Mums Inc. v Cayman Capital Trust Company

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Kerr, JJ.A)
• Judgment Date: 28 March 1990
• Court: Court of Appeal (Cayman Islands)
• Date: 28 March 1990

Court of Appeal

(Zacca, P., Georges and Kerr, JJ.A)

MUMS INCORPORATED and THIAM-HONG TAN

and

CAYMAN CAPITAL TRUST COMPANY, B.V. RANDALL and E.G. RANDALL

Ms. C.J. Bridges for the appellants;

A. McN. McLaughlin for Mr. Randall;

P. Lamontagne, Q.C. for Mrs. Randall;

The first respondent was not represented.

Case cited:

(1) Paradise Manor Ltd. v. Bank of Nova Scotia, 1984–85 CILR 437, applied.

Legislation construed:

Judicature Law (Revised) (Law 11 of 1975, revised 1976), s.42(1): The relevant terms of this sub-section are set out at page 133, lines 30–36.

Matrimonial Causes Law (Law 9 of 1976), s.21: The relevant terms of this section are set out at page 137, lines 23–27.

Registered Land Law (Revised) (Law 21 of 1971, revised 1976), s.2: The relevant terms of this section are set out at page 134, lines 25–28.

s.3: The relevant terms of this section are set out at page 134, lines 3–6.

s.37(1): The relevant terms of this sub-section are set out at page 134, lines 19–24.

s.100(1): The relevant terms of this sub-section are set out at page 134, lines 39–45.

(2): The relevant terms of this sub-section are set out at page 135, lines 1–5.

(3): The relevant terms of this sub-section are set out at page 135, lines 6–10.

s.101(1): The relevant terms of this sub-section are set out at page 136, lines 11–14.

(2): The relevant terms of this sub-section are set out at page 136, lines 15–19.

s.102: ‘An application for the partition of the land owned in common may be made in the prescribed form to the Registrar by-

(a) any one or more of the proprietors; or

(b) any person in whose favour an order has been made for the sale of an undivided share of the land in execution of a decree . . .’

s.118(1): The relevant terms of this sub-section are set out at page 136, lines 38–44.

(3): The relevant terms of this sub-section are set out at page 137, lines 1–11.

s.120: The relevant terms of this section are set out at page 137, lines 38–43.

s.164: The relevant terms of this section are set out at page 134, lines 8–11.

Land Law-joint proprietorship-sale of undivided share-unity of interest preserved by Registered Land Law (Revised)-severance and disposal of interest not permitted except with concurrence of all proprietors in circumstances stated in s.100-no power to order sale of undivided share to satisfy judgment debt

The appellants applied for an order for the sale of the second respondent”s interest in a jointly-owned property.

The second respondent and his wife (the intervenor) were registered as the joint proprietors of their matrimonial home. The appellants had obtained judgment against the first and second respondents in earlier proceedings and wished to enforce that judgment. They applied for an order that the second respondent”s interest in the matrimonial home be sold by public auction pursuant to s.42 of the Judicature Law (Revised) so as to enable the charges on the property to be paid off and the balance remaining to be divided between themselves and the intervenor.

The Grand Court (Harre, J.) held that it had no power to grant an order for the sale of the second respondent”s interest, save in compliance with s.100 of the Registered Land Law (Revised), which required the consent of all joint proprietors of the land. By ss. 3 and 37 of that Law, the provisions of s.100 were intended to apply exclusively, thus preserving the absolute unity of interest which was a traditional feature of joint tenancy. The proceedings in the Grand Court are reported at 1988–89 CILR 485.

On appeal, the appellants submitted that the second respondent”s interest in the matrimonial home was an estate in land amenable to sale under s.42, since joint proprietorship under the Registered Land Law (Revised) was analogous to the estate of joint tenancy which existed in England prior to 1925, and under which each joint tenant had absolute power to dispose of his interest during his life.

The respondents submitted in reply that no sale of the second respon-dent”s interest could be ordered under s.42, since s.100 clearly provided that a disposition of any interest in land required the consent of all joint proprietors, and there was no provision in Cayman law for the unilateral severance of a joint proprietorship.

Held, dismissing the appeal:

The court had no power to order the sale of the second respondent”s interest in the matrimonial home without the consent of his wife, the joint proprietor. The sale would be a disposition of land within the meaning of s.2 of the Registered Land Law (Revised), which, under s.100(1), could not be effected unilaterally, and s.37(1) made it clear that any attempt to do so would be invalid. Furthermore, since in the Cayman Islands severance of a joint proprietorship could take place only with the consent of all joint proprietors, comparisons with English law prior to the introduction of the registered land system there were unhelpful on this point. By s.3 of the Cayman Law, practices and procedures inconsistent with it were inapplicable to registered land here. The court”s statutory powers to dispose of the entire legal interest in land in matrimonial proceedings or to order the substitution of e.g. a trustee in bankruptcy or the Crown as a joint proprietor were not inconsistent with s.100 (page 134, line 25 – page 136, line 6; page 137, line 44 – page 138, line 6).

GEORGES, J.A., delivering the judgment of the court: The second
15	defendant, Barry V. Randall, and the intervener/respondent, Eveleen G.
Randall, are husband and wife. They are registered in the

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