Natalia Nikolaeva Rotenberg v Arkady Romanovich Rotenberg & Ors
[2024] EWFC 185
David Raymond Brierley v Frank Otuo & Ors
21 April 2023
[2023] EWHC 919 (Ch)
High Court
Two people fought over houses for years. The court decided the debts that let one person claim the houses were paid off. So, that person can't sell them to get back their money spent trying to sell them. One house's sale is paused until a part of the money is paid into court for a proper assessment.
Key Facts
- •Long-running litigation between David Brierley (Claimant) and Frank Otuo (Defendant).
- •Le Poidevin order mandated the sale of 311 Leigham Court Road and 31B Oxford Road to satisfy costs orders.
- •A £250,000 payment was made by the Defendants under a 2020 consent order.
- •The 2012 claim charging orders underpinned the sales order.
- •311 Leigham Court Road remained unoccupied after the claimant gained possession.
- •The claimant sought to recover costs of sale even after discharge of the 2012 charging orders.
Legal Principles
In the absence of an express term, there's no implied obligation on a mortgagor to pay a mortgagee's costs of sale; these costs are added to the secured debt, payable on redemption.
Fisher & Lightwood's Law of Mortgage, para 55.6
A charge holder is entitled to reimburse themselves from the charged property for costs reasonably incurred in enforcing security.
Holder v Supperstone [2000] 1 All E.R. 473
Costs of attempted sale are recoverable.
Corsellis v Patman (1867) L.R. 4 Eq. 156; Farrer v Lacy, Hartland & Co (1885) L.R. 31 Ch.D. 42
The court can revisit and correct its own errors.
In re L and another (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8
Outcomes
The 2012 claim charging orders on both properties were discharged.
Payment of the underlying debt discharged the 2012 charging orders on 311 Leigham Court Road; on 31B Oxford Road, charges were discharged by agreement.
The claimant's claim for OXR costs is rejected.
The 2020 consent order removed the claimant's entitlement to OXR costs by discharging the charges on 31B Oxford Road; there was no personal liability created for these costs.
The claimant's claim for LCR costs is rejected.
Discharge of the 2012 charging orders removed the basis for recovering LCR costs; the Le Poidevin order didn't create independent personal liability; the 2020 charging orders don't support the claim.
The order for sale of 311 Leigham Court Road is stayed.
The jurisdictional basis for the sale (the 2012 charging orders) was discharged. A stay is granted pending detailed assessment of LCR costs upon payment of £25,000 into court.