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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Zaman v Zoha [2005] EWHC 3539 (Ch) (26 July 2005) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2005/3539.html Cite as: [2005] EWHC 3539 (Ch) |
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CHANCERY DIVISION
The Strand London WC2A 2LL |
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B e f o r e :
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ZAMAN | ||
Claimant | ||
- v - | ||
ZOHA | ||
Defendant |
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Suite 91 Temple Chambers,
3 - 7 Temple Avenue, London EC4Y OHP
Telephone 020 7404 7464
Mr Clifford Payton (41 Bath Road) instructed by Shuttari Paul & Co (Shouthall) appeared on behalf of the defendant
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Crown Copyright ©
MR JUSTICE LAWRENCE COLLINS:
The Background
"Upon hearing Counsel for the Claimant and .... for the Defendant it is ordered ...(1)That the property known as 65 New Road, London E1 1HH, registered at HM Land Registry under title number NGL475606 ("the Property") be sold and the claimant solicitors be appointed to convey the same;
(2)That, in default of agreement, the net proceeds of sale of the Property after payment of all proper costs charges and expenses of sale be lodged in Court to the credit of this case;
(3)That paragraphs (1) and (2) of this order be stayed, with general permission to either party to apply to lift the stay;
(4)That the Defendant set forth in a witness statement, to be served and filed on or before 4.00pm on 19th August 2002, full particulars of all expenditure on which he would seek to rely in relation to his claim to a greater than 50% share in the proceeds of sale of the Property, and that he exhibit to such witness statement, to be filed and served at the same time, all documents that he relies upon."
That order was stayed, but the stay was lifted on 29 August 2003.
The Issues
"Further, the Defendant has refused, despite the Claimant's requests, to agree that the property be sold."
The fifth prayer was for an order that the property be sold and that the net proceeds of sale thereof be divided equally between the parties. By this time it had been more than twelve years since the charge had been assigned.
"Save for the remedy pleaded at Subparagraph (5) of the Prayer to which no admissions are made in the absence of evidence of the Trust Deed, the remaining remedies pleaded by the Claimant are barred by the Limitation Act 1980. Further or alternatively, if (which is denied) the claimant's pleaded remedies are not time-barred, they are denied or opposed by the Defendant save as indicated below."
In paragraph 17 it was said:
"The Defendant denies as a matter of equity that the Property should be sold. Further or alternatively, the Defendant would invoke the Court's equitable discretion to postpone any said Order. Further or alternatively, should the Court make an Order for Sale it is respectfully requested that such Order be stayed pending an account of all monies that the Defendant has paid in respect of the Property, including but not limited to mortgage repayments and council tax, so that the amount determined by way of account may afford an equitable set off against any profits claimed."
"I eventually paid off the Mortgage on the Property in full. I paid Lloyds three instalments of £15,000, £40,000 and £42,000. These payments were arranged by my former solicitors, Paul Bond & Co. The charge over the Property granted to Lloyds Bank on 16 June 1986 (and registered on 2 October 1986) was transferred to me on 14 April 1989."
"The first matter that I believe should be taken into account is the fact that I alone have repaid the mortgage on the Property. The Property was purchased on 16 June 1986 for £78,000.00. This price was paid by way of two loans from Lloyds Bank."
He then goes on to give particulars.
"No action shall be brought to recover any principal sum of money secured by a mortgage after the expiration of twelve years from the date on which the right to receive the money accrued."
The obligation under clause 1 of the mortgage was to pay on demand. Time runs from the date of demand, that is 2 November 1987. The claim became time-barred in November 1999. Section 20(5) provides:
"No claim to recover arrears of interest payable in respect of sums secured by mortgage shall be brought after the expiration of six years from the date on which the interest became due."
Once the bank's right to the principal was time-barred, so too was its right to bring a claim for interest. So far as the enforcement of the mortgage is concerned, Mr Zaman relies on section 17 of the Limitation Act 1980 which provides:
"At the expiration prescribed by the Act for any person to bring an action to recover land, the title to the land shall be extinguished at the end of that period."
"In any event at the expiration of the period prescribed by this Act for any person to bring an action to recover land the title shall be extinguished."
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