Pourghazi v Kamyab & Ors, Court of Appeal - Chancery Division, October 29, 2018, [2018] EWHC 3189 (Ch)

Resolution Date:October 29, 2018
Issuing Organization:Chancery Division
Actores:Pourghazi v Kamyab & Ors

Case No: HC-2015-001597

Neutral Citation Number: [2018] EWHC 3189 (Ch)



Rolls Building

7 Rolls Buildings

Fetter Lane



29 October 2018



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Legal Representation

Mr Michael Pryor (of counsel), Mr Fred Banning (solicitor) on behalf of Hamid Kamyab and Neshat Mangili

Mr Joshua Munro (of counsel), Mr James Bailey (solicitor), Ms Caitlin McLean (solicitor) on behalf of Investec Bank (Channel Islands) Limited

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JudgmentChief Master Marsh:

  1. This is my judgment in relation to an application that was heard on Friday 26 October 2018. This claim was commenced in 2015 and since then it has, in various manifestations, been before the Court on very numerous occasions.

  2. Briefly, the background is that the Claimant, Mr Pourghazi, obtained judgment following a trial against Mr Kamyab, the First Defendant. It was established at the trial that Mr Pourghazi had been the subject of fraudulent misrepresentations which induced him to invest in properties acquired by Mr Kamyab. At the trial, Mr Kamyab was found to have acted dishonestly.

  3. Subsequently Mr Pourghazi obtained charging orders against a considerable number of properties, some of which only were registered in Mr Kamyab's name. In some cases, properties were registered in the names of others, including members of Mr Kamyab's family. Mr Pourghazi sought to establish that Mr Kamyab had an interest in those third party properties.

  4. Mr Kamyab had a good relationship with HSBC Private Bank Limited, which became the first additional party to the proceedings, and Mr Kamyab was able to borrow substantial sums that were loaned on `all monies' basis secured on a portfolio of property. HSBC was fully secured and as part of steps taken to recover sums due to him, Mr Pourghazi applied to marshal the securities held by HSBC to enable Mr Pourghazi to obtain access to the equity in those properties which are subject to charging orders he had obtained.

  5. Investec Bank (Channel Islands) Limited also obtained a judgment or judgments against Mr Kamyab and was owed substantial sums. It also obtained a number of charging orders. Investec became the second additional party.

  6. A further judgment creditor, Sun Investments Limited became the third additional party. Sun Investments is of no direct relevance to the current position.

  7. On 21 April 2016, Mr Pourghazi and Investec issued separate applications seeking similar relief, namely for the securities held by HSBC to be marshalled. I will come in a moment to the full relevant chronological history of events but, put shortly, on 12 January 2018 Investec assigned its debt and its entitlement to pursue its marshalling claim to Mr Pourghazi and on 15 May 2018 Mr Pourghazi and the two principal Defendants to the marshalling claims reached agreement to resolve those claims. On 21 May 2018, a Tomlin order was entered into and sealed by the Court.

  8. The issue for the Court is whether Investec has any residual liability by virtue of having been a party to the claim, and having remained a party to the marshalling claim after the date of the assignment. There are two further points which I think provide the remainder of the overall context.

  9. First, the marshalling claim is best seen as a subset of the overall claim in which Mr Pourghazi sought orders for sale and the marshalling claim arises from the two application notices to which I have referred and was pursued as it were as if it had a life of its own and as if it had been commenced by issuing a separate claim form or claim forms. Secondly, in the marshalling claim the principal issue that emerged was whether certain properties registered in the name of the Second and Third Defendants, who are Mr Kamyab's son and daughter in law, were held beneficially for Mr Kamyab. Those properties were also subject to charges held in favour of HSBC. I will, for convenience, adopt the description of the Second and Third Defendants as the ``Core Defendants''.

  10. The matter that came before me on Friday 26 October 2018 was an application notice issued on 4 July 2018 by the Core Defendants by which they seek orders against Investec. First, they apply for an order under CPR Part 24 for the dismissal of Investec's application for marshalling dated 21 April 2016. Secondly, they apply for an order that Investec pays the Core Defendants' costs of the marshalling claim up to 12 January 2018; that is the date of the assignment.

  11. At the hearing, Mr Michael Pryor appeared for the Core Defendants and Mr Joshua Munro for Investec. It is relevant to note that Mr Munro is instructed by Shepherd and Wedderburn LLP who have acted for Investec throughout; that is both before and after the assignment to which I have referred.

  12. There are ten relevant chronological events, some of which are of greater importance than others, which I need to go through to set the scene.

  13. First, on 1 July 2016, in the marshalling claim, points of claim were served by Mr Pourghazi and Investec jointly. It was a hybrid document pursuing marshalling claims that were their individual entitlement but, for convenience, they were made in one points of claim with separate statements of truth signed respectively by their solicitors. Secondly, on 5 July 2016 an offer was made on behalf of the Core Defendants. The offer, the details are which are not of great significance, were, and this is common ground, significantly better than the outcome contained in the agreement reached in May 2018. Under the offer, the Core...

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