Jayasinghe v Liyanage

This is an appeal, with permission of Proudman J, from the decision of Mr Owen Rhys sitting as Deputy Adjudicator to HM Land Registry dated 12^th May 2008, whereby he directed the cancellation of the application made by the Appellant Kusum Jayasinghe and dated 25^th October 2007 for the registration of a restriction against the registered title to the property known as 37 Reading Road, Hallfield Estate, London W2 6HD (“the Property”).

The Appellant applied for a restriction on the ground that she was the sole beneficiary under a resulting trust of the Property in her favour, having provided the original funds for its purchase, paid the instalments under a charge of the Property in favour of Halifax Building Society, redeemed that charge out of her own money, and borne all outgoings of the Property, as well as having received all income accruing from its letting.

Her application was opposed by the Respondent, one Don Liyanage, on the grounds that the Appellant had no interest whatsoever in the Property and that (to quote from paragraph 60 of the Respondent’s Statement of Case before the Adjudicator),:

“The Applicant’s version of the history of matters is complete fiction unsupported by evidence.”

After a two day trial, which included cross-examination of the Appellant, the Respondent and another witness called by the Appellant, in which the opposing parties presented utterly different accounts of the relevant history, the Adjudicator concluded, broadly in accordance with the Respondent’s case, that the Applicant’s case was indeed a fiction, that her evidence was, save where corroborated, wholly unreliable and implausible, and that the Property had, from first to last, been an investment made by the Respondent, in relation to which, although she had from time to time played a role in its management, and received certain benefits in connection with it, she had made no financial contribution of any kind from her own resources.

Two main points are taken on the appeal, by Mr Maynard on the Appellant’s behalf. First, he submitted that the Adjudicator should not have embarked upon a trial of the issue whether the Appellant had any beneficial interest in the Property. He should have ascertained merely whether she had an arguable claim to that effect and directed that her claim should be tested by a competent court, with the restriction for which she had applied remaining in place in the meantime. On that basis, he submitted that she plainly had an arguable case sufficient to withstand any summary determination to the contrary. Secondly, he submitted that in any event the Adjudicator’s judgment was vitiated by a conclusion that the Respondent had funded the repayment of the mortgage which was irreconcilable with the documents before the court, thereby undermining both the Respondent’s credibility and the soundness of the Adjudicator’s general conclusion that the Respondent’s evidence was, wherever it differed from the Appellant’s, to be preferred. Furthermore, he submitted that even if the correct conclusion was only that the Appellant had paid for the discharge of the mortgage, this would of itself have given her a sufficient beneficial interest in the Property (or claim to that effect) to justify the registration of the restriction.

The first ground of appeal found no place in the Grounds of Appeal appended to the Appellant’s Notice. Nonetheless it was the basis upon which Proudman J considered that permission to appeal ought to be granted. If correct, it would be a matter of major significance to the way in which the Land Registry Adjudicators currently perceive that they should carry out their statutory functions.

Mr Maynard’s argument may be summarised as follows:

In support of that submission Mr Maynard relied primarily upon observations of mine in another appeal from the Land Registry Adjudicator, namely Croatia v. Serbia [2009] EWHC 1559 (Ch), to the effect that a person may have a sufficient interest in the making of an entry to enable him (or it) to apply for the entry of a restriction within the meaning of section 43(1)(c) of the Act, on the basis of a claim to an interest in the registered estate, even if that claim is not justiciable in the English courts, and is disputed by the registered proprietor. Mr Maynard bolstered his submissions by reference to paragraph 16.1 of the Law Commission Report (Law Comm No 271) entitled Land Registration for the 21^st Century – a Conveyancing Revolution, which led to the passing of the Act, in which it is stated that the newly created office of the Adjudicator was designed to offer, for the first time on a wholly independent basis, substantially the same service of dispute resolution formally provided by Solicitor to HM Land Registry under the previous statutory regime.

Attractively though those submissions were presented by Mr Maynard, I have been wholly unpersuaded by them. In order to understand my reasons, it is necessary to describe the structure created by the Act in relation both to restrictions and to the resolution by the Adjudicator of disputes occasioned by objections to them.

Section 42 of the Act provides that:

“(1)

The registrar may enter a restriction in the register if it appears to him that it is necessary or desirable to do so for the purpose of

(a)

…

(b)

…

(c)

protecting a right orclaim in relation to a registered estate or charge.”

Section 43 provides that:

“(1)

A person may apply to the registrar for the entry of a restriction under section 42(1) if

(a)

…

(b)

…

(c)

he otherwise has a sufficient interest in the making of the entry.”

Section 43(2)(c) states that Rules may provide for classes of person to be regarded as included in subsection (1)(c).

Rule 93 of the Land Registration Rules 2003 (SI 2003 No 1417) identifies over twenty classes of person to be regarded as having a sufficient interest in the making of the entry. For present purposes the relevant class is identified in sub-rule (b) as follows:

“any person who has a sufficient interest in preventing a contravention of section 6(6) or section 6(8) of the Trusts of Land and Appointment of Trustees Act 1996 and who is applying for a restriction in order to prevent such a contravention.”

For a general review of Rule 93, see paragraphs 47 to 53 of my judgment in Croatia v. Serbia (supra).

Section 73(1) of the Act provides that, subject to exceptions which are irrelevant for present purposes, anyone may object to an application to the registrar. By sub-section (5):

“Where an objection is made under this section, the registrar

(a)

must give notice of the objection to the applicant, and

(b)

may not determine the application until the objection has been disposed of.”

By sub-section (6), sub-section (5) is disapplied if the objection is one which the registrar is satisfied is groundless. Sub-section (7) then provides that:

“If it is not possible to dispose by agreement of an objection to which sub-section (5) applies, the registrar must refer the matter to the adjudicator.”

Adjudication is dealt with in Part 11 of the Act. Under section 108:

“(1)

The adjudicator has the following functions

(a)

determining matters referred to him under section 73(7), and

(b)

…”

By sub-sections (2) and (4) the Adjudicator is given the same powers as the High Court to make orders for rectification or setting aside of certain classes of documents. Section 109 contains certain general procedural provisions, and makes provision for the establishment of a detailed procedural regime by rules. Under section 110, headed Functions in Relation to Disputes:

“(1)

In proceedings on a reference under section 73(7), the adjudicator may, instead of deciding a matter himself, direct a party to the proceedings to commence proceedings within a specified time in the court for the purpose of obtaining the court’s decision on the matter.”

By section 111(1) a person aggrieved by a decision of the Adjudicator may appeal to the High Court.

The procedural code regulating the discharge by the Adjudicator of functions conferred by the Act is set out in The Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003 (SI 2003 No 2171). Those rules (“the Practice and Procedure Rules”) expressly incorporate the Overriding Objective, in a form which, although modified to suit the particular functions of the Adjudicator, broadly corresponds with that to be found in the Civil Procedure Rules: see paragraph 3. Viewed as a whole, the Practice and Procedure Rules contain a procedural code plainly designed to enable the Adjudicator to resolve, where necessary, disputes about substantive rights, rather than merely to conduct a summary process designed to ascertain whether there exists an arguable claim. They include, for example, power to give detailed directions, power to require statements of case, power to consolidate proceedings, to add or substitute parties, to require disclosure and witness statements, power to conduct site inspections and power to compel the attendance of witnesses.

The following aspects of the structure which I have described deserve particular emphasis. First, the Registrar under section 42(1) of the Act is to enter a restriction if it appears to him that it is necessary or desirable to do so for the purposes of protecting a relevant right or claim. Although that process will require him to be satisfied that the applicant is a person entitled to apply within the meaning of section 43(1), and therefore for present purposes that the person has a sufficient interest in the making of the entry, that is by no means the whole of the Registrar’s task. A person may have a sufficient interest to qualify him as an applicant for a restriction, in circumstances where the Registrar is nonetheless not persuaded that it is necessary or desirable to make the requested restriction for the purpose of protecting the applicant’s right or claim.

It follows in my judgment that what has to be referred to the Adjudicator under section 73(7), where an objection which is not obviously groundless cannot be disposed of by agreement, is not merely the question whether the applicant has a relevant right or claim, but the additional question whether the entry of a restriction is necessary or desirable for the purpose of protecting that right or claim. Both of those questions fall within what is described in section 73(7) as “the matter” to be referred to the Adjudicator.

It is also apparent from section 73(5) to (7) that determination of the application for the restriction, where there has been an objection, requires the objection to be “disposed of”. The disposal of the objection is therefore an integral part of the matter referred to the Adjudicator under section 73(7).

It follows from that analysis that the precise nature of the Adjudicator’s function on any particular reference under section 73(7) will be significantly affected by an examination of the precise restriction sought, the nature of the claim or right thereby sought to be protected, and the basis of the objection which has led to the reference. It is plain from section 110(1) that the Adjudicator is given a broad discretion, on a reference under section 73(7), whether to decide “a matter” himself, or to require it to be decided in a competent court, and it is equally plain from the panoply of procedural powers given to the Adjudicator under the Practice and Procedure Rules that a decision to decide a matter himself may properly involve a trial, rather than merely a summary review directed merely to the question whether an asserted claim is reasonably arguable.

It follows that to the extent that this appeal is based upon the argument that the Adjudicator had no jurisdiction to conduct a trial of the question whether the Appellant had a beneficial interest in the Property under a resulting trust, that argument must be rejected. Nonetheless Mr Maynard submitted that, even if the Adjudicator had a power to take that course, his decision to adopt it involved an inappropriate exercise of his discretion. To that question I now turn, bearing in mind that it requires a fact intensive analysis of “the matter” referred to him under section 73(7).

The Appellant’s application was for a restriction in Form II, namely that:

“No disposition of the registered estate is to be registered without a certificate by the applicant for registration or her conveyancer that written notice of the disposition was given to Kusum Jayasinghe at 25 Brampton Road, Kingsbury, London NW9 9BX.”

That restriction was sought to be justified on the grounds that:

“By reason of the applicant providing the original purchase funds, paying the original charge in favour of Halifax Building Society, and later redeeming that charge, and bearing all costs throughout, and receiving all income from the premises, there exists a resulting trust in her favour.”

The Respondent’s objection, by letter dated 8^th November 2007, was in summary that he denied that the applicant had provided any money towards the acquisition or maintenance of the Property, denied any trust of the Property in favour of the applicant, but acknowledged that he had asked her to manage the Property for him in his absence, and allowed her to keep by way of gift any surplus or rent over the cost of discharging mortgage instalments and other outgoings in relation to the Property.

The appellant amplified the grounds of her application in a Statement of Case dated 1^st July 2008, prepared by her solicitors and supported by a substantial bundle of documents. After setting out her version of the history, the document continued, at paragraph 20 as follows:

“The Applicant is advised that the Property is held on trust for her. Therefore, the application for a restriction was made on 29 October 2007 (pages 150 – 152). Without this restriction, the respondent is free to sell the Property and enjoy the sale proceeds. Having contributed not one single penny he would otherwise be allowed to commit a gross fraud. Once the restriction is registered, the Applicant will begin legal proceedings against the respondent and claim ownership of the Property.”

In paragraph 21 it was asserted that even if the Adjudicator did not agree that the Appellant was the 100% beneficial owner of the Property, nonetheless a restriction should be entered to protect such beneficial interest as the Appellant might establish. The Statement of Case gave notice of an intention to call four witnesses (including the Appellant), although acknowledging that the whereabouts of one witness remained unknown.

The Respondent’s Statement of Case, dated 25^th July 2008, set out his detailed case as to the history, concluded with the assertion (which I have described) that the Appellant’s version of the history was a complete fiction and repeated that the basis of his objection was that the Appellant had no interest whatsoever in the Property. The Respondent identified in detail the documents on which he intended to rely, and listed himself as the only witness to be called.

In my judgment, the combined effect of those Statements of Case was sufficient to demonstrate to the Adjudicator that, although the Appellant contemplated that court proceedings might be necessary for the precise quantification of her interest in the Property (if less than full beneficial ownership), the parties were shaping up for a full scale trial on the merits before the Adjudicator, in particular on the issue whether, as the Appellant claimed and the Respondent denied, she had any interest at all in the Property sufficient to justify the entry of a restriction.

It is therefore no surprise that on 19^th September 2008 the Adjudicator issued written directions for a trial before him. They concluded with a note that if either of the parties wanted further or different directions they should write to the office of the Adjudicator to that effect, setting out any points they wished to make. No objection to those directions was taken by either of the parties, and the matter was in the event tried by the Adjudicator over two days during which, again without any objection, evidence was tendered by witness statement and examination-in-chief, and the witnesses were cross-examined.

In those circumstances it seems to me quite impossible for the Appellant now to challenge the manner in which the Adjudicator dealt with the matter, on the basis that he should merely have limited himself to ascertaining whether the Appellant had disclosed an arguable claim for an interest in the Property. My reasons follow.

First, the application for a restriction was not based upon the mere assertion of a claim, but upon the assertion of a beneficial interest in the Property under a resulting trust. Similarly, the objection contained a wholesale denial of any such beneficial interest. This case is, in that respect, far removed from Croatia v. Serbia (supra), in which the restriction was sought to protect a claim to an interest, not justiciable in the English courts, pursuant to a treaty agreement between sovereign states in relation to the distribution of the assets of the former Socialist Federal Republic of Yugoslavia. Furthermore, the decision which led to the appeal before me concerned only the preliminary issue whether the existence of such a non-justiciable claim conferred a sufficient interest on Croatia for the purpose of seeking a restriction, within the meaning of section 43(1)(c) of the Act.

In the present case by contrast, the matter referred to the Adjudicator concerned not merely the Appellant’s alleged interest under section 43(1)(c), but the question whether it was necessary or desirable to enter a restriction to protect the right asserted. It follows that my conclusion on that preliminary issue, namely that Croatia’s claim constituted a sufficient interest under section 43(1(c), affords no basis for the submission that the Adjudicator’s task, in a case based upon the assertion of a right, is limited purely to ascertaining on a summary basis whether the applicant has an arguable claim for the existence of that right.

Secondly, there was in my judgment a real question as to the discretion to be exercised under section 110(1) of the Act, namely whether the Adjudicator should decide the matter himself, or remit all or part of it to be decided by a competent court. He was faced with a Statement of Case from the Appellant which warned that further proceedings in court were contemplated, and he could have concluded that the Overriding Objective might be better served by directing the Appellant to issue proceedings in court, so that the restriction question could be determined, along with all other aspects of the dispute between the parties, at a single hearing. Those matters appeared to include issues as to the precise quantification of the Appellant’s alleged beneficial interest and, by implication, issues as to whether the Property should be sold or transferred to the Appellant, something which until then the Appellant had been trying to achieve, albeit by forgery, as she herself admitted.

There were nonetheless compelling reasons why the Adjudicator should have decided not to take that course. The first was that, on the bizarre history of the matter contended for by the Appellant, the registered proprietor of the Property was not the Respondent at all, but some completely different person who by sheer coincidence had substantially the same name, and who, according to the Appellant, had disappeared: see paragraphs 2 and 3 of the Decision. It was not therefore, on the Appellant’s case, a simple two party dispute easily capable of resolution in court proceedings between the two of them.

Next, the critical issue for the purposes of registration of a restriction was not the quantification of the Appellant’s beneficial interest (which in her Statement of Case she said she intended to pursue by court proceedings) but rather the question whether she had any interest in the Property at all. That was the question squarely raised by the Respondent’s objection, the disposal of which was the primary purpose of the reference to the Adjudicator.

Finally, whatever might otherwise have been the balance of factors for or against deciding the matter himself rather than directing the bringing of court proceedings, the Adjudicator was, when he gave directions, faced with two parties plainly determined to have a full scale contest of the matter on the merits, before him. Having given directions for that purpose, the parties subsequently prepared for and conducted a trial of the issues raised by the Respondent’s objection, without the slightest complaint.

It follows that, not only is the Adjudicator’s decision as a matter of discretion to decide the matter himself unchallengeable, it was in my judgment plainly correct. For those reasons the first ground of this appeal fails.

The second ground relates to the Adjudicator’s conclusion that the Respondent rather than the Appellant had provided the funds for the discharge of the mortgage by which the Property had largely been acquired. It is advanced not merely for the purpose of seeking to establish a limited beneficial interest arising from the discharge of the mortgage, but for the wider purpose of seeking to undermine the Adjudicator’s decision to accept, more or less lock stock and barrel, the Respondent’s evidence in preference to that of the Appellant.

The Adjudicator’s decision on this point is to be found in the final sentence of paragraph 9 of his succinct Decision, as follows:

“I also conclude that the repayment of the Halifax Building society mortgage was indirectly funded by the respondent as he states.”

Earlier, in paragraph 5, as part of his summary of the Respondent’s case, the Adjudicator said:

“He says that the Halifax mortgage was discharged by the Applicant in 2004, but utilising funds which he had given her.”

In paragraph 7, summarising the issues, he said this:

“7.4

Whose funds were used to redeem the Halifax Building Society mortgage in 2004? Entirely those of the Applicant or, as the Respondent contends, indirectly his?”

Reading those passages together, and without any knowledge of what took place at the trial, it might be supposed that the Adjudicator’s conclusion was that the Respondent had made funds available to the Appellant, from which she had herself discharged the mortgage. In fact, as was common ground before me, bank statements and other documents deployed at the trial demonstrated that the Appellant had discharged the mortgage from a Nat West bank account in her name on 18^th February 2004 from a credit balance on that account largely attributable to her receipt on the 20^th January 2004 of the proceeds of successful litigation by her, rather than from any funds made available to her by the Respondent. The amount paid by her to discharge the mortgage was £39,000.

Nonetheless, the documents deployed at trial also showed that the Respondent had on 25^th and 30^th March 2004 caused to be credited to a bank account of his at HSBC the aggregate sum of £41,150 and that, on 30^th March, the Appellant had caused an identical sum to be paid out of that account to her sister by using one of a number of cheques pre-signed in blank by the Respondent, and completing the relevant details in her own handwriting. The Adjudicator accepted evidence from the Respondent that these cheques had been made available by him to the Appellant for the purpose of enabling her to make mortgage payments from time to time using his funds, whenever the rental income was insufficient for that purpose.

The Respondent’s evidence at trial, under cross-examination, was that he had told the Appellant at the beginning of 2004 that he intended to transfer money to the United Kingdom from abroad, into the bank account over which she had effective control by means of the pre-signed cheques, and had asked her to discharge the mortgage from that money. When pressed with the documents demonstrating that the Appellant had in fact discharged the mortgage out of monies of her own, he said that the £41,000 odd payment from his account which the Appellant arranged to be paid to her sister must have been her way of reimbursing herself for having discharged the mortgage out of her own money, rather than his.

Bearing in mind that it appears to have been, or became, common ground at trial that the Appellant in fact discharged the mortgage out of her own money, it becomes clear that the Adjudicator’s reference in paragraph 9 of the Decision to the repayment of the mortgage having been “indirectly funded by the Respondent as he states” must have been intended by him to be a reference to the Respondent’s evidence that his funds had been used to reimburse the Appellant in full for her discharge of the mortgage out of her own money, rather than to a finding that the discharge of the mortgage was made from his own funds. I bear in mind in that context that, for what appear to me to have been good and sufficient reasons, the Adjudicator expressly concluded in the Decision that the Respondent was a reliable and truthful witness, as regards the main issues in the case, and I infer that he accepted the Respondent’s evidence in cross-examination about reimbursement.

While it is perhaps unfortunate that, without an understanding of what took place at the trial, the Adjudicator’s terse finding in relation to the repayment of the mortgage might appear to have a different meaning, I am satisfied for the reasons that I have given, that by “indirectly funded” he meant to refer to a process of funding by reimbursement rather than original payment.

Quite separately, that infelicity in the Adjudicator’s description of his findings on that issue comes nowhere near to undermining his overall conclusion that the Appellant’s case was, from start to finish, a highly implausible fiction concocted by someone with no apparent understanding of right and wrong, and wholly insufficient to discharge the burden on her of demonstrating any beneficial interest in the Property, for the reasons cogently given in paragraphs 8 to 10 of the Decision.

In those circumstances, this second ground of appeal also fails. The discharge of a mortgage from her own funds, immediately followed by a reimbursement from the Respondent’s bank account cannot conceivably give rise to a beneficial interest in the Appellant’s favour, nor does this aspect of the matter begin to cast doubt on the soundness of the Adjudicator’s wholesale rejection of her case.

I cannot conclude this judgment without reference to what appears to me to be a disgraceful feature of both parties’ conduct in relation to the Property. The Appellant’s case, as summarised in paragraphs 2 and 3 of the Decision, was that, knowing that an application for a mortgage by her would be refused because she was already a house owner, she arranged with others for the mortgage to be obtained by a stranger, masquerading as the real purchaser, but in fact her mere nominee. The Respondent’s case, as the Adjudicator noted in paragraph 9 of the Decision, also involved obtaining a mortgage for the purchase of the Property by deceiving the Halifax Building Society, since he gave a fictitious address for himself so as to make it appear, contrary to the truth, that he was resident within the United Kingdom.

In the event of course, the Adjudicator’s rejection of the Appellant’s case means that she was not, as she asserted that she was, party to a mortgage fraud, but on the other hand it reveals her as advancing a dishonest case, and supporting it by evidence, in a fraudulent attempt to obtain beneficial ownership of the Property which in truth belonged to the Respondent, her nephew. On any view, her attempt to sell the Property for her own benefit involved her forging the Respondent’s signature on a Land Registry Transfer and on a letter to the Land Registry: see paragraph 3 of the Decision.

In those circumstances, I shall after handing down this judgment, invite submissions from the parties why the papers in this case should not be referred to the Crown Prosecution Service, with a view to investigation whether they disclose serious criminal misconduct on the part of both parties.