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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 >> Gangat & Anor v Jassat [2021] EWHC 2644 (Ch) (01 October 2021) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2021/2644.html Cite as: [2021] EWHC 2644 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY DIVISION
BUSINESS LIST (ChD)
Rolls Building, Fetter Lane, London, EC4A 1NL |
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B e f o r e :
Sitting as a Judge of the Chancery Division
____________________
(1) ANWAR GANGAT (2) SURENDRA BHAWAN |
Claimants |
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- and – |
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YUSUF JASSAT |
Defendant |
____________________
David Peters (instructed by Edwin Coe LLP) for the Defendant
Hearing dates: 16, 17, 18, 21, 22, 23 and 29 June 2021
____________________
Crown Copyright ©
Eason Rajah QC:
A) Introduction
B) Approach to the evidence
C) The witnesses
D) The documentation
E) The facts (and findings)
The Jumbo Group and SARS
The expatriation of funds from South Africa
The Swiss bank accounts
Ownership of the funds in Swiss bank accounts
Investment in UK real estate
Breakdown in relations in 1998
The Richmond Trust
The Hathurani Proceedings
The Richmond Lodge Document
Grant Thornton report
Emails
F) The claim for an account – the law
G) Conclusions
A) Introduction
B) Approach to the evidence
"It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth."
C) The witnesses
Anwar Gangat (First Claimant)
Surendra Bhawan (Second Claimant)
Yusuf Jassat (Defendant)
Defendant's witnesses – Ms Shakera Jassat and Bernadette Atkins.
D) Documentation
E) The facts
The Jumbo Group and SARS
The expatriation of funds
The Swiss bank accounts
Ownership of the funds in Swiss bank accounts
Investment in UK real estate
a. Alton & Farnham Limited ("A&F");
b. Richmond and Kingston Properties Limited; and
c. Redhill and Reigate Properties Limited.
"[Mr Jassat] states that this property was purchased on behalf of [Mr Gangat]. [Mr Jassat] confirms that [Mr Gangat] provided the funds to purchase the property, and that when the property was subsequently sold, the proceeds were paid to [Mr Gangat]."
The Claimants deny having ever received those monies.
Breakdown in relations in 1998
The Richmond Trust
The Hathurani proceedings
The Richmond Lodge Document
Richmond Lodge Management
Richmond House
34A Sydenham road
Croydon
CR0 2EF
Tel No: 020 8686 8884
Fax No: 020 86868839
ALTON & FARNHAM LTD
37-43a Eastover, Bridgewater, Somerset :Acquired 12/11/1991
As at 31 MARCH 2008
Financed by:
Capital Account
Initial capital introduced 483,927
Retained Profit 169,082
653,009 653,009
Capital payments 653,009
Estimated rental per month Gross £2,500.00 (Less 22% Tax and other expenses)
1) Rent paid every Quartly (3 monthly)
2) COH £169,082 (rent) Cash Alton & farnham
£139,000 (mosque Property) Cash
3) Cash $5, 103,500
4) Foreign Account $12MIL (1.2Mil x 2 = 2.4mil) Cash
5) Jumbo Syndicate
NEW ASH GREEN Properties (10% share x 2)
Above Total investments to be split in half
50% ANWAR & 50% SURU
Above portfolio is held by Mr Y A Jassat
[signature] [signature]
Y A Jassat Miss S Jassat.
Grant Thornton report and letter
Emails
"As part of this engagement I am required to quantify and disclose Mr Jassat's personal assets and liabilities. I met with Mr Jassat recently and he has advised that he owes an amount of money to you along similar lines to the monies claimed and repaid to Mr Hathurani. At this point Mr Jassat does not know the exact quantum of monies believed to be owed to yourself. I am therefore writing to you in order that the figure can be quantified and disclosed as part of my engagement."
"Kindly request Mr Jassat to provide a breakdown of the amount he believes is due and WE will then consider whether these are correct or not."
"This demonstrates further proof that the arrangement is along the lines of an informal bare trust relationship rather than a loan agreement…
Please note that the monies in Switzerland, that [Mr Jassat] utilized in his role as bare trustee, were originally from [Mr Hathurani] and his business partners. The settlement between [Mr Jassat] and [Mr Hathurani] only accounted for the monies owed to [Mr Hathurani] and therefore a substantial amount yet to be quantified is still owed to the other individuals in South Africa".
In light of his earlier email to Mr Gangat, the reference to other individuals in South Africa plainly included the Claimants. The reference in his earlier email to the Defendant owing the Claimants money "along similar lines to the monies claimed and repaid to Mr Hathurani" therefore appears to acknowledge that the Defendant had invested the Claimants' monies and a substantial unquantified amount was due to them. Again this is not consistent with his case that he had only ever acquired one property with their money (the amounts due being easily quantifiable), nor with his case that in 2009 it was agreed that the Claimants' interest in Eastover would be converted into an unsecured interest free loan of £653,009.
"[Mr Bhawan] asked me to forward this promise and acknowledgment. I have left several messages for you to return my call. I just feel that the way you are treating us is definitely unfair. "
The Defendant responded the same day saying:
"My apology if you think I am treating you unfairly but I swear on my parents grave I do not have the intention of misleading or stealing any of yours Suru or Steves funds. I am in a difficulty financially and am in no means of paying or settling at present. I think it would be good for me to come to SA or for you to come to the UK and see for yourselves."
This is again inconsistent with the Defendant's case. The Defendant did not disown the Richmond Lodge Document, as he surely would have done if, as he now says, most of it was not correct and "irrelevant as between us". He did not, as one would naturally have expected if his case was true, assert that all he owed the Claimants was £653,009. The reference to "yours Suru or Steves funds" again suggests that the Defendant believed he had assets belonging to the Claimants and Mr Seetha for which he had to account – and is not consistent with him simply owing the Claimants a debt.
F) The claim for an Account
"I take as my starting point the observations of Baker J, sitting in the High Court of Ireland, in the case of Best v Ghose [2018] IEHC 376 at paragraphs 42 to 44:
"42. ... An obligation to account is implicit in a fiduciary relationship, but it is not always easy to ascertain if a relationship imports fiduciary obligations.
43. I find of particular benefit the statement of principle contained in McGhee: Snell's Equity (33rd ed., Sweet & Maxwell, 2015), where the obligation to account is explained as one which arises out of the receipt by a person of property 'in an accountable capacity', at para. 20-015, and although that description might appear to be tautological, it is useful as it identifies the key component. The accountable capacity is one that arises in any circumstance where it can be shown that a person has control of property which belongs to another. As Snell says, the central case is that of an express trustee but the principles apply to various categories of relationships, including 'agents who control property belonging to the principals', at para. 20-012.
44. Snell also suggests that '[t]he claimant bears the onus of proving that the defendant has received property into their control in circumstances sufficient to import an equitable obligation to handle the property for the benefit of another', at para. 20-015."
G) Conclusions