Idris-Goudarz v Goudarz

A party seeking to avoid or reduce liability under a written compromise must establish the alleged subsequent agreement, variation, waiver or estoppel on the evidence. Informal family arrangements may lack contractual intention, consideration or sufficiently certain terms. Where a deed provides for reimbursement through sale proceeds, a party cannot ordinarily recast payments made under that deed as a separate debt or set-off. A contractual indemnity for costs incurred in recovering sums due under a deed may extend to enforcement proceedings, but not necessarily to the costs of an independent cross-claim. An oral variation may fall outside a contractual requirement for prior written agreement where the parties have made a later agreement inconsistent with that requirement, although no such variation was established here.

The court tried together an application by Barasa Adele Idris-Goudarz to enforce a Deed of Compromise incorporated into a Tomlin Order and a claim by Khosrow Goudarz. The deed required staged payments, interest and security over various properties. Mr Goudarz alleged that expenditure on repairs, mortgage payments and other property outgoings created debts or set-offs against the sums due under the deed. Ms Idris-Goudarz denied the alleged agreements and sought payment of the remaining balance and release of sale proceeds held by solicitors.

The central issues were whether the alleged oral agreements or an all-square agreement existed, whether expenditure gave rise to contractual or restitutionary claims, how the deed governed mortgage and property expenditure, and the scope of its contractual costs provision.

1. Disposition. The claim by Mr Goudarz was dismissed. Mr Goudarz was ordered to instruct the solicitors holding the net proceeds of sale of 15 Spring Sedge to release them to Ms Idris-Goudarz’s solicitors. He was ordered to pay the balance due under the deed, less half those proceeds, with simple interest at 4% per annum. Costs of the enforcement application were payable on the indemnity basis; costs of Mr Goudarz’s claim were payable on the standard basis, with £80,000 paid on account.
2. The court found no “all square” agreement and no enforceable agreement concerning the alleged expenditure on 18 Tunbridge Lane and 40 Bailey Mews. The arrangement made at the Iranian restaurant was a loose family arrangement, not a contract. There was no consideration, no obligation on Mr Goudarz to carry out the work, and no agreed term requiring Ms Idris-Goudarz to pay for materials or contractors. The alleged agreements concerning 10 Nene Road, 15 Spring Sedge and the Hall were likewise not established.
3. Mortgage payments were governed by the deed. Mr Goudarz had paid his 50% share before 31 October 2015 and, while remaining at the Hall, was required to pay the full mortgage thereafter, subject to reimbursement of 50% from the Hall’s sale proceeds. Those payments did not create a separate debt enforceable in the claim.
4. The court declined to entertain an unpleaded and unevidenced unjust-enrichment case. Any such claim would require consideration of the lesser of the cost of the works and the increase in value attributable to them.
5. Paragraph 2(5) of the deed gave Ms Idris-Goudarz a contractual entitlement to the costs of recovering sums due, including the enforcement application. Following Bank of Baroda v Panessar [1987] Ch 335, “all” costs meant all such recovery costs. Following Gomba Holdings UK Ltd v Minories Finance Ltd [1993] Ch 171, the court’s discretion should normally reflect that contractual entitlement, but the provision did not extend to the costs of Mr Goudarz’s independent claim.
6. The court considered the approach in MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2018] UKSC 24, [2019] AC 119, but found it unnecessary to decide the point because no relevant subsequent agreement had been proved.

This was a first-instance trial. The court tried together the enforcement application and Mr Goudarz’s claim after the claim had been transferred from the County Court Money Claims Centre to the High Court, Chancery Division. Permission to appeal was refused, subject to any application to the appeal court.