Dondore Incorporated v Fetaimia: court refuses possession appeal after years of litigation over Albert Court flat

A County Court appeal has been dismissed after His Honour Judge Marquand ruled that a draft defence filed by the occupants of a prestigious South Kensington flat disclosed no realistic prospect of success, bringing to a head litigation spanning nearly a decade.

The case concerned Flat 5A, Albert Court, Prince Consort Road, London SW7, a property valued at between £2.5m and £3m. Dondore Incorporated, a British Virgin Islands company in liquidation acting through its joint liquidators, sought possession from Victoria and Nasser Fetaimia, who have occupied the property with their children since the mid-2000s. District Judge Jolly had refused the Fetaimias an extension of time to file their defence and made a possession order in November 2024. The Fetaimias appealed, relying upon a newly drafted defence that had not been before the judge below.

The hearing before HHJ Marquand was a "rolled up" hearing addressing both permission to appeal and the appeal itself. The parties agreed that the determinative question was whether the draft defence demonstrated a genuine dispute on substantial grounds, the threshold set by CPR 55.8(2) and equivalent to the summary judgement test under CPR 24.

The background to the dispute runs to a 2018 High Court judgement of Amanda Tipples QC (as she then was), which found that Mrs Fetaimia was the beneficial owner of the shares in Dondore and that the agreed purchase price of £900,000 had been paid in full. That judgement dismissed a possession claim brought by Mr Richard Hitt, the company's former director and registered shareholder, and ordered him to transfer the shares to Mrs Fetaimia. He did not comply.

Subsequent proceedings in the BVI resulted in the appointment of liquidators over Dondore, and Mrs Fetaimia was eventually adjudicated bankrupt in 2023, a status since discharged. Her appeals against the BVI winding-up order reached the Privy Council, where permission was refused in October 2025.

The draft defence advanced in this appeal took a markedly different position to that previously litigated. Rather than asserting Mrs Fetaimia's beneficial ownership of the shares in Dondore, the Fetaimias now contended that Dondore was neither the legal nor beneficial owner of the property. They relied principally on the fact that Dondore had not been incorporated at the time the property was transferred to it in August 2008, arguing the transfer was void under common law principles confirmed in Rolle Family & Co Ltd v Rolle [2017] UKPC 35. They also advanced claims in constructive trust, promissory estoppel and proprietary estoppel.

HHJ Marquand accepted that, as a matter of law, Dondore did not acquire legal title at the moment of purported transfer given it did not then exist. He declined, however, to find that registration under the Land Registration Act 2002 was necessarily ineffective, noting that Schedule 2 of the Act does not expressly require evidence of a company's existence and that Gelley v Shepherd [2013] EWCA Civ 1172 was decided on a concession rather than full argument.

More fundamentally, the judge found the draft defence irreconcilable with the findings in the Tipples judgement. Any trial would require the Fetaimias to give evidence directly contradicting the factual conclusions already reached, including as to the nature of the August 2008 Agreement between Mr Hitt and Mr Fetaimia. The prospect of a court accepting so fundamental a reversal was characterised as fanciful.

Applying Virgin Atlantic Airways v Zodiac Seats [2014] AC 160, the judge held that issue estoppel applied: the terms of the August 2008 Agreement had been conclusively determined between the same parties in the Tipples judgement, and the Fetaimias were precluded from advancing a contrary factual case. The court further held, applying Johnson v Gore Wood [2002] 2 AC 1, that the draft defence constituted an abuse of process. Mrs Fetaimia had consistently maintained in the BVI litigation and in her bankruptcy proceedings that Dondore was the legal and beneficial owner of the property. The attempt to reverse that position, after that approach had been exhausted, fell squarely within the Henderson v Henderson principle.

Richard Clayton KC appeared for the Appellants; Michael Pryor for the Respondent. Permission to appeal was refused.

Dondore Incorporated v Victoria Fetaimia & Nasser Fetaimia [2026] EWCC 30, County Court at Wandsworth, HHJ Marquand, 29 May 2026.