Kalidas & Anor v Kalidas

On an application for permission to appeal, a party cannot recast the case by advancing a wholly new legal basis that was not presented at trial. A general prayer for alternative relief does not cure that defect. Where the trial judge found no common intention that alleged beneficiaries should have any beneficial interest, the further inquiry under Oxley v Hiscock [2004] 3 WLR 715 into the fair extent of their shares does not arise. A proposed appeal founded on that new case has no real prospect of success, particularly where success would require a retrial.

The claimant brought possession proceedings concerning a freehold property of which he was the registered proprietor. His two brothers defended the claim and counterclaimed for equal one-third beneficial interests, alleging a common intention that the property should be owned equally. The County Court rejected that case, finding no common intention concerning beneficial ownership, ordered possession, and refused permission to appeal.

On renewal, the applicants sought to rely on Oxley v Hiscock [2004] 3 WLR 715 to advance a different case: that they might have some beneficial interest in their parents’ beneficial share, with the extent of that interest assessed by reference to the parties’ dealings. The central issue was whether that new case could be raised on appeal.

Application dismissed. Lord Justice Jonathan Parker held that the proposed appeal had no real prospect of success.

1. The case advanced at trial was that the parties had an expressly formulated common intention that the three brothers should have equal beneficial shares in the whole property. The trial judge found no common intention that the applicants should have any beneficial interest. He distinguished the parents’ intended occupation of the property from any intention to create beneficial ownership.
2. The revised grounds sought to advance an entirely new case. They asserted that the applicants might have beneficial interests in the parents’ share, rather than equal shares in the entire property. That case had not been presented to the trial judge. It was therefore not open to the applicants to advance it on appeal.
3. The alternative prayer for relief in the defence and counterclaim did not assist. A common form of prayer seeking relief in such shares as the court might determine did not authorise the introduction of a wholly new factual and legal case on appeal.
4. The approach in Oxley v Hiscock [2004] 3 WLR 715 involved a further question as to the fair beneficial share, having regard to the parties’ whole course of dealing. That question only arose after a common intention to confer some beneficial interest had been established. In light of the trial judge’s finding that no such intention existed, the further question did not arise.
5. The factual challenges had been abandoned. Even if permission were granted, success would inevitably require a retrial, and the revised grounds had no substantial basis or real prospect of success. The application was dismissed. The applicants were ordered to pay the claimant’s costs of the renewed application, subject to detailed assessment. There was no order concerning the claimant’s costs of the earlier hearing.

1. Court of Appeal (Civil Division): On renewal of the application, Lord Justice Jonathan Parker dismissed the application for permission to appeal and made costs orders.
2. London County Court: His Honour Judge Cowell ordered the applicants to give possession of the property within 14 days on 3 November 2004. The order effectively dismissed their counterclaim for beneficial interests. Permission to appeal was refused.