Possession — Summary procedure for recovery — County Court Rules, Ord 24 — Whether triable issue — Appeal against judge’s grant of possession order — Observations on the application of the summary jurisdiction under this order and under RSC Ord 113 — Judge’s order upheld
an affidavit on behalf of the plaintiffs, a property development company, the
subject property was conveyed to the company by one of the defendants, a
builder, but he and his father were allowed to remain in the house while
building works were being carried out on an adjoining site — As they did not
leave after termination of the permission, an application was made under Ord 24
for recovery of possession — At the hearing the defendants applied for an
adjournment and the son gave evidence in support of the application — His
evidence, none of which was believed by the judge, amounted to an allegation
that the conveyance to the plaintiffs was a sham or pretence, in order to
enable them to raise money on the security of the property and with a view to
the property’s being conveyed back when the money was raised — The judge
refused the adjournment and made an order for possession
on appeal that the judge should not have rejected the defendant’s evidence out
of hand, that he should have granted the adjournment and heard oral evidence
subject to cross-examination in support of the plaintiffs’ case — Held by the
Court of Appeal that the judge was fully entitled to take the action he did —
Once he had concluded that he could attach no weight whatsoever to the
defendant’s evidence it would have been pointless to order a trial — Woolf LJ
emphasised that, as the summary jurisdiction under this order or under RSC Ord
113 could result in a defendant’s being deprived of possession of property
without a normal trial, it was only in a limited number of cases that it would
be appropriate to dispose of the matter summarily where a defendant put forward
a defence raising a factual issue — The present case, however, was one where
such action was fully justified — Appeal dismissed
No cases are
referred to in this report.
This was an
appeal by Kenneth Roy Avery (otherwise Regan) and Roy Frank Avery, defendants,
from the decision of Judge McCreery QC, at Salisbury County Court, granting a
possession order to Filemart Ltd under Ord 24 of the County Court Rules 1981 of
a house and small plot of land known as ‘Little Birches’ at Lopscombe Corner,
near Salisbury.
M L Dineen
(instructed by Kenwright & Cox, agents for Talbot Davies & Copner, of
Andover) appeared on behalf of the appellants; T Higginson (instructed by
Murrays) represented the respondents.
Giving
judgment, LLOYD LJ said: This is an appeal from a decision of His Honour Judge
McCreery QC, given in Salisbury County Court on December 21 1988. It relates to
a house and a small plot of land known as ‘Little Birches’ at Lopscombe Corner,
near Salisbury. The learned judge granted a possession order under Ord 24 of
the County Court Rules.
The background
is set out in an affidavit of Mr Bellis, who is a director of Filemart Ltd, the
plaintiffs. According to Mr Bellis, the plaintiffs are a company engaged in
property development. The first defendant, Mr Kenneth Roy Avery, is a builder
and was the owner of the property in question. The second defendant is his
father.
On October 23
1987 Mr Avery junior conveyed the property to the plaintiffs, subject to a
mortgage in favour of a building society, which was paid off. According to Mr
Bellis’ affidavit, the plaintiffs allowed Mr Avery and his father to remain in
the house while building works were carried out by Mr Avery on an adjoining
site.
In January
1988, before the building works had been completed, Mr Avery was sentenced to
18 months’ imprisonment for fraud. In July 1988 he was released on parole. By a
letter dated November 18 1988 the plaintiffs terminated the defendants’ licence
to remain in the property.
On December 6
1988 the plaintiffs brought these proceedings under Ord 24. Rule 1 of that
order provides:
Where a person claims possession of land
which he alleges is occupied solely by a person or persons (not being a tenant
or tenants holding over after the termination of the tenancy) who entered into
or remained in occupation without his licence or consent or that of any
predecessor in title of his, the proceedings may be brought by originating
application in accordance with the provisions of this Order.
There is a
note to rule 5 in The County Court Practice, under the heading ‘triable
issue’, to which our attention has been drawn:
If on the hearing of the originating
application a triable issue arises, the court can determine it. . . . The judge
has discretion to decide whether the summary proceedings should continue or
whether the matter should be adjourned for a further hearing after the parties
have had time to consider the issues raised or whether the application should
be dismissed and the applicant left to have the issues determined in a
subsequent action.
The case came
on for hearing, as I have said, before Judge McCreery on December 21 1988. The
defendants were then represented by solicitors under a legal aid certificate
which had been granted on the telephone the previous day. At the commencement
of the proceedings the defendants applied for an adjournment on the ground that
there was a triable issue. In support of that application Mr Avery gave
evidence. His evidence was that the plaintiffs were short of money at the time
of the conveyance. The conveyance was designed to enable the plaintiffs to
raise money from the bank on the security of the property, which the defendant
was himself unable to do, since he had no credit. The arrangement was that once
the plaintiff had succeeded in raising money from the bank, the property would
be conveyed back. If that was indeed the arrangement, then it would in the
judge’s view have been the clearest possible fraud on the bank. The conveyance
would have been a sham designed to enable the plaintiffs to raise money from
the bank and was never intended to be anything other than a sham. Having heard
Mr Avery give evidence, the judge did not believe a word of what he said. In
those circumstances he refused the application for an adjournment and went on
to make an order for possession as asked.
The case now
comes before us. We have listened carefully to everything which Mr Dineen has
said so well on the defendants’ behalf.
Mr Dineen’s
principal argument is that the judge was wrong to reject Mr Avery’s evidence
out of hand. It did not follow, as the judge thought, that if Mr Avery’s
evidence was correct, then the conveyance was a sham. His evidence was
consistent with the conveyance being genuine. Nor would it necessarily have
been a fraud on the bank, as the judge held, so long as the bank was informed
of the circumstances in which the conveyance had been made.
The difficulty
with that argument is that it does not square with the evidence of Mr Avery
himself. We have a note of his evidence. It is clear from that note that Mr
Avery regarded the conveyance as being nothing more than a ‘pretence’. That is
the very word he used. So there was ample justification for the judge’s view.
It was a
matter for the discretion of the judge, having heard Mr Avery give evidence,
whether to adjourn the application for a full hearing. He gave Mr Avery every
opportunity. He held that there was no triable issue. He was fully entitled to
take that view and to refuse the adjournment for which Mr Avery had asked.
It was argued
by Mr Dineen that the proper procedure was then for Mr Bellis to give evidence
in support of the plaintiffs’ case, so that he could be cross-examined. It is
said that by not following that course the judge in some way reversed the
burden of proof.
I do not
accept that for one moment. Having already decided that there was no triable
issue, the judge was not required to start again. He had Mr Bellis’ affidavit.
There was no application to cross-examine Mr Bellis on his affidavit. I can
find nothing wrong with the way in which the judge dealt with the case, or with
the exercise of his discretion. I would dismiss the appeal.
Agreeing,
WOOLF LJ said: For the reasons given by Lloyd LJ, with which I wholly agree,
this appeal must be dismissed. I would only add
113 of the Rules of the Supreme Court and under Ord 24 of the County Court
Rules involves a summary procedure. It is a summary procedure which can result
in a defendant’s being deprived of possession of property without the normal
trial which takes place in contested proceedings. Having regard to the nature
of the procedure, it is in only a limited number of cases that it is
appropriate, in my view, to dispose of the matter as occurred in this case
where a defendant puts forward a defence which, on its face, raises a factual
issue.
However,
because of the circumstances of this case, the learned judge had to hear the
evidence of Mr Avery in order to decide whether he should grant an adjournment.
Once he had heard Mr Avery and had come to the conclusion that he could attach
no weight whatsoever to Mr Avery’s evidence, it would have been quite pointless
for the judge, for the reasons indicated by Lloyd LJ, to have then ordered a
trial of an issue. But for these circumstances, the position would have been
different.
The appeal was dismissed with costs.
Liberty to apply was given.
