Ghassemian v Chatsworth Court Freehold Company Ltd & Ors

A writ of possession which has been executed may be set aside only in exceptional circumstances, including where the underlying possession order is set aside, the writ was obtained by fraud, or its execution involved abuse of process, vexation or oppression. Repeated attempts to obtain substantially the same relief are an abuse unless there has been a material change of circumstances. Actual notice sufficient to enable an occupant to seek relief may satisfy CPR 83.13(8)(a); in any event, absence of procedural notice will not justify relief without oppressive execution. Previous findings of dishonesty cannot generally prove the same facts in later proceedings, but may be relevant when deciding whether to impose an extended civil restraint order.

The applicant, the son of the registered proprietor of a long lease, sought again to set aside an executed writ of possession concerning a flat. The writ enforced an order for sale made following unpaid service charges, a charging order and unsuccessful challenges and appeals. He alleged, among other matters, that he was a regulated tenant, that the writ had been improperly issued, and that he had not received adequate notice.

The respondents sought an extended civil restraint order and discharge of an order obtained ex parte from Henderson J. restraining dealings with the property. The court also transferred and determined a related application to join the applicant to separate proceedings concerning the same property. The central issues were whether the repeated applications were an abuse of process, whether the writ had been oppressively executed, and whether the ex parte order should remain in force.

1. Writ of possession. The application to set aside the executed writ was dismissed as an abuse of process and totally without merit. The governing principles, summarised in Ephson Homes Housing Association v Moisejevs [2001] 33 HLR 594, permit intervention after execution where the possession order is set aside, the writ was obtained by fraud, or its execution involved abuse of process or oppression.
2. The applicant had repeatedly sought the same or substantially the same relief. The revocation of permission to appeal weakened rather than strengthened his position, and no material change justified reopening the matter. The alleged regulated tenancy could not be raised as a collateral challenge to the order for sale after the available appeals had failed.
3. The evidence established no oppression in the execution of the writ. The applicant had actual notice of the relevant proceedings and had made numerous applications for relief. The court therefore did not need to determine the precise notice requirements under CPR 83.13(8)(a). Even assuming that notice had to be given, the facts did not justify setting aside the writ.
4. A practice note concerning N293A forms could not invalidate a writ already executed in accordance with the procedure applicable at the time, and in any event had no relevance because the writ had not been obtained using an N293A form.
5. Civil restraint order. An extended civil restraint order was made because the applicant had made several applications that were totally without merit, repeatedly re-litigated matters, obtained orders ex parte by misleading the court, and showed a continuing intention to issue further collateral applications.
6. Henderson J.’s order. The order restraining the respondents from exchanging contracts or removing contents was discharged. It had been obtained ex parte in proceedings which did not concern the sale of the property and extended beyond the limited undertaking actually offered.
7. Related application. An application to join the applicant and set aside the possession order was transferred under section 41 of the County Courts Act 1984 and dismissed as a further abuse of process and totally without merit. Permission to appeal was refused. Indemnity costs were ordered, and the papers were referred to the appropriate authorities.

First-instance decision. The judgment records earlier County Court, High Court and Court of Appeal orders and appeals, but no appeal from this decision.