Eden v Eden

• Jurisdiction: Cayman Islands
• Judge: (Quin, Ag. J.)
• Judgment Date: 08 July 2008
• Court: Grand Court (Cayman Islands)
• Date: 08 July 2008

Grand Court

(Quin, Ag. J.)

C. EDEN

and

K. EDEN and EBANKS

G. Giglioli and P. Polack for the petitioner;

A. Akiwumi for the first respondent;

S. Bodden for the second respondent.

Cases cited:

(1) Berry v. Berry, 1992–93 CILR N–25, dicta of Malone, C.J. considered.

(2) Cayman Islands News Bureau Ltd. v. Cohen, 1986–87 CILR 370, referred to.

(3) Cotorro Trust, In re, 1997 CILR 1, referred to.

(4) Montreal Trust Co. v. Churchill Forest Indus. (Manitoba) Ltd.UNK(1971), 21 D.L.R. (3d) 75; [1971] 4 W.W.R. 542; [1971] Carswell Man 42, referred to.

(5) Parkinson (Sir Lindsay) & Co. Ltd. Settlement Trusts, In re, Bishop v. Smith, [1965] 1 W.L.R. 372; [1965] 1 All E.R. 609n; (1965), 109 Sol. Jo. 176, dicta of Buckley J. considered.

(6) Stewart Chartering Ltd. v. C. & O. Management S.A., The Venus Destiny, [1980] 1 W.L.R. 460; [1980] 1 All E.R. 718; [1980] 2 Lloyd”s Rep. 116; (1980), 124 Sol. Jo. 205, referred to.

(7) Taylor v. Att.-Gen., [1975] 2 NZLR 675 referred to.

Legislation construed:

Grand Court Rules 1995, O.28, r.8:

‘(1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.’

Succession Law (2006 Revision), s.8: The relevant terms of this section are set out at para. 9.

Succession-administrators-removal and substitution-petition correct procedure for removal of administrator for neglect or misconduct under Succession Law (2006 Revision), s.8, but court may convert to writ action under Grand Court Rules, O.28, r.8, in interests of justice and fair trial, e.g. if further allegations of breach of fiduciary duty, and abuse of process not to grant administrator protection of adversarial process

The petitioner sought an order replacing the first respondent as administratrix of his father”s estate.

The petitioner alleged that the first respondent had been guilty of neglect and/or misconduct in the administration of his father”s estate. The parties, including the second respondent (the first respondent”s surety), reached agreement (then embodied in a consent order), which partly provided the relief sought by the petitioner, but the first respondent failed to comply with it. The petitioner then alleged that the first respondent”s conduct indicated possible fraud, amounting to breach of trust and breach of fiduciary duty. The first respondent denied the allegations, and made a preliminary application for a stay of proceedings, or for the proceedings to be continued as if commenced by a writ of summons.

The first respondent submitted that (a) there was no evidence to support the petitioner”s allegations and the petition should therefore be dismissed, or stayed; (b) alternatively, in the interests of justice and in order to ensure a fair trial, the petition should be converted into a writ, pursuant to O.28, r.8 of the Grand Court Rules (which gave the court discretion to allow proceedings begun by way of originating summons to be continued as if begun by writ, should the circumstances justify it, and which also applied to petitions); the commencement of the proceedings by petition was an abuse of process as, given the hostile, controversial and adversarial nature of the allegations, she could not properly defend herself without the inherent protection afforded by the adversarial process of a writ action, which would itself in no way prejudice the petitioner.

The second respondent submitted that the action against her should be struck out, because, as surety for the first respondent, it was her decision as to what level of interest she wished to take in the proceedings, and she did not wish to take part at all.

The petitioner submitted in reply that (a) the petition should not be dismissed, as there was evidence in support of his allegations against the

first respondent; (b) the petition should not be converted into a writ action because (i) it had been filed correctly, under s.8 of the Succession Law (2006 Revision), and the respondents had consented to that process; and (ii) O.28, r.8 of the Grand Court Rules allowed proceedings begun by way of originating summons to be continued as if begun by a writ, but did not apply to petitions; and (c) although it was for the second respondent to decide what level of interest she wished to take in the proceedings, as surety for the first respondent, the petitioner wished to be able to look to her, should the first respondent be unable to meet his successful claim, and she must therefore be bound by the court”s decision, even if she chose not to take part in the proceedings.

Held, granting the application in part:

(1) The proceedings would not be dismissed or stayed, as there was prima facie evidence to support the petitioner”s allegations, and there was therefore a case for the first respondent to answer. However, in the interests of justice and in order to ensure a fair trial, the court would order that the petition proceed as if commenced by writ. Although O.28, r.8 of the Grand Court Rules was silent as to whether a petition could be converted to a writ action, the court had a discretion to do so when the allegations of the petitioner...