Yedina v Yedin & Anor, Court of Appeal - Chancery Division, December 15, 2017, [2017] EWHC 3319 (Ch)

Resolution Date:December 15, 2017
Issuing Organization:Chancery Division
Actores:Yedina v Yedin & Anor
 
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Case No: HC-2016-000428

Neutral Citation Number: [2017] EWHC 3319 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Rolls Building, 7 Rolls Buildings

Fetter Lane, London, EC4A 1NL

Date: 15/12/2017

Before :

MR JUSTICE MANN

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Between :

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Mr James Sheehan (instructed by Westbrook Law Ltd) for the Claimant

Mr Anthony Verduyn (instructed by Fletcher Day Solicitors) for the Defendants

Hearing dates: 30th & 31st October, 1st-3rd November, 6th-10th November, 10th, 13th & 15th November 2017

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JudgmentMr Justice Mann :

Introduction

  1. This is a dispute which centres around a husband and wife Mr Yedin and Mrs Yedina, or perhaps former husband and wife - whether there was a divorce is in dispute. In February 2009 Mr Yedin signed a deed in which he made and promised to make certain financial provision for Mrs Yedina. She seeks to enforce it in this action (via a repudiation and damages claim) and Mr Yedin claims that he is not bound by it by virtue of a range of defences starting with non est factum. Mrs Yedina also claims to be able to enforce her judgment over the proceeds of sale of a flat sold by the second defendant (``Skelling''), a BVI company, by virtue of a claim that the flat was held as nominee for Mr Yedin, or alternatively that Mr Yedin was the beneficial owner of the shares in Skelling, an allegation which Mr Yedin and Skelling deny.

  2. For his part Mr Yedin counterclaims for a declaration that various properties held here, in Cyprus and in Moscow, and now vested in Mrs Yedina (or in companies whose shares are owned by Mrs Yedina) are held on what he calls a Family Trust, for the benefit of himself, Mrs Yedina and their two children Denis and Darina.

  3. There is one procedural complication which arises in relation to Mrs Yedina's claim to enforce over the proceeds of sale. As appears, one of her routes to that claim is to say that Mr Yedin is the absolute beneficial owner of the shares in that company. The shares are actually held by his business partner, Mr Goncharov. He has not been joined to these proceedings, though he did give evidence. He denies that he holds for Mr Yedin. Without more, therefore, it would not be possible for Mrs Yedina to make a fully effective claim based on the ownership of the shares because she has not joined the alternative beneficial owner. Mr Goncharov has signified his willingness to be bound by the decision in this action, both in writing and orally. The effect of this is something to which I return at the end of this judgment.

    An expanded outline of the case

  4. Mr and Mrs Yedina come from the Ukraine and were married there. They lived there together for a time until 1996 when Mrs Yedina (her name has the extra character) started to spend more time here because their children were sent for education here. She became resident here in 1998. There is a dispute over when (and possibly whether) their marriage ended but in the course of their relationship they and their family lived (inter alia) in a flat in Tunbridge Wells (5 Calverley House, Post Office Square - ``the Tunbridge Wells flat'') and then in a flat in Knightsbridge (Flat 3B, Collier House, 163-169 Brompton Rd, London SW3 - ``Flat 3B''). The flats were owned by offshore companies - Ross Investments NV (''Ross'' - a Curacao company) and Asha Capital Corp (``Asha'' - a BVI company) respectively. By 2008 (if not before - that is in dispute) their marriage was in trouble and Mrs Yedina sought to secure her position in relation to property ownership and maintenance. She agreed with her husband the transfer of properties in the Ukraine and elsewhere, and agreed that she would acquire ownership of Flat 3B. Then on 10th February 2009 she and Mr Yedin entered into the Deed which is the centrepiece of this litigation, which dealt with her maintenance. Under it Mr Yedin apparently agreed to pay the outgoings on Flat 3B (including mortgage repayments and the repayment of the mortgage principal) and on the Tunbridge Wells flat, and to discharge the mortgage on Flat 3B. He also agreed to pay a sum for maintenance.

  5. Mr Yedin indicated that he was not going to honour the provisions of the Deed and Mrs Yedina claims he has repudiated it and that she is entitled to damages as a result. Mr Yedin defends by relying on a large number of the textbook defences to an action on a contract, including non est factum, undue influence and unconscionable bargain. That constitutes one half of the claim. Mrs Yedina also makes a claim, as against the both defendants, that the proceeds of sale of another flat in the same building as Flat 3B (namely flat 2B) are owned beneficially by Mr Yedin, or alternatively that Skelling is his company, so that she can enforce her damages claim against those moneys (she currently has the benefit of a freezing order over them and they are held in a solicitor's account). For his part Mr Yedin counterclaims (as mentioned above) for a declaration that Mrs Yedina holds a number of foreign properties on trust for himself and their two children (and Mrs Yedina).

  6. There are so many properties and offshore companies involved in the history of this matter that it is, unfortunately, necessary to consider a lot of detail before one gets to the real issues in this case. But it will be useful to set out the terms of the Deed at this stage of this judgment because the narrative will be a little easier to follow with the documentary end point in mind.

  7. The document is headed ``Deed re English Property''. After setting out the parties as Mr and Mrs Yedina (given the names ``Alexander'' and ``Irina'' respectively) the Deed goes on:

    ``Recitals

  8. IRINA is the beneficial owner of the entire issued share capital of Ross Investments N.V. (``Ross''), a Curacao company which is the registered proprietor of 5 Calverley House, Post Office Square Tunbridge Wells, Kent England (``the Kent Property'').

  9. Asha Capital Corp., (``Asha'') is the registered proprietor of Flat 3B, Collier House, 163-169 Brompton Road, Knightsbridge, London SW3 1PY (``the Knightsbridge Property'').

  10. Ross is the registered proprietor of the total issued share capital of Asha.

  11. Accordingly ALEXANDER and IRINA have agreed to deal with the Knightsbridge Property on the terms of this Agreement.

    Now This Deed Witnesseth as follows:

  12. Principal Residence

    1.1 ALEXANDER hereby acknowledges that the Knightsbridge Property has a mortgage from the Bank of Scotland International of £1,078,175 (``the BOS Mortgage'') and that he has procured that the BOS Mortgage has hitherto being fully paid on a monthly basis, together with other outgoings including the service charge. Accordingly ALEXANDER hereby agrees to pay for the term of the BOS mortgage all interest, payments and other outgoings in respect of the BOS Mortgage and to pay as they fall due the service charge and other outgoings in respect of the Knightsbridge Property including all utility bills and parking charges in respect of the garaging of IRINA's car in the building of which the Knightsbridge Property forms part or any parking permit fees. ALEXANDER will on the expiration of the term of the BOS Mortgage or any extension thereof, repay all principal, charges and outstanding interest to Bank of Scotland International arising from the BOS Mortgage.

    1.2 It is hereby further agreed that it is the intention of IRINA to utilise the Knightsbridge Property as her principal residence.

  13. Maintenance

    2.1 ALEXANDER hereby agrees that he will provide all reasonable maintenance for IRINA to enable her to enjoy an appropriate lifestyle in London and with regular visits to Cyprus and the Ukraine. At the date hereof such maintenance is agreed to be approximately £220,000 per annum, but such sum shall be adjusted for inflation on a yearly basis geared to the Retail Price Index in the United Kingdom on the first day of January in each year.

    2.2 ALEXANDER further agrees that he or that he will pay all normal outgoings including utility bills relating to the Kent Property and the Knightsbridge

    Property so long as such properties shall be owned by Ross and Asha respectively or shall be otherwise in the beneficial ownership of IRINA.

  14. General

    3.1 The proper law of this Agreement shall be the law of England but it shall be intended to be fully effective in Ukraine.

    3.2 Each party shall do such acts and deeds and execute all such documents as shall be required to carry the terms of this Deed into effect.''

    Mrs Irina Yedina

  15. Mrs Yedina was cross-examined for over a day and a half, a large part of which was more as to credibility than as to the issues in the action. She gave her evidence in English, though she had the assistance of an interpreter to translate the questions for her when they were complex. She had a reasonable command of English but sometimes her English was a little hard to follow as a matter of language. That, rather than a lack of credibility, explained a number of instances where she might otherwise have been accused of not answering the question.

  16. On many issues she presented as a reasonably credible witness. One big issue in the case where she did not was the question of her marital status and divorce. I deal with this under a separate heading below because a lot of effort in the case was directed towards it and it was treated as an important issue, though ultimately it was background (though important background) for the real issues in the case. On this issue I have found that I do not accept her evidence. This is very important in relation to her credibility. Her evidence came over as unreliable in relation to some of the property-related activities as well, even allowing for difficulties in her seeking to use English as the language of her oral evidence, and she was apparently...

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