Cayman National Bank Ltd v Scott Bertram Henderson

• Jurisdiction: Cayman Islands
• Judge: Richard Williams
• Judgment Date: 28 August 2019
• Court: Grand Court (Cayman Islands)
• Docket Number: CAUSE NO. G 478 OF 2012
• Date: 28 August 2019

Between:

Cayman National Bank Ltd.

Plaintiff

and

Scott Bertram Henderson

Defendant

Before:

Hon. Justice Richard Williams

CAUSE NO. G 478 OF 2012

IN THE GRAND COURT OF THE CAYMAN ISLANDS

CIVIL DIVISION

HEADNOTE

Land Law — charges — power of sale — order for possession s. 75(2) Registered Land Law (2018 Revision)

Appearances:

Mr. David Collier & Mr. Travis Ritch of Ritch & Conolly for the Plaintiff

The Defendant in person

Application

1 On 26 August 2019 I heard the Plaintiffs Summons filed on 19 July 2019 in which the following relief is claimed:

• (i) An order that the Plaintiff be granted an Order for Possession in respect of the property registered as Savannah, Block 27C, Parcel 409 (“the Property”); and

• (ii) An order that the Plaintiff do have leave to issue a Writ of Possession in relation to the Property.

2 The evidence supporting the Plaintiffs Summons was taken from the Third Affidavit of Vadonna McLaughlin which was sworn on 18 July 2019. I have also read Vadonna McLaughlin's affidavits sworn on 10 March 2016 and on 25 January 2013, the Affidavit of Rick Burgos sworn on 9 March 2016 and the affidavit of the Defendant sworn on 15 April 2016.

3 At the outset of the hearing the Defendant applied for an adjournment to organise legal representation from Chapmans who had represented him at a hearing before Mangatal J in March 2016. The application to adjourn was opposed by the Plaintiff. The Defendant stated that he has had insufficient time to prepare for the proceedings and to obtain the services of an attorney. He said that his proposed attorneys only contacted him last week, indicating that they would require a $6,000 retainer to enable them to represent him. He said that he does not have $6,000 and was not clear when he would be in a position to properly instruct them. However, he was served on 31 July 2019, just under four weeks prior to the hearing. Although sympathetic to his predicament, I was satisfied that the Defendant had been given sufficient notice to obtain legal representation and I refused the application for an adjournment. In reaching my decision, I have regard to the Overriding Objective and my duty to deal with every case in a just, expeditious and economical manner. At the hearing, it became clear that Mr. Henderson is an intelligent individual and that he was able to lucidly present his case.

4 After hearing the submissions of the parties, I made an order in the terms of the Summons. The Plaintiff's Counsel indicated that the vacant possession date and the date for leave to issue a writ of possession should be three to four weeks. When carrying out the balancing exercise, I felt it appropriate that eight weeks be given, namely 21 October 2019.

Background

5 On 16 August 2011 a charge over the Property in favour of the Plaintiff was registered for the principal sum of US$369,600 (“the Charge”). It was a provision of the Charge dated 27 April 2011 that monthly payments would be made of principal and interest in the sum of US$2,649. No issue has been taken by the Defendant at any time during these proceedings concerning the form of the Charge.

6 Unfortunately, within only three weeks of signing the Charge, the Defendant lost his employment. The Defendant has not had the benefit of a regular income since that date and, as a consequence, he has struggled to make the required payments to the Bank. He has also been through divorce proceedings and has been the parent responsible for bringing up the 9 year old daughter of the marriage.

7 The Defendant was unable to pay the full amount due each month from around September 2011. By 25 January 2013 arrears in payments amounted to US$24,026.48, with the last payment being made on 19 July 2012.

8 The Plaintiff decided that it needed to regularise the position. Notices under s.64(2) and 72(1) of the Registered Land Law (2004 Revision) (“the Law”) dated 2011 demanding full payment of the sums outstanding were properly served on the Defendant. Due to the Defendant continuing to default, an Originating Summons was issued on 3 December 2012 in which orders were sought, pursuant to the provisions of the Law.

9 No issue has been taken at any time concerning the above Notices. On 26 April 2013, upon hearing Counsel for the Plaintiff and the Defendant in person, Quin J ordered:

• (i) That subject to paragraph (iii) the Plaintiff shall be entitled to sell the Property by either private treaty or public auction;

• (ii) that subject to paragraph (iii) the Property may be listed in the CIREBA Multiple Listing System (“MLS”) with a list price of CI$475,000 1 and with the Plaintiff having leave to conduct any proposed sale; and

• (iii) that paragraphs (i) and (ii) of the order would be stayed for a period of nine months, so the Defendant can attempt to regularise his borrowing with the Plaintiff to its satisfaction.

10 The Property was listed for sale on the MLS system on 14 April 2014 and an offer was not received until the list price was reduced to CI$325,000. An offer was made in the sum of CI$300,000, but the counter offer of CI$320,000 was rejected by the potential purchaser. By 10 March 2016 the arrears on the mortgage had increased to US$112,706.52, with interest, continuing to accrue at a daily rate of US$77.98. The principal sum had increased to $469,840.91. The Plaintiff contends that the realtor had difficulties showing the Property due to a lack of cooperation from the Defendant. The Defendant indicated during the hearing before me that this was not the case and that he was frequently out of the jurisdiction on business when requests were made to show the Property. For the purpose of today's hearing, I am not required to explore that issue.

11 With the Practice Direction No. 5 of 2012 and the Practice Direction No. 4 of 2014 in mind the Plaintiff issued a Summons on 1 February 2016 seeking an order

for vacant possession, leave to issue a Writ of Possession and an order setting aside the reserve price of CI$475,000

12 At a hearing before Mangatal J on 19 April 2016, the parties, with the assistance of their legal counsel, arrived at a consent order. It was agreed that the Defendant would provide unrestricted free access to any realtor, agent or buyer who wished to inspect the Property for viewing and marketing upon 24 hours' notice. In addition, the order of Quin J made on 19 April 2013 was varied to remove the reserve list price of $475,000. It is evident that the parties, consistent with the order of Quin J, still recognised that the Plaintiff was entitled to sell the Property, but they were conscious that, following the practice directions which had been issued in the interim, the Court need not set a list price.

13 From 2016 until December 2018 various offers were made to purchase the Property. The Plaintiff again outlined issues that they say the realtor experienced in relation to cooperation from the Defendant in relation to viewings. The Defendant has made clear that these are not accurate representations and that he was cooperative and he...