Between: (1) Cayman Islands Shores Development Ltd (2) Palm Sunshine Appellants (Plaintiffs below) v (1) 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 Britannia Proprietors (being the persons whose names and addresses are set out in Section B of Schedule 1 and the Re-Amended Originating Summons) Respondents (Defendants below)
| Jurisdiction | Cayman Islands |
| Judge | Sir John Goldring |
| Judgment Date | 07 March 2023 |
| Docket Number | CICA (Civil) Appeal No. 17 of 2021 |
| Court | Court of Appeal (Cayman Islands) |
The Rt Hon. Sir John Goldring (President)
The Hon Sir Richard Field JA
The Rt Hon Sir Jack Beatson JA
CICA (Civil) Appeal No. 17 of 2021
(On Appeal from FSD 143 OF 2019 (NSJ))
IN THE CAYMAN ISLANDS COURT OF APPEAL
FROM THE GRAND COURT FINANCIAL SERVICES DIVISION
Jonathan Seitler KC, Peter McMaster KC and Conal Keane of Appleby on behalf of the Appellants
John Randall KC and Nicholas Dunne, Daisy Boulter and David Lee of Walkers on behalf of the Walkers Defendants
Nicholas Dixey of Nelsons on behalf of White Dove
The Rt Hon Sir John Goldring, President
This is the judgment of the Court to which all members have contributed.
This is an appeal from a judgment dated 9 June 2021 of Segal J (“the judge”) in which the central issue was whether rights, purportedly granted in instruments dating from 1992 to 2001 to play golf, to play tennis and to enjoy facilities on certain land in and around West Bay Road in Grand Cayman, and associated restrictive agreements are, or ought to be, binding upon the current owners of that land. The judge found that those rights bound the Appellants (the Plaintiffs at first instance), subject to the need for rectification of the land register to add express reference to one legal aspect of them, namely as easements. He ordered that the land register be rectified accordingly.
The site of the area of land in dispute was previously known as the Britannia Resort. As relevant, it comprised a hotel, the Hyatt Regency Grand Cayman, a golf course situated on land adjoining the hotel (the Britannia golf course), two tennis courts situated to the west of the hotel, a beach club adjacent to Seven Mile Beach (later developed into a separate hotel with beach club facilities), three phases of residential strata developments, namely Lion's Court, Regent's Court and King's Court (phases I, II and IV), and vacant parcels of land sold for the construction of private homes, known as Britannia Estates. The hotel, golf course and tennis courts were situated on what is now registered as Block 12D, Parcel 108 (“12D 108”) in the West Bay Beach South registration section. The properties were first registered on 14 August 1984. The beach club has at all relevant times been registered as Block 12C, Parcel 27 (“12C 27”). First registration was on 29 October 1986. As the judge observed, the issues raised in these proceedings affect the proprietors of some 171 units in the three strata corporations and of 22 non-stratified lots.
The first appellant is the registered proprietor of 12D 108. The second appellant is the registered proprietor of 12C 27. (12C 27 and 12D 108 are collectively referred to below as “the Properties”). Both appellants, who were represented by Mr Jonathan Seitler KC, are companies within the Dart Group, a major landowner and developer in the Cayman Islands. The first respondent is the Registrar of Lands in the Cayman Islands, the second, third and fourth respondents are the strata corporations registered under the Strata Titles (Registration) Act in relation to Lion's Court, Regent's Court and King's Court. The fifth respondent comprises the proprietors of properties within the Britannia Estates, most of whom are members of the Britannia Estates Home Owners Association Ltd (“BEHOAL”). The first respondent has played no active part in the proceedings, although she did give evidence at the trial. The second to the fourth respondents and a majority of the registered proprietors comprising the fifth respondent were represented by Mr John Randall KC. White Dove, another Britannia proprietor, adopted the position taken by Mr Randall, two other proprietors indicated that they did not contest the proceedings, and a third decided not to participate. Hereafter, subject to any indication to the contrary, any reference to ‘the respondents’ is to the second to fifth respondents who are occasionally referred to as “the Lot Owners”.
Following registration, the hotel, the golf course, the tennis courts and the beach club were built. The hotel (sometimes referred to below as the “Hyatt Hotel”) was at first run by the Hyatt hotel chain. In the early 1990s Cayman Hotel and Golf Inc (“Cayman Hotel”) owned the hotel and the facilities. In the late 1980s and early 1990s, a related company, Ellesmere Britannia Ltd (“Ellesmere”) carried out a phased development of the residential properties which form part of the Britannia Resort. The use of the hotel's amenities and the golf course were held out as attractions to potential and actual purchasers of the residential properties within the Britannia Resort. The first set of instruments were entered into on 28 May 1992. There followed a series of broadly similar instruments reflecting the phased development of the land.
In the early 1990s there were various changes to the beach facilities. In 2003, the land containing the hotel and golf course was sold to Embassy Investments Limited (“Embassy”) and the beach club/beach suites land (12C 27) was sold to Grand Cayman Beach Suites Limited (“GCBS”), a subsidiary of Embassy. In 2004 Hurricane Ivan hit Grand Cayman. The hotel was damaged and has never been restored. It is now derelict. Apart from the tennis courts, the other facilities were restored. Between 2005 and 2007 a highway was constructed through the Britannia Resort. Part of the site of the tennis courts was demolished. Access from the Britannia Resort to the beach facilities was made difficult. It now involved crossing a four-lane highway.
In May 2016 the first appellant purchased Blocks 12D 108 and 12C 27. It was registered as proprietor on 25 August 2016. Embassy continued to manage and operate the facilities for a short time. On 5 May 2016 Dart Realty (Cayman) Ltd (“Dart Realty”) informed the strata corporations and BEHOAL by letter that plans were being considered for redeveloping the properties and offered to make the beach facilities and golf course available for use by the strata Lot Owners and Britannia Proprietors as licensees. They responded that they had property rights. On 22 July 2016, by a further letter, Dart stated that legal proceedings would be taken to determine the legal position and that pending resolution the golf course and the beach facilities would be closed. In or around 2018 the beach facilities were redeveloped. In October 2018 the first appellant transferred 12C 27 to the second appellant. Subsequently the beach facilities were re-opened.
The instruments normally followed a consistent form, albeit that on some, for present purposes, immaterial, occasions there were slight variations in content. We take the first set of documents as an example.
What the judge described as the First Document has as its heading, “CAYMAN ISLANDS, The Registered Land Law 1971 [now referred to as the Registered Land Act 1971], RESTRICTIVE AGREEMENT.” The document reference number is RL 12 (or sometimes, 12). There is a “REGISTRATION SECTION” such as West Bay Beach South, and thereafter reference to the block and parcel of land to which the document refers. It then states:
“WE CAYMAN HOTEL AND GOLF INC in consideration of CI$1 (the receipt of whereof is hereby acknowledged) HEREBY MAKE AGREEMENT with the proprietors of Strata Plan Nos. 79 and 147 and Ellesmere Britannia Ltd…
the proprietors of the interest comprised in Parcel Nos. 25.40(b) 38 and 39 in accordance with the attached documents.”
The document is signed and witnessed on behalf of Cayman Hotel, the proprietors of the strata plans and Ellesmere. At the foot of the first page, under the heading “FOR OFFICIAL USE ONLY,” it states:
“I, the Registrar of Lands in the Cayman Islands hereby certify that this document was received by me for registration on the 2 nd day of June 1992 and that stamp duty…[has] been paid.”
It is then signed by the Registrar of Lands.
As the judge said (at [27(g)]), each of these documents covers and relates to a number of parcels in respect of which the relevant proprietors have an interest, but only one of the parcels is owned by Cayman Hotel (either the golf course, the tennis courts or the beach club).
The “attached documents” comprise an “AGREEMENT” between Ellesmere, Cayman Hotel and the proprietors of the relevant strata plan (hereinafter referred to as “the Agreement” or “the Agreements”). Although the Agreements are similar, they are not identical. For the purpose of the trial the parties selected a number as representative of the totality. One of the agreements made on 28 May 1992 recites as follows:
“WHEREAS
1. Ellesmere is the developer of the Britannia Condominium Complex of which Phase 1 is complete and Phase II is in the course of construction…
2. Cayman Hotel is the owner of the Hyatt Hotel, a Beach Club facility and a Golf Course which together with the complex referred to in 1 above, comprises the Britannia Resort in Grand Cayman.
3. The Britannia Resort is a planned community offering both hotel and condominium facilities with amenities for transient guests and condominium owners.
4. Ellesmere and Cayman Hotel are related companies…
5. In order to market the Resort and specifically the sale of condominium units owned by Ellesmere, Ellesmere and Cayman Hotel have granted certain Rights in respect of the use of the Golf...
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