Wednesday 22 March 2023
By Appellant’s Notice filed on 5 September 2022, the Claimant CNM Estates (Tolworth Tower) Limited, appeal the order of Julia Dias QC sitting as a Deputy High Court Judge dated 14 June 2022 by which she dismissed its application whereby CNM sought permission to re-re-amend its particulars of claim to advance a case of gross negligence and/or wilful default.
Background – CNM is a limited company which undertakes property development work and Mr Wahid Samady is the director. On 2 October 2015 CNM acquired the property known as Tolworth Tower for a purchase price of £54.25m. The acquisition was funded in part by loans in the form of a Senior Facility Agreement and a Mezzaine Facility Agreement. These facilities were secured by a debenture and a mortgage of the Development Site. On 10 August 2017 Mr Carvill-Biggs and Mr Khalastchi were appointed as receivers under the debenture and/or the mortgage of the Development Site.
On 19 October 2017 the Receivers engaged Knight Frank LLP to market the Development Site for sale and the marketing commenced on or about 20 October 2017. For the purpose of marketing the Development Site the Receivers arranged for an online virtual data room to be opened. This did not include any information about the surrendering of the lease of one of the units, the Broadway Bar Café, and that this was available to be purchased. The marketing and bid process was closed on 29 November 2017. The bid which was accepted was submitted by Tolworth Tower Investment Limited and was approximately £16.6m lower than actual market value of the Development Site. The Claimant alleges that the Receivers acted in breach of their agreed equitable duty to exercise reasonable skill and care, including the duty to obtain the best price reasonably obtainable on any sale of the Development Site.