An Application by Cayman Shores Development Ltd and Palm Sunshine Ltd under section 140(1) of the Registered Land Act (Revised) (the Act ) or alternatively under section 96 of the Act and an Application by Cayman Shores Development Ltd and Palm Sunshine Ltd, pursuant to section 96 of the Act, that certain rights under certain restrictive agreements registered against Block 12D 108 and Block 12C 27 be wholly or partially extinguished or modified Between: (1) Cayman Shores Development Ltd (2) Palm Sunshine Ltd Plaintiffs v (1) The Registrar of Lands (2) The Proprietors, Strata Plan No. 79 (known as Lion's Court) (3) The Proprietors, Strata Plan No. 147 (known as Regent's Court) (4) The Proprietors, Strata Plan No. 215 (known as King's Court) (5) The Britann
| Jurisdiction | Cayman Islands |
| Judge | Mr Justice Segal |
| Judgment Date | 28 January 2022 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | FSD CAUSE NO: 143 OF 2019 (NSJ) |
In the Matter of an Application by Cayman Shores Development Ltd and Palm Sunshine Ltd under section 140(1) of the Registered Land Act (Revised) (the Act) or alternatively under section 96 of the Act
and
In the Matter of an Application by Cayman Shores Development Ltd and Palm Sunshine Ltd, pursuant to section 96 of the Act, that certain rights under certain restrictive agreements registered against Block 12D 108 and Block 12C 27 be wholly or partially extinguished or modified
The Hon. Mr Justice Segal
FSD CAUSE NO: 143 OF 2019 (NSJ)
(FORMERLY CAUSE NO: 13 OF 2019)
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FINANCIAL SERVICES DIVISION
Jonathan Seitler QC with Peter McMaster QC and Conal Keane of Appleby (Cayman) Ltd on behalf of the Plaintiffs
John Randall QC with Colette Wilkins QC, Nick Dunne, and Daisy Boulter of Walkers on behalf of the Walkers Defendants
Nigel Gayle, Crown Counsel (Civil), on behalf of the First Defendant
Nicholas Dixey of Nelsons on behalf of White Dove
This is my judgment dealing with various consequential matters and issues that arise out of my judgment dated 9 June 2021 (the Judgment), following a hearing on 7 and 8 December 2021 (which was conducted remotely via a video link). Reference should be made to the Judgment for the relevant background (and for the defined terms, which I also use in this judgment).
Prior to the hearing, the Plaintiffs had issued a notice of appeal dated 23 June 2021 supported by grounds of appeal dated 22 July 2021 (the appeal is listed to be heard by the Court of Appeal on 11–13 May 2022) and (on 15 October 2021) issued a summons seeking a stay pending the outcome of the appeal of the order to be made following the Judgment for rectification of the register.
Prior to the hearing the parties had discussed and substantially agreed the form of order to be made to give effect to the Judgment. However, there were a number of issues on which they were not agreed which needed to be dealt with by the Court. For the purpose of the hearing, the parties filed a draft order which identified the points in dispute and the wording proposed by the Plaintiffs and the Walkers Defendants.
I would note that, as at the trial, White Dove was represented separately by Nelsons (and that Mr Dixey of Nelsons appeared and made brief submissions at the hearing) but that White Dove generally supported and adopted the position taken by the Walkers Defendants on the basis that any orders made in respect of the Walkers Defendants should apply to White Dove, with one exception. As Mr Dixey confirmed during the hearing, White Dove was not seeking a payment on account of its costs (but did wish to claim that it was entitled to recover pre-issue costs). In addition, the First Defendant was represented at the hearing by Mr Gayle from the Attorney General's Chambers, who made brief but helpful submissions regarding the First Defendant's position just before the hearing ended.
The issues in dispute with which I have to deal are as follows:
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(a). how to record and deal in the order with the position of the First Defendant with respect to the form of the Instruments and the rectification of the register for the purpose of registering the Rights as easements.
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(b). whether the stay of the order for rectification should be made conditional on the Plaintiffs giving various undertakings sought by the Walkers Defendants and White Dove.
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(c). the scope of the instructions to be given to the experts on golf course management who are to be instructed by the Plaintiffs and the Walkers Defendants in connection with the assessment of the damages payable by the Plaintiffs in respect of the nuisance to the easement constituting the Golf Playing Rights caused by the removal of turf.
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(d). costs:
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(i). whether the costs of the claim and counterclaim should be assessed separately or together as a whole.
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(ii). the costs of the claim as between the Plaintiffs, the Walkers Defendants and White Dove.
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(iii). the costs of the counterclaims as between the Plaintiffs, the Walkers Defendants and White Dove.
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(iv). whether an order should be made at this stage that any taxable costs payable to the Walkers Defendants should include pre-action costs.
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(v). whether an order should be made for the payment of a reasonable sum by way of costs on account and if so, what is the reasonable sum?
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(vi). if a payment on account is to be made, how should the payment be held or dealt with pending the outcome of the appeal?
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In the Judgment, I held that the Walkers Defendants (and White Dove) were entitled to rectification of the register for the purpose of registering the Rights as easements and that the Rights had validly been granted as easements even though the instrument creating the easements was not in the prescribed form. In my view, where the relevant instrument was in a substantially similar form to the prescribed form and otherwise unobjectionable (and where it had been accepted and thereby approved for the purpose of registering the Rights as restrictive agreements), so that there appeared to be no grounds on which the First Defendant would have wished to refuse or could properly have refused to accept the instrument on it being delivered for the purpose of registering the Rights as easements, the failure to use the prescribed form should and did not prevent a valid easement having been granted or the Court ordering the rectification of the register so as to allow for the registration of the Rights as easements (if otherwise appropriate). I also considered that the First Defendant should, in the proper exercise of her powers, have approved the Instruments if they had been so delivered for this purpose and that it was likely that the Walkers Defendants (and White Dove) could have required her to do so.
However, while the First Defendant had not objected to the form of the Instruments when previously presented for the purpose of recording the restrictive agreements or at the trial, it appeared to me (as I indicated in particular at paragraphs 149(h) and 213 of the Judgment) that, as a matter of procedural fairness (since the point had not arisen in precisely this way at the trial) I should give the First Defendant an opportunity to indicate whether she wished to object to rectification of the register on the basis that the Instruments were not in an acceptable form and to make submissions in support of the position that she took on this issue (in effect giving her an opportunity to challenge or comment on my findings or assumptions as to her position and my views as to the manner in which she was required to exercise her powers), before making an order for rectification. If she did have objections, a further hearing would probably have been needed to deal with them and it may have been appropriate to give directions for the filing of further submissions by the parties. If she did not, then the order for rectification could be drawn up and made.
After the handing down of the Judgment, there were discussions between the First Defendant and the other parties regarding the First Defendant's position and whether the First Defendant should refrain from providing any formal confirmation of her position on this issue pending the outcome of the appeal (as I said at the December hearing, in my view it would have been helpful if the parties had sought the listing of a further and separate hearing promptly after it became clear that there were disagreements and uncertainties as to how the First Defendant should act, to give the First Defendant the opportunity promptly to seek further guidance from the Court as to what was expected from her and to give the parties the opportunity to seek further directions as appropriate).
These discussions culminated in an email dated 1 December 2021 sent by Mr Gayle to the attorneys for the other parties. Mr Gayle said as follows (the words in bold and underlined were in the original email):
“We appear for the Registrar of Lands, the First named Defendant and provide the following information prior to the imminent hearing, to provide, among other reasons, clarity. The statement does not and is not in any way, intended to address or prejudice the issue of stay of the paragraph 213 request or the terms on which such confirmation from the Registrar may be given, pending final disposition of the appeal.
Statement of the Registrar of Lands' position at this point
The Registrar of Lands hereby confirms that, subject to any further and/or consequential orders, directions and/or clarification by the Grand Court, and/or appellate court, she is prepared to and will in compliance with the relevant court order(s) and in accordance with, inter alia, paragraph [213] of the Judgment — take no objection as a matter ofform, to the registration of the Instruments as containing easements if so ordered, by way of rectification of the register (by amending the nature of incumbrance section to refer to “restrictive agreements and easements”), based on the Instruments in their current form. The Registrar however reserves the right to, at the hearing (if necessary), seek clarity with respect to the terms of and/or any aspect of such order(s) or request, to ensure full compliance, when or if becomes necessary.”
The Plaintiffs argued...
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