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Abuchian v Khojah [2014] EWHC 2080 (Fam)

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Application by the wife to preserve her occupation in one of the family homes whilst divorce proceedings were being investigated. Injunction on the husband not to sell the property or evict the wife was extended for 6 months.


  • Neutral Citation Number: [2014] EWHC 2080 (Fam)

    Claim No: FD14F00249

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand,

    London WC2A 2LL

    Tuesday, 13 May 2014

    BEFORE:

    MR JUSTICE COLERIDGE

    - - - - - -

    BETWEEN:

    MELINA O ABUCHIAN (Claimant)

    - and -

    SHEIKH ABDUL MAKSOUD MOHAMMED SAID A KHOJAH (Defendant)

    - - - - - -

    MR M POINTER QC (instructed by Schillings) appeared on behalf of the Claimant.

    MR T AMOS QC (instructed by Stephenson Harwood LLP) appeared on behalf of the Defendant.

    Approved Judgment

    Court Copyright (c)

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    Tuesday, 13 May 2014

    J U D G M E N T

    MR JUSTICE COLERIDGE:

    1. Let me start by saying that even at this early stage.I have found this is a peculiarly complex case, It is the return day of applications for interim injunctions brought by a wife, particularly directed to the ownership and occupation of, a very valuable property, The Penthouse 2-4 Avenue Road, London. As everybody knows, the properties in Avenue Road are fabulously expensive. I am told the property is worth some £20 million, and it has a mortgage on it of some £10 million, so there is, as can readily be seen, a very significant amount of money tied up in it.

    2. Putting the matter simply, the wife brings the application to preserve her occupation of that property for the time being, whilst the resolution of issues arising out of the parties' separation and divorce are investigated. I say it is the return day, because the matter came before Bodey J on 18 March 2014, and his order is to be found in fact behind divider 2 in Mr Amos' papers which he has prepared for today. As can be seen from that injunction, its central features at paragraph 7 are in these terms:

    "Until the return date or a further order of the court, the Respondent must not either personally or in his capacity as director of Serpentine Investments NV in any way dispose of, deal with or diminish the value of The Penthouse, 2 Avenue Road."

    Paragraph 9 of the same injunction dealt with the right of occupation of the property in these terms:

    "Until the return date or further order of the court the Respondent shall not, whether by himself or by instructing or encouraging any third party to do so (including by purportedly exercising powers as a direct of Serpentine Investments NV) take any steps to evict the Applicant from The Penthouse, 2 Avenue Road, London NW8 or do anything to interfere with her peaceful use and enjoyment of the property or anyone residing there with her with her permission."

    3. In other words, a classic interim injunction, granted without notice to the husband in the sense that the husband was not there, although informal notice had been given to the company Serpentine Investments, and at the hearing Mr Andrew Miles, a solicitor advocate, appeared for Serpentine Investments. One of the documents that I have in the papers, quite properly nowadays, is a transcript of that hearing. It is apparent that Bodey J was tackling this far from straightforward matter at the end of a very busy list at 4 o'clock in the afternoon, and he was plainly deeply troubled by many features of it. But there it is, he granted the injunction, and it comes back before me today.

    4. Mr Pointer, who appeared below on the previous occasion and who appears again today, invites me simply to extend the injunctions. Insofar as the injunction restraining disposal is concerned, I think, he says it should be until until further order, and so far as the injunction under the Family Law Act is concerned - the one concerning the occupation of the property - he says I can and should extend it for a period of 6 months.

    5. The background to the application is helpfully set out in a chronology prepared by Mr Pointer and annexed to his note, and I will deal with one or two of the central features of the chronology.

    6. The first thing to note is that the husband is an elderly gentleman. He is 89 years old and is living in Saudi Arabia, and has done so really his entire life, I think. The wife was originally from Beirut in the Lebanon. The property that I am dealing with was bought during the 1970s. I say during the 1970s, because it was bought in more than one go and then combined, I think, into a what is now no doubt a fabulous penthouse property.

    7. The parties eventually married on 26 October 1979, although they had known each other for some time before then. They had two children, one born in 1981 and the other in 1985. They lived a life of very considerable luxury, because the husband is a very wealthy property developer based in Saudi Arabia. Their marriage was not entirely straightforward. The parties went through a divorce process in 1999, and then one way or another became reconciled in 2002. In the end the marriage, in one form or another, continued until September 2013.

    8. The lifestyle of the parties was around their main home in Saudi Arabia, but also other properties which they own in Paris and Cannes, and of course the London property as well. It is the wife's case at least that they moved regularly, certainly in the earlier years, between these various properties. The marriage finally came to an end, as I say, in September of last year, and following that the wife moved to this country and took up occupation of The Penthouse at 2-4 Avenue Road. As I say, it is as a result of her taking up occupation in that property that these applications arise, because on 7 March 2014 the wife was given notice to vacate the property within 14 days, and that provoked the application to Bodey J.

    9. As I say, the matter came on before him, and he granted the injunction until today. So the matter comes before me today on an application by the wife to extend these injunctions indefinitely.

    10. The wife's case is in the statement from her, and as a result of the time since the order of Bodey J, I also have a lot of evidence also from the husband, from the husband's homme des affaires, and also from the managing director and proxy holder of the company which owns the property, Mr Horsten and Mr Bursna, who are respectively managing director and proxy holder of SGG Management, the company in Curacao who ultimately who manage this property. So I have a lot more evidence.

    11. Mr Pointer's submissions today really come to this. He says that this marriage has now broken down. It is almost certain that one way or another Mrs Abuchian will bring proceedings in this country consequent upon that marriage breakdown. I pause to reflect that in the very last few days the husband has pronounced a talaq namely on 1 May and this has apparently been registered properly in the Personal Status Court in Jeddah. So matters have moved swiftly recently.

    12. Mr Pointer says that the likelihood, although he does not bind himself to this, assuming the talaq is regarded as properly to be recognised in this jurisdiction, and his preliminary view, I think, is that it may well be, is that the wife will bring proceedings under Part 111 of the Matrimonial Finance and Proceedings Act for relief following a foreign divorce. Therefore, he says, I should look at this matter broadly and preserve the wife's position just as if this was an English case and just as if, as one sees quite often, a husband who operates through corporate vehicles was taking steps to make the wife's life difficult at a time in their relationship when matters were coming to an end. Therefore, he invites me to proceed to grant the injunctions accordingly.

    13. The husband, on the other hand, is outraged by the steps which the wife has taken. He quite rightly emphasises that in every respect that one can really observe this is a Saudi Arabian case. The parties have lived their lives mainly in that country in Jeddah, and the case which this wife brings is shot through with not only unlikelihood, but worse than that, that she has falsified her position, and that in considering whether or not it is appropriate for the injunctions to be extended, I have to have in mind that this requires the wife to establish that she has a good arguable claim to ownership in substantive proceedings. Mr Amos says how can it possibly be said that she has a good arguable claim when it is based, even on her own case, on nothing other than an oral promise to transfer to her the property in London and maybe other properties.

    14. Mr Amos also says that if I am in the business of addressing her application under the Family Law Act, these are a discretionary remedies and I must carry out a proper balancing exercise. He is quite right, of course, about that. He also emphasises two principal facts. Firstly, that this husband has shown his good intentions by agreeing that if The Penthouse is allowed to go ahead and be sold, (and that is what the husband would like to do in order to stem the very significant mortgage payments on the mortgage on the property) the husband would be prepared to preserve the whole of the equity in a joint account in the name of the solicitors and, furthermore, he will not be making any claim to a sum of £3 million which he says that the wife wrongly removed from his ownership in the context of the sale of a property in Paris. He says he makes no further claim on that money and she can retain that. On that basis, Mr Amos says, she is perfectly well protected. She can and should make arrangements to re-house herself, because she has more than enough money, and the jurisdiction which is now being advanced for this court to deal with this case on any basis is, using his expression, "extremely dodgy".

    15. As I say, this is a far from straightforward situation and I have the distinct impression that the whole story is not yet properly before the court. I do, however, emphasise, as I have to Mr Pointer throughout this morning, that this is at this stage at least a dispute about ownership and really nothing else apart of course, from the application under the Family Law Act. Whether or not the wife is advised to take other proceedings at a later stage, that does not in itself seem to me to found any basis upon which this injunction should now be continued.

    16. The only question, so far as I am concerned today, is whether or not there is a justification for allowing these orders preserving the situation to continue a little longer so that the matter of ownership can be properly and fully investigated. There are, I am quite conscious, having heard the submissions and having read the evidence, major factual issues about, firstly, the extent to which the parties lived here at all. The husband says that if and insofar as they lived here, it was for a few days at a time and no more each year, measured perhaps on the fingers of two hands, but not much more than that. The wife, on the other hand - having only, to be fair, received the husband's evidence very recently (and that is not a criticism, as the evidence has had to be collected from Saudi Arabia and then translated) says, by way of response, that they spent significant periods of time here during the year. Also her youngest son was born here and she certainly proposes now to make this country her home, because she has no other home.

    17. It seems to me that I cannot today decide whether or not the application in relation to ownership should simply be dismissed, which is what Mr Amos' primary position is. He says that this is so lacking in merit that I should simply dismiss it today, but, if not, then I should transfer it to the Chancery Division and let them sort it out.

    18. I think that it is not possible to come to a decided view about that at this stage. He may be right, but I certainly do not think the wife has had a proper chance to respond and the court has not had a proper chance to investigate this further. I have, as I have said, indicated my sense of unease about the case because of the very strong Saudi Arabian connections. But the property is located here, and there is no doubt, in my judgment, that the court has jurisdiction to investigate the question of its ownership.

    19. So where does that get us today, on the basis, as I say, that I have reached no concluded view about ownership, and that I am satisfied that there is what might be described as an arguable case that needs to be properly investigated?

    20. The husband is very anxious to get on and sell this property at a time when he says the property market is hyper inflated and likely to explode and cause property prices thereafter to collapse. He is also anxious to stop having to pay these very high mortgage payments. On the other hand, it is right to say that this is a situation which has been in existence now for many, many years. He has owned the property, as I have indicated, since the 1970s, and so this is not a matter of recent development.

    21. Having thought about this long and hard, I have come to the conclusion that I will extend both injunctions; for 6 months. I would have extended them for a somewhat shorter period, but I think, as a matter of practicality, it is not going to be possible for this matter to be properly decided in less time than that.

    22. I should make it plain, however, that at the end of that period I would not expect this property to continue to be occupied by the wife. She should start making arrangements to move to another property, subject only to the fact that if ownership is established in the meantime, then she will obviously have other rights.

    23. My intention is that during that 6-month period this central question of the ownership of the London property, which seems to me to be absolutely crucial, not only in the context of this claim but also in the context of any other claim which may or may not be brought, should be investigated, and if not the subject of agreement, they should be decided by the court.

    24. The husband makes some suggestions about what directions should be made, and I think those are sensible. Adopting Mr Amos' paragraph 35, I shall confine this to investigations as to the ownership of the London property. I do want the wife to respond to the evidence which has so far been produced. That will be done within 28 days. At the same time she should produce formal points of claim, setting out precisely how it is she says that her interest arises and how it is established. The husband can respond within, I am going to say again, a further 28 days. There is obviously a problem of communication with Saudi Arabia . I shall also give leave to both sides to serve a questionnaire, also to be answered within 28 days.

    25. So far as the injunction is concerned, it will be in the same terms as now. I shall not make it specifically against the company. It is perfectly well set out in Bodey J's order, as drafted by him, at 7, 8 and 9. As I say, I would expect that by the end of that time the wife will have taken steps to vacate. Her undertaking as to damages will remain. She has to run that risk. As I emphasise, this is most certainly not a divorce case or at this stage even a Part 3 case. It is an ownership case. But I shall not require her to give any further security in relation to any damages which might arise. I think there is sufficient room for counterbalancing any payments in the future.

    26. The situation that has arisen has arisen quickly. The wife is confronted today by a lot of new evidence, and I think her position requires preservation for a little longer. I would not have allowed her as long as this, were it not for the need to get this issue decided soon and the realities of the pressure on court lists.

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Published: 10/07/2014

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