“The Husband will continue to make use of the property and continue to pay the mortgage payments as before. The “Wife has the power to repair, maintain, improve and develop the property as far as the property deed and schedule in the property title will allow given the respective covenants within.”
“For the avoidance of any doubt (Mr Kamran Malik having attempted to make submissions before me today in relation thereto), this Court has no jurisdiction to entertain any further applications made by Mr Malik or Mrs Kamran concerning the final charging order made by Deputy Master Nussey over the property at 11 St Clair Road, London, E13 9DU”
“47. By his respondent’s notice, Madiyar has argued that the judge should in any event have dismissed the bank’s claim under section 423 of the Insolvency Act on the ground that the claim was barred by limitation. On the conclusion I have reached above – with which I understand that the Vice-President and Coulson LJ agree – it is not necessary to decide this issue. But as we have had the benefit of detailed written submissions on the point, I will explain why in my opinion the judge decided it correctly. 48. The judge held – and it is not in issue on this appeal – that the claim under section 423 was an action for a sum recoverable by statute falling withinsection 9(1) of the Limitation Act 1980 , which prescribes a six year limitation period. Accordingly, as this action was begun in December 2015, more than six years after the transfer was made on26 February 2009 , the claim was prima facie time-barred. The bank relied, however, onsection 32 of the Limitation Act , which provides for the postponement of the limitation period in certain cases of fraud, concealment or mistake until the claimant has discovered the fraud, concealment or mistake or could with reasonable diligence have discovered it. In cases of fraud or deliberate concealment, the fraud or concealment must be that of the defendant, but section 32(1) provides that references in that subsection to the defendant include references to ‘any person through whom the defendant claims’.”
“98. The findings of fact mean that the only area of law that now needs to be specifically addressed when considering the 2008 transfer is section 423 IA which concerns ‘transactions defrauding creditors’. This provisions confers a discretionary power on the court in circumstances of a transaction having been entered into at an undervalue for a prohibited purpose to make such order as it thinks fit to restore the position to what it would have been if the transaction has not been entered into or to protect the interests of victims of the transaction. The applicant for such relief may be a victim of the transaction (a person who is or is capable of being prejudiced by it, section 423(5) IA) or by a relevant office holder, as here, with the application being treated as made on behalf of every victim in each case (see section 424(1) IA). 99. The inexhaustive definition of a ‘transaction’ in section 423 IA is set out in section 426 IA as including, ‘a gift, agreement or arrangement, and references to entering into a transaction shall be construed accordingly’. Therefore, any agreement or understanding between parties, whether formal or informal, oral or in writing is capable of being a ‘transaction’ under section 423 IA (see Feakins v. DEFRA[2007] BCC 54 at [76] per Jonathan Parker LJ. - a decision emphasising the flexibility of the definition in the context of a series of agreements or arrangements which concluded that the court was able to address the transactions as a whole). 100. The prohibited purpose test is now identified as a simple one that does not depend on tests of dominant or substantive or any other adjective. As Leggatt LJ, as he then was, said in JSC BTA Bank v. Ablyazov[2018] EWCA Civ 1176 : ‘There is no need to put a potentially confusing gloss on the statutory language. It is sufficient simply to ask whether the transaction was entered into by the debtor for the prohibited purpose. If it was, then the transaction falls within section 423(3), even if it was also entered into for one or more other purposes. The test is no more complicated than that’. 101. The prohibited purpose for the person entering into the transaction with another (defined as the debtor – section 423(5) IA) is the purpose: ‘(a) of putting assets beyond the reach of a person who is making, or may at some time make, a claim against him, or (b) of otherwise prejudicing the interests of such a person in relation to the claim which he is making or may make.’ (section 423(3) IA). 102. There is no requirement that Mr Wotherspoon had to be insolvent at the time of the relevant transfer. What needs to be proved on the balance of probability is that Mr Wotherspoon entered into the challenged transaction with that purpose for which there must be in his mind not a specific creditor who would benefit from relief at the date of the transaction but a (i.e. any) person who is making or may at some time make a claim against him (see Hill v Spread Trustee Ltd[2006] EWCA Civ 542 ,[2007] 1 WLR 2404 at [136], by Arden LJ, as she then was). It follows that it does not need to be the person bringing the claim as Sales J., as he then was, explained in 4 Eng v Harper[2009] EWHC 2633 (Ch) at [22]: ‘In the present context, in determining whether a relevant purpose is made out under s. 423(3) it would not matter whether Mr Simpson acted in order to protect his assets from possible claims by Mars or from possible claims by 4Eng. It would be sufficient for 4Eng to establish that he acted for either or both purposes, since it is not a requirement of s. 423(3) that the victim claiming relief in relation to a transaction was the very creditor whose claims the transferor was seeking to defeat – it is sufficient that the transferor acted with the purpose of defrauding any person who had made or might make a claim against him (see the reference in general terms in s. 423(3) to ‘a person who is making, or may at some time make, a claim against [the transferor]’ and Sands v Clitheroe[2006] BPIR 1000 ).’”
“195. I have already held that the witness signatures to the 2015 Deed were not the signatures of the purported witness and that therefore the 2015 Deed was not in fact a deed. It may have operated as an agreement between Mr Rajan Sohal and Mrs Pooja Sohal as to the beneficial shares in which they owned 31 Windsor Road, but there is no evidence that Mrs Pooja Sohal gave any consideration for that agreement or that she acted to her detriment in reliance on it. Accordingly the agreement did not alter the pre-existing 50:50 beneficial ownership of the property as between Mr Rajan Sohal and Mrs Pooja Sohal. It is therefore unnecessary to decide whether the 2015 Deed was a sham or should be set aside or otherwise dealt with unders.423 Insolvency Act 1986 ”