Watson v Counsell & Anor [2007] EWHC 246 (Ch) (16 February 2007)

Watson v Counsell & Anor [2007] EWHC 246 (Ch) (16 February 2007)

Mr Watson's claim to an overriding interest was without merit as any beneficial interest arose simultaneously with the mortgage and was subject to it. The alleged new evidence was not material or truly new and did not justify reopening the orders. The appeals were out of time and allowing them would be an abuse of process. However, Mr Watson's challenge to the calculation of interest on the net proceeds of sale had a real prospect of success and permission to appeal was granted on that limited issue, subject to any prior refusal by David Richards J.

Citation
[2007] EWHC 246 (Ch)
Parties
Appellant: Donald Paul Watson; 1st Respondent: Jennifer Anne Counsell; 2nd Respondent: Battersea Park Mortgage Funding Ltd (t/a Kensington Mortgage Company)
Jurisdiction
England and Wales
Judgment Date
16 February 2007
Procedural Posture
Appeal / Application for Permission to Appeal Orders of DJ Frenkel (20 May 2004), HH Judge Weeks (15 July 2005), and DJ Watson (16 June 2006)
Outcome
Permission to appeal refused except on limited issue of interest on net proceeds of sale.
Legal Topics
Overriding Interests, Mortgage Possession, Beneficial Interest, Trusts of Land, Appeal Procedure, New Evidence, Abuse of Process, Interest on Proceeds of Sale
Property Law Civil Procedure Overriding Interests Mortgage Possession Beneficial Interest Trusts of Land Appeal Procedure New Evidence +2 more

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Parties

Donald Paul Watson

Appellant

Jennifer Anne Counsell

1st Respondent

Battersea Park Mortgage Funding Ltd (t/a Kensington Mortgage Company)

2nd Respondent

Procedural Posture

Appeal / Application for Permission to Appeal Orders of DJ Frenkel (20 May 2004), HH Judge Weeks (15 July 2005), and DJ Watson (16 June 2006)

Legal Issues

  1. 1 Whether Mr Watson had an overriding interest in the property taking priority over the mortgagee
  2. 2 Whether new evidence justified reopening the orders
  3. 3 Whether the account of interest on net proceeds of sale was properly determined

Ratio Decidendi

Mr Watson's claim to an overriding interest was without merit as any beneficial interest arose simultaneously with the mortgage and was subject to it. The alleged new evidence was not material or truly new and did not justify reopening the orders. The appeals were out of time and allowing them would be an abuse of process. However, Mr Watson's challenge to the calculation of interest on the net proceeds of sale had a real prospect of success and permission to appeal was granted on that limited issue, subject to any prior refusal by David Richards J.

Court Disposition

Permission to appeal refused except on limited issue of interest on net proceeds of sale.

Orders

  • Permission to appeal from the orders of DJ Frenkel and HH Judge Weeks refused.
  • Permission to appeal from the order of DJ Watson refused except as to the return for which the Mortgagee must account on the net proceeds of sale, subject to any prior refusal by David Richards J.