Property – Transfer – Forgery – Property registered in joint names being transferred in sole name of appellant – Respondent alleging signature forged – Deputy adjudicator restoring respondent’s name to register as joint proprietor on basis that name forged on transfer agreement – Appellant challenging decision – Whether adjudicator failing to take proper account of evidence – Appeal dismissed
The appellant and the first respondent were business partners and the former joint registered proprietors of a petrol station. By a transfer dated 21 December 2006, the property was transferred from joint names into the appellant’s sole name, apparently for nil consideration. Pursuant to a transfer on 15 January 2007, the appellant was registered as sole proprietor with the second respondent bank as chargee, having advanced £325,000 to the appellant secured over the property.
The first respondent alleged that his signature on the transfer was a forgery and applied to rectify the register by being reinstated as joint proprietor and by removing the second respondent’s charge pursuant to paragraph 2(1)(a) of Schedule 4 to the Land Registration Act 2002, which conferred jurisdiction on the court to alter the register to correct a mistake. The second respondent played no part in the proceedings since its only interest was to preserve its security whatever the decision.
The deputy registrar found in favour of the first respondent. She accepted his evidence that he had not executed the transfer, concluded that the transfer was thus a forgery and directed that his application to be restored to the register be given effect.
The appellant appealed contending, in essence, that the deputy adjudicator had failed properly to identify and take into account various aspects of the evidence.
Held: The appeal was dismissed.
An appeal court had to act with caution when invited to reverse a decision which turned on the facts. The trial judge would have seen and heard the witnesses and would have had before him or her all the material agreed to be admissible and relevant. Lacking those advantages, an appeal court should not come to a different conclusion on the evidence, where there was no question of misdirection, unless it was unequivocally satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain and justify his conclusions: Thomas v Thomas [1947] AC 484, Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254 and Biogen Inc v Medeva plc [1997] RPC 1 applied.
In the present case, the deputy adjudicator had heard evidence over the course of three days. Both parties had been represented and each witness was subject to detailed cross-examination. The key issues turned on credibility and the evidence ranged over the parties’ extended course of dealings. In such a case, the court should only intervene if convinced that the deputy adjudicator was obviously wrong in concluding on the balance of probabilities that the first respondent had not signed the transfer. If so convinced, the appeal court was bound to intervene; but if in doubt the deference due to the primary finder of fact had to prevail.
In the end, the question for the court was whether it was convinced that the deputy adjudicator was wrong in her conclusion that there was no sufficient evidence to make good the case advanced by the appellant, taking into account the fact that the adumbration of reasons might be incomplete but that the ultimate overall assessment, informed by the trial process and the impressions formed in seeing the evidence being opened and given, was nevertheless unassailable.
In all the circumstances, none of the grounds of appeal established a basis for the court’s intervention. Ultimately, it was for the deputy adjudicator, on the basis of her assessment of the credibility of the parties, to determine whether she accepted their evidence. There was no basis for second-guessing, still less overruling, her conclusions.
Jonathan Ashley-Norman (instructed by Hutcheson Forrest, of Bath) appeared for the appellant; Derek Kerr (instructed by Himayah Solicitors, of Birmingham) appeared for the first respondent; The second respondent did not appear and was not represented.
Eileen O’Grady, barrister
