Landmark Mortgages Ltd v Bamrah & Anor

An appellate court may interfere with a factual conclusion founded on a material misreading of documentary or witness evidence, particularly where the conclusion rests solely on an alleged admission which the evidence does not support. A mortgagee’s claim must be assessed on the evidence of the sums due. Under Administration of Justice Act 1970, section 36, suspension of possession requires evidence that the mortgagor is likely to pay the sums due within a reasonable period. A suspension based on the ability to pay an understated judgment debt cannot stand when the correct debt is substantially higher and there is no evidence that it can be paid within a reasonable time.

The appellant mortgagee succeeded before HHJ Faber in possession proceedings concerning a mortgaged dwelling-house, but the judge reduced the claimed debt from £355,457.54 to £200,000. The reduction rested on a finding that three cheque stubs evidenced payments which had not been credited to the mortgage account.

The mortgagee appealed, contending that the judge had misunderstood a witness statement and had treated it as conceding that the three payments had been made to the mortgagee. The respondents did not challenge the finding concerning the alleged overriding interest. The appeal concerned the correct amount of the judgment debt and whether possession could properly remain suspended.

1. Appeal allowed. The judge’s order was varied so that judgment was entered for the mortgagee in the sum of £355,457.54.
2. The witness statement relied on below did not support the finding that the three disputed cheque stubs represented payments to Northern Rock. The statement was consistent with the transaction record, which showed the last credited cheque in July 2012. It did not state that every disclosed stub related to payments received by Northern Rock.
3. The disputed stubs did not identify Northern Rock as payee and did not refer to the mortgage. The judge also failed to address that material feature. Her conclusion depended entirely on the supposed admission, without an adverse credibility finding against the mortgagee’s witness. The appellate court was therefore entitled to interfere.
4. Under Administration of Justice Act 1970, section 36, suspension of possession requires it to appear that the mortgagor is likely, within a reasonable period, to pay the sums due or remedy the relevant default. The suspension below was based on the respondents’ alleged ability to raise £200,000. There was no evidence that they could pay the corrected debt of £355,457.54 within a reasonable period.
5. The respondent was therefore required to give vacant possession. The court invited the mortgagee to agree a relatively generous date for the possession order to take effect.

1. High Court (Queen's Bench Division): Appeal allowed. The order below was varied, judgment was entered for £355,457.54, and vacant possession was required.
2. Central London Civil Justice Centre: HHJ Faber awarded the mortgagee £200,000 and suspended possession on condition that the sum was paid by 2 June 2017.