Ghassemian v Tigris Industries Inc

An appeal is against the order, not merely the reasons, and ordinarily involves review rather than rehearing. The appellate court may intervene where the decision below contains an error of law, a serious procedural irregularity, or a factual or evaluative conclusion that was not lawfully open to the judge. The burden of proving entitlement to enforce a charging order lies on the claimant. Where registration gives rise to a prima facie case of legal and beneficial ownership, an evidential burden may shift to the person alleging a trust. In a complex evaluative decision, questions of weight remain for the trial judge, but the judge must address material evidence. If a material evidential matter was not properly taken into account, the appeal may be allowed and the issue remitted for trial with oral evidence.

Tigris Industries Inc obtained a charging order over a property registered in Hamila Ghassemian’s name and sought its enforcement by sale. Ghassemian, also known as Hamila Sartipy, relied belatedly on a photocopied declaration of trust to assert that she held the property as bare trustee. The Master was not satisfied that the declaration was genuine or had been made in 1986, and ordered a deferred sale. He also found that a will was not genuine, but that finding was immaterial to the order.

Ghassemian appealed, alleging errors concerning the burden of proof, the assessment of evidence, fraud or sham, and procedural fairness. The central issue was whether the Master had properly evaluated material evidence recorded in an earlier judgment concerning the declaration’s existence in 1986.

1. Appeal allowed; issue remitted. The appeal was an appeal against the order, not the reasons, and was limited to review of whether the Master had made an error of law or whether a serious procedural irregularity had rendered the order unjust. It was not a rehearing.
2. The burden on the Part 8 claim lay on Tigris to establish entitlement to an order for sale. The charging order and the property’s registration in Ghassemian’s sole name without restriction or notice established a prima facie case that legal and beneficial ownership were identical. An evidential burden then lay on Ghassemian to support her allegation that she was a bare trustee. Producing a photocopy did not prove the declaration’s authenticity. She had to adduce evidence sufficient to prevent Tigris establishing, on the balance of probabilities, that she was beneficially entitled.
3. The Master had not misunderstood those burdens. Nor could the appeal succeed merely because the appellant preferred a different assessment of the evidence. The primary factfinder is the trial judge. In a complex evaluative decision, the appellate question is whether material evidence was omitted, immaterial evidence was wrongly taken into account, or the outcome was so plainly wrong that such an error must have occurred.
4. The Master had referred to the relevant passages of District Judge Madge’s judgment, but the appellate court could not be satisfied that he had taken them into account in evaluating whether the declaration existed in 1986. Those passages recorded evidence that Mills-Thomas had claimed authorship and that a copy of a signed declaration had been held by the landlords. That omission was material.
5. It was wrong to determine on appeal, on written evidence and amid substantial suspicion, whether the declaration was authentic. The issue was remitted for trial before a Master with oral evidence. The court did not determine the separate sham ground, which had been unnecessary to the Master’s operative decision and had not been argued.

1. High Court (Chancery Division): appeal from the order of Master Teverson dated 28 January 2013 allowing enforcement of a charging order by deferred sale. The appeal was allowed and the authenticity issue was remitted for trial with oral evidence.