Munday & Anor v Hilburn & Anor
2014
CHANCERY DIVISION
United Kingdom
CORAM
- THE HONOURABLE MR MR JUSTICE NUGEE
Areas of Law
- Civil Procedure
- Insolvency Law
2014
CHANCERY DIVISION
United Kingdom
CORAM
AI Generated Summary
Kevin and Carolyn Munday sued for fraudulent misrepresentation tied to a sale-and-rent-back scheme. Kevin's 2011 bankruptcy meant claims vested in his trustee. His 2014 bankruptcy annulment spurred the claim, initially struck out as an abuse of process. On appeal, the claimants succeeded; annulment made Kevin rightful claimant, nullifying abuse claims.
MR JUSTICE NUGEE:
Introduction
This is an appeal from an order of His Honour Judge Dight sitting at the Central London County Court made on 10 February 2014 (and as drawn up dated 12 February 2014) by which he struck out the claimants' claim and ordered them to pay the defendants' costs of the action and an interim payment of £20,000.
The claim had been brought by Mr Kevin Munday and his wife, Mrs Carolyn Munday, and was a claim for damages for fraudulent misrepresentations, together with various alternative claims for financial relief. The basis on which His Honour Judge Dight struck out the claim was, briefly, that Mr Munday had been made bankrupt in 2011 and his claims had vested in his trustee in bankruptcy. It was, therefore, an abuse of process for him to pursue them in this action.
The claimants appeal relying, among other things, on the fact that on 29 January 2014 Mr Munday's bankruptcy was annulled and, therefore, there is no abuse of process. Permission to appeal was given by Peter Smith J on 11 April 2014.
Facts
Mr and Mrs Munday had bought a house at 265 Malden Road, New Malden, Surrey in 2002 as a family home. I can take, conveniently, a statement of the other pertinent facts from a judgment given by Mr Recorder Chapman QC on 27 February 2014 in related proceedings in which the current defendants sought possession of the property from the current claimants. He said this at paragraph [2]:
‘2. The defendants [that is Mr and Mrs Munday] were the owners and occupiers of the house subject to various mortgages. They fell into arrears on their mortgages which they were unable to pay and by 2009 the first mortgagee was threatening to take possession of the property and sell it.
3. Mr Fields and Mr Hilburn were in partnership together in a firm called Fast Track Homebuyers. Their business involved offering homeowners a sale and rent back scheme under which the homeowner would sell their house to Fast Track for a price well below market value but raising enough money to pay off their debts on terms that they were granted an assured shorthold tenancy and an option to buy back the property at a price which gave Fast Track a profit on the deal.
4. The scheme was attractive to distressed homeowners because it held out the prospect of being able to pay off their debts while remaining in their home. Mr and Mrs Munday were introduced to Mr Hilburn and had a meeting with him on 6 October 2009. He offered them a sale and rent back scheme. On 24 N