Gavin Maher & Anor v Investalet Limited & Anor [2025] EWHC 3133 (Ch)

[2025] EWHC 3133 (Ch)Case No CR-2023-005436
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (ChD)
Venue Rolls Building Royal Courts of Justice, 7 Rolls Buildings London EC4A 1NLDate 1 December 2025
Before
INSOLVENCY AND COMPANIES COURT JUDGE GREENWOOD
Between
GAVIN MAHERApplicantsMATTHEW MAWHINNEYApplicantINVESTALET LIMITEDRespondentsPERSONS UNKNOWNRespondent
IN THE MATTER OF POCKET RENTING LIMITED (IN ADMINISTRATION)
AND IN THE MATTER OF THE INSOLVENCY ACT 1986
Mr Francis Collaço Moraes (instructed by Clyde & Co LLP) for ApplicantsMr Marc Brittain (instructed on a Direct Access basis) for First RespondentThe Second Respondents were neither present nor representedHearing Hearing dates: 11 July 2025, and further written submissions on 24 July 2025 and subsequently
JUDGMENTThis judgment was handed down (in confidential draft to the parties on 17 October 2025, and in final form, following further written submissions) remotely at 11.30am on 1 December 2025 by circulation to the parties or their representatives by e-mail.ICC JUDGE GREENWOOD:Introduction
[1]This was the final hearing of an application made on 15 January 2025 under section 234 of the Insolvency Act 1986 (“the IA 1986”) by Mr Gavin Maher and Mr Matthew Mawhinney in their capacity as the joint administrators of Pocket Renting Limited (“the Company”), seeking an order for “vacant possession” of five properties (“the Properties”) owned by the Company, at 52 Chippenham Road, London W9 2AE; 58a Chippenham Road, London W9 2AE; 64a Chippenham Road, London W9 2AE; Flat 83 Carlton Mansions, Randolph Avenue, London W9 1NS and Flat 85 Elgin Mansions, Elgin Avenue, London.[2]The Properties were let by the Company to the First Respondent, Investalet Limited (“Investalet”), by means of five written tenancy agreements (“the Investalet Tenancies”) entered into before the commencement of the administration, and dated, respectively, 12 August 2021, 23 July 2018, 13 August 2021, 15 October 2019 and 5 September 2019; apparently, or at least possibly, they are occupied by the tenants of Investalet’s own alleged sub-tenant, as I shall explain. Although the application was opposed by Investalet, none of the occupiers either responded to the proceedings, or appeared at the hearing, or sought by any means to resist the order sought; none provided evidence.[3]The application was supported by the 3rd witness statement of Mr Maher made on 14 January 2025, the 1st witness statement of Mr Carr Stephen (a partner solicitor at Clyde & Co, the Applicants’ solicitors) made on 7 May 2025, and the 4th witness statement of Mr Maher made on 9 June 2025. In opposition, Investalet relied on the 1st witness statement of Mr Peter Siha, a director, made on 23 May 2025, and the 1st witness statement of Mr David Edward, who described himself as a director of Bleu Plan LLC (“Bleu Plan”) of The Meydan Hotel, Grandstand, 6th Floor, Meydan Road, Nad Al Sheba, Dubai, UAE, also made on 23 May 2025. In part, Investalet’s case was that it had sub-let the Properties to Bleu Plan pursuant to written tenancy agreements dated, again respectively, 10 March 2024, 10 April, 1 April, 17 April and 6 April 2024, albeit in each case, after the administration had begun, and without the consent (or indeed knowledge) of the administrators; Bleu Plan was itself said to have let the Properties to their various occupiers.[4]In addition to issues concerning the right in substance of the Company to vacant possession of the Properties, there was a prior issue concerning the scope of section 234, and in particular, whether it allows for the court to make an order for vacant possession against a mere trespasser. The Background[5]The Company was incorporated on 3 August 2018, and owned a portfolio of sixty-five residential properties, which it let; its sole director and ultimate beneficial owner (through the medium of a holding company, Pocket Renting Holdings Limited, was Mr Peter Wilkinson, who was also the sole shareholder and (between 7 December 2010 and 27 November 2023) the sole director of a company called Dendrow Limited (“Dendrow”), which acted as the Company’s managing agent on the terms of a written General Management Agreement dated 30 March 2023 (“the GMA”).[6]The Applicants were appointed as administrators on 29 September 2023 by Trimont Europe Limited, the holder of a qualifying floating charge. According to a statement of affairs completed by Mr Wilkinson at the beginning of the administration, the Company owed £45,110,27 to its secured creditor, and £11,475,277 to unsecured creditors; the Applicants’ evidence was that the Properties have been estimated to be worth £4,260,000; ultimately, the Applicants wish and intend to sell them, and to realise their value for the purposes of the administration.[7]On 22 October 2023, the Applicants, as the Company’s administrators, terminated the GMA with immediate effect, thus bringing to an end Dendrow’s authority and power to act for or bind the Company. In place of Dendrow, they appointed Countrywide Estates Agents Limited (trading as “Hamptons”), to be the Company’s new managing agents. By letters dated 23 October 2023, they sought to inform the Properties’ occupiers that Dendrow’s appointment had ended, and that Hamptons had been engaged; they asked for details and information concerning (amongst other things) the identity of the present occupiers, any relevant tenancy agreements, and the amount and means of payment of any rent.[8]On 19 November 2023, Ms Nicola Evans of Hamptons emailed Mr Siha (at Investalet) having been given his details by Dendrow. She referred to the Applicants’ appointment as administrators, and to the appointment of Hamptons, and she referred also to written notice of these matters having been given previously, by means of the letters dated 23 October 2023, referred to above. She told Mr Siha that Hamptons had been asked to start collecting rent.[9]On 21 November 2023, Ms Evans and Mr Siha spoke by telephone. Following that conversation, Ms Evans emailed Mr Siha, referred to their conversation, and asked for certain information and documents, including about the Properties.[10]On 22 November 2023, Dendrow wrote to the Properties’ occupiers; it clarified and confirmed Hamptons’ appointment (and thus the end of its authority in respect of the Company, and that of Mr Wilkinson).[11]On 12 December 2023, Mr Siha replied to Ms Evans’ email of 21 November. Amongst other things, he said that “We had to gather more information as we’re unaware of what’s happening here and the landlord we were previously in touch with is instructing us to do otherwise. We’ve therefore decided to seek legal advice and hold the rent to our client’s account until we establish who it is supposed to be paid to. In the meantime we have a responsibility to protect our tenants who are all on assured shorthold tenancies and we have a due diligence to ensure they remain protected and their tenancies remain safe whilst we sort out what is happening.” Mr Siha did not explain what information was missing or required, or what had not been explained, or was not understood; he did not explain what or why legal advice was said to be required. In fact, his email contained nothing whatever to justify Investalet’s refusal to pay rent.[12]On 14 December 2023, Ms Evans replied. Amongst other things, she sent (again) copies of the written notifications of Hamptons’ appointment dated 23 October and 22 November 2023.[13]Nothing more having been heard, on 18 December 2023, Hamptons emailed demands for payment of rent in respect of the Properties to Mr Siha and Investalet. The rent demanded and said at that time to be overdue was: 13.1. in respect of 52 Chippenham Rd, £2,600; 13.2. in respect of 58a Chippenham Rd, £2,845.67; 13.3. in respect of 64a Chippenham Rd, £2,600; 13.4. in respect of 83 Carlton Mansions, £2,812.14; and, 13.5. in respect of 85 Elgin Mansions, £2,706.43.[14]Mr Siha replied by email on 19 December 2023. He accepted that “some” of the amounts claimed were correct (without saying which ones) but said that others were “way off”; he said, “I am curious as to where you are getting these figures from. This is why we are concerned; we just don’t have any clarity on what is happening and how this information is being shared”. Again, the particulars of his uncertainty, such as it might have been, were not explained; he made no effort whatever to say what, if anything, he believed to be due, or in respect of which property. Again, his statement, that “this is why we believe it is best to hold the rent on account until there is more clarity” was not specifically justified.[15]In any event, to meet any alleged lack of clarity, Ms Evans emailed Mr Siha later that day. She attached those tenancy agreements in respect of the Properties which Hamptons had been given by Dendrow, and she explained Hamptons’ understanding about the sums due. She said, “if there is anything else more current than these in place, I would be grateful if you could please forward these onto us”.[16]No payment was made; no further response or information was received; no documents. Accordingly, on 8 January 2024, Ms Evans sent further, updated (and therefore increased) demands for payment: 16.1. in respect of 52 Chippenham Rd, £5,200; 16.2. in respect of 58a Chippenham Rd, £5,691.34; 16.3. in respect of 64a Chippenham Rd, £5,200; 16.4. in respect of 83 Carlton Mansions, £5,624.28; and, 16.5. in respect of 85 Elgin Mansions, £5,412.86.[17]Again, no payment was made; again, no further response was received.[18]In those circumstances, the Applicants decided to terminate the Investalet Tenancies. Accordingly, on 28 June 2024, notices to quit dated 27 June 2024 were served on both Investalet and on any persons in occupation at each of the Properties (albeit still unidentified). By those notices, the tenancies were terminated and it was requested that vacant possession be given on 31 August 2024, or on the day on which a complete period of the respective tenancy next expired after the end of four weeks from the date of service. Reminder letters were sent to both Investalet and the occupiers on 16 August 2024. In the event however, possession was not given on 31 August 2024, or subsequently.[19]In the meantime, some correspondence passed between Clyde & Co, the Applicants’ solicitors, and Investalet (which acknowledged having received the notices to quit) and between Hamptons and Investalet. On 27 August 2024, Ms Evans emailed Mr Siha, and asked for details of “the best person to liaise with regarding handover and checkout procedures for Saturday?”. Possession not having been given, Ms Evans wrote again, on 2 September 2024, and said, “Please can you urgently get back to me …? I understand that we did not have any keys returned for these properties over the weekend. Please can you let me know ASAP where these have been returned to?”. Mr Siha replied later that day, and said, “We are trying our best to vacate the properties as soon as possible and will let you know as soon as the tenants have left so we can hand over the properties with vacant possession. We are trying our best to make this as easy and smooth as possible.” Ms Evans replied, and again asked about the occupiers, and when Mr Siha and Investalet expected to be able to give possession. She sent a further email chasing a reply a week later, on 9 September 2024.[20]Further letters were sent to Investalet and the occupiers, but went unanswered. Accordingly, on 1 October 2024, a representative of Hamptons went to the Properties in an effort to discover whether any of them were in fact occupied. Although the evidence was that they did not enter into any of the Properties, they did speak to a gentleman leaving 64a Chippenham Rd, who told them that he was a handyman working for Investalet, and that the Properties were still occupied.[21]As a result, although Investalet continued to fail to pay any rent or provide any details of the occupiers or to give any proper explanation or justification for its conduct, on 1 October 2024, Mr Siha emailed Ms Evans, and accused Hamptons of having made an unlawful eviction attempt, and of having entered the Properties unlawfully; he said that Investalet would be formally pursuing claims for resulting losses and damages, and that whilst Investalet had “made efforts to resolve these matters amicably, your recent actions appear to reflect a pattern of harassment and intimidation. The properties in question have been leased to a third party, as permitted under the tenancy agreement, and your actions have directly resulted in the cessation of rent payments to Investalet Ltd. This loss of income, attributable to your harassment and trespassing, will be brought to the judge’s attention.” He said that he had already instructed solicitors and that they would be “issuing a cease-and-desist letter promptly”; he said that he had reported the matter to the police.[22]In fact, Investalet had made no effort, amicable or otherwise, to resolve the matter, or to give possession (despite having said, in Mr Siha’s email of 2 September 2024, that it was “trying [its] best to vacate the properties as soon as possible”); as I have said, it had wholly failed to explain or justify its position, and it had failed to answer reasonable requests for information. This was, moreover, the first occasion on which Mr Siha had referred to Investalet having let the Properties to “a third party” (a comment which contradicted his email of 12 December 2023, referred to above at [11]).[23]On 7 October 2024, following a reply from Clyde & Co, a letter was sent by Shazeb Raja of SK Lloyds Solicitors, on behalf of Investalet. Amongst other things, they refused to identify the Properties’ occupiers, citing, without any effort to explain, “GDPR regulations”; they maintained that Investalet and the occupiers retained the “right to quiet enjoyment” of the Properties.[24]On 25 October 2024, a winding-up petition was presented against Investalet by the Company, acting by the Applicants. It was based on Investalet’s failure to pay rent to August 2024, in respect of the Properties, in the aggregate sum of £122,078.16 plus interest.[25]In those circumstances, on 15 January 2025, the present application was made.[26]Mr Maher’s first statement contained evidence that as at the date of the application, several of the Properties were still being listed on letting websites such as Snaptrip, Lodging World, Airbnb, and Rightmove; certain of those listings appeared to have been managed by a company called Hubbub Limited, of which Mr Siha was a director. It appeared therefore that the Properties were being used for the purposes of short-term holiday lettings - despite the Applicants’ attempts to secure possession, and Investalet’s knowledge of their attempts. Any income from the Properties has, apparently, simply been retained by Investalet.[27]The Applicants’ case was: 27.1. that in respect of the period from December 2023 to August 2024, in breach of the Investalet Tenancies, rent was unpaid and outstanding, at that time in the aggregate sum of £122,078.16 plus interest, and that since then, mesne profits were accumulating and as at the date of the application, amounted to £40,692; at that time, no real reason had been given to justify Investalet’s failure to pay; 27.2. notices to quit had been served on Investalet and any occupiers; the contractual tenancy agreements made with Investalet had therefore been terminated and had come to an end on 31 August 2024; no response from an occupier had ever been received; 27.3. in any event, the Investalet Tenancies prohibited sub-letting; 27.4. and that there was therefore no arguable defence to the claim to vacant possession.[28]At the first hearing of the application, on 22 January 2025, Deputy ICCJ Agnello KC (as she then was) ordered the Respondents to file and serve any evidence by 4pm on 12 February 2025. At 16:05 on 12 February 2025, although no evidence was filed, Mr Siha sent an email to Clyde and Co, to which he attached five alleged tenancy agreements said to have been entered into, one in respect of each of the Properties, and also a letter which was said to have been from Bleu Plan, “our tenant”, objecting to the relief sought; he said that more time was required to file evidence formally, although he failed to explain to any extent how it was that the time thus far given had been insufficient (particularly so since the Applicants’ attempts to gain possession had been continuing since at least June 2024, and Investalet had not paid any rent since November 2023). Mr Stephen’s evidence was that this email was the first time the Applicants had seen or heard reference to Bleu Plan.[29]Subsequently, at 16:35, Mr Siha sent a request to “recall” his email of 16:05. Then, at 22:13, he sent a further email (albeit to a different fee earner at Clyde & Co) in which he said that the previously sent version of the letter said to be from Bleu Plan had not been signed, and to which therefore he attached a signed version (albeit “signed” simply “Bleu Plan”, which is not a person’s signature).[30]The alleged tenancy agreements attached to the email of 16:05 were also unsigned by Bleu Plan (albeit that was not apparently the reason for the email having been recalled). Each purported to have been made between Investalet and Bleu Plan on the dates that I have stated at [3] above, and each document had been signed by Mr Siha, or at least, in his name. Mr Stephen’s evidence was that despite their investigations, Clyde & Co had been unable to find any details of “Bleu Plan LCC” in Dubai, although they had found a website for what appeared to be a property business called “Bleuplan” albeit with no registered corporate name and an address in Dubai which was not the same as the address in the alleged tenancy agreements and letter; a registered company called “The Bleu Plan Limited” with a correspondence address for its director which was the same as the address given on the “Bleuplan” website was also found – but it had no obvious sign of any connection with the entity referred to by Mr Siha.[31]The application came before the court again on 12 May 2025 - three months after Mr Siha’s emails, during which time no responsive evidence had been filed - and Chief ICCJ Briggs made a further order, including that the Respondents be debarred from relying on any evidence if not filed and served by 4pm on 26 May 2025. In accordance with that order, Investalet filed the statements that I have mentioned, from Mr Siha himself and from Mr Edward.[32]In the meantime, on 22 January 2025, the winding-up petition was withdrawn by consent, because a settlement was agreed in respect of the debt on which it was based (£122,078.16 in respect of rent to August 2024), by which Investalet agreed to pay £75,000 by means of monthly instalments between 24 January 2025 and 24 June 2025. Implicit in that agreement was that at least that sum was due in respect of the period to August 2024. In the event however, having thus secured the withdrawal of the winding-up petition, other than one initial payment of £5,000, Investalet has paid no part of the agreed settlement sum, £70,000 of which therefore remains outstanding.[33]By the statements filed on behalf of Investalet: 33.1. the alleged tenancy agreements between Investalet and Bleu Plan were exhibited by Mr Siha, but this time, signed by Mr Edward for Bleu Plan, and by Mr Siha for Investalet (albeit, in the case of Mr Siha, by means of a different signature – in other words, the exhibited documents were not fully or additionally signed versions of those previously sent, on 12 February 2025); there was no explanation of either the previous failure to send or produce fully signed versions, or of the change to the signature apparently added on behalf of Investalet; 33.2. although Mr Siha acknowledged that the Investalet Tenancies prohibited sub-letting, he said that Investalet had been given “prior verbal” permission to sub-let by Mr Wilkinson, from whom a letter dated 20 May 2025 was exhibited, in which he said that “as the former director of Dendrow Limited I confirm that when the when the (sic) tenancies for the properties were granted to [Investalet], it was agreed that you could sublet the properties. I was aware of your business model of re-letting the properties or rooms. The permission was contingent upon your continued adherence to the terms of the tenancy agreements, proper maintenance of the properties, and timely payment of the full rent”; other than the letter, no document which recorded or even referred to that consent was either exhibited or otherwise in evidence; there was no sworn statement from Mr Wilkinson, and no greater particularity of the alleged agreement; 33.3. Mr Edward exhibited what he said were the tenancy agreements made by Bleu Plan with its own tenants, as follows (each was, on its face, an assured shorthold tenancy): 33.3.1. in respect of 52 Chippenham Rd, with Mohammed Jamil Ibn-Khalid Al Waheed, dated 18 March 2024 (albeit the alleged tenancy between Investalet and Bleu Plan was dated 10 March 2024); 33.3.2. in respect of 58a Chippenham Rd, with James Mason, Andrew Clark and Louise Weston, dated 9 April 2024 (albeit the alleged tenancy between Investalet and Bleu Plan was dated 10 April 2024); 33.3.3. in respect of 64a Chippenham Rd, with Viktoriya Ivanov, dated 9 April 2024; 33.3.4. in respect of 83 Carlton Mansions, with Hamza Massoud and Yasmine Bint-Youssef, dated 23 August 2024; and, 33.3.5. in respect of 85 Elgin Mansions, with Khadija Bint-Aziz, dated 22 April 2024; 33.4. Mr Edward said that during these tenancies, there had been numerous and serious issues of disrepair reported by Bleu Plan’s tenants, many of which remained unresolved despite repeated reports, and that as the result “some tenants indicated that they would begin withholding rent due to the condition of the properties”; also, that although Bleu Plan continue to collect rent in some instances, the “scale and nature of the disrepair” left them unable to operate the Properties profitably or in compliance with their legal obligations, and that as a result they had decided to withhold rental payments otherwise due to Investalet; he did not explain how much had been paid either to Bleu Plan, or by it, and he did not explain how much had allegedly been withheld; he provided no documentary evidence to substantiate his claims of disrepair, or that there had been any complaints made by the occupiers, or that he had communicated any such complaints to Investalet; in any event, the earliest in time of the alleged tenancies granted by Bleu Plan was 18 March 2024, and Investalet last paid rent to the Company in about November 2023; 33.5. no evidence was served from any of Bleu Plan’s alleged tenants; none therefore have asserted any right to continue in occupation; 33.6. Mr Siha himself said that “the arrangement functioned smoothly until various times in 2024 when rent payments from the individual assured shorthold tenants began to cease”; although he said that problems of disrepair had been told to him by Bleu Plan, he exhibited no written communications in that respect, whether with Bleu Plan or the Company (or its administrators – whose own evidence, which I accept, was that they had been told nothing in this respect); instead, he said that Investalet had spent a “substantial” sum on repairs, and he exhibited “some of the invoices” in that regard; however, none of those invoices were addressed to Investalet, and no evidence of payment was exhibited; in aggregate, they amounted to £42,688, and were dated between 28 February 2024 and 30 March 2025 (with one date obscured on the copy in evidence) – all, in other words, some months after Investalet began to fail and refuse to pay rent; there was no evidence of prior demand for payment in this respect having made by Investalet; furthermore, many of the alleged invoices pre-dated the settlement agreement made on 22 January 2025, and referred to above at [32]; 33.7. Mr Siha acknowledged that he was a director of HubHub Limited, and said that, “it seems that Bleu Plan and or other tenants have used this software platform in the past”; 33.8. ultimately, said Mr Siha, Investalet’s failure to pay rent had been caused by the failure of Bleu Plan and/or Bleu Plan’s own sub-tenants to pay rent, which had, in turn, been caused by the Company’s failure to comply with its own obligations to repair and maintain the Properties; 33.9. finally, in addition, said Mr Siha, he had agreed with the Company, that Investalet “would be granted a 6-month rent free period due to its consistency in paying rent during the lockdown caused by the Covid-19 pandemic”; in the letter from Mr Wilkinson, he said, “I confirm that due to your continued full payment of the rent during Covid-19, it was agreed that six-month rent free period would be given for each of the respective properties” - a sum which would have amounted to about £80,000; again, other than the letter, no document which recorded or even referred to that agreement was either exhibited or otherwise in evidence; there was no sworn statement from Mr Wilkinson, and no greater particularity; moreover, it was not said or explained how, if at all, the alleged agreement was said to have survived the settlement in January 2025, or indeed, why it had not been applied at some point in time before December 2023, given that the various restrictions caused by the pandemic had come to an end sometime earlier. Discussion Jurisdiction: the scope of section 234 of the IA 86[34]In relevant part, section 234 of the IA 1986 provides:
“(2) Where any person has in his possession or control any property, books, papers or records to which the company appears to be entitled, the court may require that person forthwith (or within such period as the court may direct) to pay, deliver, convey, surrender or transfer the property, books, papers or records to the office-holder.”
(emphasis added)[35]For these purposes, “property” is defined (inclusively) at section 436 of the IA 86, in the following terms:
““property” includes money, goods, things in action, land and every description of property wherever situated and also obligations and every description of interest, whether present or future or vested or contingent, arising out of, or incidental to, property.”
(emphasis added)[36]Section 234 “does not create new rights but is designed as a summary procedure to assist an insolvency office-holder to carry out his functions in the relevant insolvency process. The office-holder can obtain an order in his own name for transfer etc. of company property to himself, but the section does not give the office-holder any better rights to any property than the company had: see Leyland DAF Limited [1994] 2 BCLC 106, Smith v Bridgend CBC [2001] UKHL 58 at [28] and Ezair v Conn [2020] EWCA Civ 687 at [26]”: see Carvill-Biggs v Reading [2025] EWCA Civ 619, per Snowden LJ.[37]The decision in Carvill-Biggs concerned an application made by administrators under section 234 for “delivery of possession” of a residential property occupied, as a trespasser, by a director of the company. Prior to the administration, the property had been charged by way of legal mortgage to a lender which had enforced its security by appointing receivers under the Law of Property Act 1925 and by starting possession proceedings in the County Court under CPR Pt 55. Allowing the respondent’s appeal, the Court of Appeal set aside the possession order made by the judge; judgment was given by Snowden LJ, with whom Nugee and King LJJ agreed.[38]Essentially, the appeal succeeded on two grounds (not immediately relevant to the present case): 38.1. first, that once a receiver has been appointed under a mortgage, a liquidator of the company subsequently appointed is not entitled to get in or realise the charged property, which is (see Gosling v Gaskell [1896] 1 QB 669 at 692 per Rigby LJ, and Buchler v Talbot [2004] 2 AC 298 at [28]-[29] per Lord Hoffmann) the “property, first of all, of the debenture-holders, and only belonging to the company as to the equity of redemption”; in consequence, the property is no longer property “to which the company is or appears to be entitled” under section 144 of the IA 1986, and is therefore not “property” within the scope and for the purposes of section 234; the position in administration is no different: see Carvill-Biggs at [45]-[59]; 38.2. second, the mortgagor company’s right to recover possession of the property had come to an end, before the beginning of the administration, when the mortgagee had commenced County Court possession proceedings; the administrators stood in no better position than the company in respect of which they had been appointed; accordingly, they had no right to seek possession under section 234 (or, presumably, at all): see Carvill-Biggs at [60]-[62]; 38.3. these two matters – essentially, that there was no relevant “property” and that in any event, the company and its administrators had no right to seek possession of it - were described as being separately and collectively fatal to the administrators’ application.[39]However, in addition to these points, which were the basis of the Court’s decision, Snowden LJ commented, at [42]-[44]:42. I agree with the Judge that, in accordance with section 436 of the Insolvency Act, "property" for the purposes of section 234 is wide enough to include land and any interest in land. However, it is apparent that the Judge's decision was not based upon a suggestion that the Respondents had in their possession or control any legal or equitable interest in the Land that they were required to convey or transfer to the Administrators. This was not, for example, a case where a person held the registered legal title to land on trust for the company as beneficial owner, and the administrators sought to have that legal title transferred or conveyed to them. The Respondents had no legal or equitable interest in the Land to deliver up. They were only in possession of the Land in the sense that they were occupying it.43. In this regard, I have very real doubt that section 234 is intended to apply where the only basis for saying that a person "has in his possession or control property to which the company is entitled" is that he is occupying land as a trespasser. I find it difficult to see what property a trespasser could be ordered to "pay, deliver, convey, surrender or transfer" to an office-holder. What a trespasser would in fact be required to do would be to cease to occupy the land. The point can be tested by contemplating what would happen if an order that a person "deliver possession" of land was not complied with. In such a case the court would simply order that the person be physically removed (evicted) from the land in question.44. That point was, however, not argued before us on this appeal, and it is not necessary for us to decide it, because, as I shall explain, on the particular facts of this case I think that there are other, equally fundamental reasons, why section 234 was not applicable. ….[40]The point is this: even if the land in question, occupied by a trespasser, is itself relevant property for the purposes of section 234, and even if the company (and so the office-holder) has a right to seek vacant possession of that property, nonetheless, is the office-holder, in doing so, seeking to compel the trespasser to "… deliver, convey, surrender or transfer" any such property “to the office-holder”, rather than seeking simply to compel that person to leave – to vacate and cease to occupy?[41]In the present case, it was the Applicants’ asserted position that the Investalet Tenancies had been terminated with effect from 31 August 2024, and that (even assuming them all to be genuine documents and contracts – which was not admitted) the tenancies said to have been made by Investalet and Bleu Plan (after the commencement of the administration) were in breach of the terms of the Investalet Tenancies, such that any person now in occupation was a mere trespasser, without any relevant entitlement or consent, and such that the Applicants therefore have a right to “vacant possession” (which was specifically, in terms, the order sought).[42]Very shortly before the beginning of the hearing on 11 July 2024, I therefore raised with the parties (by email) the problem identified (albeit obiter) by Snowden LJ in Carvill-Biggs at [42]-[44] (the point not having been addressed in Mr Moraes’ skeleton argument, and Mr Brittain having not produced one at all). Although in those circumstances I therefore heard some oral argument, it was not much developed, and so I directed that the parties could, by 4pm on 24 July 2025, file additional written submissions on the scope and applicability of section 234. In the event, I received from Mr Moraes (on 24 July) a further document on behalf of the Applicants, and subsequently a document from Investalet (it was not clear why the transmission of that document to me had been delayed; I was not told who had written it on Investalet’s behalf; I have in any event now seen it and taken its content into account).[43]The Applicants’ argument was as follows. 43.1. First, that a trespasser on land nonetheless has an interest in the property - a possessory title - capable of being asserted against those with no (or no better) right, and capable of being transferred. 43.2. Second, that ordering and giving vacant possession involves more than the trespasser “simply leaving” the land – it requires the “return” of the property free of people, chattels and interests. 43.3. And accordingly, that third, an order for vacant possession in favour of a person with a superior title (and therefore an order under section 234) in effect entails the delivery, conveyance, surrender or transfer to that person of the trespasser’s possessory interest in, and/or wrongful control of, the land.[44]The first of those propositions is correct. Mr Moraes referred to Megarry & Wade, The Law of Real Property (10th Edition), Chapter 7, and in particular, paragraphs 7-007 to 7-009, and 7-036 to 7-037. Paragraph 7-008 explains: “At common law…there is no such concept as an ‘absolute’ title. Where questions of title to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land” (see Ocean Estates Ltd v Pinder [1969] 2 A.C. 19 at 24, 25 per Lord Diplock). Some examples will illustrate this fundamental doctrine and the right and wrong occasions for the plea that a third party owns the land (jus tertii). If last year S dispossessed O of land which had hitherto belonged to O, and O is taking no action, there are now two incompatible titles to the land. As between O and S, O is the owner, because he can recover the land by bringing an action. However, as between S and the rest of the world (except O and persons claiming through him) S is owner, for she is in possession and that is equivalent to ownership as against all persons who have no better right (Doe d. Hughes v Dyeball (1829) Moo. & M. 346; 3 C. & P. 610; Doe d. Humphrey v Martin (1841) Car. & M. 32; Asher v Whitlock (1865) L.R. 1 Q.B. 1). Thus S can sue strangers for trespass or nuisance, just as O could before. Furthermore, S can convey the land, or make any other disposition which an owner can make. If S dies, the land will pass under S’s will or intestacy. But all such rights derived through S are subject to O’s (or O’s successor in title’s) paramount right to recover the land. S’s possession at once gives all the rights and powers of ownership, at least for the purposes of the civil law. S has, in fact, a legal estate, a fee simple absolute in possession. But so also has O, until such time as O’s title is extinguished by limitation.[45]However, the flaw in the Applicants’ argument comes at the second stage, for although the trespasser certainly has an interest in the land capable both of being transferred and asserted against others with an inferior or no right at all, he cannot assert it as against a person with a superior right, and therefore, so it seems to me, cannot transfer (or deliver, convey or surrender) it to that person (who by virtue of his superior right, already has all that he needs, as against the trespasser). The person with the superior right vindicates it by compelling the trespasser to leave, terminating his interest; he does not acquire that interest - he brings it to an end.[46]The Applicants sought to meet this problem by reference to the decision of the Court of Appeal in Capitol Park Leeds plc and another v Global Radio Services Ltd [2021] EWCA Civ 995. In that case, a landlord argued that its tenant had not effectively terminated a lease by the exercise of a break clause, because termination was conditional on “vacant possession” having been given, and that condition had not been satisfied because various items of property (see [7] of the judgment) had previously been stripped out from the premises by the tenant. Therefore, as was common ground (see [10]) the issue was essentially one of construction of the lease.[47]For the landlord, it was argued that the “premises” to be given back included items and features which had been removed, and so the condition was unsatisfied. For the tenant - which succeeded – it was argued that the condition was concerned not with the physical state of the building, but with whether it (in whatever condition) was recovered by the landlord “free of things, people and interests”. At [13], Newey LJ (with whom Elisabeth Laing and Moylan LJJ agreed), said: On balance, I agree with [counsel for the tenant]. In the first place, "vacant possession", which is what clause 10.1.4 of the Lease requires, conventionally involves a "trilogy of people, chattels, and interests" (to quote Nugee J in Goldman Sachs International v Procession House Trustee Ltd [2018] EWHC 1523 (Ch), [2018] L&TR 28, at paragraph 39). As Nugee J noted in the Goldman Sachs case at paragraph 39, "what the obligation to give vacant possession normally requires is threefold":
"to return the premises to the landlord free of, or vacant of: first, people; secondly, chattels (subject to the decision of the Court of Appeal in Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264 , which is to the effect that a party is only in breach of the obligation to give vacant possession by leaving chattels on the property if the physical impediment substantially prevents or interferes with the enjoyment of the right of possession of a substantial part of the property); and, thirdly, legal interest"
. Of itself, therefore, an obligation to give "vacant possession" refers to giving back the property in question free of "people, chattels, and interests", not to its physical condition.[48]The Goldman Sachs case also concerned the construction of a break clause in a lease. At [39], Nugee J (as he then was) said: I should say that it is also common ground that what the obligation to give vacant possession normally requires is threefold. That is to return the premises to the landlord free of, or vacant of: first, people; secondly, chattels (subject to the decision of the Court of Appeal in Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264 , which is to the effect that a party is only in breach of the obligation to give vacant possession by leaving chattels on the property if the physical impediment substantially prevents or interferes with the enjoyment of the right of possession of a substantial part of the property); and, thirdly, legal interest. So a person does not comply with the obligation to give vacant possession if it is subject to a legal right in somebody else to take possession. That trilogy of people, chattels, and interests, which was put forward by Mr Seitler, was not dissented from by Mr Sefton and I accept accurately reflects the general law of vacant possession.[49]The Applicants’ argument was that the obligation to give vacant possession by “returning the property” free of people, chattels and interests, meant that there was (or would be a) relevant transfer for the purposes of section 234. I do not agree with that argument: it does not meet the point that the trespasser’s identified interest is not in any sense (by his vacation of the property) transferred to the holder of the superior title (or delivered, conveyed or surrendered to that person); indeed, the obligation to give, free of people, chattels and interests, underlines the conclusion that the person is, with his possessions, departing (and his interests ending) rather than that he is transferring anything to the other.[50]Whilst true that in the construction of break clauses, courts have commonly spoken of “returning” the property, that issue is not the same as that which arises in the interpretation of section 234: in the break clause cases, the courts were not concerned with the nature of the tenant’s interest, or with the question whether that interest was capable of being transferred to the landlord. Ultimately therefore, they did not support the Applicants’ case.[51]Finally, Mr Moraes referred to the decision of Deputy ICCJ Schaffer in Clive Everitt v Zeital [2018] EWHC 1316 (not cited to the Court of Appeal in Carvill-Briggs) at [66], where the judge said: 66. I am also satisfied that, contrary to the Respondents' submission at paragraph 19 above, Section 234 is not limited to delivery up of documents, That section on its natural reading includes the delivery up of property which under Section 436 of the Act, includes land. Mr Clarke told me that there was no authority on the point but I am satisfied that the word "deliver" is not to be given the confined meaning it has in the Rules. The Rules only address the delivery up of documents and are subordinate to the Act. If Parliament had meant that the word "deliver" was only to apply to papers it would have said so -Indeed the section clearly has to have in mind land as it refers as well to "convey" and "surrender" of "property". The proceedings, therefore, in my view are properly constituted.[52]The argument had been explained at [19] in the following terms: 19. It was argued section 234 of the Act was inapplicable to proceedings for possession. The reference to "property" under section 234 of the Act did not cover land. That section was for delivery up of documents - see Rule 1.2 of The Insolvency (England and Wales) Rules 2016 ("the Rules") which limited delivery to documents under Chapter 9 of the Rules. These proceedings should have been brought under CPR 55 and if that was right the claim was wrongly constituted and should have been commenced in the County Court. In any event the Liquidator should have sought information under section 236 of the Act first before launching possession proceedings.[53]Whilst I acknowledge that the judge in that case (in which the respondents appeared in person) made an order for possession against the respondents (whom he found to have no rights of occupation or ownership, or any other relevant interest), the argument that he resolved at [66] was not the same as that raised by Snowden LJ in Carvill-Briggs. The decision does not compel or persuade me to accept the Applicants’ argument in the present case.[54]In conclusion, it follows that the application must be dismissed. The relief sought is not within the scope of the section. The Administrators’ Alternative Course[55]It does not of course follow that the administrators are without a remedy. As was readily accepted, possession proceedings can be (and ordinarily are) pursued under Pt 55 of the CPR, in the name of the company. Moreover, possession orders made under those provisions can be enforced using the methods again specifically provided for (see CPR Pt 83.12 and 83.26); it was not clear to me that those methods would necessarily be available were an order to be made under section 234 (or indeed, precisely how such an order would be framed, and what it would entail).[56]As to the substance of their case, I agree that they (or at least, the Company) would be entitled to possession of the Properties. Briefly (given my decision in respect of the scope and inapplicability of section 234) for the following reasons. 56.1. The notices to quit were validly served on 28 June 2024, and the Investalet Tenancies came to an end on 31 August 2024. Since then, Investalet has had no right to occupy the Properties. 56.2. Investalet had no contractual right to sub-let the Properties. I do not accept that it was entitled to do so by virtue of the alleged permission given orally by Mr Wilkinson: 56.2.1. first, the sub-tenancies were not made until after the commencement of the administration, after the termination of Dendrow’s GMA, and thus after the termination of the authority or power of either Dendrow or Mr Wilkinson to act for the Company; 56.2.2. second, Investalet’s evidence of the alleged prior oral permission was unconvincing: there was no statement from Mr Wilkinson himself and no reference to the alleged permission in any document (other than the letter from Mr Wilkinson); 56.2.3. third, in any event, the permission, as stated by Mr Wilkinson, was contingent on Investalet’s continuing adherence to the terms of the Investalet Tenancies; however, it is in breach of those Tenancies because it has failed to pay any rent since November 2023; 56.2.4. on any view therefore, the sub-tenancies were contractually prohibited; 56.2.5. finally, the evidence of the sub-tenancies themselves was again, most unsatisfactory: there was no explanation of their production in a form unsigned on behalf of Bleu Plan, or their later production in a form signed by Mr Siha, but using different a signature. 56.3. In any event, despite having been served and given notice at every stage, there was no opposition to the claim advanced by any actual alleged occupier or sub-tenant of Bleu Plan. 56.4. I do not accept that there was an agreement to waive rent for a 6 month period: again, the allegation was unparticularised, made in the barest terms; there was no formal statement from Mr Wilkinson, and no reference to any such agreement in any contemporaneous document; and in any event, any such agreement would have been subsumed in the settlement agreement of January 2025. 56.5. I do not accept Investalet’s allegations of a counter-claim based on repairs having been carried out: no contemporaneous documents were produced to substantiate the allegation that either Bleu Plan, or its tenants, or Investalet, had ever made any complaint or sought payment, or asked the Company to carry out any works; the invoices that were produced all post-dated the administration, and some post-dated the termination of the Investalet Tenancies; none were addressed to Investalet, and there was no evidence of actual payment; in any event, Investalet was not entitled under the Tenancies to carry out repairs of the sort alleged. 56.6. Finally, I note that in Carvill-Biggs, Snowden LJ and the Court of Appeal expressed the “provisional view” that had there been (contrary to their decision explained above) a power to make the order sought under section 234, the judge would not have been wrong to hold that CPR Pt 55 was inapplicable to the application (see [68]-[81]) although it was accepted (see [77]) that in that event, “the court should so far as possible” to apply the same procedure (and thus afford defendants the same procedural protections and rights). Until the hearing in the present case (indeed, until such time as I raised the point) there had been no objection to the procedure adopted by the Applicants.[57]In the circumstances, neither the alleged sub-tenancies nor the alleged work provided any grounds for resisting an order for possession. Had section 234 allowed for it, I would have made the order sought. Since the beginning of the administration, Investalet’s conduct in respect of the Properties has been discreditable: it has failed to produce information reasonably sought; it has failed to pay rent; and it has failed (despite having agreed to do so) to give possession or make any apparent effort to do so; its evidence in the proceedings was, as I have said, unsatisfactory; it appears, quite cynically, to continue to make profit from the Properties at the expense of the Company’s creditors. Nonetheless, given my conclusions in respect of the scope of section 234, the application is dismissed. Dated: 1 December 2025

Cited in 1 later judgment