Shafiq-Ul Hassan v Jason Mark Evans T/A Evans Insolvency

Mr Shafiq-Ul Hassan brings a claim for a declaration that he is entitled to surplus monies arising from the sale of a property by reason of his having a second legal charge over that property. Mr Jason Mark Evans (Trading as Evans Insolvency) is the Trustee in Bankruptcy of Mrs Ceri Nur, the registered title holder of the freehold property over which Mr Hassan has the second legal charge. Mr Evans disputes the validity of the legal charge. He also brings a counterclaim for an unpaid rental payment and an unpaid rent deposit pursuant to a lease between Mrs Nur (as lessor) and Mr Hassan (as lessee).

At the trial, Mr Hassan was represented by Mr Hill of Counsel and Mr Evans was represented by Mr Freeman of Counsel. I am grateful to both counsel for the way in which they presented their respective cases and for their detailed and helpful submissions, both in their written skeleton arguments, in oral submissions on various matters during the trial and also in their respective written closing submissions

In order to deal with this case, I have been provided with a main agreed trial bundle which ran to 859 pages of documents and witness statements. At the start of the trial, I granted Mr Hassan’s application to adduce further documents in a supplementary trial bundle of 235 pages. Those documents comprised invoices and photographs which Mr Hassan relied upon in support of his case as to the amounts spent on renovation of the Property.

In addition, Mr Evans submitted a further Defendant’s bundle of some 25 pages and Mr Freeman submitted a 13-page written schedule of the invoices in the supplemental bundle to assist during cross examination and in submissions. I was also provided with a bundle of authorities from each side.

The main trial bundle contained witness statements from the following people in support of Mr Hassan’s case: a witness statement from Mr Hassan himself dated 10^th June 2024; a witness statement from Mr Mehmet Nur, dated 7^th June 2024, a hearsay notice in respect of Mr Nur’s statement dated 10^th June 2024; a witness statement from Mr Tunahan Kirktepeli dated 10^th June 2024 and a second witness statement from Mr Hassan dated 18^th July 2024.. The main bundle contained a witness statement from Mr Evans in support of his case dated 10^th June 2024, a witness statement from Mr Stuart Atherton dated 17^th July 2024 and a further witness statement from Mr Evans dated 14^th August 2024.

During the trial, I heard oral evidence from Mr Hassan, and Mr Kirktepeli in support of Mr Hassan’s case . Although Mr Hassan had served a witness statement from Mr Nur, Mr Nur was not called to give evidence. Mr Nur served a hearsay notice on 10^th June 2024. On 7^th August 2024 HHJ Harrison gave Mr Evans permission to call Mr Nur to be cross examined on the contents of his statement and also to file a statement dealing with issues of Mr Nur’s credibility. I heard oral evidence from Mr Evans in support of his own case. I have taken into account all of the evidence, both written and oral, the documents I have been referred to, and the detailed written and oral submissions of counsel in coming to my determination in this case.

I heard the trial of this claim and counterclaim on 6^th -8^th January 2025. In the event, the trial estimate proved insufficient to complete the trial and it was only possible to conclude the evidence within the trial listing. I directed the parties to file written submissions sequentially, with the Defendant filing submissions by 17^th January and the Claimant filing submissions by 24th January. I directed that judgment thereafter be reserved to be handed down in writing.

As part of the directions for the filing of written closing submissions, I directed the parties to agree a joint list of issues. Such a joint list of issues was agreed and provided with the Claimant’s written closing submissions on 24^th January.

The primary issues that I have to determine are set out in the joint list of issues in the following way:

It is agreed that these issues can be subdivided:

Rent due under the Lease.

This case concerns the freehold commercial property at 16C Crwys Road, Cardiff CF24 4NJ (“the Property”). On 2^nd June 2020 Mrs Ceri Nur as purchaser and Mr Philip Harries as vendor exchanged contracts for the sale of the Property to Mrs Nur for £425,000. Mrs Nur instructed Mr Hassan, firstly at City Law Solicitors, and then at Maxwell Solicitors to act as her solicitor in the purchase of the Property.

There was an extended completion date of 30^th June 2021, that is, 1 year after the exchange date, or earlier by mutual agreement. Special conditions were also agreed in the contract, including special condition 8(1), which enabled Mrs Nur to enter the Property for the purpose of carrying out agreed works as licensee not as tenant. The agreed proposed works were listed in a schedule to the contract and included:

The purchaser was required to pay a deposit of £20000.

Upon exchange of contracts, £20,000 was paid into the account of City Solicitors. This sum came from a company account in the name of MC Saray Limited. This sum was then transferred to the account of Mr Harries’ solicitors, Eaton-Evans and Morris.

After exchange of contracts, renovation works started on the Property. The details of the renovation works and the precise parties to them are in dispute. Mr Hassan’s pleaded case is that there was a joint venture or partnership between on the one hand Mrs Ceri Nur and Mr Mehmet Nur, and on the other, third parties comprising a Mr Tosun, a Mr Kirktepeli and a limited company called Rhostio Ltd. Mr Hassan’s pleaded case is that Rhostio carried out renovation works to the Property on behalf of and on the instructions of Mrs Nur and Mr Nur. The renovation works were carried out between around June 2020 and June 2022. Mr Hassan’s Reply at paragraph 8(v) described the renovation works in the following terms:

“Substantial work was carried out in the property to run a coffee shop at the high standard including dismantling fish factory, stripping out all wood panels, suspended ceiling, electric and other wires, rendered all walls, new floors, new walls were erected to have a proper access from first floor to ground floor, new windows were installed for more light, new kitchen and toilets, additional RSJs were installed for the stability of the building, new gas and all electric works, new air conditioning, new stairs, new sound and fire proof ceilings, new counters and bar, new wood and metal shelving, new front and back shutters and doors, outside decking and concrete boards around the building, brick polishing and new paints and countless more etc”

Mr Harries served a notice to complete on 9^th July 2021. Completion of the sale to Mrs Nur took place on 30^th July 2021. In order to complete on the purchase, Mrs Nur borrowed £266,455.80 from a mortgage lender, Together. That sum was paid direct to Mr Harries’ solicitors. In order to secure that borrowing, Mrs Nur granted Together a first legal charge over the freehold of the Property. The balance of the purchase price (£138,544,20) was paid by Mrs Nur out of a combination of personal and company funds.

On 16^th March 2022, Mrs Nur was registered at HM Land Registry as the registered proprietor of the freehold of the Property. On the same date, HM Land Registry registered the legal charge in favour of Together against the freehold of the Property.

Mr Hassan’s case is that this joint venture or partnership broke down, that Mrs Nur became personally indebted to Rhostio in the sum of £150,000, representing the monies that Rhostio had invested in the renovation of the Property, and the directors of Rhostio, Mr Tosun and Mr Kirktepeli, demanded repayment of the sum of £150,000.

On 30^th June 2022, Mr Hassan says that a meeting took place, attended by Mrs Nur, Mr Nur, Mr Kirktepeli and Mr Hassan. The details of that meeting are in dispute but Mr Hassan says that he helped to negotiate a settlement of the dispute under which the partnership terminated, and an agreement was reached to meet the 3^rd parties’ claim against Mrs Nur for existing debts or claims in respect of the renovation works claim. A value of £150,000 was put on this claim or debt. The agreement involved an assignment of the debts in the sum of £150,000 in return for a legal charge over the Property in the sum of £150,000.

The Assignment relied upon by Mr Hassan is a purely verbal assignment. Mr Hassan’s case is that he took the assignment of the benefit of the £150,000 debt owed by Mrs Nur on 1^st July 2022. On the same date, Mrs Nur granted to Mr Hassan a second legal charge over the freehold of the Property, which was registered at HM Land Registry with effect from 2^nd September 2022.

The relevant provisions of the charge are as follows;

Mr Hassan did not sign the charge. Contrary to the terms of the recital to the charge, Mr Hassan had not provided Mrs Nur (and did not provide to her) the sum of £150,000.

Also, on 1^st July 2022 Mrs Nur and Mr Hassan entered into a lease of the Property (“the Lease”). Mrs Nur and Mr Hassan are the only parties to the lease. By clause 1.1 of the lease:

By Clause 6.1 of the Lease: “The Tenant shall pay the Annual rent and any VAT in respect of it by twelve equal instalments in advance on or before the Rent Payment Dates. The payments shall be made by banker’s standing order or by any other method that the landlord requires at any time by giving notice to the tenant. “

By clause 6.2 of the Lease: “the first instalment of Annual rent and any VAT in respect of it shall be made on the date of this lease and shall be the proportion calculated on a daily basis in respect of the period beginning on the date of this lease until the day before the next Rent Payment date.”

Clause 16 of the lease contained a prohibition against set off in the following terms: “The Annual Rent and all other amounts due under this lease shall be paid by the Tenant or any guarantor as the case may be in full without any set off counterclaim deduction or withholding other than any deduction or withholding of tax as required by law.”

By clause 19.1 of the Lease the Tenant was allowed to underlet the whole or part of the property without the consent of the landlord. Clause 19.2 stipulated that any underletting was to be by deed and to include the matters set out in clause 19.2(a) to (e) inclusive.

On 1^st July 2022 Mr Hassan contends that he demised out of the leasehold a sublease in favour of Rhostio Limited. The terms of the leasehold include a rent at £40,000 per annum. There is no written sublease that I have been referred to. Rhostio Limited made no payments of rent to Mr Hassan.

On 22^nd August 2022 Federal Capital Limited presented a bankruptcy petition against Mrs Nur (no. 0010 of 2022).

On an unknown date, Together appointed LPA Receivers (Mr Steven Kay and Mr Richard Lester, both of Waterford Asset Management Limited) over the freehold of the Property under the terms of the first legal charge, securing the debt to Together.

On 8^th December 2022 Mrs Nur was adjudged bankrupt on the petition of Federal Capital Limited, the petition having been presented on 22^nd August 2022. The Defendant Mr Evans was appointed as her Trustee in Bankruptcy with effect from 5^th January 2023. Mrs Nur completed her Bankruptcy Preliminary Information Questionnaire Form (PIQB) on 2^nd February 2023. She was interviewed by the Official Receiver on 3^rd February 2023.

The LPA Receivers entered the Property into an auction for sale with Barnard Marcus, which was to take place on 13^th March 2023. Mr Hassan bid for the Property and was successful in his bid. The completion statement for the sale of the property to Mr Hassan indicated that the monies due on sale were £377,160, made up of the sale price was £375,000 and contributions to the legal and auctioneers’ fees. The total of deductions was £323,283.60. This included redemption of the first legal charge in favour of Together in the sum, of £268,623.60, as well as a further deposit to Together of £30,450. There were significant other fees and costs. The completion statement identified the surplus funds on the sale as £53,876.40.

Mr Evans wrote to the LPA receivers to indicate that there was a dispute over the validity of the second charge in favour of Mr Hassan. The surplus funds have therefore not been paid or released to Mr Hassan.

Following the completion of the purchase at auction in March 2023, Mr Hassan held both the freehold and leasehold titles to the Property. Rhostio Limited held the subleasehold of the Property.

On 30^th March 2023, Mr Nur was adjudged bankrupt upon the petition of Corporate Credit Leasing Limited which was presented on 8^th February 2023. It is not in dispute that the Defendant Mr Evans is also the Trustee in Bankruptcy of Mr Nur.

Following his purchase of the Property, Mr Hassan made payments to Mr Kirktepeli and Rhostio Limited as follows:

By paragraph 4 of the Defence and Counterclaim Mr Hassan is put to strict proof relating to the validity of the second charge registered against the property and the circumstances leading to its creation and registration.

The burden of establishing the facts and the validity of the charge is on Mr Hassan on the balance of probabilities, save as I indicate below.

Mr Hassan relied on his 2 witness statements dated 10^th June 2024 and 18^th July 2024 in support of his own case. He also relied upon the witness evidence of Mr Tunahan Kirktepeli of 10^th June 2024 and on the evidence of Mr Nur, although Mr Nur did not give oral evidence and his evidence was not tested by cross examination.

Mr Hassan’s case in brief outline is that the Legal Charge was created because of the following sequence of events:

The Defendant raises a number of points about factual matters on this sequence of events in Mr Hassan’s case.

In my judgment there is significant confusion between the written and oral evidence of Mr Hassan and his witnesses as to whether Mrs Nur alone was a partner in the partnership with third parties or whether Mr and Mrs Nur were partners in the partnership with third parties.

Mr Hassan’s written evidence was to the effect that both Mrs and Mr Nur entered into the alleged partnership agreement:

However, in his oral evidence, Mr Hassan stated that that Mrs Nur was the partner in the partnership and Mr Nur was not a partner but a decision maker. He stated that he had been told that Mr Nur was never a partner in the partnership and did not owe any money, and also that he had been told that Mrs Nur was the partner. Mr Hassan explained that Mr and Mrs Nur were together and were a unit of husband and wife but they were not in the partnership together.

Mr Kirktepeli also gave written and oral evidence on this issue. He has known Mr and Mrs Nur since around 2015, through going to the Saray Turkish restaurant. This was run by Mrs Nur but was also the only amenity then serving the Turkish community in Cardiff, which people in the Turkish community would regard as a community centre. He regarded Mr and Mrs Nur as friends.

In written documents prepared before his witness statement, Mr Kirktepeli was clear that only Mr Nur was a partner in the partnership agreement. Mr Kirktepeli did not state before his witness statement that Mrs Nur was also a partner:

Mr Kirktepeli’s written evidence in paragraph 3 of his witness statement was that he was entrusted by Mr and Mrs Nur with the responsibility of the renovation project, collaborating with Fatih Tosun.

At paragraph 4 he stated: “while we were renovating, we presented some business ideas to Mr and Mrs Nur and we decided to start a business together and discussed the details of how it would work. Mrs Nur appointed Mr Nur as the decision maker for their party.”

At paragraph 5 he stated: “Fatih Tosun, Mehmet Nur and I all concurred on renovating the property. We covered the majority of the renovation costs and Mr and Mrs Nur also made a significant financial contribution”.

However, in his oral evidence Mr Kirktepeli stated that although he accepted that he had told the Trustee in Bankruptcy that he and Mr Tosun were business partners of Mr Nur, effectively it was Mrs Nur who was the partner and that Mr Nur was acting on behalf of Mrs Nur. Mr Kirktepeli explained that Mrs Nur was interested in being a partner with them and running a business in the summer of 2020. By the Autumn of 2020, lockdown restrictions had returned and she did not want to go out as she was in a close relationship with her elderly parents. It was burdensome for Mr Kirktepeli and Mr Tosun to travel to see her when lockdowns were in place and so she appointed Mr Nur to take decisions.

Mr Kirktepeli also explained that “they”, meaning Mr and Mrs Nur, approached “us”, meaning Rhostio Ltd, in around June 2020, initially to run the renovation business as Mrs Nur couldn’t do it. At that point Mr Kirktepeli and Mr Tosun were supervising the building. The suggestion to act in partnership was made in around August 2020. The coffee shop opened roughly one year after the works and there was no profit in it. Rhostio was running the coffee shop but not paying rent. The agreement from June 2021 to June 2022 was that Rhostio would run the coffee shop without paying rent because it was in partnership. If a profit was made, [Rhostio] would pay the mortgage for the building for the months when they were in profit. That however never happened, as the return of lockdown and social distancing meant that a profit was never made on running the shop.

It did not seem therefore from Mr Kirktepeli’s evidence that the profit/loss terms of the partnership were dependent on any increase in value relating to the Property but on the profit made from running the coffee shop.

Mr Nur also made a witness statement in these proceedings. Mr Nur was not called to give evidence by either party and was not cross examined. On 9th August 2024, His Honour Judge Harrison gave the Defendant permission to call Mr Nur to be cross examined on the contents of his witness statement dated 7th June 2024. The Defendant also had permission to file and served a statement dealing with all issues of Mr Nur’s credibility on which the Defendant wished to rely at trial to be filed and served by 4 pm. on 19th August 2024.

In light of the Defendant’s witness evidence about Mr Nur’s credibility and Mr Nur’s non-attendance at the trial, I am therefore cautious generally of Mr Nur’s evidence, which has not been subject to cross examination.

That said, Mr Nur does describe himself as having been the active participant in the dealings with the Property, as he sets out in his witness statement:

“5.

We also decided that I will undertake the renovation works and I assign the builders consequently.

6.

I negotiated with the landlord and agreed a sale price of £420,000”.

In light of all of this evidence and the confusion between the written and oral evidence on behalf of the Claimant as to whether it was Mrs Nur alone who was in partnership with third parties or whether it was Mr and Mrs Nur who were in partnership with third parties, I am not satisfied on the balance of probabilities that Mrs Nur alone was a partner in the partnership and that Mr Nur was not. In my judgment it is more probable that both Mr and Mrs Nur were partners in the partnership with third parties.

The second factual issue raised by the Defendant is whether Rhostio incurred expenses of £150,000 in renovating the Property. On behalf of Mr Hassan, it was submitted that this issue is more properly framed as whether it was likely that the figure of £150,000 was likely to have been agreed as Rhostio’s contribution to the renovation works to the Property. In my judgment, whether £150,000 was likely to have been agreed as Rhostio’s contribution necessarily involves a consideration of the amounts that Rhostio claims to have spent on the renovation works.

In his Defence, the Defendant had put the Claimant to strict proof on the extent and date of the renovation works: see Defence at paragraph 7(vi)-(vii).

In Mr Hassan’s written evidence paragraph 5 he stated: “They (meaning Mr and Mrs Nur) apprised me that they already have settled their portion of the renovation costs at the property in the sum of £150,000 with Mr Kirktepeli, however Mr Kirktepeli demanded immediate payment of the remaining balance”.

In his oral evidence Mr Hassan said - and I find - that at that meeting of 30th June 2022, no invoices were produced or provided to him to support the contention that a debt of £150,000 was owed to Rhostio Limited, nor did he ask for any invoices. Mr Hassan’s evidence was that he was told by Mr and Mrs Nur and Mr Kirktepeli that £150,000 was the sum that was owed, and that this had been agreed at a previous meeting at which he was not present. Mr Hassan also stated that he did not have any personal knowledge of the debt or the invoices, other than what he was told at that meeting. He also stated that he was not in a position to comment on the invoices, that the invoices showed some of the amounts spent on the property and that they did not show that £150,000 had been spent on the property.

At the trial Mr Hassan put in evidence a supplemental bundle comprising 233 pages, of which 192 pages are invoices. In their oral evidence Mr Hassan and Mr Kirktepeli explained that these invoices had been obtained in the following way. Mr Hassan contacted Mr Kirktepeli and asked him to send all invoices in relation to the renovation works. Mr Kirktepeli was clear that he was being asked to provide all invoices not just those relating to purchases or sales.

Mr Kirktepeli then asked Mr Besli, accountant to both the Claimant and Rhostio, to send all of Rhostio’s invoices to the Claimant. The Claimant compiled these invoices into a bundle and presented that bundle as evidence. Mr Kirktepeli also stated any invoices which had been made out to MC Saray Limited would have been sent previously to Mr and Mrs Nur as part of their contributions to the works. Mr Kirktepeli also had some invoices in a separate file which had been rejected by the accountant as unsuitable for submission to HMRC. Mr Kirktepeli also included those invoices in the invoices sent to Mr Hassan.

Mr Kirktepeli was cross examined extensively on the bundle of invoices and on a schedule of invoices prepared by the Defendant. In my judgment there are a number of ways in which Mr Hassan has not demonstrated on the balance of probabilities that these invoices demonstrate that £150,000 was spent on the renovation works (page references are to the Supplemental Bundle put in by the Claimant):

The Defendant provided a schedule summarising the various categories of error within the invoices. Those errors were put to Mr Kirktepeli, who doggedly insisted that he knew all of the contractors who had carried out work and all of the invoices relating to the works, but also admitted that various invoices did not relate to renovation works, various invoices were paid by Mr or Mrs Nur, and that a significant number of the invoices do not, without further explanatory evidence, indicate that Rhostio incurred expenses in the renovation works. I accept the analysis of invoices set out in the Defendant’s schedule.

More significant in my judgement is that Mr Kirktepeli stated in his oral evidence that at the time he had a notebook where he recorded whatever was spent on Rhostio’s behalf. Mr Kirktepeli said that Mr Nur worked in a similar way and recorded in his own notebook what had been spent on the other side of the partnership. At a meeting before June 2022, Mr Kirktepeli said that Rhostio and the other partners compared bank statements and notebooks and worked out who had spent what. The real difficulty with this evidence is that it showed that he relied on his notebook to calculate what was owing, as did Mr Nur. Neither Mr Kirktepeli’s notebook nor Mr Nur’s notebook has been relied upon or disclosed in these proceedings and therefore cannot be used to confirm what was spent on each side.

Mr Hassan also explained in cross examination that he operated a red notebook at this time in which he recorded debits and credits in relation to his own affairs, including monies due or owing under the lease of the Property. That notebook has also not been disclosed in these proceedings.

In my judgment, taking this evidence as a whole, the Claimant has failed to show on the balance of probabilities that Rhostio spent £150,000 on renovating the Property. It is difficult on the evidence to calculate an accurate figure, but on a broad-brush approach, I conclude that significantly less than £150,000 was spent by Rhostio on the renovation works.

The third factual issue raised by the Defendant is whether Mrs Nur was solely liable for the expenses that Rhostio allegedly incurred.

This issue is linked to the question of who was in the partnership. If Mr Nur was also a partner in the joint venture with Rhostio, under which there was a profit-loss agreement, then Mr Nur would also have been liable for the losses of Rhostio. I have already made a finding above that it is more probable that Mr and Mrs Nur were partners in the joint venture with Rhostio. It follows that Mrs Nur was not solely liable for Rhostio’s expenses or debts incurred by Rhostio in the renovation works at the Property.

There was a significant inconsistency between Mr Hassan’s statement of case and his oral evidence over whether Mr Nur was liable for the expenses incurred by Rhostio. At paragraph 5 of his Reply, Mr Hassan indicated that Mr Nur was liable to Rhostio for these losses: “Their partnership could not endure for any reason and this left Mr and Mrs Nur substantially in huge debts to those third parties”.

In his oral evidence in cross examination, however, Mr Hassan stated that Mr Nur owed no debt to Rhostio or its directors. In my judgment this is a significant inconsistency between a statement of case verified by a statement of truth and Mr Hassan’s oral evidence.

Having found above that Mrs Nur and Mr Nur were partners in the partnership with the third parties, then I also find on the balance of probabilities that if Mrs Nur became indebted to Rhostio under the partnership agreement, so too did Mr Nur.

On the general issue of whether monies were owed to Rhostio, Mr Kirktepeli’s evidence was in my judgment rather surprising. Neither Mrs Nur nor Mr Nur appear as a debtor in Rhostio’s accounts for the period covering April – June 2022. Mr Kirktepeli at first stated in oral evidence that Rhostio’s account for the first year of trading overall showed a loss because of the renovations and that the second year also showed a slight loss. He disputed that any debt owed by Mrs Nur should appear in the accounts at all as it was incurred under a “gentleman’s agreement”. He explained that this was an oral agreement defining the terms of the partnership under which the parties just started working without signing anything. He said that any liability under the partnership agreement was not a legal liability. Mr Kirktepeli said candidly that the partnership agreement was only morally binding, not legally binding, and that Rhostio and its directors would not have been able to take Mr or Mrs Nur to court to enforce the agreement. He then qualified this statement by saying that he didn’t have knowledge about that.

The fourth factual issue raised by the Defendant is that the Claimant agreed to take an oral assignment of Mrs Nur’s £150,000 (moral) debt to Rhostio and/or its directors.

The Claimant has been inconsistent in his account of who he agreed to pay the £150,000.

In his witness statement, at paragraphs 8-10 the Claimant states that “the outstanding amount [was] owed to Mr Kirktepeli” and that the Claimant “agreed to act as a surety for the debt upon the condition of an assignment of the outstanding balance from Mr. Kirktepeli” [MB/428/§8-10]; and

In cross-examination, the Claimant stated that it was agreed that Mrs Nur owed the debt solely to Mr Kirktepeli and that therefore the Claimant took an assignment solely from Mr Kirktepeli, not from Mr Tosun or Rhostio.

A further problem with the Claimant’s case on this issue is that the Claimant has offered no explanation for why Mr Nur is said to be a party to the alleged assignment if he did not also owe a debt to Rhostio (and/or its directors).

The Claimant pleads in his Reply at paragraph 8 that “[t]he parties of the assignment of debts were Mrs Ceri Nur, Mr Mehmut Nur, Mr Kirktepeli and Mr Tosun (directors of Rhostio Limited)”. In my judgment, Mr Nur would only have been a party to the assignment if he had some interest in the assignment. Confusingly, the Claimant in his oral evidence said that Mr Nur did not owe any debts to Rhostio.

The Claimant is a solicitor who practises in conveyancing and immigration work. Although the Claimant stated in his oral evidence that he was acting in this transaction as a friend and not a solicitor, in my judgment it was still highly surprising that, as a solicitor:

Against that background it is improbable in my judgment that this alleged assignment took place, or, if it did, that it took place on the terms relied upon by the Claimant.

A further concerning matter is that Rhostio’s accounts for the years ending 31 May 2021 and 31 May 2022 do not contain any entry reflecting Rhostio being owed a substantial debt. This is highly surprising in my judgment because:

The fifth factual issue raised by the Defendant is that although Mrs Nur’s signature does appear on the Legal Charge, which is registered with HMLR, the Defendant contends that the fact that a charge has been registered is not proof that the underlying transaction was real, valid, and entered into without unfairness or undue influence

The statement in the recital to the charge, that: ‘The Mortgagee [Claimant] has provided the Mortgagor [Mrs Nur] with a sum of ONE HUNDRED AND FIFTY THOUSAND POUNDS (£150,000.00) (“the Mortgaged Sum”) being funds required to refurbish to pay the debts against the freehold property known as 16c Crwys Road, Cardiff 4NJ, TITLE NO: WA399828 (“the mortgaged property”)’ is not consistent with the Claimant’s evidence.

This recital, in my judgment, does not reflect the events which happened. The Claimant’s evidence was that Mrs Nur offered and suggested the charge, but he drafted it for her to sign. The Claimant had not provided any sum to Mrs Nur at all before the charge was executed, and did not do so after the charge had been executed. Monies were not transferred by the Claimant for refurbishment. The Claimant’s case is that he entered into a sub lease of the Property with Rhostio Limited under which the rent was £40,000 per annum, but Rhostio did not pay rent for 2 years, totalling £80,000. In addition, the Defendant paid £75,000 to Rhostio.

In my judgment the Claimant’s case that he acted simply as a friend to intercede and mediate in a dispute between Mrs Nur and third parties is undermined by the events which happened subsequent to 30^th June 2022. These events appear to show that the Claimant profited from his involvement in the dispute.

The Claimant purchased the Property in March 2023 from the LPA Receivers that had been appointed under the first charge over the Property. That purchase was for the sum of £375,000. This price was achieved at a public auction. The Claimant stated in his evidence that another bidder drove the price to this level, but he was the successful bidder.

I have not heard evidence about market conditions at the relevant time but this sum seems low when it is considered that: the Property had been purchased for £425,000 in June 2020; it was claimed that over £150,000 of work had been carried out on the property (although recognising that work will not necessarily achieve a proportionate increase in the value of the Property); there was a tenant in place with a lease to pay rent; any LPA receivers would have been keen to sell the property quickly.

The LPA Receivers report that they established that the Property was tenanted, that they waited to see a copy of the lease, but that the tenant was not being cooperative;

There is no dispute between the parties as to the legal principles applicable to a sham.

The law on sham has been recently re-stated by Insolvency and Companies Court Judge Mullen in Re Munir [2021] BPIR 615, where he said :

Diplock LJ explained the meaning of "sham" in Snook v London and West Riding Investments Limited [1967] 2 QB 786, 802 :

I also bear in mind the principles in Hitch v Stone [2001] EWCA Civ 63 in which Arden LJ (as she then was) explained the approach to documents alleged to be shams as follows:

Those cases address bilateral documents, such as contracts. In the case of a trust unilaterally declared by the settlor it is the intention of the settlor alone that is decisive. In Painter v Hutchinson [2007] EWHC 758 (Ch) Lewison J (as he then was) said at paragraph 115:

The 2008 Deed is made by Mr Munir alone. In the case of the 2007 and 2010 Deeds, they are made between Mr Munir as settlor and Mrs Munir as trustee. They are not one and the same person. Although a common intention between the settlor and any trustee is required, it is sufficient that the trustee went along with the settlor's wishes or did not care what he or she was signing. In Minwalla v Minwalla [2005] 1 FLR 771 Singer J said at paragraph 53:

It is common ground that, as Mrs Nur is the only person who signed the Second Legal Charge, she would need to be a “shammer” for the Second Legal Charge to be a sham. Furthermore, to the extent that the Claimant was the recipient of obligations or rights bestowed by the legal charge the Claimant would either need a common intention with Mrs Nur that the acts or documents were not to create the legal rights and obligations which they give the appearance of creating, or he must have been prepared to at least go along with the intentions of the shammer neither knowing nor caring about what he was signing or the transactions he was carrying out.

I have not heard direct evidence from Mrs Nur, but I can however draw inferences as to her position from the evidence that has been given before me.

The Claimant said in his oral evidence that the suggestion of a legal charge came from Mrs Nur and not from him. Based on the findings that I have made above, the effect of the Legal Charge as it was portrayed to third parties did not correspond with the events which had happened in a number of ways:

It is relevant in this context that Mrs Nur was in some financial difficulties at this time, and knew that she was. In an email of 6^th July 2023, the solicitors for Mr Harries, the vendor, confirmed to the Defendant that a long completion date was agreed on Mrs Nur’s purchase of the property in 2020 as Mr Harries was aware that the purchaser (Mrs Nur) did not have the necessary funds to complete straightaway. Mrs Nur answered in the Bankruptcy Preliminary Information Questionnaire form that she first knew at the beginning of 2022 that she could not pay her debts when they fell due. She listed creditors totalling over £800,000 in that form.

Against that background I draw the inference on the balance of probabilities that the legal charge, which had been suggested by Mrs Nur, was not to create the rights and obligations that it gave the appearance of creating.

As to Mr Hassan’s intention, he would have known from his position as Mrs Nur’s solicitor during the purchase of the Property that the long completion date was agreed because she did not have the funds to complete straightaway. Mr Hassan said in his oral evidence that if he had known about Mrs Nur’s debts and that she considered herself insolvent he would not have entered into the assignment and also that he had no concerns that Mrs Nur would not be able to pay her debts. That is difficult to reconcile with his evidence that it was well-known in the community that Mrs Nur was in significant debt in respect of the renovations and that Mrs Nur asked him to intervene on her behalf because she was being pressured for payment by Rhostio. Against that background it is difficult to understand why he did not make any enquiries at all about the nature and level of the debt owed and Mrs Nur’s ability to pay it. I draw the inference on the balance of probabilities that Mr Hassan was prepared to go along with the intentions of Mrs Nur neither knowing nor caring what he was signing or the transactions he was carrying out.

In my judgment the test for a sham has been satisfied in respect of the legal charge both as to the covenant and as to the grant of the legal charge.

Was the Bankrupt’s consent to grant [the charge] impaired by undue influence whether because of

There is a large measure of agreement over the law applicable to undue influence.

It is agreed that the leading authority is Royal Bank of Scotland v. Etridge No. 2 [2002] 1 AC 773 (Etridge No 2) where Lord Nicholls stated at [6]-[14] the following principles:

The issues raised by these appeals make it necessary to go back to first principles. Undue influence is one of the grounds of relief developed by the courts of equity as a court of conscience. The objective is to ensure that the influence of one person over another is not abused. In everyday life people constantly seek to influence the decisions of others. They seek to persuade those with whom they are dealing to enter into transactions, whether great or small. The law has set limits to the means properly employable for this purpose. To this end the common law developed a principle of duress. Originally this was narrow in its scope, restricted to the more blatant forms of physical coercion, such as personal violence.

Here, as elsewhere in the law, equity supplemented the common law. Equity extended the reach of the law to other unacceptable forms of persuasion. The law will investigate the manner in which the intention to enter into the transaction was secured: "how the intention was produced", in *795 the oft repeated words of Lord Eldon LC, from as long ago as 1807 ( Huguenin v Baseley 14 Ves 273, 300 ). If the intention was produced by an unacceptable means, the law will not permit the transaction to stand. The means used is regarded as an exercise of improper or "undue" influence, and hence unacceptable, whenever the consent thus procured ought not fairly to be treated as the expression of a person's free will. It is impossible to be more precise or definitive. The circumstances in which one person acquires influence over another, and the manner in which influence may be exercised, vary too widely to permit of any more specific criterion.

Equity identified broadly two forms of unacceptable conduct. The first comprises overt acts of improper pressure or coercion such as unlawful threats. Today there is much overlap with the principle of duress as this principle has subsequently developed. The second form arises out of a relationship between two persons where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage. An example from the 19th century, when much of this law developed, is a case where an impoverished father prevailed upon his inexperienced children to charge their reversionary interests under their parents' marriage settlement with payment of his mortgage debts: see Bainbrigge v Browne (1881) 18 Ch D 188 .

In cases of this latter nature the influence one person has over another provides scope for misuse without any specific overt acts of persuasion. The relationship between two individuals may be such that, without more, one of them is disposed to agree a course of action proposed by the other. Typically, this occurs when one person places trust in another to look after his affairs and interests, and the latter betrays this trust by preferring his own interests. He abuses the influence he has acquired. In Allcard v Skinner (1887) 36 Ch D 145 , a case well known to every law student, Lindley LJ, at p 181, described this class of cases as those in which it was the duty of one party to advise the other or to manage his property for him. In Zamet v Hyman [1961] 1 WLR 1442, 1444-1445Lord Evershed MR referred to relationships where one party owed the other an obligation of candour and protection.

The law has long recognised the need to prevent abuse of influence in these "relationship" cases despite the absence of evidence of overt acts of persuasive conduct. The types of relationship, such as parent and child, in which this principle falls to be applied cannot be listed exhaustively. Relationships are infinitely various. Sir Guenter Treitel QC has rightly noted that the question is whether one party has reposed sufficient trust and confidence in the other, rather than whether the relationship between the parties belongs to a particular type: see Treitel, The Law of Contract, 10th ed (1999) , pp 380-381 . For example, the relation of banker and customer will not normally meet this criterion, but exceptionally it may: see National Westminster Bank plc v Morgan [1985] AC 686, 707-709 .

Even this test is not comprehensive. The principle is not confined to cases of abuse of trust and confidence. It also includes, for instance, cases where a vulnerable person has been exploited. Indeed, there is no single touchstone for determining whether the principle is applicable. Several expressions have been used in an endeavour to encapsulate the essence: trust and confidence, reliance, dependence or vulnerability on the one hand and *796 ascendancy, domination or control on the other. None of these descriptions is perfect. None is all embracing. Each has its proper place.

In CIBC Mortgages plc v Pitt [1994] 1 AC 200 your Lordships' House decided that in cases of undue influence disadvantage is not a necessary ingredient of the cause of action. It is not essential that the transaction should be disadvantageous to the pressurised or influenced person, either in financial terms or in any other way. However, in the nature of things, questions of undue influence will not usually arise, and the exercise of undue influence is unlikely to occur, where the transaction is innocuous. The issue is likely to arise only when, in some respect, the transaction was disadvantageous either from the outset or as matters turned out.

Whether a transaction was brought about by the exercise of undue influence is a question of fact. Here, as elsewhere, the general principle is that he who asserts a wrong has been committed must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. This is the general rule. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case.

Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant's financial affairs, coupled with a transaction which calls for explanation, will normally be sufficient, failing satisfactory evidence to the contrary, to discharge the burden of proof. On proof of these two matters the stage is set for the court to infer that, in the absence of a satisfactory explanation, the transaction can only have been procured by undue influence. In other words, proof of these two facts is prima facie evidence that the defendant abused the influence he acquired in the parties' relationship. He preferred his own interests. He did not behave fairly to the other. So, the evidential burden then shifts to him. It is for him to produce evidence to counter the inference which otherwise should be drawn.

Further, at paragraph 20, Lord Nicholls stated:

Proof that the complainant received advice from a third party before entering into the impugned transaction is one of the matters a court takes into account when weighing all the evidence. The weight, or importance, to be attached to such advice depends on all the circumstances. In the normal course, advice from a solicitor or other outside adviser can be expected to bring home to a complainant a proper understanding of what he or she is about to do. But a person may understand fully the implications of a proposed transaction, for instance, a substantial gift, and yet still be acting under the undue influence of another. Proof of outside advice does not, of itself, necessarily show that the subsequent completion of the transaction was free from the exercise of undue influence. Whether it will be proper to infer that outside advice had an emancipating effect, so that the transaction was not brought about by the exercise of undue influence, is a question of fact to be decided having regard to all the evidence in the case.

I agree with the submission made on behalf of the Claimant that, distilling the principles from paragraph 14 of Etridge No 2, there are 4 stages to a finding of undue influence:

In this case, the Defendant relies on the second form of undue influence set out in paragraph 8 of Etridge No 2, where “one person has acquired over another a measure of influence or ascendancy of which the ascendant person then takes unfair advantage… without any specific acts of coercion”.

The Defendant’s case is that there is a prima facie case that Mrs Nur placed trust and confidence in Mr Nur and to some extent the Claimant and that this led to Mrs Nur entering into transactions entirely against her own financial self-interest, requiring and explanation that has not yet been given. The Claimant submits that:

In my judgment, the evidence supports the conclusion, and I find, that Mrs Nur placed trust and confidence in Mr Nur in relation to the conduct of business affairs.

In my judgment, there is a presumption that Mrs Nur placed trust and confidence in Mr Hassan, for the following reasons:

Dealing next with whether the transaction calls for an explanation and whether there is a satisfactory explanation for the transaction, it is submitted by the Claimant that in this case, these issues are 2 sides of the same coin. Further, the Claimant submits there is a satisfactory explanation for the grant of the Legal Charge, and the termination of the partnership, namely that Mrs Nur was the sole debtor to the third parties in respect of the renovation works; Mrs Nur was going to walk away from the partnership with the Property and the improvements but the 3^rd parties needed to be recompensed; they were pressing for payment; the effect of the charge was to buy Mrs Nur breathing space in respect of a pressing debt to third parties whilst compensating Mr Hassan for any delay in payment to him with a rate of interest.

However, on the facts that I have found above, the transaction did, in my judgment call for an explanation and no satisfactory explanation has been provided, in two respects. First, I have found that the level of debt on a proper construction of the invoices provided was significantly less than £150,000. Mrs Nur granted Mr Hassan the benefit of a legal charge for significantly in excess of the probable level of debt.

Second, I have found that it is more probable that Mr and Mrs Nur were partners in the partnership with third parties. The combined effect of the purported assignment of debt and grant of the legal charge was to render Mrs Nur solely responsible for the debts incurred to third parties, to her detriment, but to the benefit of Mr Nur. Mr Nur ceased to become responsible for those debts under this transaction. Lord Nichols explained in Etridge No 2 (paragraphs 27-31) that a wife’s fortunes can be bound up with those of her husband so that she might take on in a narrow sense a disadvantageous financial burden so that a transaction in a wider sense does not call for explanation or be found to be devoid of satisfactory explanation. In this case however, I accept on the evidence that there is a history of Mrs Nur entering into at least one personal guarantee (and possibly more than one) in respect of liabilities of a company in which only Mr Nur was a shareholder, and that such personal guarantees were not to her benefit. Looking at this wider background, I am satisfied that this transaction calls for a satisfactory explanation and none has been provided.

The fourth stage of the test is whether the court should infer that in the absence of a satisfactory explanation the transaction can only have been procured by undue influence. The Claimant submits that Mrs Nur has never alleged that she has been the victim of undue influence, either from Mr Hassan or Mr Nur. The Defendant accepted in his evidence that Mrs Nur had not made such a complaint. I have to deal with this cautiously as I have not heard evidence from Mrs Nur, although she may be contactable by the Defendant, as her estate is still being administered. In light of the nature of this transaction (as I have found it to be), the history of Mrs Nur entering into transactions which were disadvantageous to her but to the benefit of Mr Nur and the fact that Mrs Nur had been advised by Mr Hassan in relation to at least one such transaction, and possibly more, I am not satisfied that her failure to complain about undue influence prevents the inference being drawn that this transaction can only have been procured by undue influence.

The Claimant submits that in a 3-party situation where Mr Nur is in the ascendancy, Mr Hassan will not be subject to Mrs Nur’s equity to set the transaction aside unless she had actual or constructive notice of it. The Claimant submits that Mrs Nur had independent advice from Mr Besli, an accountant, before she signed the legal charge.

As paragraph 20 of Etridge No 2 makes clear, this is one of the matters a court takes into account when weighing all the evidence. Proof of outside advice does not of itself necessarily show that the subsequent completion of the transaction was free from the exercise of undue influence. Whether it will be proper to infer that outside advice had an emancipating effect so that the transaction was not brought about by the exercise of undue influence is a question of fact to be decided having regard to all the evidence in the case.

In a covering letter to the draft charge dated 1^st July 2022, addressed to Mrs Nur, and marked “By Hand”, Mr Hassan recorded that he had advised Mrs Nur that she should take legal advice. He urged her again that these were legal documents and she should take independent legal advice before signing.

Although Mr Hassan directed Mrs Nur to obtain independent legal advice on the documents, he regarded Mr and Mrs Nur as one unit of husband and wife. Mr Hassan’s written evidence (at paragraph 15-16 of his witness statement) was that Mr Nur collected the documents from his office and then returned them, confirming his satisfaction with the terms of the documents. Mr Nur’s witness statement at paragraph 35 explains that he and his wife went to Mr Besli their accountant and signed the charge there. They explained the whole story to him. He read the legal charge and explained the nature of the document to them.

In my judgment, this evidence indicates -and I find- that Mr Nur was present with Mrs Nur whilst the independent advice on the charge was given. He also ensured that he was happy with the documents before returning them. This is particularly concerning because independent legal advice is required to show that the completion of the transaction was free from the exercise of undue influence from Mr Nur, yet Mr Nur was present when that advice was given. In those circumstances, I am not satisfied that it would be proper to infer that the outside advice had an emancipating effect so that the transaction was not brought about by the exercise of undue influence.

The Claimant submits that there is no evidence that the Defendant has elected to avoid the transaction on the grounds of undue influence. The Defendant is an office holder appointed in January 2023. He would have required time on appointment to investigate the affairs of Mrs Nur. The Defendant has thereafter consistently disputed the validity of the Legal Charge.

For the reasons I have explained I am satisfied that Mrs Nur’s consent to grant [the charge] was impaired by undue influence either because of

Was the Legal Charge unfair to the Bankrupt under the Consumer Credit Act 1974 and if so whether and what remedy ought to be granted by the court.

By Paragraph 8 of the Defence and Counterclaim, the Defendant avers that the agreement [i.e. the Legal Charge] represents an unfair relationship contrary to s140A to 140C of the Consumer Credit Act 1974 (as amended by the Consumer Credit Act 2006) and the Claimant is put to strict proof of the fairness of the relationship between the parties.

By section 140A CCA:

By section 140B:

By section 140C

In Smith v Royal Bank of Scotland PLC [2024] AC 955, Lord Leggatt JSC said at paragraph 40:

“Where a claim is made by a debtor for an order under section 140B of the 1974 Act on the ground that the relationship arising out of a credit agreement is unfair the burden is on the creditor to prove that the relationship is not unfair: see para 14 above. This does not however mean that the claimant is absolved from pleading particulars of claim which identify concisely the facts on which the claimant relies. Nor does it mean that the claimant can make allegations of fact which the court is bound to accept unless the creditor disproves them; it is still the debtor who has the onus of proving facts on which he or she positively relies.”

Although I have found earlier in this judgment that the Legal Charge was a sham, if it were genuine, it would have satisfied for these purposes the definition of a credit agreement in section 140C(1). It was an agreement under which the Claimant claims that he provided Mrs Nur with credit by way of the Legal Charge. As Mrs Nur’s rights and liabilities under the agreement passed to the Defendant by operation of law on her bankruptcy and his appointment, references to the debtor include references to the Defendant by section 140C(2)(a).

Although the Defendant did not plead facts on which he positively relied, the Claimant has nonetheless been put to proof of the fairness of the relationship between the parties. In my judgment the Claimant has not shown that the relationship between the parties was not unfair for the following reasons:

Section 140B provides a wide discretion to the court in determining an appropriate remedy. In my judgment, the nature of the unfairness I have set out above is such that the appropriate remedy would be to set aside the legal charge.

Can the Claimant rely solely upon the Covenant to establish the debt between the Claimant and the Bankrupt without needing also to show he was an equitable assignee of a debt owed by the Bankrupt to the 3^rd Parties (pre-existing debt?)

As a result of the findings I have made above, that the Legal Charge is neither valid nor enforceable, both as to the Covenant and as to the Charge, this issue falls away.

Were it necessary to determine the issue, then the covenant is in the form of a deed. Where an obligation is contained in a deed there is no need for consideration in support of a promise.

To the extent that establishing that the Claimant was a secured creditor requires reliance on the Claimant being an equitable assignee of a pre-existing debt has the Claimant established that

there was a pre-existing debt owed solely by Mrs Nur to the third parties;

For the reasons I have set out above, the Claimant has not established on the balance of probabilities that there was a pre-existing debt owed solely by Mrs Nur to the Third Parties.

That the quantum of the debt was £150,000;

For the reasons I have set out above the Claimant has not established on the balance of probabilities that the quantum of any debt was £150,000.

That the benefit of that debt was assigned in equity from the third parties to the Claimant.

For the reasons I have set out above the Claimant has not established on the balance of probabilities that the benefit of that debt was assigned in equity from the third parties to the Claimant, or if it was so assigned, it was not assigned on the terms put forward by the Claimant.

Factually were the payments (or any of them), which are said to have been made actually made;

The Defendant counterclaims for the monies that the Claimant owes under the Lease. The Lease provided for the Claimant to pay a rent deposit of 6 months’ rent and a monthly rent of £2000. It is accepted by the Claimant that he did not pay any sums to Mrs Nur under the lease. The Defendant is unable to give direct evidence about payment of sums to Mrs Nur other than to state that her bank accounts do not show that she received payments.

The Claimant relies upon 3 payments:

Were: (i) the £12000 cash payment and (ii) the mortgage instalment payment made on the Claimant’s behalf (it not being in contention that the £4,500 was paid by the Claimant)?

I accept on the balance of probability that:

Do they or any of them amount to payment of due rent under the Lease?

Does Clause 16 of the Lease act as a (at least a prima facie) bar on such payments counting as payment toward the rent deposit/rent; and if yes,

Clause 16 of the lease contained a prohibition against set off in the following terms: “The Annual Rent and all other amounts due under this lease shall be paid by the Tenant or any guarantor as the case may be in full without any set off counterclaim deduction or withholding other than any deduction or withholding of tax as required by law.”

In my judgment the terms of Clause 16 amount to a bar on such payments counting as payment towards the rent deposit and /or rent.

was there a subsequent implied agreement or equitable set off between the Claimant and Mrs Nur (whether through Mr Nur or otherwise) superseding/disapplying the effect of Clause 16 and thereby enabling such payments to amount to satisfaction of rent deposit/rent payment obligations

Although clause 16 of the Lease acts as a bar to such payments counting as payment towards the rent deposit and/or rent there is nothing in the Lease as a whole which prevents the parties varying their obligations under the lease. Furthermore, although at law a contract under seal (the Lease is created by deed) cannot be varied other than by a contract under seal, in equity a parol agreement not to enforce performance of a deed and to substitute some other terms for some of its covenants was a good consideration for a promise to perform the substituted contract, although the deed is not thereby released: see Berry v Berry [1929] 2 KB 316.

Following that principle, in my judgment, the evidence I have accepted above in relation to whether these payments were made also indicates that the circumstances leading to each payment amounted to an agreement between Mrs Nur, albeit acting through Mr Nur, on the one hand and the Claimant on the other that each payment would satisfy Mr Hassan’s liability to Mrs Nur in respect of the rent deposit and rent respectively.

Although there was no express reference to a variation of the terms of clause 16 of the Lease, there was, in my judgment, an implied agreement to that effect because what the parties agreed did not correspond with the terms of clause 16 of the lease.

Can the rental deposit be “used” or counted against any unpaid rent;

It must follow that the rent deposit was to be used to satisfy any unpaid or unsatisfied rent obligation under the Lease. I accept the Claimant’s submission to that effect.

How should the Court treat the rent becoming due after 8.12.22

Following Mrs Nur’s bankruptcy on 8^th December 2022 and the Defendant’s appointment as her Trustee in Bankruptcy, the rent deposit was vested in the Defendant until the Property was sold. I accept the Claimant’s submission that the rent deposit remained notionally available to meet any unpaid rent during this period.

For those reasons I am not satisfied that the Defendant has made out the counterclaim.

For all the reasons I have set out in detail above, the Claimant has not established his claim to a for a declaration that he is entitled to surplus monies arising from the sale of the Property by reason of his having a second legal charge over the Property. Further, the Defendant has not established his counterclaim for unpaid rent and an unpaid rent deposit.

The parties should now try to agree the terms of an appropriate draft order, to reflect my conclusions in this judgment, to include any consequential matters and provisions for interest and costs, within 14 days of this judgment being handed down. If the parties are unable to agree all outstanding matters within that time frame, they should request a hearing on the first open date 7 days thereafter, subject to their availability and with an appropriate time estimate. If the time estimate for that hearing is 1 hour or less, it may be conducted by CVP, but not otherwise.