Walbrook Trustees (Jersey) Ltd & Ors v Fattal & Ors

This is another chapter in a complicated series of disputes which go back ten years and which centre on a block of flats and commercial premises called Berkeley Court (“the Property”) situated at the junction of Baker Street and Marylebone Road in central London. The Property was acquired by a contract entered into in September 1988 for the benefit of essentially four interests: (1) the Delta Trust, a family trust for the benefit of members of the Dangoor family, (2) the EM Sofaer Discretionary Trust (for short “the Sofaer Trust”) a family trust for the benefit of members of the Sofaer family, (3) Selim Dangoor, another member of the Dangoor family and (4) William and Elias Fattal who are brothers. The interests were 25% in each case except for the two Fattal brothers who each had a 12½% interest so that, between them, they too held a 25% interest.

The contract for the acquisition of the Property was completed on 1 February 1989 in the name of a company specially set up for the purpose and known as Berkeley Court Investments Limited (“BCIL”). It became and has since remained the registered proprietor of the Property. An agreement in writing (“the Joint Venture Agreement” or, more simply, “the JVA”) was entered into by the four interests together with BCIL on 30 January 1989. The actual parties to the JVA were (1) Walbrook Trustees (Jersey) Limited (“Walbrook Jersey”), a Jersey company, as trustee of the Delta Trust, (2) Walbrook Jersey and two individuals (associated with the Walbrook group) as trustees of the Sofaer Trust, (3) Mr Selim Dangoor (for himself), (4) William and Elias Fattal (for themselves) and (5) BCIL. At the time, Naim Dangoor (a brother of Selim Dangoor) and his son, David Dangoor, and the two Fattal brothers were BCIL’s directors. The JVA set out the basis on which the Property was acquired and thereafter to be held. I shall return later to refer to some of its provisions. Broadly speaking, the Property was held by BCIL upon trust for the four interests (referred to in the JVA as “the Parties”) as tenants in common in equal (25%) shares, taking the two Fattals as a single share. The parties provided the funds which BCIL needed to complete its purchase of the Property. Eight shares in BCIL were issued: two each in the names of the trustees of the Delta Trust and the Sofaer Trust, a further two in the name of Selim Dangoor and one each in the names of William and Elias Fattal respectively. No further shares have since been issued. The shareholdings thus created represented the percentage interests of the participants in the joint venture.

At the time the JVA was entered into an addendum to it (“the Addendum”) was also entered into. It is undated but was signed at the same time as, or shortly after, the JVA and by the same persons as are parties to the JVA omitting only BCIL. It was entered into in view of the terms of clause 12 of the JVA. Clause 12 provides that:

“Subject to the provisions of clause 6 hereof the rights and obligations of the Parties under the provisions of this Agreement are personal to them and none of them shall sell assign pledge or in any way encumber their share or any part thereof or their rights or obligations under this Agreement without the prior approval of all the other Parties.”

Clause 6 is a provision enabling any of the parties to sell his/their share in the Property: it sets out a procedure which, put shortly, gives the other parties a chance to acquire the share of the party invoking the clause.

The Addendum, which is very short, is in the following terms:

“We the undersigned hereby mutually agree and undertake that notwithstanding the provisions of clause 12 of the Joint Venture Agreement dated 31^st day of January 1989 and made between us relating to Berkeley Court Baker Street London NW1:-

(i)

the transfer of a Share on the occasion of the appointment of a new Trustee of either the Delta Trust or the EM Sofaer Discretionary Trust shall not require any consent from any of the other Parties and

(ii)

both (a) William Simon Fattal and Elias Simon Fattal and (b) Selim Dangoor shall be at liberty without consent from any of the Parties to transfer the whole of their respective Shares to the Trustees of a Trust so long as the ultimate beneficiaries are themselves and/other members of their immediate family which for this purpose shall mean their respective spouses and children and their own parents and brothers or sisters.

and any transfer pursuant to (i) or (ii) above shall not be deemed to be a disposal to which clause 6 of the said Agreement applies.”

One of the issues I am asked to determine - and to which I shall come later - is whether, since Selim Dangoor’s share has since been acquired by a trust (the Sharet Trust) set up for the benefit of other members of the Dangoor family, a transfer of the Sharet Trust’s share to new trustees requires any consent under clause 12. I refer to this issue as “the JVA transfer issue”.

In September 1989, as the Addendum had envisaged, the interest of each of the Fattal brothers under the JVA came to be vested in trustees for the benefit of settlements (respectively the WS Fattal Settlement and the ES Fattal Settlement) which each brother had separately established three months earlier. I refer to these two settlements as “the Fattal Trusts”. The trustees were Walbrook Jersey and an associated company, Walbrook International Trust Company Limited (“Witco”), a Cayman Islands registered company. In due course Selim Dangoor’s share in the joint venture came to be vested in a corporate vehicle owned by him called Interlands SA, a BVI registered company. Yet later, in 1998, that share was transferred so as to be held by Walbrook Jersey and Nicholas Cuttiford (a Walbrook director) for the benefit of the Sharet Trust. The circumstances in which that happened, and in particular whether it represented a breach of the JVA, were the subject of proceedings which came before Henderson J in October 2007 and in further, as yet unconcluded, proceedings to which I shall refer later.

The further transfers had the consequence that all four 25% shares (again treating the two Fattal 12½% shares as a single 25% share) were held by trustees functioning as members of or within the Walbrook group including, as a common trustee of all four shares, Walbrook Jersey. This commonality of trusteeship has given rise to difficulties and disputes as I shall also later explain.

In the meantime, and before the transfer from Interlands SA to Walbrook Jersey and Witco for the benefit of the Sharet Trust, a restructuring of the overall arrangement took place. This occurred in several stages in the course of 1995. It began with the incorporation of a Manx company limited by guarantee and called Baker Street Limited (“BSL”) of which at all material times there have been just two members, namely Walbrook Jersey and Witco. Next, by a two paragraph declaration of trust dated 29 June 1995 (“the BSL Trust”), Walbrook Jersey and Witco declared, by paragraph 1, that, being all of the members of BSL (referred to in the declaration as “the Company”), they held the benefits of such membership upon trust as nominees for the respective trustees of the Delta and Sofaer Trusts, Interlands SA (each in 25% proportions) and the respective trustees of the two Fattal Trusts (each in 12½% proportions). Each such interest was described as “an Owner”.

By paragraph 2 of the BSL Trust, Walbrook Jersey and Witco stated:

“That we agree to act in accordance with the written instructions of the relevant Owner concerning its proportion of membership detailed above and to deal with all the benefits of membership of the Company, including all rights to distributions and all voting rights, arising in respect of such proportion in such manner as the relevant Owner shall from time to time direct in writing.”

The document ended by stating that it was to be governed by the laws of the Isle of Man.

A further issue is concerned with the meaning and effect of the BSL Trust, in particular clause 2. I refer to this as “the BSL membership issue”.

The final step in the 1995 restructuring took place on 20 October 1995 when the Delta, Sofaer and Fattal Trusts and Selim Dangoor transferred to BSL their respective 25% beneficial interests in the Property held by them under the terms of the JVA. They did so for £8.6 million. There is an issue over the effect of this transfer: the parties other than the two Fattal Trusts (for short “the Non-Fattal parties”) contend that this transfer of beneficial interests in the Property brought to an end not just the trust for sale declared by the JVA and the other provisions in the JVA associated with the trust for sale but, in effect, the joint venture itself so that thenceforth the relationship between the parties was, and remains, governed by their rights (held by their respective trustees) in BSL which, by the transfer, became and (subject to the further transaction I shall next mention) has since remained the beneficial owner of the Property, as declared by the BSL Trust. The Fattals contend that the JVA survived and continues to govern the relationship of the parties and their respective successors in title. This issue has not yet been resolved but may be in the course of the dispute over the circumstances in which Selim Dangoor’s 25% interest came to be held for the benefit of the Sharet Trust.

In the meantime, and pending resolution of that issue, the relationship between the parties has been assumed by them to be governed by the JVA as amended by the Addendum. That is a far from satisfactory way of proceeding but it is one that I have accepted for the purpose of determining the issues which fall to be decided by me. The same approach has thus far been adopted in the continuing dispute over the Sharet Trust’s share.

The next step in the history of the Property and its ownership that I must mention occurred in 2000 when a Jersey company called Baker Street 2000 Limited (“BS2K”) was incorporated. BSL transferred it beneficial interest in the commercial parts of the Property to BS2K for £10.85 million, retaining the beneficial ownership of the residential parts. BS2K issued 40 shares, ten to each of four Walbrook nominee companies, each of which held (and continues to hold) its ten shares as nominee for one of the Delta, Sofaer, Sharet and Fattal Trusts.

The result of the restructuring - and it is the position which remains to this day - is that (1) the legal estate in the whole of the Property was, and is, vested in BCIL, (2) the beneficial interest in the residential parts of the Property was, and is, vested in BSL, (3) the beneficial interest in the commercial parts of the Property was, and is, vested in BS2K, (4) Walbrook Jersey and Witco held, and hold, their membership rights in BSL on trust for the Delta, Sofaer, Sharet and Fattal Trusts in 25% shares (under the BSL Trust) and (5) the shares in BS2K were, and are, held by the four Walbrook nominee companies, with each holding ten shares as nominee for the Delta, Sofaer, Sharet and Fattal Trusts respectively.

The 1995 Restructuring and the further restructuring in 2000 were tax-driven. I am concerned not with the efficacy of the tax advantages thereby sought to be achieved but with the result of the changes which the restructurings brought about. Before coming to the particular issues that I am asked to resolve I should first set out some more of the background and then explain, as briefly as I can, something of the disputes that have arisen. I begin with the JVA.

By clause 2 of the JVA, BCIL, after declaring that it would hold the Property on trust for the “Parties” (as they are described) as tenants in common in their respective shares, agreed that it would “deal with the Property as the Parties (or a majority of them having authority so to do…) shall direct or appoint…” The reference to the Parties was to the then trustees of the Delta and Sofaer Trusts, Selim Dangoor and the two Fattal brothers. By clause 3(1) it was provided that:

“Save as expressly provided herein to the contrary all questions relating to the financing of the purchase of the Property and all other matters relating to and arising out of the purchase holding and realisation of the Property or any part thereof shall be determined by a three fourths majority of the votes of the Parties.”

By clause 3(3) it was provided, in effect, that each of the Parties should have such number of votes as should equal his percentage interest in the Property.

Clause 5 provided that:

“At any time after the third anniversary of the date of completion of the purchase of the Property any one or more of the Parties may require by notice in writing to the Company [ie BCIL] that the whole of the Property be sold …”

The remainder of the clause set out what was to happen following service of such a notice. The third anniversary fell on or about 2 February 1992. The effect of those further provisions is that where the requisite notice was given the Property was to be offered for sale at a price no lower than that approved by the Parties or, in default, that recommended by an Agent (machinery for whose appointment is set out elsewhere in the JVA) or, if lower, the price acceptable to the Party requiring the sale. This was on the basis that if a binding contract for the sale of the Property should not have been exchanged with an acceptable purchaser within a stated period of the Agent’s appointment then the Agent was instructed to sell the Property at a price no lower than that acceptable to the Party requiring the sale. The other Parties were to be free to offer to purchase the Property on the basis that if more than one of them should offer the same price (being the highest available offer) the Property would be purchased by them in equal shares.

Clause 6 enabled any of the Parties to give notice in writing to the others of his wish to sell his share (as distinct from requiring a sale of the Property as a whole). His notice, which could not be served earlier than 31 January 1990, was required to specify the price for the share. The other Parties had a period within which to give notice of a wish to purchase the seller’s share (at 90% of the offer price) thereby giving rise, in effect, to a contract of sale with completion following some weeks later. If more than one of the Parties should serve a notice of his wish to purchase, then the seller’s share would be acquired equally (or as they might agree) by the Parties expressing such wish. If none of them should serve such a notice, then the seller was to be free after a period to sell his share (at not less than the specified offer price) to a third party and the third party, provided he signed an agreement in the same terms as the JVA, would in effect step into the seller’s shoes as a Party to the JVA on completion of the transaction.

Clause 7 prevented a disposal of the commercial parts of the Property except as part of a disposal of the Property as a whole unless the Parties should all agree. It also regulated the basis on which the commercial parts should be let or otherwise disposed of. Clause 12 I have already set out. Clause 13 was an undertaking by each Party to use all reasonable endeavours to facilitate and promote the joint venture and procure that no further shares in BCIL’s capital should be issued except with the consent of the others. Clause 14 provided that the JVA was an entire contract between the Parties and was to be governed by English Law. It also negated the existence of a partnership.

Relations between the Fattals and the Non-Fattals appear to have remained amicable until 1999 or thereabouts. Since then a number of disputes have arisen concerned with particular aspects of the way the Property had been managed. They include disputes over certain car parking leases in the basement of the Property entered or to be entered into for the benefit of the four trusts and certain storage spaces, again for the benefit of the four trusts. I do not propose to go into those disputes in any detail and only mention them so far as it is necessary in order to explain and resolve the issues that fall for decision by me.

Suffice it to say that in February 2002 Delta Trust (strictly, Walbrook Jersey as its trustee) served notice under clause 5 of the JVA calling for a sale of the Property. Notwithstanding that it is the wish of all of the underlying co-venturers that the Property be sold (either directly or by means of a sale of the corporate entities by which the Property is held) little if any progress has been made in the intervening seven years to achieve that end. One of the applications before me - “the receiver and manager application” - is made with a view to bringing about a sale.

But I should first deal with the various court proceedings that have since arisen as a result of the disputes.

With relations between the Fattals and Non-Fattals (and, to a lesser extent, the Walbrook Trustees as I shall collectively describe the various entities/persons within the Walbrook group who have acted as trustees of one or other of the participating interests) steadily worsening and concerned that the Walbrook Trustees were engaging in transactions, specifically the grant of the car parking leases, without their (the Fattals’) approval, the Fattals commenced Part 8 proceedings (“the Fattals’ 2003 Part 8 Claim”). On 13 March 2003 they applied for and obtained (on a without notice basis) an interim injunction to prevent the Walbrook Trustees, as trustees of all of the trusts/settlements, from disposing of the Property or any interest in it without first giving the Fattals fourteen days’ advance notice. The proceedings also sought the disclosure of documents by the Walbrook Trustees as trustees of the Fattal Trusts and a declaration that clauses 3(1) and 5 to 7 of the JVA continued to have effect.

On 29 April 2003 the Non-Fattal parties became parties to the Fattals’ 2003 Part 8 Claim when the Walbrook Trustees obtained permission to bring a Part 20 claim against them for declarations (1) that the Walbrook Trustees were entitled to sell the property on the footing that clause 5 of the JVA did not govern such sale, together with further directions in and about the sale, and (2) as to the validity of the car parking leases that they had granted. They also sought representation orders to enable the interests of the various trusts to be represented.

Just over a month later, on 8 May 2003, the Walbrook Trustees, as trustees of each of the Delta, Sofaer, Sharet and Fattal Trusts executed a declaration described (and herein referred to) as a Deed of Confirmation confirming that, as advised by Leading Counsel, the JVA had no further effect. It purported to release all rights conferred on them as trustees of the respective trusts by the JVA. The Fattal brothers were not, it seems, informed of the execution of this instrument until several days later. They immediately challenged its validity and questioned the circumstances in which it came to be executed. They did so by commencing a Part 7 claim (“the Fattals’ 2003 Part 7 Claim”) by which they sought declarations (1) that the car parking leases granted to the Delta, Sofaer and Sharet Trusts (“the Non-Fattal Trusts”) were void or voidable and ought to be avoided and (2) that the Deed of Confirmation was voidable and ought to be avoided.

I am not concerned to determine those matters and, as I have mentioned, I am invited to proceed, and do proceed, on the basis that the Deed of Confirmation is of no effect and that the JVA remains in force.

Shortly afterwards, on 11 July 2003, Rysaffe Trustee Company (CI) Limited (“Rysaffe”), a Guernsey company, was appointed as an additional trustee of each of the Fattal Trusts. This meant that thenceforth there were three trustees of each of those trusts, namely Walbrook Jersey, Witco and Rysaffe. I refer collectively to the Fattal brothers and Rysaffe as “the Fattal parties”.

On 17 July 2003 the Walbrook Trustees applied to the Vice-Chancellor to strike out the Fattals 2003 Part 8 and Part 7 Claims. The hearing resulted in orders striking out the claim in the Part 8 Claim for an injunction, discharging the interim injunction obtained on 13 March and striking out the claim for declarations that clauses 3(1) and 5 to 7 of the JVA continued to have effect. The Vice-Chancellor also struck out the claim in the Part 7 Claim to avoid the Deed of Confirmation. This occurred without any determination by the Vice-Chancellor as to whether the Deed of Confirmation was valid, and even if it was not, whether the JVA remained in force. The Fattals sought but, on 2 August 2003, were refused permission to appeal the Vice-Chancellor’s decision.

Subsequently, on 3 October 2003, the remaining issues in the Fattals’ 2003 Part 8 and Part 7 Claims were disposed of by consent (except as to costs) by orders made by Hart J.

In the meantime, attempts by the Walbrook Trustees to effect a sale of the Property proved unsuccessful. I am not concerned at this stage to decide why this was so.

At the end of March 2006 the Fattals threatened further proceedings when their solicitors sent to the Walbrook Trustees and BCIL a claim form and related application claiming, among other matters, an injunction to restrain the grant by the Walbrook Trustees of storage leases of spaces in the basement of the Property. These proceedings, although issued, were never formally served.

On 24 July 2006 the Walbrook Trustees issued the current proceedings in which the applications before me are made. I shall refer to the proceedings simply as “the current proceedings”. They did so by a Part 8 claim naming the Fattal brothers as first and second defendants, Rysaffe as the third defendant, Charles Sofaer, Simon Dangoor and Robert Dangoor as, respectively, the fourth, fifth and sixth defendants, and BCIL as the seventh defendant. Acting, as stated by paragraph 1, in their respective capacities as trustees of the Fattal, Sofaer, Delta and Sharet Trusts, the Walbrook Trustees sought by paragraph 2 an order for the sale of the Property with directions as to the manner of the sale (including orders designed to resolve outstanding disputes over the car parking leases and the storage spaces) and, by paragraph 3, determination of the question (raised in the light of assertions by the Fattals that the Sharet Trust was not entitled to participate in the Property) whether the Sharet Trust had a 25% interest in the Property and, if it did not, who had the interest previously held by Selim Dangoor. I refer to those questions as “the Sharet issue”. By paragraphs 4 to 8 of the claim form representation orders were sought.

On 13 October 2006 the Fattal parties issued, but did not initially serve, a Part 7 claim (“the Fattals’ 2006 Part 7 Claim”) against the Walbrook Trustees, Monopro Limited (a Dangoor family company) and David Dangoor which, following amendment in early February 2007, they served and by which they claimed relief designed to enforce for the benefit of the Fattal Trusts rights of pre-emption which they asserted had arisen under clause 6 of the JVA in respect of the interest held by the Sharet Trust. They also made various money claims and, among other relief, claimed rescission of the Deed of Confirmation and a declaration that the JVA remained in full force and effect.

On 24 October 2006 Master Price made representation orders in the current proceedings the effect of which was that William Fattal was appointed to represent the WS Fattal Settlement and Elias Fattal was appointed to represent the ES Fattal Settlement. Similar appointments of Charles Sofaer, Simon Dangoor and Robert Dangoor were made to represent the interests of, respectively, the Sofaer, Delta and Sharet Trusts.

In due course, on 26 February 2007 (but out of time), extensive particulars of claim running to 161 paragraphs were served in the Fattals’ 2006 Part 7 Claim. An application for the necessary extension of time, which was opposed, came before Sir Francis Ferris in June 2007. Also before Sir Francis was an application dated 9 May 2007 by the Fattal parties for permission to bring their new claim by way of a Part 20 claim in the current proceedings. Sir Francis refused permission for the Fattals’ 2006 Part 7 Claim to be joined to the current proceedings, extended time for the service of their particulars of claim but stayed those proceedings pending determination of the sale issues raised by paragraph 2 of the current proceedings. He ordered the Fattal parties to pay the costs of their two applications and refused them permission to appeal. An application by them for permission to appeal was refused by the Court of Appeal in February 2008.

In October 2007 Henderson J tried as a preliminary issue arising out of paragraph 3 of the current proceedings whether a sale was made in 1998 by Interlands SA, or by Selim Dangoor’s personal representatives (Selim Dangoor having died earlier in 1998), of the beneficial interest (held either by Interlands SA or by Selim or his personal representatives) in the membership rights of BSL. On 29 November 2007 he held that on a date between 12 and 18 May 1998 Interlands SA had sold its beneficial interest in those membership rights to Niazi Dangoor (another member of the Dangoor family). He also went on to find that Niazi’s purchase was completed by his action in directing Interlands SA to transfer the interest thus acquired to the Sharet Trust. He refused Robert Dangoor, representing the Sharet Trust, permission to appeal.

This decision raised whether the Sharet Trust was entitled to participate in the joint venture. It led to a further hearing on 21 December 2007 when Henderson J ordered that paragraph 3 of the current proceedings (concerned with the Sharet issue) “be dealt with as a separate proceeding commenced by claim form under Part 7” (“the Fattals’ 2007 Part 7 Claim”) with the Fattals and Rysaffe as the claimants and the Non-Fattal parties and the Walbrook Trustees as the defendants. He gave directions for the exchange of pleadings and for trial of the issue. He ordered the Non-Fattal parties to pay the Fattal parties’ costs of the preliminary issue which had resulted in his judgment given on 29 November. He ordered a payment of £100,000 on account.

On 7 May 2008, on the application of Robert Dangoor representing the Sharet Trust, Henderson J struck out the Fattals’ 2007 Part 7 Claim as an abuse of process and determined, on the Sharet issue, that the Sharet Trust had an indefeasible 25% interest in the Property and in the companies (BCIL, BSL and BS2K) holding the legal and beneficial title to the Property. He refused the Fattal parties permission to appeal. At a later hearing he ordered the Fattal parties to pay the costs of the strike out application and the Sharet issue and directed a £45,000 payment on account.

Following the grant (by the Court of Appeal) of permission to appeal, an appeal against Henderson J’s strike out order was successfully brought by the Fattal parties. The judgment allowing the appeal (and varying a part of Henderson J’s order on 21 December 2007 relating to the costs of the preliminary issue) was handed down on the day after the conclusion of argument on the applications before me. The consequence of the Court of Appeal’s decision is that the Sharet issue remains a live one. Among the questions to which it gives rise are whether in the events that have happened the right of pre-emption conferred by clause 6 of the JVA has been triggered and if so, in whose favour.

With that introduction and background summary of the material events and proceedings I now describe the applications that are before me. I have already briefly referred to three of them. Taking the applications in the order in which they were argued, they are as follows.

First, there is the receiver and manager application, namely an application dated 24 July 2008 by the Fattal parties for the appointment of a receiver and manager over (a) the interests of the parties in BSL, BCIL and BS2K and/or (b) the interests of those companies in the Property and/or (c) the Property.

The second is an application dated 7 October 2008 by Robert Dangoor (as representative beneficiary of the Sharet Trust) for a direction that, on the assumption that the JVA is still effective, the transfer by Walbrook Nominees № 1 Ltd of its holding of ten shares in BS2K (held as nominee for Walbrook Jersey and Mr Cuttiford as trustees of the Sharet Trust) to JTC Trustees Ltd (“JTCTL”) and JTC Corporate Services Ltd (together “JTC”) as trustee of the Sharet Trust, the admission of a JTC company as a member of BSL and the addition of JTC as signatory to each Berkeley Court bank account can take place without the consent of any of the other parties to the JVA and is deemed not to be a disposal to which clause 6 of the JVA applies. This is the issue referred to in paragraph 5 above as “the JVA transfer issue”.

The third is an application dated 8 December 2008 by the non-Fattal parties (as representatives of the Sofaer, Delta and Sharet trusts respectively) for an order requiring Walbrook Jersey and Witco, as members of BSL and as trustees of the BSL Trust to procure the admission of two new members of BSL (each to be a JTC nominee company), one (Dan Management Ltd) as nominee for and on behalf of the Sofaer Trust and the other (C’est La Vie Properties Ltd) as nominee for and on behalf of the Sharet Trust on the basis that Walbrook Jersey and Witco are released from the BSL Trust and thereafter hold their membership rights in BSL for and on behalf of the Delta Trust (in the case of Walbrook Jersey) and the Fattal Trusts (in the case of Witco). The effect of such an order, if made, will be that there will henceforth be one member only of BSL for each of the trusts.

There were two further applications before me which, it was agreed, should be dealt with following judgment on the first three applications. Those two further applications are (1) an application dated 18 July 2008 (but as sought to be amended by an application notice dated 31 March 2009) by Walbrook Jersey and Witco for (a) a stay of the current proceedings, alternatively a stay of paragraph 2 of the claim form in the current proceedings, alternatively, permission to discontinue the current proceedings, alternatively to discontinue the claim in part 2 of the claim form, (b) the discharge of themselves as trustees of the Fattal Trusts, (c) an indemnity in respect of their costs of the current proceedings and determination of the incidence of such costs as between the various trusts and (d), if the current proceedings are not discontinued, the joinder of JTC (and, if appropriate, a further JTC company) (as proposed sole trustees of the Non-Fattal Trusts) and provision in respect of their future costs and (2) an application dated 6 February 2009 (but as sought to be amended by the application notice dated 31 March 2009) by Walbrook Jersey and Witco for, in effect, orders (a) discharging them as trustees of the Fattal Trusts, (b) appointing Rysaffe and/or another or others as trustees of the Fattal Trusts and (c) an indemnity in respect of their costs of the application out of the assets of the Fattal Trusts.

The Walbrook Trustees, who have appeared before me by Mr Thomas Seymour, have adopted a neutral stance in relation to the first three applications. They are content simply to abide by any order that I may make on them while reserving their right at a later stage in relation to any costs that they have incurred in relation to them.

I propose to deal with the first three applications in a different order from the order in which they were argued before me. Logically, as it seems to me, the first application that I should consider is concerned with the JVA transfer issue. Next is the application directed to what I have referred to as the BSL membership issue. Last, I shall consider the Fattal parties’ application for the appointment of a receiver and manager.

This application, the terms of which I have earlier set out (in paragraph 42 above), is made on the footing, which the Non-Fattal parties do not accept, that the JVA continues to govern the relationship between the parties to it, now represented by the five trusts or more accurately the respective trustees of those trusts. Its purpose is to enable steps to be taken to have the share of the assets now subject to the JVA to which the Sharet Trust is entitled brought under the control of trustees independent of the Walbrook Trustees. As matters presently stand, Walbrook Jersey and Witco, together with JTC, are trustees of the Sharet Trust. JTC (I shall refer to it in the singular) was appointed a trustee on 9 September 2008. In view, however, of the Fattal parties’ contention that, without the consent of all of the other parties to the JVA (in the events that have happened they are the trustees of the other trusts including, not least, the trustees of the Fattal Trusts), any attempt to vest the share of the Sharet Trust in JTC would be prohibited by clause 12 of the JVA and, if it was to be regarded as in the nature of a sale, could trigger the operation of clause 6 of the JVA. It is to avoid those consequences that this application is made. The intention is, if the relief sought is granted, to proceed to vest the Sharet Trust’s share in JTC and for Walbrook Jersey and Witco, the other trustees, thereafter to retire from their trusteeship. JTC (strictly the corporate entities that are referred to as JTC) is already the sole trustee of the Sofaer Trust (having been so appointed on 10 July 2008) and JTCTL has since 22 April 2009 been the sole trustee of the Delta Trust. It is the wish of those interested in the Sharet Trust, represented in these proceedings by Robert Dangoor, that the Sharet Trust should also have JTC as its sole trustee.

As described earlier, when the JVA was executed there were only two trusts involved: the Delta and Sofaer Trusts. The other parties were individuals: the two Fattals and Selim Dangoor. Paragraph (i) of the Addendum authorised the transfer of the shares of either of those two trusts to new trustees on the occasion of any future appointment of a new trustee without requiring any consents from the other parties. The Addendum made clear that such a transfer would not be caught by clause 12 or (by necessary implication as it seems to me) trigger the operation of clause 6. In the same way, the Addendum also authorised, by paragraph (ii), the two Fattals and Selim Dangoor to transfer their respective shares to trustees on trust without the need to obtain the consent of the other parties provided that “the ultimate beneficiaries are themselves and/or other members of their immediate family…”.

The question raised by this application, now that Selim Dangoor’s 25% share is vested in Walbrook Jersey and Witco as trustees of the Sharet Trust (but subject to the outcome of the Fattals’ 2007 Part 7 Claim following their successful appeal against the strike-out of that claim), is whether clause 12 extends to a vesting of the share in new trustees notwithstanding that the trusts affecting the share remain unchanged and, if it does, whether the Addendum makes any difference.

Mrs Elspeth Talbot-Rice QC, on behalf of Robert Dangoor, submitted that the share referred to in clause 12 is each party’s beneficial share in the Property which is now represented by the party’s interest in ten shares in BS2K held for that party’s trust (effectively in the case of Sharet Trust, the ten shares held by Walbrook Nominees № 1 Ltd), a 25% beneficial interest in the membership rights in BSL held by Walbrook Jersey and Witco and a 25% beneficial interest in the accounts held in the name of BS2K and BSL into which the income and other payments derived from the Property are paid. She submitted that vesting in a new trustee does not constitute a dealing caught by clause 12. She referred me to passages from the current edition of Woodfall: Landlord and Tenant concerned with involuntary assignments and to the decision in Marsh v Gilbert [1980] 2 EGLR 4. Instead, she said, clause 12 is concerned with dealings which amount to a parting with possession of that party’s proprietary interest in the share in question. She submitted that paragraph (i) of the Addendum is no more than a statement of the position in any event, in that it is merely declaratory of the position and is there for the avoidance of doubt.

Mr David Chivers QC, on behalf of the Fattal parties, submitted that a vesting of assets in a new trustee is caught by clause 12. He submitted that it is within the expression “assigned” which appears in clause 12. He submitted that this is reinforced by the Addendum in that, if clause 12 was not intended to extend to a vesting consequent on a change in trusteeship, paragraph (i) of the Addendum would not have been necessary.

In my judgment, Mr Chivers is correct on this point. Clause 12 is drawn in very wide terms. It states that, as one would expect in a joint venture of this nature, the rights and obligations of the parties to it are personal to them. It also states that none of the parties should “sell, assign…or in anyway encumber their Share…or their rights or obligations under the [JVA] without the prior approval of all the other Parties”. The clause could scarcely be worded more widely. It is well capable of extending to the vesting of the share in question in a new trustee. The vesting in a new trustee, otherwise than by an order of the court or by operation of law, of the right to receive (for the benefit of those entitled under the trust) an undivided 25% share of the beneficial interest in the Property held by BCIL (which was the position when the JVA was entered into and the Property was acquired in BCIL’s name) involves an assignment to the new trustee of the entitlement to receive the benefit of that undivided share. In my judgment, it is within the scope of the prohibition contained in clause 12. The references to Woodfall to which Mrs Talbot-Rice referred me are not in point. Although the nature of the share has since changed - and is now represented by the interests to which Mrs Talbot-Rice referred - the nature and effect of a vesting of that share by transfer in a new trustee nonetheless involves an assignment which is caught by clause 12. It follows therefore that paragraph (i) of the Addendum was not merely declaratory of the position in any event. The paragraph was apt to authorise a dealing with a share which would otherwise have been prohibited by clause 12 in the absence of the required consents.

Mrs Talbot-Rice’s second argument was that, given the freedom conferred by paragraph (i) of the Addendum on the Delta and Sofaer Trusts to transfer their respective shares to new trustees on any future appointment of a new trustee, and not just to the next new appointee, and given further the freedom conferred by paragraph (ii) on the two Fattals and Selim Dangoor to transfer their respective shares to the trustees of a trust subject only to the proviso set out in that paragraph, it makes no sense to construe paragraph (ii) as limited to the transfer to the first trustees of the trust in question it. Consistently with paragraph (i), it is properly to be construed as extending to any future change of trustees of those trusts once established.

Mr Chivers submitted that the JVA was entered into on a personal basis and that the control over the transfer to a trustee was expressly considered by the terms of the Addendum. He submitted that there was no lacuna in the terms of the Addendum: it means exactly what it says, no more and no less. Paragraph (ii) extends only to a transfer by the named individual to his trustees. It is silent over, and does not therefore authorise, transfers on a change of trustee thereafter.

On this argument, I am in no doubt that Mrs Talbot-Rice is correct. There can be no sense in permitting transfers when and so often as new trustees of the Delta and Sofaer Trusts are appointed but, in the case of the Fattals’ and Selim Dangoor’s shares, only on the establishment of a trust for them or their respective immediate families. In my judgment, the expression “shall be at liberty without consent from any of the Parties to transfer the whole of their respective Shares to the Trustees of a Trust…” appearing in paragraph (ii) is well capable of extending to transfers following the appointment of new trustees and should be understood as doing so. I shall so declare.

This concerns the application by the fourth, fifth and sixth defendants in their representative capacities, for the relief summarised at paragraph 43 above. It refers to the operation of the BSL Trust. The relevant background to this application is as follows.

As I have mentioned, on 10 July 2008 JTC was appointed to the trusteeship of the Sofaer Trust in place of Walbrook Jersey and Witco and on 9 September 2008 it was appointed trustee of the Sharet Trust to act alongside Walbrook Jersey and Mr Cuttiford as continuing trustees. On 22 April 2009 JTCTL was appointed sole trustee of the Delta Trust in place of Walbrook Jersey which has retired from the trusteeship of that trust. The expectation of JTC (and Robert Dangoor) is that Walbrook Jersey and Mr Cuttiford will retire as trustees of the Sharet Trust as a result of the declaration sought (and which I have said that I am willing to make) on the application concerned with the JVA transfer issue. When that occurs JTC or (in the case of the Delta Trust) JTCTL alone will be the exclusive trustees of the Non-Fattal trusts.

As matters presently stand Walbrook Jersey and Witco are the only members of BSL. The purpose of this application is, in the words of Duncan Harman Wilson, a partner of Reynolds Porter Chamberlain who are the solicitors for the Non-Fattal parties:

“9.

In order properly to reflect all the trusts’ interests in BSL, and now also in order to vest the assets of the Sofaer Trust and the Sharet Trust in the new trustees, the representative beneficiaries, with the approval and support of JTC, seek that Walbrook procure that new members of BSL be admitted so that BSL’s membership reflects its ultimate ownership by the 4 trusts in equal shares (treating the Fattal trusts as one). The declaration of trust [ie the BSL Trust] makes clear that it was anticipated that the members of BSL will exercise their membership rights in accordance with the written instructions of each 25% owning Trust (treating the Fattal Trusts as one). The appointment of additional members so that each 25% Trust has its own nominee member removes any possible conflict from which the present nominee members suffer if the written instructions given to the nominee members by the 4 Trusts are different, and therefore allows the trust of the membership rights to operate in the way in which it was plainly intended to operate.”

He then refers to correspondence in which Walbrook Jersey and Witco, on behalf of the Non-Fattal Trusts, requested the directors of BSL to increase the membership of BSL from two to eight and to allocate two membership rights to the trustees of each of the Non-Fatal Trusts. Mr Harman Wilson later stated that:

“14.

…the Fattals have always argued that the JVA continues and binds the 4 trusts. An application of clause 2 of the JVA to the present structure would mean that the BSL membership rights are held for the trusts as tenants in common, not as joint tenants. That this was the intention of the parties at the time is shown by clause 2 of the declaration of trust by which the members agree to act in accordance with the written instructions of the relevant trust concerning its 25% portion of the membership (treating the Fattal Trusts as one).”

Mr Harman Wilson concluded his witness statement by stating that:

“17.

Having been given written instructions by the Sofaer, Delta and Sharet Trusts to appoint new members of BSL so as properly to reflect all 4 trusts’ interests in BSL, it is respectfully submitted the Walbrook is in breach of trust in failing to do so and ought to be ordered to do so in the administration of the trust declared by the [BSL Trust].”

The question raised by this application is whether that contention is correct.

The central contention of the Fattals, articulated in the careful submissions of Mr Chivers and Mr Tomson, is that under the BSL Trust unanimity is required: a majority of the “Owners” cannot determine how Walbrook Jersey and Witco, as holders of the membership rights in BSL, are to act. This requirement arises, they submit, because when BSL was acquired and the then parties to the JVA (the Delta, Sofaer and Fattal Trusts and Selim Dangoor) transferred their respective beneficial interests in the Property to BSL, it was in return for the admission of just two members of BSL, Walbrook Jersey and Witco, who jointly held, and continue jointly to hold, their membership rights under the BSL Trust for all of the participating Owners (in their respective proportionate shares). This was done, it was said, for fiscal reasons. No provision was made to enable the number of members of BSL to be increased, much less to apportion the membership rights between the individual Owners or allow an Owner to opt out of the arrangement by calling for the transfer to it of its share of the membership rights. Any attempt to do that would run counter to the basis upon which the structure was established whereby BSL was introduced and its membership rights held on the terms of the BSL Trust. It would involve rewriting the structure to which the Owners assented when it was established. There is no right in the Owners to do this and no jurisdiction in the court to impose this upon them.

It was submitted, moreover, that the need for unanimity to alter the structure established by the BSL Trust is consistent with the parties’ rights and obligations under the JVA in that the JVA confers on each participant valuable rights and safeguards, for example the right to exit the joint venture by triggering a clause 5 sale (and thus to avoid becoming locked in), the pre-emption right under clause 6 to acquire a selling party’s interest, and the control on the participation of outsiders given by clause 12. While it is true that these provisions are not mirrored in the BSL Trust, that Trust is able to prevent oppression of a minority by requiring unanimity of decision if the structure is to be altered. Severing the membership rights as contended for by the Non-Fattal parties would destroy the protection enjoyed by the Fattal Trusts as minority participants since it would give unfettered control to the majority.

The fundamental problem which to my mind is faced by the arguments advanced by Mr Chivers and Mr Tomson is the difficulty of reconciling the provisions of the BSL Trust with the rights and obligations of the participants under the JVA. There is little or no consistency between the two. It does not seem right to me, in an attempt to lessen the inconsistencies between them, to assume that because there are only two members of BSL and because, let it be assumed, the new structure was established for good fiscal reasons, those two members are required under the BSL Trust to act in a particular manner only if all of the Owners are in agreement. I am unable to spell that out of the BSL Trust even if I assume, as I am asked to do, that the JVA continued to subsist notwithstanding the 1995 restructuring.

In my judgment, clause 2 of the BSL Trust is inconsistent with the Fattal parties’ contention. That clause makes explicit that Walbrook Jersey and Witco, as BSL’s sole members, are obliged to act on the written instructions of the relevant Owner concerning that Owner’s proportion of membership “and to deal with all the benefits of membership of [BSL], including all rights to distributions and all voting rights, arising in respect of such proportion” (emphasis added) as that Owner directs in writing. Walbrook Jersey and Witco have no discretion in the matter: by clause 1 they hold the membership rights as nominees only.

There is nothing to indicate that the fact that there are only two members of BSL is to ensure that the members in question can only act in any respect if all of the Owners are in agreement. If, in order to enable Walbrook Jersey and Witco to act as an Owner directs in respect of that Owner’s proportion of the membership rights it is necessary to sever those rights and procure an increase in the number of members to enable this to happen, I see no reason why the court, in exercise of its jurisdiction in respect of the administration of a trust, should not so direct. By so doing the court, in my judgment, is giving effect to the terms to which, by agreeing to the 1995 restructuring, the Owners assented.

The only other objections to the relief sought would seem to be procedural in nature. They were (1) that this court has no jurisdiction to direct Walbrook Jersey (which is a Jersey company) and Witco (which is a Cayman Island company) to act in any particular way, the more so when the BSL Trust contains no English jurisdiction clause and specifies Manx law as the governing law of the trusts declared by it, (2) that the application is made by the fourth, fifth and sixth defendants appointed to represent the beneficiaries under the Non-Fattal Trusts but only for the purpose of the claims brought by the Walbrook Trustees in the current proceedings and not for any other purpose, (3) that (as a corollary to (2)) the only persons who could properly bring this application would be the trustees of the Non-Fattal Trusts as “Owners” under the BSL Trust by making a written request to Walbrook Jersey and Witco which they have not done (a request by the Owners direct to BSL, which is what they did, not being sufficient for this purpose) and in any event, JTC, as trustee of the Non-Fattal Trusts, is not even a party to the proceedings and there is nothing to indicate that it has authorised the making of this application by the representative defendants and (4) that it is unclear by what mechanism the court is being asked to direct Walbrook Jersey and Witco to take the steps sought to enable new members of BSL to be admitted and to procure that the membership rights currently held by Walbrook Jersey and Witco are henceforth held for and on behalf of the Delta Trust (as to one such membership right) and the Fattal Trusts as to the other.

In my judgment there is no merit in any of these objections. The trustees of the BSL Trust (Walbrook Jersey and Witco), although both foreign corporations, are before the court: indeed they are the claimants in the current proceedings in which this application is made. It is no objection to the enforcement of a trust that its governing law is not English or that the trust property (in the instant case membership rights in a Manx company) is not within the jurisdiction: see Chellaram v Chellaram [1985] Ch 409. There has been no suggestion that Manx law is materially different from English law in relation to the issues that arise on this application. Nor does it matter that the application is made by persons who are representatives of the beneficiaries entitled under the three trusts in question rather than by the persons who qualify as “Owners” under the BSL Trust, namely the trustees of those three trusts. In the case of the Delta Trust the Owner (until 22 April 2009) was Walbrook Jersey and in the case of the Sharet Trust the owners include Walbrook Jersey and Mr Cuttiford. They are of course before the court as respondents to the application. In the case of the Sofaer Trust the “Owner”, JTC, has indicated that it supports the application. (See the passage cited above from Mr Harman Wilson’s witness statement; see also the witness statement dated 7 January 2009 by Mr Nigel Syvret of JTC Management Ltd, JTC’s parent company.) Those considerations aside, the persons who bring this application do so in their representative capacity having been appointed to represent all beneficiaries, including any unborn or ascertained beneficiaries, under their respective trusts. The order so appointing them did not limit their representative capacity to the matters raised by the Walbrook Trustees in the current proceedings. It has not been suggested by the Walbrook Trustees that this application should not be brought in the current proceedings. On the contrary, the current proceedings in which all material interests are represented - the only exception being the absence of JTC which, as I have mentioned, supports this application - have sensibly been used as a convenient means of seeking to resolve a variety of outstanding issues between the parties. It is clear, moreover, that each “Owner” has requested BSL to increase its membership and to allocate membership rights separately to the trustees of the Non-Fattal Trusts: letters to this effect dated 19 December were sent by Walbrook Jersey (acting in each case as trustee of the material trust) to the directors of BSL. The complaint that the requests were directed to BSL rather that to Walbrook Jersey and Witco is without substance.

Nor is there any difficulty about the mechanism by which the increase in BSL’s membership and the allocation of the overall membership rights among the various trusts is to be achieved. BSL is wholly and exclusively controlled by the various trusts in that Walbrook Jersey and Witco are currently the only members; under the BSL Trust they hold those membership rights as nominees for the various trusts. BSL’s directors are their appointees. Walbrook Jersey and Witco are willing to give effect to the requests made by the Non-Fattal Trusts if the court so determines.

I can therefore see no objection, whether legal or factual, to the purpose sought to be achieved by this application. Its implementation will accord with clause 2 of the BSL Trust. I am willing therefore to make the declaration which is sought.

This is an application by the Fattal parties for the appointment of a receiver and manager over the interests of the parties in BSL, BCIL and BS2K, alternatively the interests of those companies in the Property, alternatively the Property.

the arguments in support of the application

The Fattal parties’ reason for making this application is, they say, to secure, as soon as possible, a sale of the Property on the open market for full market value. They see the appointment as the best means of achieving this goal. According to the skeleton argument of Mr Chivers and Mr Tomson, the appointee would be responsible for “the winding-up of the affairs of the Joint Venture including the appropriate distribution of its assets”. This is reflected in the draft order sought on the application which provides for the appointment of two partners in Begbies Traynor as joint receivers and managers:

“To collect and get in and receive the debts now due and owing and all other assets property and effects belonging to [BCIL, BSL and BS2K] (the “Joint Venture Companies”) and to manage the business of the same pending

(a)

the sale of [the Property] and winding-up of the Joint Venture Companies or

(b)

the sale of the Joint Venture Companies as a going concern

and the distribution of the net proceeds between the Delta…Sofaer …Sharet and …Fattal Trusts as appropriate.”

BCIL, it is to be recalled, holds the legal estate in the Property, BSL owns the beneficial interest in the residential parts of the property and BS2K owns the beneficial interest in the commercial parts.

The Fattal parties contend that, despite assertions of also desiring a sale of the Property at its proper open market value, in truth the Non-Fattal parties wish “to conduct the affairs of the Joint Venture on a majority basis”. They fear that this “will allow the Non-Fattals to conduct the sale at their own convenience and will include an attempt by [them] to conduct a collusive sale of the Property to themselves, thus cutting the Fattal Trusts out of the Joint Venture”. They go on to contend that, whether or not that is so, “it is not possible for the Non-Fattal parties to take control of the Property and conduct a sale in a neutral fashion in the light of the outstanding disputes between the parties”. Their wish to see a sale of the Property conducted by and under the control of a court-appointed receiver and manager is in order, they say, to ensure that they do not become “an impotent minority at the whim of the Non-Fattals”.

Their concern that the affairs of the joint venture should not be left in the hands of the Non-Fattal parties (on the basis that, as the majority, their wishes will prevail) is heightened, they say, by the prospect that if, as they contend will be the case, their (ie the Fattal parties’) claim in the Fattals’ 2007 Part 7 Claim is wholly successful, they will be entitled to acquire all of the share of the joint venture currently held by the Sharet Trust. If they take up their entitlement, this will give them a collective 50% share of the joint venture. It will not result in them acquiring just a one-third part of the Sharet Trust share (together with their pre-existing 25% share), leaving the other two-thirds of the Sharet Trust share going to the Delta and Sofaer Trusts. This is because it is their case that the Delta and Sofaer Trusts are estopped from claiming any part of the share currently held by the Sharet Trust. If, therefore, as they contend, their true entitlement in the events that have happened is to 50% of the joint venture, they say that there is all the more reason to ensure that a sale of the Property - and the management of the business of BCIL, BSL and BS2K in the meantime - is in the hands of independent persons such as the receivers and managers whom they invite the court to appoint.

In support of their contention - it is articulated almost exclusively in the evidence of William Fattal - that the Non-Fattal parties, by which is meant, for the most part, members of the Dangoor family, in particular David Dangoor and a Dangoor family company called Monopro Ltd, should not be left in effective control, I was taken by Mr Chivers to a series of episodes concerned with dealings affecting parts of the Property and other matters relating to its management. They were relied upon as indicating the untrustworthiness of the Dangoors. These included (1) the attempt by David Dangoor in early 1999 to prevent the Fattals from completing the purchase of three flats in the Property knocked down to them at a favourable price, (2) the acquisition at what is said to be an undervalue by Monopro in early 2000 of a lease extension on Flat 23 in the Property with a view to its sale to a third party at its full value thereby depriving the joint venture of the extent of the undervalue on the lease extension, (3) the procurement by David Dangoor in 2002 and again in 2003 of what is said to have been an inflated fee paid to Monopro for coordinating the management of the Property on behalf of the joint venture, (4) the use, inappropriately it is said, by David Dangoor, Albert Dangoor and Charles Sofaer of storage spaces on the ground floor and in the basement of the Property in 2003, (5) attempts by David Dangoor between early 2002 and early 2003 to effect what is alleged to be a collusive sale of the Property at a figure below its proper value, (6) the involvement of the Non-Fattal parties in the so-called Deed of Confirmation of 8 May 2008 whereby the Walbrook Trustees declared that the JVA had ceased to exist, (7) difficulties experienced by the Fattals over many years in obtaining disclosure of documents relating to the management of the joint venture and (8) continuing disputes, also going back many years, over the grant of car parking leases to the joint venture parties in the basement of the Property.

Although they have complaints about the way that they have acted since they became trustees of all of the participating trusts in 1998 - accusing them of having acted in favour of the Non-Fattal parties - the Fattal parties regard the Walbrook Trustees as having been “a unifying element” and say that they have taken comfort from the fact that the Walbrook Trustees have sought the court’s guidance in the current proceedings. Faced, nevertheless, with the fact that the Walbrook Trustees either have been or are in the process of being replaced by JTC (or, in one case, JTCTL) in the trusteeship of the Non-Fattal Trusts and that the Non-Fattal parties have indicated that they wish to run the joint venture “on the basis of majority rule” but do not recognise the JVA or any other similar agreement, the Fattal parties consider that without the appointment of joint receivers and managers to take “an objective and unbiased role in the sale of the Property and the proper dissolution of the Joint Venture”, they will have no independent person to protect their interests “from parties who have a proven record of acting to the Fattal Trusts’ detriment and of causing their trustees [ie the Walbrook Trustees] to do the same”.

They have no confidence in JTC, appointed to replace the Walbrook Trustees in the trusteeship of the Non-Fattal trusts. They say that, as trustees for those trusts, JTC will be in a position of “irremediable conflict” as between its duties to the beneficiaries under those trusts and its duties to BSL and BS2K. This could result, for example, in the removal (or attempted removal) of a Rysaffe nominee as director of BSL or BS2K (or in a refusal to concur in his appointment in the first place). Thus they contend that, although JTC says that it favours a sale, it may have to bow to the wishes of the Non-Fattal beneficiaries if the latter wish a sale to be postponed. This may result in the Fattal beneficiaries remaining “locked-in” for several years. Indeed they fear that the Non-Fattal beneficiaries intend to wear them down “financially and through litigation fatigue” in an attempt to acquire the Fattals’ shares at a discount. They contend therefore that the court should act to facilitate an immediate sale. They contend that assertions by Mr Syvret of the JTC group (I refer later to his evidence) of an absence of intention to prejudice the interests of the Fattal Trusts must be treated with circumspection in that JTC may feel obliged to act in the best interests of the Non-Fattal trusts. JTC may not have any intention of thereby prejudicing the interests of the Fattal Trusts but nevertheless may act with that consequence. Moreover, JTC is already in a position of conflict as between its common trusteeships of the Non-Fattal trusts in connection with the Sharet issue.

On the question of the court’s powers and the circumstances in which those powers should be exercised Mr Chivers and Mr Tomson submitted that it is sufficient to trigger the exercise of the court’s discretion to appoint a receiver and manager that the court has concerns about the future conduct of a business or if there are conflicting interests which cannot be resolved. The essential question is whether it is just and convenient to do so. See section 37(1) of the Supreme Court Act 1987. Those conditions, they say, are satisfied in the current dispute. In their skeleton argument they reminded me of a variety of matters concerned with such appointments. Thus, the discretion is a wide one; the jurisdiction is in aid of a party’s legal or equitable rights; the court will make the appointment where a person’s existing interests are threatened; the appointment may be made to preserve a property, pending its realisation, out of which the person seeking the appointment has a right to be paid; the appointment may be made by way of execution in relation to future debts or over partnership property upon a dissolution or anticipated dissolution of the partnership or over assets which are subject to an arrangement founded on the basis of trust and confidence. I was referred to a number of authorities where these principles are set out or illustrated. Notwithstanding that a receiver and manager will usually only be appointed for a limited time it was emphasised that what is sought is in essence an appointment in order to sell the Property, which is an engagement of limited intended duration. Management of the joint venture’s business in the meantime is, they say, desirable and not particularly complex.

In particular, they submit that it is no objection to the appointment that the beneficial interests in the Property are held off-shore. Equally, it is no objection to an appointment that the beneficial interests in the Property are held by foreign companies: there is a sufficient connection, they say, between BSL and BS2K on the one hand and this jurisdiction on the other to enable the court to make the desired appointment if the circumstances otherwise justify that course. In any event, the joint venture is constituted by the JVA which is governed by English Law and affects English property. It is also pointed out that the parties have thus far been content to have their differences ventilated in proceedings in this jurisdiction.

Against that background, they submit, it would be unreal to expect the Fattal parties to have to have recourse to the Manx and Jersey courts (in respect of BSL and BS2K respectively) to pursue their complaints, for example, by seeking the winding-up of those two companies. Nor, indeed, are the Fattal parties seeking the liquidation of those companies: their concern is simply to bring about a sale of the Property. As regards distribution of the sale proceeds of the Property, the fact is that there are disputes over the inter-trust accounting position, particularly over the correct apportionment of the various costs incurred in these proceedings. Those disputes have to be sorted out; their resolution should not be left to JTC, if it is left in effective control of a sale. Moreover, JTC has not sought to be added as a party to the current proceedings, has given no undertakings as regards the proper distribution of the sale proceeds and has given no indication whether it will make any and what deductions in respect of charges whether for itself or for any other person or persons.

the arguments against the application

In opposing this application Mr Steinfeld reminded me that whether or not the JVA continued in some way following the restructuring in 1995 the fact of the matter is that since 1995 the Property has been beneficially owned, not merely held in some trust capacity, initially by BSL alone and, since 2000 in the case of the commercial parts, by BS2K, with BCIL holding the legal estate in trust for those two companies. He reminded me that these companies paid substantial sums for their interest in the Property: £8.6 million when BSL acquired the Property in 1995 and £10.85 million when BSL sold the commercial parts to BS2K in 2000. The interest of the participating trusts in the Property is accordingly indirect; it is enjoyed via their membership (held through their respective trustees) of those companies. He submitted that any complaint concerned with the manner in which the Property has been managed and any issue over when, in what manner, for what price and otherwise on what terms the Property should be sold is a matter for those two companies.

Mr Steinfeld submitted that the Fattal parties’ application for the appointment of a receiver and manager with a view to the sale of the Property and the distribution of the sale proceeds to the participating trusts is, in substance, a request to the court to wind-up the two companies since it will involve a sale of the two companies’ assets and the distribution of the sale proceeds to their members. This is tantamount to liquidation of these companies since they only exist to own and manage the properties and to distribute the fruits of that ownership.

He submitted that this court has no jurisdiction to appoint a receiver over the assets of a foreign company, let alone over the assets of companies which are not parties either to the proceedings in which the application is made or to the application itself. For that reason alone, he submitted, I should not entertain the application. Even if, which the Non-Fattal parties deny, the Fattal parties have any justifiable complaint over the manner in which the Property has been managed, the Fattal parties’ remedy can only properly be by the exercise of their membership rights in the company in question, for example, by winding-up proceedings or by bringing unfair prejudice proceedings or by recourse to whatever other corporate remedies may be open under the laws governing the two companies, Manx in the case of BSL and Jersey in the case of BS2K.

In any event, he submitted, on authorities such as Featherstone v Cooke (1873) LR 16 Eq 298 and Re a Company № 00596 of 1986 (1986) 2 BCC 99,063 the appointment of a receiver and manager is usually only appropriate by way of an interim remedy to hold the ring until the happening of a particular event. The remedy is ordinarily associated with the need to take control of assets which are in jeopardy pending the determination of a claim in which the rights to those assets are in issue or, in the case of proceedings relating to companies with paralysed management, for a short period during which the corporate governance of the company can be sorted out. Those circumstances are not present here. There is no dispute over what interest the two companies hold in the Property. There is no evidence that the Property is in any jeopardy: complaints, almost wholly of a historic nature and directed largely to the conduct of particular members of the Dangoor family concerned with specific aspects of the Property’s management, do not amount to jeopardy. In any event those complaints are either manifestly unfounded or are disputed. Nor is there any question of the ability of the two companies to continue to function. It is accepted that there has been paralysis in the attempts to secure a sale of the Property and over aspects of its management. That has been caused by the fact that until recently the Walbrook Trustees were trustees of all of the participating trusts (and therefore held all of the membership rights in the two companies vested in them or in their nominees) and because, as the Non-Fattal parties believe, they had felt unable to act for fear of offending either the Fattal parties or the Non-Fattal parties. In short the difficulty was the result of the conflicted position in which the Walbrook Trustees found themselves. This paralysis has since been eliminated by the replacement of the Walbrook Trustees by JTC in the trusteeship of the Non-Fattal Trusts. The desire of the Non-Fattal Trusts to end the paralysis caused by the Walbrook Trustees’ conflicted position is explained by Mr Harman Wilson of Reynolds Porter Chamberlain in his second witness statement (dated October 2008). There is no reason for doubting anything that he says in that statement.

Those objections aside, there are, said Mr Steinfeld, three particular practical objections to the appointment of a receiver and manager to manage the Property and effect its sale. First, the appointment is bound to affect adversely the marketing of the Property. It is almost inevitable, he said, that market perception will be that the sale, if it is by a receiver, is on a forced sale basis and thus will have a depreciating effect on the price that can be achieved. Second, the appointment is bound to cause substantial additional costs to be incurred since it involves an additional tier of professional involvement (and possibly more) in that the proposed joint receivers and managers are partners from a well-known accountancy firm and they, in turn, are likely to involve their own advisers. Third, the appointment is most unlikely to resolve any underlying disputes between the participating trusts over the management and sale of the Property any more than the existing boards of BSL and BS2K (for so long as the Walbrook Trustees or their nominees held the membership rights in those two companies) have been able to resolve such matters. Given the long history of mistrust between the Fattals and the Non-Fattal parties, and the many matters of dispute mentioned in William Fattal’s evidence (for example over the storage and car parking spaces), a receiver and manager is most unlikely to ignore the protests of one side or the other concerned with disputed issues affecting the Property’s management but will very probably seek the court’s directions to resolve the matter. This likelihood will inevitably lead to further expense and delay.

The complaint that, without the appointment of a receiver and manager, the affairs of BSL and BS2K and therefore of the joint venture will be controlled by the Dangoors who, it is said, are not to be trusted to deal in a proper way, is, said Mr Steinfeld, unfounded. JTC have been appointed to the trusteeship of the non-Fattal Trusts. There is no basis for suggesting that they will simply do the Dangoors’ bidding. The position and intentions of JTC are clear. It is to achieve a sale at the best open-market price that can be achieved and to co-operate with the trustees of the Fattal Trusts to bring this about. There is no reason to doubt JTC’s intentions in this regard or their determination or ability to do what they say. Moreover, it is as much in the interests of the non-Fattal Trusts to secure such a sale as it is in the interests of the Fattal Trusts to do so. JTC has every reason to co-operate with Rysaffe (and any other trustees of the Fattal Trusts). It is acknowledged that the duty of a trustee is to act in the best interests of his beneficiaries but that does not mean, as the Fattal parties fear, that JTC will act improperly. In any event, the overriding duty of nominees of the boards of BSL and BS2K will be to do what is in the best interests of the company in which those nominees hold their appointment. In the event of differences or disputes as to what course of action should be followed, there is no reason why the wishes of the majority of the directors of the particular company should not prevail. If it is thought that the majority is acting unfairly to the prejudice of their interests, the Fattal Trusts can bring proceedings to remedy the perceived wrong. In short, the position is no different in these companies from what it is in any other corporate venture. The possibility of future disagreement at board level cannot possibly justify the appointment, pre-emptively, of a receiver and manager.

This leads to Mr Steinfeld’s other main point, which he submitted is fundamental, namely that what underlies the application for a receiver and manager is an unwillingness by the Fattal parties to accept that they no longer enjoy an effective veto on the management and disposal of the Property. For so long, he submitted, as the Walbrook Trustees were the common trustees of all of the participating trusts and felt unable, given their conflicted position, to act where there was disagreement between the parties, the Fattals were able to exercise a de facto veto on management in the sense that, as a practical matter, it was only if all were agreed on a course of action that the Walbrook Trustees would act. Now that JTC are the trustees of the Non-Fattal Trusts and the Walbrook Trustees’ common trusteeship is at an end (and with it their conflicted position) this de facto veto no longer exists. Mr Steinfeld submitted that part at least of the motivation for the appointment of a receiver and manager is an attempt by the Fattal parties to ensure that they continue to have a decisive voice in the management and future disposal of the Property. This ignores, he said, that even under the JVA, the Fattal Trusts are obliged to submit to the will of the majority. That is evident from clause 3(1) of the JVA which provides in terms that, save as expressly therein provided to the contrary, “all …matters relating to and arising out of the purchase holding and realisation of the Property…shall be determined by a three fourths majority of the votes of the Parties”. This position was endorsed by the Vice-Chancellor on 17 July 2003 when discharging the interim injunction which they had obtained in their 2003 Part 8 Claim and striking out parts of the claims in that Claim and in the Fattals’ 2003 Part 7 Claim. Mr Steinfeld submitted that this also is the position in BSL and BS2K: as a minority shareholder the Fattal Trusts must abide by the wishes of the majority. He submitted that what this application was really therefore about was an attempt by the Fattals to avoid the consequences of the fact that their trusts are in the minority. A court should, he said, be very slow to make any order that upsets this fundamental position; it was one to which, when entering into the JVA and the restructuring in 1995/2000, all parties agreed. The appointment of a receiver and manager, he submitted, is certainly not an appropriate or proportionate way of resolving the admitted loss of trust and confidence between the Fattal and Non-Fattal parties. Rather, the way forward is that indicated in the evidence of Mr Syvret on behalf of JTC. Of course, disagreements are likely to arise. That is only to be expected. But the appointment of a receiver and manager to forestall that possibility is not the correct course to follow. The parties must be left to resolve any differences that may arise through the mechanism of their representation on the boards of BSL and BS2K. All parties are agreed that the Property should be sold. There is no reason to think that, through their respective representatives, the two companies should not be able to co-operate to achieve a sale. Differences will be resolved, as in any other company, by the decision of the majority.

my conclusions on the application.

I can state my conclusions fairly shortly.

I do not propose to take up time going through the various matters which Mr William Fattal has raised and which, he says, show how unreliable the Dangoors are and how undesirable it is to allow them to have any influence on the management and sale of the Property. The Fattals’ allegations are hotly denied by those against those whom they are made. It is clear that in respect of some of the complaints, for example the dispute over the car parking leases or the fact that the Deed of Confirmation was entered into, no criticism can be levelled at any of the Non-Fattal parties. In some of the matters, the Fattals have only themselves to blame. In others, for example the complaint concerning the coordination fee, the matter was approached quite openly: there was no attempt to conceal matters from any of the joint venturers. In yet others, it is impossible to come to a view simply on the basis of witness statements and such documentary materials as bear on them.

In any event practically all of them relate to matters long past. In only one matter, and it is a serious matter, do members of the Dangoor family stand condemned. This was in the judgment of Henderson J delivered on 7 May 2008 on the issue whether there had been a sale of Selim Dangoor’s share in the joint venture to Niazi Dangoor in May 1998. Henderson J considered that Robert Dangoor had been guilty of “deplorable behaviour” and that the attempt by the Dangoors to defeat the Fattals’ case on that issue was “dishonest and discreditable”. I have had those strictures fully in mind when considering whether I should accede to this application.

I am not persuaded by Mr Steinfeld’s argument that the court lacks jurisdiction to appoint a receiver and manager over the English-located assets of a foreign-registered company although I accept that, procedurally, it would not be appropriate to make such an appointment without the company in question being a party to the application. Neither BSL nor BS2K is a party to the present application (or to the current proceedings).

Jurisdictional and procedural considerations aside, the question is whether it would be inappropriate to make such an appointment in the circumstances of this tangled dispute as they now exist. This turns on whether with the change of trustees so that JTC now acts or will shortly act as sole trustee of all of the non-Fattal Trusts there is any good reason why the decisions needed to bring about the sale of the Property that all of the parties say that they desire should not be left to BSL and BS2K acting by their respective directors.

The unsatisfactory state of affairs caused by the fact that previously the Walbrook Trustees acted in all of the trusts meant that, given the absence of trust and confidence as between the Fattals on the one side and the Dangoors and to a lesser extent the Sofaer interests on the other, the Walbrook Trustees found themselves in a position of conflict when the interests of these two groupings were, or were thought to be, in conflict. It led to a certain paralysis in the management of the Property. I accept that the position has been changed by the appointment of JTC to the trusteeship of the Non-Fattal Trusts. An important question is how JTC intends to set about dealing with the sale of the Property, in particular how and on what terms that sale should be conducted and whether JTC has the ability and determination to do what it says that it intends to do and, even if it has, whether this heralds future difficulties and makes likely that the court’s intervention will be needed. This brings me to the evidence which has been filed on behalf of JTC.

According to the unchallenged evidence of one of its group directors (a Mr Nigel Syvret), the two companies which constitute JTC are wholly owned subsidiaries of JTC Management Ltd, a licensed trust company incorporated and having is headquarters in Jersey; they provide professional corporate trustee services to the trusts administered by JTC Management Ltd. The JTC group has operated as a trust company since 1987. It is licensed and regulated by the Jersey Financial Service Commission under the Financial Services (Jersey) Law 1998, currently administers assets of a value in excess of £7.3 billion and employs staff numbering approximately 100, a high proportion of whom are professionally qualified with extensive trust and company experience.

In paragraphs 12 and 13 of his first witness statement, Mr Syvret says this:

“12.

If JTC becomes the sole trustee of the Delta and Sharet Trusts as well as sole trustee of the Sofaer Trust, JTC, not David Dangoor or “the Dangoors”, will be entitled to the membership rights in BSL and BS2K, both of which are beneficially owned, in part, by those Trusts. JTC will, as it is duty bound to do, exercise its membership right in BSL and BS2K in the best interests of each of the Delta, Sharet and Sofaer Trusts. I anticipate that JTC would exercise its membership rights on behalf of each Trust so as to ensure that it, JTC (not David Dangoor or “the Dangoors”) had a presence on the board of BSL and BS2K so that it could be involved in decisions taken about the Property. I recognise the sense in having a representative of the Fattal Trusts on the board of those companies so that the Fattal Trusts are involved in and aware of the companies’ decisions regarding the Property. In making decisions regarding the Property, the directors would be duty bound to act in the best interests of BSL and BS2K as the case may be and the duly appointed JTC directors would act in this way.

13.

Accordingly, the assertion made by William Fattal that the appointment of JTC as trustees of the Delta, Sharet and Sofaer Trusts would leave the assets of those trusts under the control of David Dangoor or “the Dangoors” is plainly incorrect, as is the assertion that JTC would act unlawfully as regards the Fattal Trusts’ interest in the Berkeley Court companies or in the Property.”

In a later witness statement, Mr Syvret states that JTC will seek to arrange for the Non-Fattal parties’ shares of BS2K to be transferred to it and, subject to the BSL application, seek the admission to membership of BSL of JTC nominees so that JTC has effective control of the non-Fattal Trusts’ interests in BSL, with each of the trusts (including the Fattal Trusts) having equal representation on the boards of th BCIL, BSL and BS2K. Mr Syvret also says this:

“6.

Based on the knowledge I have to date of the background to this matter, it appears to me plainly to be in the best interests of the Non-Fattal Trusts for their commercial association with the Fattal Trusts to be brought to an end. I believe the only way that can be achieved is for the Property to be sold on the open market to the highest bidder, be that a third party purchaser or one or more of the Non-Fattal or Fattal Trusts after a full and proper marketing of the Property for sale. I have seen …that the Fattal Parties wish to see an immediate sale. This accords entirely with JTC’s intentions. I appreciate that it is unlikely to be until the early summer of 2009 before the Property can be marketed. There is no way of knowing what market conditions are likely then to be, but subject to taking all appropriate professional advice at the relevant time, JTC would aim to sell the Property at the earliest opportunity in order to bring about the separation of the Non-Fattal Trusts from the Fattal Trusts.

7.

I would expect that the boards of BSL, BS2K and BCIL would resolve to take appropriate professional advice on how best to achieve a sale of the Property in order to maximise the price obtained and as to any notices which may need to be served in advance of a sale. Given the extensive experience Knight Frank already has in marketing the Property, I would expect the boards to resolve to retain them for the future marketing of the Property. They are a very substantial and highly regarded firm of surveyors and estate agents and they are the obvious choice of agent. I see every reason to instruct them, and no reason not to.

8.

As to the solicitors to be instructed on the sale, in the past JTC have dealt with a number of firms in Central London in relation to property matters including [he refers to three well-known firms]. Whilst it will be a matter for the boards to decide following discussion, I should have thought it more likely than not that these firms, together with two or three other Central London property firms [he mentions other well-known firms] will be asked to tender for the work before a decision is taken on who to appoint.

9.

I am conscious that before the Property can be marketed it will be necessary to define the extent of the Property to be sold, in particular having regard to the storage spaces used by the Trusts. I expect, but would have to take professional advice on this, that including them in the sale would not increase the value of the Property and excluding them from the sale would be to the benefit of the Trusts. Subject to taking advice, my preliminary view therefore is that it is likely to be better for the Trusts if these storage spaces were excluded from the sale of the Property …”

That last observation takes up the issue concerned with storage spaces and how they should be dealt with.

In paragraphs 11 and 12 Mr Syvret comments on the Fattal parties’ application for the appointment of a receiver and manager:

“11.

I do not believe there is either any justification at all or any need for the appointment of a receiver and I do not believe that such an appointment is in the interests of any of the
Trusts. There is absolutely no reason why the professional trustees of all the Trusts (including therefore Rysaffe) should not be able to proceed to effect the sale of the Property professionally and efficiently in the interests of all the Trusts. It should not be forgotten that now that it is common ground that the Property should be sold, all four Trusts (treating the Fattal Trusts as one) have a common interest, and that is to sell the Property for the best price they can. There is no need for a receiver to be appointed to achieve that object. JTC and Rysaffe can do it. If there is a disagreement on any particular issue, there will no doubt be debate about it at a relevant board meeting and, following such debate, a vote taken. It is of course possible for Rysaffe to be outvoted on such an occasion, but I can see no justifiable objection to that. As I understand it, the management and sale of the Property was, under the JVA, to be conducted on the basis of a 75% majority vote … [I]n undertaking its duties as trustee, including therefore in selling the Property, JTC would not countenance any unlawful conduct. It would not act with the intention of prejudicing the Fattal Trusts’ interests in BSL or BS2K or the Property as appears to be asserted by Mr Fattal … As I have said, JTC’s object would be to secure the best sale of the Property it can. That is in the interests of all the Trusts, including the Fattal Trusts.

12.

Mr Fattal makes repeated complaint about being a “locked-in” minority without the benefit of the provisions of the JVA. Given the common intention to sell the Property on the open market, I do not understand his concern…”

I have no reason to question the spirit or letter of Mr Syvret’s observations. I have no reason to question JTC’s determination, or its ability, to conduct its trusteeship of the Non-Fattal Trusts, and to act in the sale of the Property, in the way that Mr Syvret describes. I regard as unjustified the concern expressed on behalf of the Fattal parties that the JTC companies and their officers are Jersey-based. They are, as such, no less amenable to this court’s jurisdiction than are the Walbrook Trustees. This has not presented any practical problems in the past; I see no reasons to think that the position will be any different insofar as JTC is based outside the jurisdiction. The fact that JTC has not sought to be added to the current proceedings or offered any undertakings to the court does not weigh with me.

The fact that JTC, or its nominees, constitutes the majority and therefore can control the sale, and the management of the Property in the meantime, is not a reason for making the receivership appointment. As Mr Steinfeld pointed out, the fact that the Non-Fattal Trusts constitute the majority is the position to which the Fattals committed themselves when they entered into the JVA. It is the position to which the Fattal Trusts became committed when those trusts, through their trustees, assented to the restructuring of the joint venture in 1995 and again in 2000. Moreover, there must be a good reason for the court to interfere in the internal management of a company. No good reason has been shown. The existence of past disagreements and, let it be assumed, past misconduct on the part of David Dangoor or others in the Dangoor family does not justify the appointment of a receiver and manager in the changed circumstances that now obtain following the appointment of new and independent trustees of the Non-Fattal Trusts. A concern that JTC’s appointees may act improperly, either by ignoring what is in the interests of BSL or BS2K or by acting simply at the bidding of one or other of the Dangoors, is not justified by the evidence. Nor is the fear which has been expressed that just as the Dangoors and Sofaer interests have got rid of the Walbrook Trustees they will get rid of JTC if they do not like what it is doing. The court is entitled to accept what JTC has said through Mr Syvret about how JTC proposes to approach the sale of the Property. Speculation about the possible abuse of JTC’s position or of its misuse by the Dangoors does not provide a proper basis for this application. If in the future JTC’s actions should run counter to the good intentions contained in Mr Syvret’s evidence, it will always be open to the Fattal parties to seek the court’s assistance. But that time has not yet arrived.

In reaching this conclusion I am not influenced by the suggestion that the Fattals have been motivated by a desire to exercise a de facto veto on the management of the Property and on decisions affecting its sale. I do not have sufficient material before me to make that inference. I accept therefore that their application for the appointment of a receiver and manager has been driven by their mistrust of the Dangoors, their perception, honestly held, of past wrongs suffered by their family interests in the management of the Property and their concern that steps be taken, by persons of unquestioned independence, probity and competence, to bring about a sale at the best achievable open-market price and a fair distribution of the net proceeds so that the warring families may go their separate ways. But I am of the view that this can be achieved without interference by the court now that separate trustees of unquestioned independence, probity and competence, have been appointed to the Non-Fattal Trusts. In the circumstances that now exist I do not therefore consider, even ignoring the jurisdictional and procedural issues, that the appointment of joint receivers and managers is justified.

I shall therefore dismiss this application.