Moosun & Ors v HSBC Bank Plc (t/a First Direct) [2015] EWHC 2775 (Ch)

Claim No. HC 2015 003413[2015] EWHC 2775 (Ch)IN THE HIGH COURT OF JUSTICE CHANCERY DIVISIONVenue The Rolls Building 7 Rolls Buildings London EC4A 1NLDate Thursday, 20 th August 2015
Before
MR. JUSTICE SNOWDEN
Between
MRS. SABRINA SHAFIKA MOOSUN, NESSAH MOOSUN (A MINOR)ClaimantAND IMRAN MOOSUN (A MINOR)ClaimantHSBC BANK PLC T/A FIRST DIRECTDefendant
Digital Transcription of Marten Walsh Cherer Ltd.,1 st Floor, Quality House, 6-9 Quality Court, Chancery Lane London WC2A 1HP Tel No: 020 7067 2900 Fax No: 020 7831 6864 DX: 410 LDEEmail: info@martenwaslshcherer.com Web: www.martenwalshcherer.com
MISS EMILY McCREA-THEAKER (instructed by Shoosmiths) appeared for HSBC Bank plc.MRS. SABRINA SHAFIKA MOOSUN appeared In Person. for in person
JudgmentMR. JUSTICE SNOWDEN :
[1]I have an application before me by application notice dated 14th August by Mrs. Moosun against HSBC Bank Plc. The order that the application seeks is, first:
“An interim order to stay the sale of our home at Jasmine Cottage, Wood Lane, Iver, SLO OLA;” second, “an order that the price sold cannot be accepted;” third, “an order that no one trespass on our personal belongings and to set aside the order made on 6th August 2015 by Mann J;” and fourth, “an order that our home is returned to us immediately.”
[2]The background to this matter goes back a very considerable way. In as brief an outline as I can manage, Mrs. Moosun purchased the property, Jasmine Cottage, for £385,000 in February 2008 with the assistance of a mortgage from HSBC.[3]In September 2008, the local district council, South Bucks District Council, issued an enforcement notice against Mrs. Moosun because of unauthorised developments at the property, that is, there had been an unauthorised extension to the cottage.[4]An appeal was launched by Mrs. Moosun to the planning inspectorate against the enforcement notice issued by the South Bucks District Council. That appeal was rejected by the planning inspector in a decision made on 24th July 2009, following a site visit made on 7th July 2009.[5]It appears that in 2012 Mrs. Moosun subsequently sought judicial review of the council’s behaviour in relation to the enforcement notice. I do not have a copy of the application for permission for judicial review that she made, but I do have a copy of the order that was made by Collins J on 6th February 2013 refusing her permission to seek judicial review.[6]That order states:
“The reasons that permission was refused is: This claim is out of time since the decision to enforce was made in July 2011 when criminal proceedings were commenced. The confirmation that proceedings would not be withdrawn in June 2012 was not a fresh decision. Time ran from July 2011. There is in any event no merit in this claim. The claimant took all steps open to her to challenge the enforcement notice but failed. The attempt to rely on the EHCR is unsustainable. The claimant chose to breach planning law and cannot rely on her children’s rights to avoid paying the penalty. Any hardship to her or her family could be taken into account by the criminal court.”
[7]Returning to the events in 2009, the consequence of the enforcement notice being issued by the District Council and an appeal being rejected was that in 2009 the Bank restricted further drawings on the mortgage account on the basis that there had been a breach of the terms of the mortgage. Mrs. Moosun complained about that to the Financial Services Ombudsman in 2010, who finally rejected her complaint in August 2010.[8]Mrs. Moosun then fell into arrears, and on 23rd August 2011, an order for possession was granted by Deputy District Judge Jones in the Uxbridge County Court against Mrs. Moosun on the basis of mortgage arrears of just over £24,000 and the breaches of the mortgage terms and conditions. Mrs. Moosun immediately applied to set aside that possession order but her application was dismissed in June 2012 and she was refused permission to appeal by the District Judge and subsequently by the County Court on 28 November 2012.[9]There have been a series of further proceedings relating to the premises, in particular a number of unsuccessful attempts to execute a warrant for possession that was obtained by the Bank October 2013, and various claims and applications which Mrs. Moosun has launched in the High Court seeking to overturn the decisions in relation to her property and the warrant for possession, all of which have failed. I should also record that these proceedings led to Mrs. Moosun being made the subject of a limited civil restraint order by the Uxbridge County Court in October 2014, and a sizeable number of the later applications were recorded as having been “totally without merit”.[10]The immediate background to the application before me is that the Bank finally took possession of the property in January 2015 and sought to enforce its power of sale as mortgagee in possession by arranging an auction of the property. Before the property was put up for auction there were a number of private offers which were made for the property, one for £291,000, which was then reduced to £250,000 and was rejected at that lower sum, and one for £265,000, which was also rejected.[11]The auction was fixed to take place on 6th August 2015, and, I am told, the property attracted some interest prior to auction. There were a number of viewings of the property, and packs of information were requested.[12]On 6th August, Mrs. Moosun applied to this court, Mann J, for an[13]On 6th August 2015, Mann J rejected that application. The note that I have of his judgment, which has not been approved by the judge but is counsel’s note, was that the application had been made too late, that Mrs. Moosun had not submitted any evidence to support her case that she was able to repay the Bank in full, and it was too late to try to do so on the day on which her house was due to be auctioned, and that this was an attempt to have another bite at the cherry.[14]Against that background, Mrs. Moosun has made an application today, as I have indicated, to stop the sale of the property, Jasmine Cottage, pursuant to a contract that was entered into as a result of the auction that took place on 6th August. The price that succeeded at auction was a bid of £285,000 and completion of the sale contract is due to take place on 27th August.[15]In support of her application, Mrs. Moosun has, first of all, sought to engage me in an attempt to go back through the long history of matters in order to persuade me that I should investigate or set aside the order that was made in August 2011 for possession, or to persuade me to investigate the matters that led to the enforcement notice being issued in relation to her property.[16]Mrs. Moosun says that she has lodged in those respects a complaint with the European Court of Human Rights. She has shown me one page from an application which appears to have been made in 2014, but I have no further information in relation to that.[17]On those matters, I do not have the jurisdiction to act as an appeal court in relation to planning matters that have already been the subject of unsuccessful appeals and which have already been rejected as a basis for judicial review by the Queen’s Bench Division in 2013. Nor, in any event, do I have any coherent evidence upon which I could begin to investigate those matters.[18]So far as the immediate complaint about the conduct and result of the auction is concerned, Mrs. Moosun pointed to what she said was a great disparity between the price that has succeeded at the auction of £285,000 and a recommendation that was made to her by an estate agent in 2012 that the property should be put onto the market at a price between £950,000 and £1.3m.[19]That recommendation was made on the basis that Mrs. Moosun had explained to the estate agent that there were, “issues relating to the planning of the dwelling that could have a negative effect on the price”. It would not seem, however, that the full extent of those were appreciated given that the draft advertisement under which the property was to be marketed described it as “a delightful five-bedroomed detached chalet.” The reality is that there is still an enforcement notice extant against the property which would require the extension that was added to the property to be removed. On that basis it cannot fairly be described as a “five-bedroomed” house. In those circumstances, it seems to me self-evident that the property must be worth considerably less than the price for which the estate agent told Mrs. Moosun it could be marketed.[20]More significantly, I have seen some evidence of the private offers that were made prior to auction, as outlined above. These suggest that the price that was achieved at auction was in the right range. Certainly, I am not able to conclude that there is any reasonable basis for suspecting that there is something improper that has happened at the auction purely by reference to the price which succeeded at auction.[21]The second basis upon which Mrs. Moosun’s application was put to Mann J on 6th August and which she has reiterated to me, is that she is in a position to pay off the mortgage arrears. Mann J rejected that argument on the basis that he had no evidence from Mrs. Moosun of her ability to pay. No evidence was produced to me except for a letter which Mrs. Moosun has obtained from a firm of accountants who say that they have been dealing with her as a client on and off for 10 years. That letter describes her as being in the business of property letting management and sales, and then says:
“We cannot confirm her financial status as at now because of lack of access to her current accounting records and any financial arrangement on behalf of her will also be subject to the paragraph above. However, she is a reliable, hardworking and dedicated person.”
It is readily apparent that this letter does not give me any material upon which I can conclude that Mrs. Moosun is currently in a position to pay off the mortgage arrears to the Bank.[22]Accordingly, in my view, nothing in reality has changed from the position that existed when Mann J looked at the matter on 6th August 2015 and, as must be apparent, I cannot act as an appeal judge from Mann J.[23]For those reasons, it seems to me that there is no arguable basis upon which I should interfere with the sale of Jasmine Cottage which is due to take place.[24]I would further add that, even if I had thought there was some argument that the mortgagee (the Bank) was not obtaining a proper price for the property, it would, in my judgment, be perfectly possible for Mrs. Moosun (who is no longer in possession) to challenge, if she had the material to do so, the sale after it occurred and seek compensation or a reduction in the amount which she owes to the Bank.[25]The alternative would be for me to interfere with the sale contract and to prevent it from being completed. In those circumstances, the disappointed buyer may well seek compensation, and the Bank may not be able to sell it again for the same price. The question therefore arises as to whether Mrs. Moosun can give an adequate cross- undertaking in damages. However, for the reasons which I have outlined, I have no information which suggests to me that Mrs. Moosun would be good for a cross- undertaking in damages. Given the lateness of the application and the potential risk of injustice, in my judgment the balance of convenience in any event lies against granting an order to stop the sale from being completed.[26]For those reasons, I reject Mrs. Moosun’s application.

order

“To set aside the court order [for possession] dated 23rd August 2011 to enable the defendant to defend the matter and file an appeal in accordance with the CPR,” and then the second request, “To suspend the sale of the property through the auction scheduled to take place on 6th August 2015.”

Cited in 1 later judgment