REF/2013/0281

PROPERTY CHAMBER, LAND REGISTRATION DIVISION
FIRST-TIER TRIBUNAL

LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
JAMES PATRICK SHERRY

APPLICANT

and

JULIA LIVESEY

RESPONDENT

Property Address: Flat 3  &2, Westholme, Belmont Road, Hale, Altrincham
 
Title Number: GM290243 & GM391194

Before: Judge Michell

Sitting at: 1st Floor, Piccadilly Exchange, Manchester 
On: 10th February 2014

Applicant Representation:  Not appearing and not represented
Respondent Representation: In person

___________________________________________________________________________

ORDER 
___________________________________________________________________________

THE TRIBUNAL ORDERS as follows:-
1.	The Chief Land Registrar do cancel the applications of the Applicant, James Patrick Sherry dated 11th June 2012 for the entry of restrictions in Form A and in Form II made in Forms RX1 both dated 20 May 2012

2.	The Applicant do pay the Respondent’s costs of the proceedings, to be assessed on the standard basis (if not agreed)

3.	The Applicant do serve on the Tribunal and on the Respondent her Bill of Costs to be assessed by 5pm on 24th February 2014.

4.	The Respondent do serve on the Tribunal and on the Applicant his Points of Dispute (if any) to the Bill of Costs by 5pm on 10th March 2014.

5.	The Applicant do serve on the Tribunal and on the Respondent her Points of Reply to the Points of Dispute (if any) by 5pm on 24th March 2014.

REASONS

1.	The Applicant, Mr Sherry made applications to HM Land Registry to register restrictions on the title to the freehold title to Westholme, Belmont Road, Hale (which title includes flat 3) and on the  leasehold title to flat 2.  The Respondent, Miss Livesey is the registered proprietor of both the titles.  Miss Livesey objected and the matter was referred to the Adjudicator to HM Land Registry for determination.

2.	The office of the Adjudicator to HM Land Registry was abolished on 1st July 2013. The functions of the Adjudicator under the Land Registration Act 2002 were transferred to the First-tier Tribunal and have been allocated to the Property Chamber, where they are performed by the Land Registration Division.  The determination of this matter is one of the functions transferred to the First-tier Tribunal.    

3.	Mr Sherry did not appear at the hearing.  The hearing did not commence until 10.50 am to give Mr Sherry a chance to arrive in case he was late.  Mr Sherry’s solicitors wrote to Miss Livesey by email on 4th February 2014 stating that Mr Sherry would agree to withdraw his application for a restriction but that he still maintained that he was entitled to a beneficial interest in the properties and reserved the right to apply to the Court to determine the extent of his beneficial interest under the provisions of the Trusts of Land and Appointment of Trustees Act 1996.  The solicitor added that Mr Sherry was awaiting further documentation and in the process of securing further witness evidence.  Miss Livesey did not consent to Mr Sherry withdrawing his applications on those terms.

4.	The Tribunal wrote to Mr Sherry’s solicitors by email and post on 4th February 2014 on my instructions, stating that Mr Sherry required the consent of the Tribunal to withdraw his case before the Tribunal and that the Tribunal was unlikely to give its consent to a withdrawal so close to the hearing in circumstances where the party seeking to withdraw sought to preserve the right to litigate on another occasion the substantive issue before the Tribunal.  In this case, the issue whether Mr Sherry has a beneficial interest in the properties is one which is before the Tribunal.  The Tribunal received no reply to this letter.

5.	I considered it just to continue with the hearing and to make a substantive decision in the absence of Mr Sherry.

6.	Miss Livesey gave evidence confirming on oath the facts set out in her Statement of Case.  

7.	On the evidence before me, I am satisfied that Mr Sherry did not have any beneficial interest in the properties whether under a resulting, constructive, or implied trust or under the doctrine of proprietary estoppel.  For that reason, he is not entitled to register the restrictions for which he has applied and I direct the Chief Land Registrar to cancel those applications.               

8.	Miss Livesey has succeeded in the proceedings.  It is just that Mr Sherry pay Miss Livesey’s costs, to be assessed on the standard basis.

DATED this 11th day of February 2014

BY ORDER OF THE TRIBUNAL

REF/2013/0281

PROPERTY CHAMBER, LAND REGISTRATION DIVISION
FIRST-TIER TRIBUNAL

LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
JAMES PATRICK SHERRY

APPLICANT

and

JULIA LIVESEY

RESPONDENT

Property Address: Flat 3  &2, Westholme, Belmont Road, Hale, Altrincham
 
Title Number: GM290243 & GM391194

Before: Judge Michell

Sitting at: 1st Floor, Piccadilly Exchange, Manchester 
On: 10th February 2014

Applicant Representation:  Not appearing and not represented
Respondent Representation: In person

___________________________________________________________________________

ADDENDUM TO DECISION 
___________________________________________________________________________

Cases referred to
The Chief Land Registrar v. Silkstone [2011] EWCA Civ 801
Jayasinghe v. Liyanage [2010] EWHC 265

1.	After the hearing of this matter on 10th February and the making of the substantive order, written submissions sent to the Tribunal by the Applicant, Mr Sherry by email on the afternoon of the 7th February 2014 were brought to my attention by Tribunal staff.  I have considered those submissions and make this Addendum to my Decision.

2.	Rule 22 of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 is entitled “withdrawal”.  Some doubts have been expressed as to whether Rule 22 applies to matters referred to the Property Chamber by HM Land Registry under Section 73(7) of the Land Registration Act 2003.  So far as I am aware, this point has not yet been the subject of judicial determination.  For the purpose of this Decision and in the absence of argument to the contrary, I shall proceed on the basis that Rule 22 does apply to the present matter, being a matter referred to the Tribunal under Section 73(7).  I note that if Rule 22 does not apply, the position would appear to be governed by the reasoning in The Chief Land Registrar v. Silkstone [2011] EWCA Civ 801 in which the Court of Appeal, considering a reference to the Adjudicator to HM Land Registry and the absence from the Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003 of an expression provision for withdrawal of a party’s case, held that where either an applicant or a respondent seeks to withdraw, the Adjudicator might proceed to make a substantive decision on the matter before him.

3.	Rule 22 requires notice of withdrawal to be given orally at the hearing or by sending or delivering written notice to the Tribunal.  The document sent by Mr Sherry by email to the Tribunal on 7th February 2014 did not comply with the requirements of Rule 22(2) as to the contents of a written notice of withdrawal.  It was not signed and dated; it did not confirm that a copy had been provided to the other party nor confirm the date on which this was done.  Rule 22(3) provides that a notice of withdrawal will not take effect unless the Tribunal consents to the withdrawal.  Had the document sent by Mr Sherry complied with Rule 22(2), I would not have consented to the withdrawal for reasons which appear below.

4.	Mr Sherry applied to register restrictions on the relevant titles by applications dated 20th May 2012 to protect beneficial interests which he claimed to have in the properties.  He should not have applied to register the restrictions unless he had an interest capable of being protected by registration.  Miss Livesey objected to the application on 25th June 2012 on the grounds that Mr Sherry did not have a beneficial interest in the properties.  Mr Sherry has known since June 2012 that he would have to prove that he had an interest capable of being protected by registration.

5.	The matter was referred to the Adjudicator to HM Land Registry on 9th April 2013.  Under Rule 12 of the Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003 Mr Sherry was required to serve his Statement of Case by 5pm on 16th May 2013.  On 16th April 2013 the Adjudicator made directions for disclosure of documents by list at the same time as service of the Statements of Case.  The Tribunal gave further directions on 27th August 2013.  Notice of the hearing date and venue was given by the Tribunal to both parties on 4th December 2013.

6.	It is apparent from Mr Sherry’s written submissions that he sought to withdraw from the proceedings before the Tribunal but to reserve the right to bring court proceedings under the Trusts of Land and Appointment of Trustees Act 1996 when he had gathered further evidence.

7.	The issue of whether or not Mr Sherry had a beneficial interest in the properties was the key issue to be determined by the Tribunal.  In Jayasinghe v. Liyanage [2010] EWHC 265 (Ch) the Court decided that it was the Adjudicator’s function to decide the underlying dispute.  The functions of the Adjudicator were transferred to the Tribunal on 1st July 2013 and so it is now the Tribunal’s function to decide the underlying issue.

8.	Mr Sherry had more than adequate time to prepare his case for the hearing before the Tribunal.  He did not give in his submissions any explanation as to why he could not have gathered historical bank statements and other financial documentation well before the date set for the hearing.  Further, he gave no explanation as to why he had not sought an order for disclosure against Miss Livesey if he considered that there were documents which she should have disclosed but had not.

9.	I consider that it would have been unjust to Ms Livesey to permit Mr Sherry to have withdrawn at the last moment so as to avoid a decision on the substantive issue and to have left the threat of future proceedings to determine the same issue hanging over her head.  Miss Livesey no doubt had expended considerable time and energy and incurred considerable stress preparing for the hearing before the Tribunal.  That time, energy and stress could not be fully compensated by an order for costs.              

DATED this 12th day of February 2014

BY ORDER OF THE TRIBUNAL