court. For example, it was the evidence of Mr Yonter Asim, a friend of Mr Thompson, that he originally learned of the arrangement that Mr and Mrs Thompson had purchased the Property for the benefit of Mr Samad because Mr Samad had difficulties at the time in obtaining a mortgage from a conversation with Mr Thompson himself. Mr Samad impressed me as a truthful witness. Accordingly, for all these reasons, I find that the account which he gave in his evidence about the transaction is truthful and I disbelieve Mr Thompson’s account.[36]At the time of their oral agreement, Mr Samad offered Mr Thompson the immediate return favour of waiving 50% of the commission of £12,000 which Mr Thompson was to pay for the introduction to him of the property transaction in relation to New Palace Place. The total commission due was £12,000, which was to be split between Mr Samad and a business associate who had had a role in introducing the transaction. Mr Samad agreed with Mr Thompson that if Mr Thompson would do the favour for him in acquiring the Property, the whole of Mr Samad’s share in this commission would be waived. When Mr Thompson agreed that he and his wife would acquire the Property for Mr Samad, Mr Samad duly waived his fee in relation to New Palace Place.[37]When Mr Thompson indicated that he was willing to act to acquire the Property, Mr Samad arranged for the same mortgage broker that he had used before, Mr McGeough, to act for Mr Thompson in securing the necessary mortgage to acquire the Property. Mr Samad also sent Mr Thompson a letter intended to record the nature of the relationship between them and the basis on which the Property was to be acquired by Mr Thompson. This letter, dated 2 October 2002, was in the following terms:
“Re. Flat 82, 9 Albert Embankment, London, SE1 7HD This agreement is made on the … between Mr. A. Samad of 152 Barley Lane, Goodmayes, Ilford, Essex, IG3 8XP and Mr. D. Thompson of 4 Orchard Way, Chigwell, Essex, IG7 6EE. The following terms set out the basis of this agreement. It is agreed Mr. D. Thompson shall act as a nominee on behalf of Mr. A. Samad upon the purchase of Flat 82, 9 Albert Embankment, London, SE1 7HD. Mr. D. Thompson shall purchase the property in his name on behalf of Mr. A. Samad with the aid of a mortgage. It is agreed Mr. A. Samad shall pay the deposit, stamp duty and all other legal expenses required to purchase the above property. It is also agreed that the mortgage payments as well as service charge and any other applicable costs regarding the property shall be paid by Mr. Samad. The above parties also agree that within 12 to 18 months after completion, Mr. D. Thompson will transfer the property into the sole name of Mr. A. Samad in return for introducing investment deals to Mr. Thompson at a reduced price. The above terms form a binding agreement between both parties in regards to Flat 82, 9 Albert Embankment, London, SE1 7HD. Signed as agreed by both parties:-”
Signed as agreed by both parties:-”[38]The intention plainly was that Mr Thompson and Mr Samad should each countersign this document to stand as a written record of their agreement. Mr Thompson denies that he ever received the letter. However, in my view, the likelihood is that he did receive it and I so find. It set out what had already been agreed orally between Mr Samad and Mr Thompson. Mr Thompson did not sign the letter or return it and Mr Samad did not follow the matter up at this stage. Mr Samad did not wish to place Mr Thompson under pressure to return the signed letter since Mr Thompson was doing him a favour, they were working together on the basis of mutual trust and confidence, and Mr Samad did not wish to give the impression that he felt that he could not trust Mr Thompson and take him at his word. Mr Thompson did not write back or respond in any way to deny the nature of the agreement that Mr Samad had set out in the letter, as one would have expected if what the letter said was untrue.[39]Mr Thompson made an application for a mortgage in respect of the Property in his name alone, but it transpired that it could not go through and that an application in the joint names of Mr and Mrs Thompson was required.[40]When the transaction was first proposed by Mr Samad and again at this point, I find that Mr Thompson explained the transaction to Mrs Thompson. The overwhelming probability is that Mr Thompson explained to his wife that he was acquiring the Property to hold it for the benefit of Mr Samad who wished to acquire it as his home. Also, the probability is that Mr Thompson explained to his wife that Mr Samad would bear the whole cost of the transaction and that the Thompsons would benefit from it in relation to waiver of commission payments on other transactions and the possibility of introduction to other lucrative deals in the future. Mrs Thompson was prepared to go along with the transaction on the basis that it would involve no financial cost to the Thompsons and would provide them with benefits from Mr Samad. I find that having made sure that Mrs Thompson was happy to proceed with the transaction, Mr Thompson then confirmed to Mr Samad that he and Mrs Thompson were willing to proceed with the transaction as had been discussed previously. His agreement to what Mr Samad had proposed was given on behalf of both himself and Mrs Thompson and with Mrs Thompson’s full knowledge and authority.[41]Prior to the purchase of the Property neither Mr nor Mrs Thompson visited it. Mr Samad, however, did visit the Property on a number of occasions. This feature of the case again reflects the underlying nature of the transaction, whereby Mr and Mrs Thompson were acquiring the Property not for their own benefit but for the benefit of Mr Samad, who wanted to acquire it as his home.[42]Mr Samad arranged for Andrew Currie of Walter Saunders to act for Mr and Mrs Thompson in purchasing the Property. It is probable that Mr Samad was copied into much of the relevant legal and banking documentation in relation to the transaction. On 9 October 2002 Walter Saunders sent documents to both Mr Samad and Mr and Mrs Thompson in relation the Property. The document headed “Bill of Costs” setting out Walter Saunders’ professional fees and disbursements in the sum of £1,069.37 bore the reference “AC/Samad”. A document in similar terms but headed with the reference “AC/Thompson” and recording that the bill was payable by Mr and Mrs Thompson was also sent out on that date. A further document was sent out on the same day headed “Financial Statement – Purchase”. The reference on this document was “AC/Thompson”. It showed the purchase price to be £380,000 with an additional £13,181.24 due in respect of legal fees and other expenses relating to the transaction. It also showed that a reservation deposit of £1,000 and a deposit of £37,000 had also been paid. It is likely, and I find, that all of these documents were sent both to Mr Samad and to Mr and Mrs Thompson by Walter Saunders. By Walter Saunders’ covering letter dated 9 October 2002 to Mr Samad, Mr Currie asked for clarification as to the name in which the Property was to be purchased. He indicated that a copy of a form of identification for the buyer, such as a passport, would be required. He drew attention to the fact that it would be possible to exchange contracts subject to mortgage. This information was clearly shared between all the parties, since Walter Saunders received instructions to proceed to exchange contracts subject to receiving a satisfactory mortgage offer within 10 days.[43]A mortgage application was duly made by Mr and Mrs Thompson jointly to Bank of Scotland. Walter Saunders wrote to Mr Thompson (but at Mr Samad’s address) by letter dated 15 October 2002 to confirm that contracts had been exchanged with Berkeley in relation to the Property at the price of £380,000. The contract was expressed to be subject to Mr and Mrs Thompson obtaining a mortgage.[44]So far as the funding of the £38,000 deposit in relation to the Property is concerned, at the time of exchange of contracts Mr Samad had already paid £1,000 as a reservation fee in relation to the Property. On 11 September 2002 Mr Samad paid the sum of £7,000 into the bank account of Mr and Mrs Thompson with HSBC (the payment slip suggested, in error, that it was paid to Walter Saunders) and a further sum of £10,000 into the Walter Saunders client account. These sums were paid in by way of cash deposits representing part of the proceeds of cars which Mr Samad had owned in relation to his car hire business and had then sold. On 19 September 2002, Mr Samad paid additional sums into the bank account of Mr and Mrs Thompson in the amounts of £10,000 and £3,000 (making a total of £20,000 paid into their account). These sums were again paid in cash. Mr and Mrs Thompson’s account with HSBC having been put in funds by Mr Samad by these various payments totalling £20,000, on 20 September 2002 Mr Thompson signed a request to HSBC for a banker’s draft in favour of Walter Saunders in that amount, specified to be in relation to the Property. That banker’s draft was issued and the payment was made to Walter Saunders. Mr Samad also arranged for Mrs Mbamali’s son, Ike Mbamali, to make a payment of £14,500 on Mr Samad’s behalf into the client account of Walter Saunders by way of a banker’s draft dated 20 September 2002. As Mr Mbamali confirmed, this payment represented a sum of £7,000 which Mr Samad paid into his account for this purpose (Mr Samad did not have a United Kingdom bank account of his own which he could use) plus repayment by Mr Mbamali of £7,500 he owed Mr Samad. Walter Saunders drew on these various sums provided to them by Mr Samad to meet the balance of the deposit due in respect of the Property of £38,000.[45]In late 2002, Walter Saunders were also acting for Mr and Mrs Thompson in relation to the purchase of the property at New Palace Place and were negotiating with the solicitors for the development company in relation to that development. In the event, Mr and Mrs Thompson exchanged contracts with the development company in relation to that property on 21 November 2002, paying the deposit themselves. The contrast between the arrangements for payment of the deposit in relation to the Property (paid by Mr Samad) and in relation to New Palace Place (paid by Mr and Mrs Thompson) again reinforces the impression that the arrangement in relation to the Property was as described by Mr Samad, namely that it was being acquired by Mr and Mrs Thompson but for his benefit.[46]On 23 October 2002 Bank of Scotland made a formal mortgage offer to Mr and Mrs Thompson in relation to the Property. By letter dated 30 October 2002 Walter Saunders wrote to Mr and Mrs Thompson at their address to confirm that the mortgage offer had been received and that they had advised the seller’s solicitors accordingly. The seller’s solicitors had served notice pursuant to the terms of the contract requiring completion on 7 November 2002. Walter Saunders enclosed the mortgage deeds in favour of Bank of Scotland for signature by Mr and Mrs Thompson. The letter went on to draw their attention to general conditions relating to the mortgage. Point 4 stated:- “4. You are not to let or share occupation of the property without the consent of the Lender. Would you please confirm to us that only you intend to occupy this property. If there is to be anyone else over the age of 17 residing at the property please let me know their full names. They will be required to sign a form of consent in favour of the Lender.” The letter concluded by asking for copies of the passports of Mr and Mrs Thompson as previously requested, since these would be required in order to secure the release of the mortgage funds from Bank of Scotland.[47]I find that Mr and Mrs Thompson received this letter and provided the mortgage deeds and copies of passports which Walter Saunders requested in order for the mortgage transaction to be finalised, as it duly was. It also seems that Mr Samad received a copy of this letter at some stage, although it is unclear when he did so (a copy of it was included in the documents provided by Mr Samad in the course of disclosure in these proceedings).[48]In response to item 4 in the letter quoted above, it is unclear whether Mr and Mrs Thompson did provide the confirmation that was requested. It seems likely, however, that they did not draw the attention of Bank of Scotland to the fact that the arrangement was for the Property to be occupied by Mr Samad. Mr Samad’s evidence, which I accept, is that he had explained to both Sean McGeough and Walter Saunders at an earlier stage that the Property was being acquired for him to live in; he did not think that there was any reason for him to approach the bank. Mr Samad denied that he had any intention to mislead Bank of Scotland, and I accept his evidence in that regard. Mr Thompson did not suggest that there was any scheme between him and Mr Samad to mislead the bank. On the evidence available to me, I think the likelihood is that neither of them focused on this matter at the time or thereafter, that Walter Saunders did not follow up their request for confirmation and Mr and Mrs Thompson simply did not address it. No case has been put that Mr Samad and Mr and Mrs Thompson were involved in any form of conspiracy to mislead the Bank of Scotland. Nor has any case been put that the arrangement between them should be unenforceable on grounds of illegality.[49]Also on 30 October 2002, Mr Currie of Walter Saunders wrote to Mr Samad in relation to the Property, enclosing a copy letter from the seller’s solicitors serving notice requiring completion on 7 November 2002 (this letter was not available to the court) and confirming that he had forwarded the mortgage deeds to Mr and Mrs Thompson for their signatures. It appears by implication from that letter that the letter to Mr and Mrs Thompson of 30 October 2002 quoted at paragraph [46] above was probably not copied to Mr Samad at that time, but came into his possession at some unknown time later on.[50]On 31 October 2002 Walter Saunders prepared the settlement account for the purchase of the Property by Mr and Mrs Thompson to which I have referred in paragraph [13] above. By a statement dated the same date Walter Saunders sent Mr and Mrs Thompson a statement of their professional charges and disbursements in the sum of £1,071.37. The same day, Walter Saunders also sent Mr and Mrs Thompson a copy of the counterpart lease and invited them to sign it. It appears that in due course this was done.[51]On 6 November 2002 Walter Saunders wrote to the Defendants the letter which I have set out at paragraph [14] above. The letter drew attention to the fact that Berkeley was not in a position to provide the car park space which had been included in the original contract price of £380,000. Instead, Berkeley proposed a reduction in the price due on completion of £25,000. At the same time, there was to be agreement that a car park space would be provided in due course and a deposit of 10% (i.e. £2,500) in respect of that eventual provision was to be paid. These were significant changes to the original contract and I find that they must have been debated by Mr Samad and Mr Thompson, and by Mr and Mrs Thompson between themselves, and agreed by all of them. Walter Saunders were therefore given instructions to proceed with the transaction on this new basis.[52]Walter Saunders’ letter also referred to the surplus of £2,383 left in the client account in relation to the transaction. Since the monies in Walter Saunders’ client account had come from two sources, namely Mr Samad in providing the deposit and Mr and Mrs Thompson in providing the mortgage advance, Walter Saunders appear not to have been certain as to how this surplus money should be used. Mr Thompson made no claim that the surplus funds should be used for his benefit and it is clear that they were in fact used at the direction of Mr Samad: see paragraph [17] above. It is probable, and I find, that this use of the surplus monies reflects the underlying agreement of Mr Thompson and Mr Samad that the Property was being acquired for Mr Samad’s benefit and that Mr Samad would meet the whole financial cost of the acquisition and arrange for the discharge of Mr and Mrs Thompson’s borrowing and mortgage within about a year to eighteen months. On that footing it made sense for the parties to treat the surplus as being available for Mr Samad, not for Mr and Mrs Thompson. In light of the way the surplus monies in the client account were released by Walter Saunders for another property transaction in due course undertaken by Mr Samad and Monopoly at Paddington Basin, it is probable, and I find, that there was discussion between Mr Thompson, Mr Samad and Walter Saunders about what should happen to those surplus monies and the position was clarified for Walter Saunders: i.e. that they should treat those monies as available for Mr Samad, not for Mr Thompson.[53]Walter Saunders received a net mortgage advance of £336,167. In effect, the legal fees and expenses in connection with the transaction were all treated as being paid out of the mortgage advance. This feature of the transaction does not sit easily with Mr Thompson’s evidence that Mr Samad had agreed to pay the legal fees and other expenses of the transaction, except on the footing that the underlying nature of the transaction was as Mr Samad has described, i.e. as a transaction where the whole financial cost was ultimately to be for Mr Samad’s account either by payment at the time of the transaction or by discharging Mr and Mrs Thompson’s indebtedness in relation to the mortgage in due course after a year to eighteen months.[54]On 7 November 2002 the contract for the acquisition of the Property by Mr and Mrs Thompson from Berkeley was completed. In due course, Walter Saunders arranged for payment of stamp duty to the Inland Revenue out of their client account. Upon completion, it was Mr Samad who collected all the keys for the Property and who took up immediate occupation.[55]Mr Samad then spent some time buying items for the Property and fitting it out according to his own taste. He fitted wooden floors and had special polished plaster finishes applied to the walls. He ordered a sofa and arranged for his mother to pay for it on her credit card for his benefit. He signed a satellite contract with Sky in December 2002 and had a satellite reception dish installed. He commissioned an interior design company to provide furniture and accessories such as curtains. He spent a sum in the order of £8,000 for furniture and fittings and an additional £6,500 for the special flooring and polished plastering for the walls. The only reason he engaged in these expenses was that he understood that the Property had been acquired for his benefit as his home.[56]As stated in paragraph [45] above, on 21 November 2002 Mr and Mrs Thompson exchanged contracts in relation to the purchase of the property at New Palace Place. At that time, they also took the benefit of the waiver of £6,000 commission which had been allowed to them by Mr Samad in return for agreeing to act for his benefit in relation to the acquisition of the Property. Mr and Mrs Thompson had no good explanation why Mr Samad should have waived that commission. In my view, the fact that he did so supports his evidence that the waiver was a reciprocal favour for the benefit of Mr and Mrs Thompson in acknowledgement of the assistance they were providing Mr Samad in the purchase of the Property.[57]On 6 December 2002 a first registration application in respect of the Property was lodged with HM Land Registry. The document was lodged by Walter Saunders. It showed Mr and Mrs Thompson as the joint owners of the Property. The document made no reference to any agreement with Mr Samad. It indicated that Mr and Mrs Thompson were holding the Property on trust for themselves as joint tenants.[58]After the completion of the purchase of the Property it appears that the first monthly mortgage payments due in respect of it, each in the sum of £1,402.01 due on 6 December 2002, 6 January 2003 and 6 February 2003 were paid out of the Thompsons’ mortgage account with Bank of Scotland. The first of these payments was quickly covered by a payment by Mr Samad to Mr Thompson. The second and third payments were met by Mr Samad in the circumstances described below.[59]After the initial payments of sums due on the mortgage by Mr and Mrs Thompson, Mr Samad then arranged to make the mortgage repayments directly himself. At that time it is likely, and I find, that he established with Bank of Scotland a password in order to allow him to have access to the mortgage account for the purpose of making repayments. The payments made by Mr Samad of the sums due under the mortgage commenced from 6 March 2003 and continued thereafter until eventually Mr Samad’s access to the mortgage account to pay the sums due was blocked by Mr Thompson in 2006.[60]In about April or May 2003, Mr Samad went to visit Mr Thompson to discuss their financial arrangements. At that time, Mr Thompson was in the King George Hospital in Goodmayes, Essex, being treated for a severe infection of his right hand which caused him to be off work for a period of about three months. It is likely that Mr Thompson would have had difficulty in writing at the time because of the infection of his right hand. Mr Samad’s evidence is that certain manuscript documents were discussed between them at this meeting. Mr Thompson denies that such a meeting took place and denies ever having seen the manuscript documents. I prefer Mr Samad’s evidence on this point.[61]The first manuscript document is in Mr Samad’s handwriting. It records payment of the sums due in relation to the mortgage as follows: 6 December 2002 paid by Mr Samad (this reflecting the reimbursement by Mr Samad of the first payment by Mr and Mrs Thompson), 6 January 2003 payment by Mr and Mrs Thompson, 6 February 2003 payment by Mr and Mrs Thompson (these two payments had against them the note “£2,800 I owe”, indicating that Mr Samad accepted his responsibility to repay the Thompsons in respect of these sums), and 6 March 2003 payment by Mr Samad. There was then a note that “Don” (i.e. Mr Thompson) owed Mr Samad £1,000 “personal” (this sum reflected money that Mr Samad had lent to Mr Thompson) plus £2,750 “from Yon” (this sum reflected monies that Mr Samad had lent to Mr Yonter Asim, a friend of Mr Thompson’s, by giving the money to Mr Thompson on the basis of an arrangement that Mr Asim would repay it via Mr Thompson; and reflecting the fact that Mr Asim had given this sum back to Mr Thompson for onward transmission to Mr Samad). From the total of £3,750 due from Mr Thompson to Mr Samad the note showed a deduction of the £2,800 designated with the reference “I owe 2 D + F for Jan. + Feb. payments” (i.e. which Mr Samad acknowledged he owed to Mr and Mrs Thompson for the mortgage payments in January and February 2003). The note went on to record that Mr Samad also owed Mr Thompson “3,000 from car payment” (a sum due in respect of actions Mr Thompson had taken in relation to Mr Samad’s cars, in arranging for the sale of one of them). The note also recorded that Mr Samad owed Mr Thompson certain payments in respect of insurance that Mr Thompson had taken out in relation to cars previously owned by Mr Samad, amounting to 7 payments of £51.50 totalling £360.05 (this reflected insurance payments due to a company called Can Do Finance Ltd, and corresponded with details set out in a letter from Can Do Finance Ltd to Mr Thompson dated 23 September 2002). Taking all the pluses and minuses down to that point in the calculation, the document showed “grand total still to pay Don [Mr Thompson]” of £2,410.05. It then showed two other adjustments which it is not necessary to go into.[62]This document was prepared at the time by Mr Samad for his own purposes. He did not show it to Mr Thompson. It indicates that Mr Samad understood that the arrangement between them was that he would meet all the mortgage payments in respect of the Property, and it set out a reconciliation of sums due between them indicating that in substance Mr Samad had met all the mortgage payments.[63]The next of the manuscript notes is not in Mr Samad’s handwriting. Mr Thompson said that he was not able to write at this time. I think that it is probable that this document and the next page of manuscript notes in the same handwriting was written out by Mrs Thompson or someone else for Mr Thompson and then given to Mr Thompson for the purposes of his meeting with Mr Samad to discuss their mutual financial arrangements. I accept Mr Samad’s evidence that this document was discussed by Mr Samad and Mr Thompson at their meeting. The top of the page shows seven entries of £51.50 each, totalling £360.05. These entries are under the heading “BFS Limited” and the dates of the payments do not precisely correspond with the dates of payments due shown in the Can Do Finance Ltd document. Nonetheless, they broadly correspond with that document and the figure of £360.05 corresponds with the same figure marked “ins payment” (short for “insurance payment”) in Mr Samad’s manuscript document. I think it likely that these figures do reflect the Can Do Finance Ltd insurance payments which Mr Thompson had had to make for Mr Samad’s benefit.[64]On the second half of the page there is the heading, “Bank of Scotland”. The document then set out the following entries:
“First payment paid 6/12/02 £1,402.01 Ajay [i.e. Mr Samad] paid 12/12/02 £1,350.00 Bank Charges £37.50 Bank Charges £37.50 Paid 8/1/03 £1,402.01 Paid 7/2/03 £1,402.01 Cancelled 6/3/07”
It is probable that these entries show the first mortgage payment from Mr and Mrs Thompson’s account on 6 December 2002 in the sum of £1,402.01, then that being substantially reimbursed to them by Mr Samad making a payment on 12 December 2002; that Mr and Mrs Thompson had paid from their account a mortgage payment on 8 January 2003 (two days late) and a further such payment on 7 February 2003 (one day late). It is likely that the bank charges shown relate to the lateness of those two payments. The entry “Cancelled”, for 6 March 2003 was not explained in evidence. I think it likely that it refers to cancellation of the mortgage payment by Mr and Mrs Thompson scheduled for that date, but which was in fact made by Mr Samad. The page appears to me to set out figures indicating claims that Mr and Mrs Thompson were making against Mr Samad at this time.[65]The final page of manuscript notes, at the top of the page, is in the same handwriting. It also was discussed at the meeting. It provides details of Mr and Mrs Thompson’s account with NatWest bank including branch details, sort code and account number. At the foot of the page are manuscript notes written (as I accept, on Mr Samad’s evidence) by Mr Samad at the meeting with Mr Thompson and discussed with him. These indicated that Mr Samad owed Mr Thompson £2,050, taking account of sums which Mr Samad owed him in relation to the transaction involving one of his cars plus the £360 odd which Mr Samad owed him in relation to the car insurance. The figures in this calculation reflect the figures on the first page of the manuscript notes to which I have referred.[66]Mr Samad’s evidence was that these documents showed a detailed working out of a reconciliation of balances due to and from Mr Samad and Mr Thompson in relation to a variety of transactions between them, on the footing that all the mortgage payments in respect of the Property were throughout being treated as for Mr Samad’s account and that the payments in January and February 2003 were to be treated as paid by him by means of this reconciling transaction. I accept Mr Samad’s evidence on this point.[67]The overall figure of £2,410 shown as due to Mr Thompson from Mr Samad was reduced as shown on the sheets by a payment of £500 which Mr Samad had given to Mr Thompson at Barkingside (on the first sheet the note suggested that this was a sum that Mr Thompson had paid Mr Samad at Barkingside but the calculation shows that it was being treated as a reduction in what Mr Samad owed Mr Thompson), and the notes showed that the remaining sum due from Mr Samad of £1,910 odd was outstanding.[68]Mr Samad met this obligation by giving a sum of £2,000 in cash to Mr Abu Samad to take to Mr Thompson in the King George Hospital. Mr Samad told his brother that the money was for mortgage monies owed to Mr Thompson regarding the Property. Mr Samad gave Mr Abu Samad the money to pass to Mr Thompson because at that time Mr Abu Samad was living with his parents at their home in Goodmayes, a short walk away from the hospital. On the occasion of his visit to the hospital, Mr Abu Samad also took Mr Thompson some of his mother’s cooked food. According to Mr Abu Samad, they spoke together about how happy Mr Samad was with his flat; Mr Abu Samad thanked Mr Thompson for his assistance in helping him to purchase it; and Mr Thompson responded that he was pleased he could assist. Mr Thompson denied that any such discussion occurred. However, I prefer the evidence of Mr Abu Samad. On the account given by Mr Abu Samad, their discussion is only explicable on the footing that there had been an agreement between Mr Samad and Mr and Mrs Thompson of the kind that Mr Samad has described in his evidence.[69]Mr Samad asked Mr Thompson to cancel the direct debit by which mortgage payments were made out of the Thompsons’ account and it appears that Mr Thompson did this. After the reconciliation and balancing payment had been made, all further payments due under the mortgage were made by Mr Samad, or by Mr Abu Samad on Mr Samad’s behalf or by Monopoly on Mr Samad’s behalf.[70]So far as the payments made by Mr Abu Samad and by Monopoly in relation to the mortgage were concerned, they were recorded between Mr Samad, Mr Abu Samad and Monopoly as “rent” in the early phase. This is because the Property was used both as a residence for Mr Samad and as an office for the business he was seeking to develop with Mr Abu Samad and which became Monopoly's business. From about April 2004 it was agreed that the payments would be made from Monopoly’s account rather than Mr Abu Samad’s account. From that time it was agreed that the payments would be treated as payments of commission due from Monopoly for the transactions which Mr Samad was introducing for Monopoly’s benefit.[71]These arrangements operated without hitch down to February 2006, when Mr Thompson blocked repayment of the mortgage by Mr Samad. By that stage their relationship had broken down and Mr Thompson did not acknowledge that he was holding the Property for Mr Samad’s benefit. Even after that time, when large arrears built up in respect of the mortgage in November 2007 and in January, March and October 2008 Mr Samad pressed to be allowed to meet them and Mr Thompson eventually allowed him to do so.[72]In about June 2003 Mr Samad negotiated a transaction for the purchase by Monopoly of 15 flats at a development at Putney West, Upper Richmond Road, Putney. The nature of the transaction in relation to Putney West differed from the way in which Mr Samad and Monopoly had been involved in respect of the development at New Palace Place. Unlike the transactions in relation to New Palace Place and the Property (in respect of both of which the Thompsons entered into a contract direct with the respective property developers), at Putney West Monopoly entered into a contract with the property developer for Monopoly to purchase all 15 of the flats. Monopoly then sought to enter into back-to-back sale contracts with its own clients. Those clients were each charged £12,000 as a reservation fee by Monopoly. Under each such back-to-back sale contract with Monopoly, the client was to be the purchaser of the property and Monopoly the vendor of the property.[73]Mr Thompson was introduced to this investment opportunity by Mr Samad. Mr and Mrs Thompson were again very keen to pursue it. They entered into a contract with Monopoly for the purchase of one of the flats at Putney West. Mr Samad’s evidence was that he agreed to arrange for waiver of the £12,000 reservation fee which would otherwise have been payable to Monopoly by them, in recognition of and thanks for the assistance which they had provided to him to acquire the Property. Mr Thompson denied that there was any waiver of reservation fee in relation to Putney West. But it appears from the documents in relation to another of Monopoly’s clients who purchased one of the flats (a Mr Crowl) that a £12,000 reservation fee was charged by Monopoly in relation to these transactions. I accept Mr Samad’s evidence on this point. The fact that no such fee was charged by Monopoly to Mr Thompson is explicable, as I find, on the basis set out by Mr Samad in his evidence.[74]In relation to the Putney West transaction, Monopoly negotiated a preferential price from the developer, well below the published marketing price, in view of the fact that it was purchasing a significant number of the flats. Monopoly was then able to use the reduction in price which it had negotiated with the developer to provide incentives to its clients to enter into back-to-back contracts with Monopoly. The incentives included Monopoly agreeing to fund the deposit due to itself and to pay other expenses of the transaction. This was a rather complicated way of, in substance, allowing the purchasers from Monopoly a reduction in the headline price which they were paying to Monopoly. The reason matters were arranged in this way was to allow Monopoly to market the flats in what it considered to be an attractive and effective way.[75]Mr Thompson in his evidence sought to suggest that this was the nature of the arrangement agreed between him and Mr Samad in respect of the Property in September to November 2002. He did this in order to seek to explain on what basis, consistent with his evidence that he and Mrs Thompson owned the entire beneficial interest in the Property, Mr Samad had paid the deposit in relation to that Property: see paragraph [8] above. But the nature of the transaction for sale of the property at the Putney West development was very different from that in respect of the Property (and also from that in respect of the New Palace Place development), in relation to which Mr and Mrs Thompson entered into a sale contract with the property development company, not with Mr Samad or Monopoly. I reject Mr Thompson’s evidence that the arrangement in relation to the Property was the same as in relation to the flat at Putney West. There was no reason at all why Mr Samad should pay the deposit in relation to the Property save on the basis that it had been agreed that he would have the benefit of the Property for himself. In my view, Mr Thompson’s evidence in trying to suggest that the two transactions were to be explained in the same way was a further attempt by him to muddy the waters for the court and to confuse the position in an opportunistic fashion.[76]Mr Samad’s evidence, which I accept, was that a further benefit was provided to Mr and Mrs Thompson in return for the assistance they had provided to him in relation to the Property, by way of his arranging for Monopoly to allow them an additional reduction in the price of the property at Putney West in the amount of a further £10,000 by comparison with the prices of the remaining plots sold by Monopoly at that development which were of a similar size and location.[77]In about June or July 2003, during the time that Mr Samad and Monopoly were dealing with the transaction in relation to the Putney West development, Monopoly was also introduced to an opportunity to purchase six units at the development at Warwick Chambers. Monopoly was offered an attractive discount from the asking price, but only on the basis that the units were reserved by it immediately. Monopoly did this and paid a £20,000 reservation fee and deposit.[78]It was in relation to that development that the series of documents to which I have referred in paragraph [20] above were brought into existence, apparently by Sean McGeough, reflecting “fact-find” information which it seems likely Mr McGeough had obtained from potential clients over the telephone and then had put into the documents concerned.[79]There is also before the court a copy of a document dated 31 July 2003 which purports to be a mortgage application signed in various places by Mr Thompson in relation to a property at Warwick Chambers. Mr Thompson denied that the signatures purporting to be his which appeared on that application were in fact written by him. The suggestion was that they had been forged by someone. The court only had available to it a photocopy of this document. It was very difficult to tell from that whether the signatures purporting to be those of Mr Thompson were or were not forged. Whatever the truth about that, I am satisfied that if they were forged it was not by Mr Samad or anyone acting on his instructions. In the event, the Warwick Chambers opportunity did not proceed and nothing came of any of these documents.[80]In addition to the reservation fee of £20,000 in relation to the Warwick Chambers development, Monopoly also needed to raise money to pay the balance of the deposit due upon exchange of contracts in relation to that development in the sum of about £37,000. In August 2003, when that balance was due, Monopoly’s own funds were tied up in the Putney West transaction and so Mr Samad asked Mr Thompson if he would be willing to help Monopoly out by lending the sum that would be required to enable Monopoly to exchange contracts in relation to Warwick Chambers. Mr Samad assured him that this loan would be on the basis that the sum borrowed would be repaid within a month. The hope was that it would be repaid from sums that would be paid to Monopoly on completion of the Putney West transaction. As an incentive, it was also proposed that Mr Thompson would be able to purchase one of the units at Warwick Chambers with Monopoly waiving the usual reservation or commission fee that it would charge in relation to those plots.[81]Mr Thompson agreed to help Monopoly out in this way and transferred the sum of £37,023 directly to Monopoly’s solicitors, John Morley & Co, on 18 August 2003. Mr Thompson accepts that he lent the money to Monopoly on the basis which had been proposed. I regard this as significant since it shows the willingness of Mr Thompson to provide substantial assistance to Mr Samad and Monopoly in return for the hope of investment opportunities which they could provide him. What happened on this occasion bears out the closeness of the relationship between Mr Samad and Mr Thompson at this stage and indicates the willingness of Mr Thompson to provide very substantial assistance to Mr Samad. This seems to me to support Mr Samad’s version of events in relation to the earlier acquisition of the Property.[82]Unfortunately, as events transpired, Monopoly missed the deadline by which exchange of contracts for the Warwick Chambers deal was required. As a result of that the seller withdrew and Monopoly had to forfeit the reservation fee of £20,000 that it had paid earlier. In late August 2003 Monopoly repaid £20,000 to Mr Thompson. The balance of the sums loaned by Mr Thompson was repaid by Monopoly, rather later than promised, by way of a payment on 17 November 2003 of £13,649.42. This figured represented the outstanding £17,000 less reimbursement to Monopoly of legal fees relating to Mr Thompson’s acquisition of the Putney West property which Monopoly had paid on his behalf at completion and reimbursement of mortgage broker fees which Monopoly had paid on his behalf in relation to Putney West.[83]Mr Yonter Asim, who was friendly with both Mr Thompson and Mr Samad at this stage, suggested in his evidence that it was at the time of the failure of the proposed transaction in relation to Warwick Chambers that the relationship between Mr Thompson and Mr Samad began to sour to some degree. He said that Mr Thompson was disappointed to have been deprived of the further investment opportunity which had seemed to be on offer at Warwick Chambers. This seems a reasonable assessment. When Mr Thompson gave his evidence in the witness box, it was clear that he was annoyed that part of the money he had lent to Monopoly was repaid later than had been promised by Mr Samad.[84]At about this time, Mr Samad discussed with Mr Abu Samad arranging for the transfer of the Property into Mr Abu Samad’s name. The logic behind this was that as Mr Samad was still not eligible to obtain credit, Mr Abu Samad would obtain a mortgage which could be used to discharge the borrowing and the mortgage which Mr and Mrs Thompson had taken out in relation to the Property and enable the Property to be transferred into Mr Abu Samad’s name, upon which he would hold the Property for the benefit of his brother. Mr Abu Samad conferred with his financial broker whether this would be possible and the broker confirmed that it would be.[85]Mr Samad’s evidence was that, having obtained this confirmation, on about 22 October 2003 he sent a further copy of the letter of 2 October 2002 which he had sent to Mr Thompson recording their agreement in relation to the Property (see paragraph [37] above), again asking him to countersign it. Mr Thompson denies that he ever received that letter. I accept the evidence of Mr Samad that such a letter was sent and find that it is likely that it was indeed received by Mr Thompson at that time. Mr Thompson did not respond to deny that what was set out in the letter was correct.[86]On 4 November 2003 there was exchange of contracts and completion of the sale of the property at Putney West by Monopoly to Mr and Mrs Thompson. They thereby duly took the benefit of the reduced price and waiver of commission which Mr Samad had procured as part of the favours he did for them in return for their assistance in acquiring the Property for him.[87]On 19 December 2003 Mr Samad wrote to Mr Thompson in these terms:
“As per our agreement dated the 22 October 2003 and continued discussions I now propose the above mentioned property be transferred to me. In order to progress the transfer accordingly I propose to instruct Hoxtons Solicitors to act on my behalf. Can you kindly inform me of your appointed solicitors by return.”
The reference to the agreement dated 22 October 2003 was a reference to the copy of the letter originally sent to Mr Thompson dated 2 October 2002 which Mr Samad had re-sent in October 2003. Mr Thompson denies that he received the letter of 19 December 2003, but in my view the probability is that he did receive it. He did not respond to deny that the Property should be transferred to Mr Samad, nor did he identify solicitors to act for him.[88]In about February 2004 Mr Asim recalls that Mr Samad spoke to him and told him that he was having some problems with Mr Thompson in relation to the Property. The event which led Mr Samad to this view was that he had received a call from Mr Thompson asking him to sign a tenancy agreement in relation to the Property. This appears to have been the first occasion on which Mr Thompson suggested that the relationship between Mr and Mrs Thompson and Mr Samad in relation to the Property might be characterised as that of landlord and tenant. However, Mr Asim recalls that Mr Samad explained that when challenged on this point, Mr Thompson’s response was that his accountant was the person who needed the agreement. At that stage, Mr Thompson still did not maintain in his dealings with Mr Samad that the Property was held on any basis other than for Mr Samad’s benefit.[89]Shortly after this, Mr Thompson talked about the Property to Mr Asim. Mr Asim’s evidence, which I accept, is that Mr Thompson seemed frustrated and complained that he wanted the Property out of his name. Mr Asim understood that Mr Thompson was also discussing the same matter directly with Mr Samad at this time. For a short period, it appeared to Mr Asim that a transfer of the property to Mr Samad was to take place. Mr Thompson told Mr Asim that he would be happy to transfer the Property so long as his legal costs and accounting costs were covered.[90]On 16 April 2004 the solicitors for Berkeley gave notice that the car park space was now structurally complete and ready for occupation and indicating that completion in relation to the acquisition of that space by Mr and Mrs Thompson should take place by the end of the month. On 5 May 2004 Berkeley gave notice to complete the contract for the acquisition of the car park space. Mr and Mrs Thompson did nothing to complete this transaction. In my view, this again indicates that their attitude to the Property was that it was not being held by them for themselves beneficially, with the result that they did not have any significant concern to arrange for the completion of the acquisition of the car park space which was to be linked with it. On 10 June 2004 Berkeley’s solicitors gave notice that the contract for the acquisition of the car park space had been rescinded.[91]Mr Samad tried to retrieve the situation. He got Walter Saunders to write to Berkeley’s solicitors on 14 June 2004 stating that they were instructed that funds should be available within the next four weeks to complete the purchase of the car park space. This was done with the agreement of Mr Thompson, as a result of discussions between Mr Samad and Mr Thompson.[92]Mr Samad spoke to Mr Thompson in about June 2004 and requested that arrangements be made to transfer the Property upon Mr and Mrs Thompson being discharged from their mortgage. Mr Samad’s evidence, which I accept, was that Mr Thompson seemed at ease with that proposal at that time, so Mr Samad began to progress matters. Since Mr Samad thought that a transfer of the Property would take place, he instructed Messrs Hoxtons as his solicitors to deal with the transfer on his behalf and, with Mr Thompson’s agreement, contacted Messrs Ian Guyster and Co. to act as solicitors on Mr Thompson’s behalf, in order for the transfer to be effected as quickly as possible. Mr Samad spoke once again to a mortgage broker who advised that it would be easier if Mr Abu Samad secured a mortgage offer to allow the transfer to take place to him. Mr Samad was content to proceed in this way, since that would ensure that the Property was held within his family and he trusted his brother to hold it for his benefit.[93]In about July 2004 Mr Thompson called Mr Abu Samad directly, explaining that he had been unable to contact Mr Samad by telephone. Mr Samad was away on holiday at that time. According to Mr Abu Samad, whose evidence I accept, Mr Thompson asked him about the progress of the transfer and how long it would take to complete. At that stage, Mr Thompson was pressing for an early transfer to take place. Mr Abu Samad explained that he was seeking a mortgage offer from the Bank of Scotland and that completion could then take place once the respective solicitors had completed their investigations and conveyancing matters. Mr Thompson complained that there were outstanding service charge and ground rent arrears in respect of the Property which it was Mr Samad’s responsibility to pay on time. Mr Abu Samad assured him that any such arrears would be settled prior to the Property being transferred.[94]As a result of all these discussions, in August 2004 Mr Abu Samad obtained a mortgage offer from Bank of Scotland in respect of the Property. However, Mr Thompson then had second thoughts about transferring the Property. At about this time relations between Mr Samad and Mr Thompson became more strained. Mr and Mrs Thompson now would not agree to complete the contract for the acquisition of the car park space and in the event they failed to do so by 25 October 2004, the date allowed by Berkeley as the final extension of the period for completion. Accordingly, Berkeley rescinded the contract and kept the £2,500 deposit in respect of that transaction.[95]Mr Thompson spoke to Mr Asim to say that he was worried about the implications of capital gains tax in respect of the Property if it was transferred to Mr Abu Samad. Mr Thompson said that his accountant had raised this as a possibility.[96]Mr Samad sought to negotiate with Mr Thompson in an effort to resolve the issue. Mr Samad asked Mr Asim to become involved and speak to Mr Thompson in the role of mediator. Mr Asim spoke to Mr Thompson a number of times at Mr Samad’s request, but it became clear that Mr Thompson was now interested in receiving money from Mr Samad and did not wish simply to hand over the Property to him in return for discharge of his and his wife’s indebtedness to Bank of Scotland and payment of any outstanding service charges. Mr Asim felt that Mr Thompson’s demands had become unreasonable and his attempts to mediate between him and Mr Samad failed. Mr Asim backed out of the discussions in order to leave it to the parties’ accountants to try to sort out their differences.[97]After Mr Samad’s return from holiday in August 2004 he spoke to Mr Thompson who requested him to speak to his accountant, a Mr Savdas, at an accountancy firm named Russell Young. Mr Samad found that Mr Thompson at this time was becoming more difficult to deal with. Mr Thompson told Mr Samad that there were capital gains tax issues which only his accountant was familiar and able to deal with.[98]Mr Samad spoke to Mr Savdas. Mr Savdas was vague and uncooperative, in Mr Samad’s opinion. When pushed by Mr Samad, he informed him that Mr Thompson wanted to sell the Property to Mr Samad at current market value and that this would give rise to capital gains tax issues. Mr Samad questioned this, since the arrangement with Mr and Mrs Thompson was that Mr Samad owned the beneficial rights to the Property. Mr Samad said that he was entitled to a transfer of the Property at the same value at which it had been purchased. He indicated that he did not understand why capital gains tax should arise, but if there were a capital gains tax issue he was willing to pay the capital gains tax. Mr Savdas insisted that the transfer had to be at the present market value. Mr Samad then said that he would need to involve his own accountant to check on the concerns that had been raised with him.[99]Mr Samad spoke to his then accountant, Mr Qureshi. As Mr Qureshi confirmed in his evidence, Mr Samad explained the background to the case that the purchase of the Property was financed by him and for his benefit, but had been undertaken in the name of his friend because Mr Samad was unable to obtain a mortgage himself at the time. Mr Qureshi’s view was that there should not be any issue about the transfer taking place at the same value as the Property was purchased for. However, he suggested that in order to secure an early transfer of the Property it might be worth trying to settle matters by offering to pay a sum equivalent to capital gains tax based on a sum close to the present market price. Mr Qureshi spoke briefly to Mr Savdas, but their conversation was cut short and no conclusion was reached. Mr Qureshi’s advice to Mr Samad was that he was in a weak position in light of the absence of any written document recording the arrangement with Mr and Mrs Thompson and that in the circumstances it would be worthwhile considering making additional payments to Mr Thompson to resolve the matter.[100]A few days after Mr Qureshi had spoken to Mr Savdas, Mr Savdas had still not reverted with any instructions in relation to what was being proposed. Mr Samad therefore telephoned to chase him. He informed Mr Savdas that he was exhausted with the affair and that in order to secure a prompt transfer he was happy to pay the capital gains tax element based on a notional purchase price of £430,000 to ensure that Mr Thompson should have no tax difficulties. At this point Mr Savdas asked Mr Samad if he would also pay Mr Savdas for his time in getting the matter resolved. Mr Savdas wanted a payment by Mr Samad in the sum of £8,225 in respect of his own fees, as well as settlement of the notional capital gains tax element. Mr Savdas followed this up with a letter to Mr Samad dated 29 October 2004 headed “re CGT liability – Donovan Thompson”, providing his firm’s bank details and stating “amount due: £8,225.00”.[101]Mr Samad felt very uncomfortable with Mr Savdas’ proposals for a separate payment to his firm. He spoke about this to Mr Thompson, who appeared angry and said that these were not the instructions that he had given to his accountant. He said he would be speaking to his accountant and would revert to Mr Samad. Mr Samad also spoke to Mrs Thompson in about mid-November 2004. Mr Samad’s evidence was that on this occasion Mrs Thompson suggested that he had sought to do some sort of a deal with Mr Savdas to purchase the Property back from Mr and Mrs Thompson. Mrs Thompson denied that any such conversation took place. However, Mr Samad referred to this in a letter he wrote a few days later to Mr and Mrs Thompson, dated 26 November 2004, and in my view such a conversation did take place. The conversation indicates that Mrs Thompson had a greater level of knowledge and involvement in relation to the question of what should happen in respect of the Property than she was willing to admit in her evidence to the court.[102]Mr Samad felt that there was no proper reason why he should pay any capital gains tax or any other sum, apart from discharging Mr and Mrs Thompson’s financial obligations in respect of the Property, to secure its transfer. Nonetheless, he wished to sort matters out as quickly as possible and was prepared even to pay the sum requested by Mr Thompson’s accountant if that was what was necessary to secure the transfer. Mr Samad explained this to Mr Thompson in a telephone conversation. Mr Thompson called him back later on the same day and demanded an additional payment to Mr Thompson of £12,000 for all his troubles in relation to the Property. Mr Samad protested that he had made a number of concessions as to what he was prepared to pay, but was not prepared to pay more as he did not regard it as justified in any way.[103]It was at this point that Mr Samad wrote his letter of 26 November 2004 to Mr and Mrs Thompson. Mr and Mrs Thompson denied that this letter had been received by them. However, in my view, the likelihood is that it was sent and it was received by them. Mr Asim’s evidence was that Mr Thompson told him he had received a letter of complaint from Mr Samad at about this time, and it is likely that it was this letter to which Mr Thompson referred. In the letter, Mr Samad reminded Mr and Mrs Thompson that the Property had originally been put in their names due to the fact that he was having difficulties obtaining a mortgage and he referred to the strong relationship and trust that existed between them at that time. He referred to benefits that he had provided them in return, including waiver of the £6,000 commission in relation to New Palace Place, and the fact that he had introduced that favourable investment opportunity to them. He referred to the attractiveness of the deal that he had introduced to them in relation to Putney West and referred to the fact that he had not charged them any fees for that investment opportunity either. Mr Samad asserted his beneficial interest in the Property and urged them to seek legal advice about the position. He continued:
“Since this saga has become a money issue, I feel I am being more than generous by offering you the £8,225.00 which was the sum agreed by your accountant. Since then you came back to me and asked me for a further settlement of £12,000.00. I felt this was totally unacceptable due to the relationship we had, and the things I have done for you. I have spoken to Yon [i.e. Mr Asim] on many occasions, and to be fair to him, he has always been impartial and looked at it from both our sides. Not even he could understand why we have yet to reach an amicable settlement. I would also like to close this chapter before this matter gets any messier. I can understand it if you have concerns regarding outstanding charges against the property, however all this information can be obtained through searches carried out by a solicitor executing a sale. It really dose [sic] not need to be this complicated. I will not be in a position to offer you any more than £12,000.00 as my last and final settlement.”
[104]Mr and Mrs Thompson did not respond in any detail to this letter. They did not deny the account of the background which Mr Samad gave in it. However, Mr Thompson made it clear that he was not willing to accept Mr Samad’s offer.[105]In mid-November 2004, in order to meet Mr Thompson’s complaints about the outstanding service charge which remained due in relation to the Property, Mr Samad arranged for Monopoly to pay the outstanding sum of £2,571.01 due to the management company, Peverel OM. This was a sum which Mr Thompson in his second witness statement suggested he had paid: see paragraph [18] above.[106]By early 2005 it seems that the relationship between Mr Samad and Mr Thompson had completely broken down. It appears from the witness statement dated 26 March 2007 of Helen Wilson of Eversheds LLP, solicitors for Bank of Scotland in relation to possession proceedings brought against Mr and Mrs Thompson in 2007 in relation to the then unpaid element of the mortgage, that in 2005 Mr and Mrs Thompson contacted the Bank to say that a tenant was in the Property (i.e. Mr Samad), to confirm that the tenant was not wanted at the Property and that steps were being taken to remove him. On 4 March 2005, for his part, Mr Samad issued a claim in the Shoreditch County Court seeking a declaration as to the ownership of the Property. The claim form was not served and for that reason Mr and Mr Thompson applied successfully in July 2005 to strike out the claim.[107]Notwithstanding these developments, it appears from a letter of 20 July 2005 from Mr Samad to Mr and Mrs Thompson that he was still discussing with them the possibility of transferring the Property into his name. He informed them that he had instructed Ian Guyster & Co to act for them in relation to the transfer, and that he would like to proceed quickly. I find that this letter was sent and was received by Mr and Mrs Thompson. They did not reply to it.[108]By letter of 23 September 2005 from Mr Samad’s solicitors, Hoxtons, he requested Mr and Mrs Thompson to transfer the Property into the name of another chosen nominee to be held on trust for him. I find that this letter also was sent and was received by Mr and Mrs Thompson. The letter asserted Mr Samad’s full beneficial interest in the Property as against Mr and Mr Thompson. It was an attempt to resolve matters without the need for litigation. The claim asserted by Mr Samad was consistent with his earlier letters to the Defendants and with his evidence in this case. Mr and Mr Thompson did not reply to this letter to deny the claim which was set out in it. But nor did they agree to the transfer of the Property.[109]In about February 2006 relations between Mr Thompson and Mr Samad deteriorated still further. Mr Thompson now took steps to prevent Mr Samad making the mortgage payments in respect of the Property. It appears that on about 21 February 2006 Mr Thompson told the Bank of Scotland that he proposed to retrieve the keys to the Property. The next day Mr Thompson and two other men came to the Property. Mr Samad and Mr Abu Samad were both at the Property and the door was not locked. Mr Thompson walked into the Property uninvited and when Mr Samad asked him and his associates what they were doing they told him that they were going to change the locks and remove his belongings. Mr Thompson indicated that one of his associates was a locksmith; the other of them had a video camera apparently recording events; (the video recording which was made was not made available to the court). Mr Samad felt intimidated and asked them to leave. When they refused, he called the police. The police arrived, discussed the position with both sides and invited Mr Thompson and his associates to leave, indicating that this was a civil matter that needed to be pursued through the courts before they could take any steps to remove Mr Samad from the flat.[110]At this point Mr Samad decided that despite his efforts to resolve the dispute without recourse to the courts, he would once again have to issue proceedings to resolve the matter. Before he could do so, however, there was another incident on 22 April 2006 when Mr Thompson again came to the Property with one of the same men who had come in February. Mr Samad was in the flat with his partner, Kimberley Rudman. The porter at the front desk of the building telephoned Mr Samad to tell him that there were two men in the lobby requesting the keys to the flat and saying that they were there to change the locks. Mr Samad told him not to release the keys and called the police once more. The police came quickly. I find that when Mr Samad and Miss Rudman went down to the lobby of the building Mr Thompson was abusive towards them. Mr Samad showed the police the file of papers relating to the case. The police once more invited Mr Thompson to leave.[111]Despite these incidents, Mr Thompson allowed Mr Samad to pay outstanding sums in respect of the mortgage arrears. Substantial arrears in relation to the mortgage which had built up in 2006 and 2007 were discharged by Mr Samad, but not before Bank of Scotland had commenced mortgage possession proceedings against Mr and Mrs Thompson in relation to the Property in late 2006. In the event, those possession proceedings were stayed to await the outcome of the present claim.[112]Mr Samad has throughout occupied the Property as his home. Contrary to suggestions made on behalf of Mr Thompson at the trial, he has not let it to others nor sought to place it on the market to sell it. He continues to wish to occupy the Property as his home.[113]On 3 May 2006 the present claim was issued. On 9 May 2006 Mr Samad’s new solicitors wrote to the solicitors for Mr and Mrs Thompson. The letter once again set out Mr Samad’s case that the Property had been acquired pursuant to an arrangement whereby it was to be held for his benefit. On 22 May 2006 Mr Samad registered a notice of his claim against the Property. On 1 June 2006 a restriction was registered against the Property in favour of Lawford Finance SA in respect of lending by that company to Mr Thompson against the security of the Property. On 6 June 2006 the Defence and Counterclaim were served in these proceedings.[114]In May and June 2007 the parties served their witness statements in the proceedings in preparation for the first trial date which was fixed, but which was later adjourned.[115]There was then correspondence between Bank of Scotland, Mr and Mrs Thompson, Mr Samad and Peverell OM concerning the continuing build-up of arrears in relation to the mortgage and in relation to the service charges on the Property. In the event, all those arrears and charges have been met by Mr Samad.[116]There was a further incident in about July 2008, in which Mr Thompson managed to persuade Peverell OM to release to him a set of keys for the Property and called the police to suggest that Mr Samad was trespassing at the Property. The police arrived and Mr Samad had to show them the paperwork in relation to the court proceedings to persuade them that he had not broken into the Property. Mr Samad then had the locks on the Property changed.[117]Mr Samad has always made it clear that his brother, Mr Abu Samad, is ready, willing and able to repay in full the indebtedness of Mr and Mrs Thompson to Bank of Scotland and all other financial charges in relation to the Property and to discharge their mortgage, in return for the transfer of the Property into Mr Abu Samad’s name. It was confirmed at the hearing that the finance is in place to allow this to occur.

Legal analysis

[118]The arrangement between Mr Samad on the one hand and Mr and Mrs Thompson on the other was based on an oral agreement and was not recorded in writing as required by s. 53 of the Law of Property Act 1925. However, s. 53(2) of the 1925 Act preserves the effect of any resulting or constructive trust, even in the absence of writing. Accordingly, the first two grounds put forward by Mr Samad for the claim were that a resulting trust, alternatively a constructive trust, had arisen in his favour in relation to the Property. I deal first with the question whether there was a resulting trust.[119]The Property was purchased with money from two sources. Mr Samad provided the funds for the original deposit of £38,000. I accept his evidence that there was never any intention that Mr and Mrs Thompson should have the benefit of this payment. Mr and Mrs Thompson borrowed the remainder of the funds which were required. The original purchase price of £380,000 for the Property and an associated car park space was later reduced by £25,000 to £355,000 for the Property alone. The deposit of £2,500 paid in respect of the car park space was forfeited when the contract to take a lease of that space was not completed. It was never discussed whether this deposit was to be treated as having been paid out of the funds provided as the deposit at the outset by Mr Samad, or out of the mortgage monies provided by Mr and Mrs Thompson. In my view, the fair and appropriate analysis is that the deposit of £2,500 for the car park space (which was to be for Mr Samad’s benefit) should be treated as an allocation of part of the deposit originally provided by Mr Samad, so that the deposit in fact paid by him in relation to the Property alone was £35,500. The surplus of £2,383 out of the monies provided from the deposit and the mortgage advance was paid at the direction of Mr Samad and for his benefit. I consider that this constituted, in effect, a further reduction in the amount which he had paid towards the acquisition of the Property, so that in practical terms the deposit provided by him in respect of the Property was in the amount of £33,117.[120]The balance of the purchase price for the Property was provided by funds borrowed by Mr and Mrs Thompson. Stamp duty and legal and other fees in relation to the transaction came to a total of £14,284 (see the settlement account at paragraph [13] above). In addition, fees of £315 were paid to Bank of Scotland in respect of the mortgage, and were added to the amount due under the mortgage. I consider it is appropriate to take all these elements into account to arrive at the total cost of the acquisition of the Property for the purposes of comparing the respective financial contributions of Mr Samad and of Mr and Mrs Thompson. Therefore, the total acquisition cost in respect of the Property was £369,599; and their respective contributions to meet that cost were £33,117 from Mr Samad and £336,482 from Mr and Mrs Thompson.[121]It is necessary to take this calculation into account when considering the first basis on which Mr Samad asserted his claim to the Property, by virtue of a resulting trust. Mr Stone for Mr Samad submitted that a resulting trust arose in respect of 100% of the beneficial interest in the Property by reason of Mr Samad’s direct contribution to the acquisition cost combined with the facts that he agreed to meet and did meet all the payments due under the mortgage and at all material times remained willing and able to repay the loan monies outstanding from Mr and Mrs Thompson to Bank of Scotland and discharge the mortgage they had taken out. In support of this submission, Mr Stone relied upon Carlton v Goodman [2002] EWCA Civ 545.[122]I do not accept the submission that a resulting trust arose in favour of Mr Samad in relation to 100% of the beneficial interest in the Property. Carlton v Goodman concerned a different situation, in which Mr Goodman and Ms Carlton acquired a property in their joint names but for the sole occupation of Mr Goodman, in circumstances where they had jointly taken out a loan secured by mortgage to provide the purchase price. They were both liable to the lending bank in respect of the borrowed monies. Mr Goodman had told Ms Carlton that she would “come off” the mortgage after a year, and he made all the payments due under the mortgage. They used money which they jointly owned to purchase the property, having borrowed it together from the bank; and as between them, he was to pay (and did in fact pay) all the mortgage payments and the premiums due in respect of an associated endowment policy (see [22] and [25] per Mummery LJ). The lending bank had full rights of recourse against Mr Goodman, as one of the borrowers, and it was because he had promised to hold the other borrower (Ms Carlton) harmless in respect of her joint liability in respect of the loan that the court concluded that on the facts “Mr Goodman was the person at whose expense the house was provided” ([25]).[123]In the present case, by contrast with the position of Mr Goodman, Mr Samad had no liability to the lending bank. He did not borrow the mortgage advance which was required to acquire the Property. That advance was borrowed solely by Mr and Mrs Thompson, and it was they alone who were liable to Bank of Scotland in respect of its repayment. When the advance was provided to them, it was their money which they used to acquire the Property. At no stage was the advance properly to be regarded as Mr Samad’s money. Although Mr Samad had promised Mr and Mrs Thompson that he would discharge their borrowing after a year to eighteen months and would make the payments due under the mortgage, the bank had no recourse against him. If it later transpired that Mr Samad was for any reason unable or unwilling to pay, the bank’s recourse would only be against Mr and Mrs Thompson, leaving them to whatever recovery they might (or might not) be able to secure from Mr Samad. In my view, this position is at one remove and is significantly different from the position which arose in Carlton v Goodman. It was Mr and Mrs Thompson who provided their own money, at their own expense (subject to the uncertainties of recourse against Mr Samad) to acquire the Property. To the extent of the contribution to the acquisition out of the mortgage advance, they were the people at whose expense, in the requisite sense, the Property was acquired.[124]In my judgment, therefore, on a resulting trust analysis Mr Samad would be entitled to a beneficial interest in the Property in the proportion 33,117 over 369,599, or 8.96%.[125]The question then arises whether a constructive trust arose in Mr Samad’s favour in relation to the Property, such that he could claim to be entitled to the whole of the beneficial interest in the Property on that basis. In my judgment, on the facts as I have found them, such a constructive trust did arise in Mr Samad’s favour.[126]Mr and Mrs Thompson purchased the Property on the basis of an express oral agreement made between Mr Samad and Mr Thompson (on his own behalf and, since made with Mrs Thompson’s knowledge and agreement too, on her behalf also), according to which they would hold the Property entirely for the benefit of Mr Samad, against his promise to arrange the transfer of the Property and for their borrowing and mortgage to be discharged after a year to eighteen months and to meet all financial costs (mortgage payments and service charges) arising in relation to the Property. Mr Samad has at all material times been ready, willing and able to comply with his side of the agreement. Mr and Mrs Thompson have refused to comply with their side of the agreement, and seek to rely upon the absence of a written record of the terms agreed to deny Mr Samad’s interest in the Property.[127]Mr Stone for Mr Samad submitted that where property is purchased on the basis of an express agreement that it will be held by the persons who acquire the legal title for the benefit of another person, a constructive trust arises according to which it is not open to the holders of the legal title to deny the beneficial interest of that other person. In the circumstances of this case, where Mr Samad(i) has relied upon Mr and Mrs Thompson’s promise in choosing them to acquire the Property as his home for his benefit (and would have searched for and quite possibly found another person to act for his benefit if they had not so promised, or would have made a similar arrangement with such other person in relation to another property to provide himself with a home);(ii) has paid the deposit and all the mortgage payments and the service charges arising in relation to the Property on the basis of the agreement so made;(iii) has expended significant sums in decorating and equipping the Property, again relying on that agreement;(iv) has afforded Mr and Mrs Thompson significant benefits, as a form of return for the assistance they were providing him in pursuance of the agreement, by waiving commissions due to him or Monopoly in respect of introducing other transactions to them and reducing the price of the Putney West property which they acquired; and(v) has at all material times been ready, willing and able to fulfil his side of the agreement by arranging for the transfer of the Property and the discharge of Mr and Mrs Thompson from their liabilities in respect of their borrowing and their mortgage in relation to the Property and any service charges, it is my judgment that a constructive trust by common intention arose in his favour in relation to the entire beneficial interest in the Property. Where monies have been provided by Mr Abu Samad or Monopoly in relation to the Property, rather than by Mr Samad personally, I accept the evidence of Mr Samad and Mr Abu Samad that they were so provided for the account and benefit of Mr Samad. As between Mr Samad and Mr and Mrs Thompson, such monies fall to be treated in the same way as monies provided by Mr Samad himself.[128]Mr Stone relied on the following authorities in support of this constructive trust analysis. In Rochefoucauld v Bousted [1897] 1 Ch 196 the defendant had agreed to purchase certain properties as trustee for the plaintiff, but that agreement was not in writing as necessary to satisfy s. 7 of the Statute of Frauds. The Court of Appeal held that evidence of an oral agreement made as to the trust was admissible in order to prevent the statute from being used to commit a fraud in the relevant equitable sense (p. 207). In my view, Mr Stone was right to suggest that this case would be explained, in the present context of s. 53 of the 1925 Act, on the basis of a common intention constructive trust. Where there are significant acts of detrimental reliance by a claimant based on such an agreement, as there are in this case, the holder of the legal title cannot in conscience deny, and is not permitted by equity to deny, the beneficial interest which it was agreed the claimant should have. The detrimental reliance by Mr Samad in this case provides the foundation upon which the absence of the usually required formality of writing to record the trust relationship may properly be overlooked, and Mr Samad’s claim to have the beneficial interest reflected in the agreement may be enforced.[129]The scope for a constructive trust to arise in respect of the entire beneficial interest in a property on the basis of an express agreement establishing the parties’ common intention when that property is acquired, where there is also an element of detrimental reliance or where a party has significantly altered his position in reliance on the agreement, is borne out by more recent authority: see in particular Lloyd’s Bank plc v Rosset [1991] 1 AC 107, 132E-G per Lord Bridge of Harwich. The judgment of Robert Walker LJ in Jennings v Rice [2002] EWCA Civ 159 supports the same conclusion. That case concerned a question of proprietary estoppel, but Robert Walker LJ made it clear that the principles in relation to proprietary estoppel and in relation to constructive trusts could sometimes overlap to a considerable degree. In the context of proprietary estoppel, he addressed the question as to when it would be appropriate for beneficial interests in respect of property to be recognised to give effect to the parties’ expectations formed on the basis of an agreement between them, or only to the extent necessary to rectify any detrimental reliance: see [42]ff. At [45] he said this:
“Sometimes the assurances, and the claimant’s reliance on them, have a consensual character falling not far short of an enforceable contract (if the only bar to the formation of a contract is non-compliance with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, the proprietary estoppel may become indistinguishable from a construction trust: Yaxley v Gotts [2000] Ch 162). In a case of that sort both the claimant’s expectations and the element of detriment to the claimant will have been defined with reasonable clarity. A typical case would be an elderly benefactor who reaches a clear understanding with the claimant (who may be a relative, a friend, or a remunerated companion or carer) that if the claimant resides with and cares for the benefactor, the claimant will inherit the benefactor’s house (or will have a home for life). In a case like that the consensual element of what has happened suggests that the claimant and the benefactor probably regarded the expected benefit and the accepted detriment as being (in a general, imprecise way) equivalent, or at any rate not obviously disproportionate. Cases of that sort, if free from other complications, fit fairly comfortably into Dr Gardner’s first or second hypothesis [Simon Gardner, “The Remedial Discretion in Proprietary Estoppel” (1999] 115 LQR 438] (both of which aim to vindicate the claimant’s expectations as far as possible, and if possible by providing the claimant with the specific property which the benefactor has promised).”
[130]This statement is apt to cover what has happened in the present case. The fair and appropriate conclusion is that Mr and Mrs Thompson should be held to hold the entire beneficial interest in the Property for the benefit of Mr Samad, subject to Mr Samad undertaking (as Mr Stone has indicated he is willing to do) to procure the repayment of the outstanding sums due from Mr and Mrs Thompson to Bank of Scotland in respect of the loan used to acquire the Property, the discharge of the mortgage taken by Bank of Scotland and the payment of all outstanding service charges in respect of the Property.[131]Mr Paraskos, for Mr and Mrs Thompson, did not dispute the analysis of the authorities in relation to constructive trusts advanced by Mr Stone. Mr Paraskos did, however, submit that the evidence showed that Mr Samad had exercised an unconscionable degree of control over both Walters Saunders, as the solicitors who acted for Mr and Mrs Thompson in relation to the acquisition of the Property, and in relation to the mortgage broker, Sean McGeough of In House Mortgages, who acted for them in relation to that transaction. Mr Paraskos also submitted that Mr Samad was a sophisticated businessman who had induced Mr and Mrs Thompson to enter into the transaction, without them really being in a position to assess its merits for themselves and in the absence of sound and untainted advice from their solicitors and their mortgage broker. He submitted that Mr Samad had taken advantage of Mr and Mrs Thompson in an unconscionable way, that he did not come to equity with clean hands and that he should not now be entitled to assert against them any equitable interest he might otherwise have had in the Property.[132]I reject these submissions on the facts. Mr and Mrs Thompson had already taken steps to raise money to enter what was then perceived to be a strongly rising property market before the question of the acquisition of the Property arose. In my view, Mr Thompson was a shrewd investor in property, who was very alert to his own interests in relation to any transaction. He and his wife were not bamboozled, pressurised or misled by Mr Samad in any way in deciding to acquire the Property for his benefit. Mr Thompson decided to help Mr Samad on grounds of friendship, and also in the hope and expectation that he would benefit considerably from introduction through Mr Samad to lucrative investment opportunities. Mrs Thompson knew about the arrangement and was happy to go along with it, since it held the possibility of financial advantage for the future and it was confidently expected that it would cost her and her husband nothing.[133]Mr Samad did not exercise any control over Mr McGeough in respect of any advice he might have given to Mr and Mrs Thompson in relation to acquiring the Property; nor is there any evidence from Mr or Mrs Thompson about any such advice they did receive, nor any suggestion by them that it adversely affected their consideration whether to acquire the Property or not.[134]In relation to Walter Saunders, Mr Samad had a direct line of communication with them, and they regarded him as being in some sense their client as well as Mr and Mrs Thompson. This is not surprising, in my view, because Mr Samad was himself providing the deposit in relation to the Property on his own account, which Walter Saunders clearly understood. But none of this indicates that Mr Samad exercised any improper control over Walter Saunders in relation to the legal services they provided to Mr and Mrs Thompson, and I find that he did not. Again, there was no evidence from Mr or Mrs Thompson about any misleading or inappropriate advice given by Walter Saunders in relation to their deciding to acquire the Property, nor any suggestion by them that it adversely affected their consideration whether to do so.[135]Finally, in case he was not successful in asserting that a constructive trust had arisen, Mr Stone submitted that a proprietary estoppel had arisen between Mr and Mrs Thompson as legal owners of the Property and Mr Samad, whereby they were estopped by virtue of the agreement and the acts of detrimental reliance by Mr Samad in relation to it from denying that he enjoyed the full beneficial ownership of the Property. In light of my ruling that a constructive trust arose, it is not strictly necessary to reach a decision on this alternative way in which Mr Stone put the claim. However, if it had been necessary to do so, I would have held that such a proprietary estoppel is established on the facts of this case. Whilst detrimental reliance is necessary in order to establish a proprietary estoppel, it is not a narrow or technical concept: Gillett v Holt [2001] Ch 210, 232A-F per Robert Walker LJ. In my view, each of (i) to (iv) in paragraph [127] above qualifies as relevant detrimental reliance for these purposes, and when coupled with Mr Samad’s readiness to comply with his side of the agreement as referred to at (v) in that paragraph is sufficient to found the necessary equity, based on proprietary estoppel, which falls to be satisfied by ordering Mr and Mrs Thompson to transfer the Property to Mr Samad or at his direction. In my judgment, this is one of those cases where there is no real distinction to be drawn between a constructive trust analysis and a proprietary estoppel analysis: see Oxley v Hiscock [2005] Fam 211, [66]-[67]; Jennings v Rice, [45] (quoted above).[136]On the basis that a constructive trust in respect of the Property arose in Mr Samad’s favour from the outset of the acquisition of the Property (as I have held), Mr Stone submits that Mr and Mrs Thompson had a fiduciary duty from the outset not to deal with the Property in a manner inconsistent with Mr Samad’s beneficial ownership of the Property. I accept this submission. It appears that Mr and Mrs Thompson have used the Property as security in relation to other borrowing by them, in particular in respect of money borrowed by them from Lawford Finance SA. To the extent that this may cause expense to Mr Samad in arranging for the discharge of any such security, Mr and Mrs Thompson would be obliged to compensate him in relation thereto. The same would be true in relation to any additional costs which may be incurred in relation to the Bank of Scotland loan in respect of the Property, by reason of the refusal of Mr and Mrs Thompson to allow Mr Samad to discharge the mortgage payments as they fell due. If necessary, the court will order an inquiry into these matters.

Conclusion

[137]For the reasons given above, I give judgment for Mr Samad on his claim. The parties should seek to agree the appropriate order to be made in light of this judgment.

Cited in 1 later judgment