Walker v Somboonsarn [2025] EWHC 1643 (Ch)

Robert Strang (instructed by Germain Kalle Law) for the Defendant

• HHJ Davis-White KC (the Judge) heard the trial of a claim brought by Vanida Walker against her son Ekkachai Sombooonsarn over eight days in May 2023. The claim concerned the beneficial ownership of three companies, through which the claimant and defendant operated a number of restaurant businesses and of a number of properties. In April 2024 the Judge handed down a comprehensive judgment running to 686 paragraphs (the Judgment).

• In the order made on 7 May 2024 giving effect to the Judgment it was declared that the legal and beneficial ownership under the right to subscribe of the right to the shares in Finfish Catering Limited (Finfish), Anglo Thai Limited (ATL) and Thai Metro Limited were vested in the claimant. It was also declared that the defendant holds the beneficial ownership of the freehold properties at 78 Hermit Road London E16 4LF (78 Hermit Road) and 38 Charlotte Street London W1P 1HP (38 Charlotte Street) on trust for the claimant as sole beneficial owner.

• The order went on to direct that:

(i) “an equitable account be taken of rent received by and any liabilities incurred by the Defendant in respect of 78 Hermit Road and 38 Charlotte Street”; and

(ii) “an equitable account be taken of all dividends paid out of Thai Metro Limited, Anglo Thai Limited and Finfish Catering Limited since the dates of incorporation of those companies”;

and the taking of the accounts be listed before a Master . This is my judgment on the taking of those accounts.

• Orders for directions as to the taking of the account were made and complied with as follows:

(i) the defendant was to file a schedule of rents and liabilities for the two properties and a schedule of dividends. The defendant’s wife compiled 5000+ pages of material including a summary (Bundle B) which was verified by a one page witness statement of the defendant dated 29 July 2024;

(ii) the claimant was to file notice of objection. This was done by way of a witness statement of the claimant’s daughter based on the claimant’s instructions and dated 23 September 2024;

(iii) the defendant was to file a response to the objections in Scott Schedule format and the parties were to meet and discuss with a view to agreeing a list of issues disputed and agreed in order that the claimant would then file a statement of matters disputed and agreed together with a spreadsheet Scott Schedule. The claimant has endeavoured to comply with that direction; an unagreed list of issues dated 13 May 2025 and accompanying spreadsheet are included in the hearing bundle. That spreadsheet is the starting point for the adjustments which I will direct in this judgment.

• The defendant filed and served a further witness statement dated 4 June 2025. It exhibited 242 pages of documents. The claimant objected to that witness statement. The defendant made an application to rely on the statement orally at the commencement of the hearing. For the reasons I gave after hearing that oral application I did not permit the defendant to rely upon that witness statement or the material exhibited to it.

• There remain three areas of dispute:

(i) a claim by the defendant that contributions he says he made to the purchase price of 38 Charlotte Street be credited to him in that account;

(ii) a claim by the defendant that expenses and costs incurred at 78 Hermit Road while it was rented out should be chargeable by him as trustee expenses in that account;

(iii) in respect of dividends paid out to the defendant while he was trustee of the shares of Finfish and ATL that their amount be awarded to him as remuneration for acting as director of those companies so he has nothing to pay on that account.

Relevant Law

• [41-005] of Lewin on Trusts 20th Edition says this about the taking of an account in common form:

“A claimant to an account in common form need not allege or prove any default in the trustee’s dealings. An order for an account of administration in common form requires the trustee to account only for what he has actually received, and his disbursement and distribution of it. Accordingly, such an account enforces the trustee’s primary duty to hold the trust property for the beneficiaries, paying out sums only as he is authorised to do under the terms of the trust. It is thus incumbent on the trustee to justify any payments made, and not on the beneficiary to prove any breach of trust.”

• The onus is thus on the defendant to prove factually that payments were made and justify all payments alleged to have been made as trustee qua trustee. It is not for the claimant to prove that they are unjustified.

• Mr Cowen referred me to the recent decision of Rukhadze v Recovery Partners GP Ltd [2025] UKSC 10 where Lord Briggs summarised the court’s discretion to credit a fiduciary in an account of profits with an equitable allowance as follows:

“it compensates the fiduciary in an appropriate case for his devotion of work and skill, and perhaps the putting at risk of his own capital, in generating the relevant profits. The court applies a broad brush in determining the amount of the allowance and it does indeed limit the potential for injustice in the traditionally strict enforcement of the duty to account. This ability to temper the wind to the shorn lamb is a familiar equitable tool. Beyond that there is a fuller description of the equitable allowance in the judgment of the Court of Appeal in the present case at paras 112-123, with which neither of the parties before this court took exception.

• Mr Cowen referred me to the passages referred to in the decision of the Court of Appeal [2023] EWCA Civ 305 and directed my attention to the following points:

(i) making an equitable allowance will be exceptional [116];

(ii) the ultimate test is whether it is inequitable on the facts for the beneficiaries to take the profits without paying for the skill, labour and risk which produced it [116];

(iii) an allowance will not be made if it would be seen as encouraging fiduciaries to breach their duties [116];

(iv) dishonesty, bad faith or surreptitious dealing may mean no allowance will be made [117]; and

(v) a claim to an equitable allowance should be pleaded and proved by evidence [123].

Continue reading this Judgment here.