CH-2024-000151 - [2025] EWHC 2604 (Ch)

Although the technical point which lies at the heart of one of the principal points of this appeal depends on very few dates, the more extensive background to this matter is important to the abuse of process arguments, so it is necessary to set out the chronology in some detail.

The lease in question in this case is dated 15^th March 1995. The tenant was Mentmore Golf and Country Club Ltd. As granted it was a reversionary lease which took effect on the expiry of a 21-year lease to the same tenant. The shares in that company were purchased by Halabi trust interests in 2006. In 2012 the reversionary lease was assigned to Mentmore Leisure Golf and Country Club Ltd (“Leisure”), which was a 100% owned subsidiary of Investments, and in that year the term of the reversionary lease (99 yrs) commenced (on 3^rd June). In addition, Investments took a charge over the lease in the same year.

On 7^th June 2015 (according to Mr Gaymer’s undisputed evidence on the point before the judge) the golf club closed and it has not re-opened since. Mr Gaymer’s case is that it has not been maintained and there has been a very serious shortfall in compliance with the repairing obligations applying to the whole property (the buildings and the whole course). Mr Halabi claims that enough has been done to comply with the repairing obligations in the lease.

On 1^st July 2015 Mentmore Golf Corporate Ltd (“Corporate”) was incorporated as a wholly owned subsidiary of Investments. Mr Halabi was a director of that company. 2 days later administrators were appointed over Leisure. It was apparently a pre-pack administration, because on the same day the lease was assigned to the newly incorporated Corporate, and the lease was once again charged to Investments. I was told, without contradiction, that the lease does not contain any bars on assignment.

In 2017 the saga of the forfeiture claim commenced. On 4^th January Mr Gaymer served a notice under section 146 of the 1925 Act in respect of breaches of repairing obligations and shortly thereafter Corporate served a counter-notice under the Leasehold Property (Repairs) Act 1938. That meant that Mr Gaymer had to seek leave from the court to commence forfeiture proceedings which he did on 11^th February 2019 with Corporate as defendant.

Those proceedings were delayed when Corporate was put into compulsory liquidation on the petition of Aylesbury Vale District Council for non-payment of rates, on 12^th November 2019. On 7^th December 2020 Greenland was incorporated with Mr Halabi as a director, and on 6^th January 2021 Greenland acquired the lease from the liquidator. Again, the lease was charged to Investments, presumably with the purchase price.

All those tenant companies were within the Halabi trust umbrella.

On 20^th July 2021 Greenland was substituted for Corporate as defendant to the 1938 Act proceedings, but those proceedings were never tried because very shortly before the trial Greenland abandoned its opposition and by consent permission was given for the commencement of the forfeiture proceedings. That was via consent order dated 21^st February 2022. It was further ordered by HHJ Bloom, not by consent, that Greenland should pay the costs of those proceedings, to be assessed, and that Greenland should pay £150,000 on account of those costs by 21^st March 2022. Nothing has ever been paid of those costs. (Permission to appeal that costs order was subsequently refused by Bacon J.)

Then on 23 May 2022 Mr Gaymer issued his forfeiture proceedings against Greenland, and served them on 25^th July 2022. A copy of the forfeiture proceedings was sent to Investments’ registered office on 2^nd August 2022. That is said to be a significant event for the purposes of this appeal because it gave Investments notice. On 30^th August 2022 Greenland served a Defence and Counterclaim, the Counterclaim seeking relief from forfeiture in the event that its defences failed.

On 8^th February 2023 DDJ Willink made an unless order to the effect that if the £150,000 ordered to be paid by Greenland (with interest) was not paid by 22^nd February then the Defence and Counterclaim would be struck out and judgment would be entered for the claimant (Mr Gaymer). He also made an order for payment of arrears of rent and/or mesne profits for the period since March 2022 (£276,401.25) , with unless orders for the striking out of the Defence and Counterclaim if they were not paid. Case management directions were given in the event that the sums were paid, and Greenland was ordered to pay £14,000 in respect of some of the costs of the hearing. The mesne profits were eventually paid. The £14,000 was not. Time for compliance with the terms of the unless order was subsequently extended to 25^th April 2023.

At the same hearing Greenland made a last-minute application to amend its Defence and Counterclaim to introduce a claim that Mr Gaymer’s agents’ conduct had caused damage to the property in that they had left the property unsecured and the premises had been vandalised as a result. The deputy district judge refused to consider such a late application. It eventually came on for hearing on 1st August 2023, when it was dismissed with costs assessed at £20,000. Those costs have never been paid.

On 11th July 2023, shortly before a hearing to assess the costs of the 1938 Act proceedings, those costs were agreed at £220,000 (this figure therefore overtaking the on-account figure of £150,000). No part of this greater sum has been paid. The costs of the assessment proceedings, payable to Mr Gaymer, were £27,176.88. They have not been paid either.

Greenland sought to appeal those orders, and permission was given on one ground, namely whether DDJ Willink had jurisdiction to make the unless orders in one set of proceedings in respect of liabilities arising in another. He refused permission to appeal on other grounds, but he extended the time for payment of the other sums until 29th June. On that day Greenland (or someone on its behalf) paid the sums due for rent/mesne profits plus interest.

On 14^th August 2023 HHJ Murch dismissed the outstanding appeal, ordering Greenland to pay costs of £14,877.60, accompanied by an unless order. This time the costs were paid. The time for complying with the unless order in respect of the interim costs order made by DDJ Willink had been extended pending the appeal, and the new final date was 29^th August 2023. It passed without payment.

On 9^th October 2023 Greenland applied for relief from sanctions, and on 13^th October 2023 Mr Gaymer applied for a possession order. Those applications came before HHJ Murch and he refused the application for relief from sanctions and ordered possession to be given on 13^th December 2023. Greenland, but not Investments, applied for a stay of the possession order on 13^th December 2023, but withdrew it before it was heard.

There was then the sequence of events which lies at the heart of one of the principal points on this appeal. On 14^th December 2023, after the possession order was made but before it was executed, Greenland commenced proceedings claiming relief from forfeiture, despite the fact that its Counterclaim claiming the same thing had been struck out. On 22nd December Investments commenced its own proceedings seeking relief from forfeiture as mortgagee. The Particulars of Claim were signed by the same counsel, and verified by the same solicitor, as signed and verified the Particulars of Claim in Greenland’s new action. Then on 2^nd February 2024 High Court Enforcement Officers executed the possession order. The important sequencing of these events is that the application for relief was made after the possession order was made, but before its execution. (The draft claim form seeking relief was dated 21st December 2023, but the actual issue seems to be recorded as being the next day, on 22nd December, in a subsequent order of 13th March 2024. That discrepancy does not matter. What matters is that the application for relief was made before the execution of the order.)

The applications for summary judgment and striking out were issued on 21^st March 2024, resulting in the order appealed from on 31^st May 2024.

The result of all this, and the result of non-payment of some rent/mesne profits since the payment referred to above, is that as at the date of the hearing of this appeal sums totalling £596,873 odd were due and unpaid by Greenland, of which £103,914 odd is due in respect of rent/mesne profits.