Scotiabank & Trust (Cayman) Ltd v Gregory Anthony Ricardo Watt

• Jurisdiction: Cayman Islands
• Judge: Richard Williams
• Judgment Date: 29 December 2017
• Court: Grand Court (Cayman Islands)
• Docket Number: CAUSE NO. G 0123 OF 2016
• Date: 29 December 2017

Between:

Scotiabank & Trust (Cayman) Ltd.

Plaintiff

and

Gregory Anthony Ricardo Watt

Defendant

Before:

Hon. Justice Richard Williams

CAUSE NO. G 0123 OF 2016

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 (1995 Revision) — notice requirements under Registered Land Law (1995 Revision) — Relationship between s. 72 notice and s. 64(2) .

Appearances:

Mr. James Austin-Smith of Campbells for the Plaintiff

Mr. Clyde Allen for the Defendant

TRANSCRIPT OF ORAL RULING

Application

1 This hearing has taken place in open court, with any members of the public and the media being free to attend and watch the proceedings. Due to the urgency for the Court to make a decision because of an overdue completion date for the sale of the relevant property, I feel it important to give the parties an urgent decision and the reasons for my decision. Accordingly, rather than providing a written ruling at a later date I now deliver this Judgment. I trust that the parties will understand why, with the hearing concluding at 6:00 p.m. last night, that it may not read as neatly as a formal written ruling. A perfected transcript of this oral ruling will be provided to the parties.

2 This is the hearing of the Plaintiff's Summons filed on 6 December 2017 in which the following relief is claimed:

Although the Summons makes reference to s.77 of the Law, the operating section for this application is clearly the also therein mentioned s.75(2) of the Law. The Plaintiff has made clear that it is not requesting the Court to make orders pursuant to s.77 of the Law.

• (i) A variation of the provisions of s.75(2) of the Registered Land Law (2004 Revision) (“the Law”) under the provisions of s.77 of the Law to allow the Plaintiff to recover possession of the property known as Registration Section Lower Valley, Block 38B, Parcel 544 (“the Property”) in seven days from the date of this order;

• (ii) An order that the Defendant and any other person occupying the Property do, within seven days of this order, vacate the Property and take all appropriate steps to give the Plaintiff vacant possession of the Property; and

• (iii) An order that the Plaintiff do have leave to issue a Writ of Possession in relation to the Property at the expiry of the seven days referred to in paragraph (ii) above.

3 The evidence supporting the Plaintiff's Summons was taken from the Affidavits of Bridgette Bond sworn on 21 November 2016 and 19 December 2017 and the Affidavit of Tamara Siemens sworn on 8 December 2017. I have also read the Affidavit of James Pollard sworn on 30 November 2016 filed by the Plaintiff. I have read the Defendant's Affidavits sworn on 21 December 2017 and 27 December 2017. Oral evidence was received from the Defendant and Ms. Bond.

4 The initial hearing date for the Summons of 19 December 2017 was vacated and adjourned to 21 December 2017 due to the non-availability of a Judge. On the day before the hearing the Defendant belatedly instructed Mr. Allen. I note that as far back as his email to Mr. Rampersad at the Plaintiff's Trinidad and Tobago Office of 14 August 2017 the Defendant was stating that he was seeking “legal council” and that in an email to Ms. Carter at the Bank sent on 25 October 2017 the Defendant stated that he had “already spoken with an attorney” and copied her in on his response to Ms. Carter. I note that on 21 August 2017 the Defendant made an application for Legal Aid to enable him to be represented by Ms. Ryan at Brady Attorneys-at-Law. That application was promptly considered and it was refused by the Director of Legal Aid on 23 August 2017 and a number of reasons for her refusal, including missing information that was required to support the application, were set out in correspondence from her dated 23 August 2017. It appears that the Defendant was thereafter dilatory in progressing any Legal Aid application, as he failed to make an application for reconsideration until 4 December 2017. That application was rather confusing because it also seemed to relate to a new application for legal aid relating to separate new proceedings brought by him filing a Writ of Summons in which he sought, amongst other orders, substantial financial compensation of $2,000,000 against the Bank in Cause No. 205 of 2017. 1 On 4 December 2017 the Director declined to consider the application for reconsideration of Legal Aid as the Defendant was out of time for making the application. The Director found that the application had not been made, as required by s.37(3) Legal Aid Law, within twenty working days after the notice being given of the 23 August 2017 refusal and it was not within three months of the notice being given, during which time the Director had discretion (pursuant to s.37(4) of the Legal Aid Law) to accept a late application if exceptional circumstances prevented the application being made within the above-mentioned twenty days. In the Refusal Certificate dated 4 December 2017

the Director notified the Defendant that he may want to consider whether he could appeal her decision to a Judge in Chambers pursuant to s.38 of the Legal Aid Law 2015. No such application has been properly made by the Defendant

5 At the 19 December 2017 hearing Mr. Allen briefly outlined the basis of the Defendant's legal arguments against the orders sought and he applied for an adjournment to enable him to prepare. The application to adjourn was not consented to, but it was not opposed. Despite the Defendant having had ample time to instruct an attorney and him being aware for many months that the Bank was marketing the Property for sale, in the interest of justice, I granted an adjournment until 28 December 2017 2. I warned the Defendant that, in light of the adjournment being caused by his regrettable inability to be properly prepared for the hearing and due to the risk to the Plaintiff of losing the sale of the Property due to the long overdue completion date, if he was unsuccessful in his defence of the Summons that an order requiring him to vacate the Property may give him less than seven days to do so. The Defendant filed Legal Submissions on Friday 22 December 2017 and his affidavits on 21 December 2017 and 27 December 2017.

6 Following the hearing on 21 December 2017, I provided the parties with a copy of the Unreported Judgment of Henderson J. dated 31 March 2004 in Bank of Butterfield International (Cayman) LTD v Elwood Levy & Arlene A. Levy

Cause No. 633 of 2003 3. Mr. Allen's outlined submissions on the issue of s.64(2) and s.72 notices were similar to those made by him for a defendant chargor in that case and I felt that both parties should be made aware of Henderson J.'s Ruling

Background

7 To understand how the parties have arrived at the rather sad situation they now find themselves in, it is necessary to conduct a detailed review of their dealings from the inception of the Charge.

8 On 26 October 2012 a charge over the Property in favour of the Plaintiff was registered for the principal sum of CI$180,500 (“the Charge”). It was a provision of the Charge that:

“1. Definitions

In this Schedule:

1.1 The following expressions shall, except where the context requires otherwise, have the following meanings:

DEFINITION	DESCRIPTION
a) The Bank	Specified on the first page of this Charge (see “Chargee”)
b) The Chargor	GREGORY ANTHONY RICARDO WATT may also be referred to “the Borrower” of this Charge
…
f) the Secured Obligations	All present and future obligations of the Chargor to the Bank under the Loan and otherwise howsoever incurred or arising and as more particularly described herein.
g) Interest	Means: 4.95% fixed for 3 years
…
i) Principal Sum	CI$180,500.00 (One Hundred and Eighty Thousand Five Hundred Cayman Islands Dollars)
j) Repayment Terms	Payable on demand and prior to demand as follows: CI$1, 479.99 representing principal and interest payable monthly, commencing 28th November 2012 and thereafter 239 equal instalments of CI$1, 186.24 on the 28th day of each consecutive month. On the 28th day of October 2015, in addition to the schedule payment of CI$l, 186,24 the then outstanding principal balance of CI$163, 396,37 is due for payment in full. The period of the loan is 240 months (20 years) with maturity date 30th October 2032.

2. Covenant to Pay

The Chargor hereby covenants to pay and discharge the Secured Obligations on demand and prior to demand in accordance with the Repayment Terms.

7. Powers of the Bank

7.1 At any time after the Bank shall have demanded payment of the Secured Obligations or any part thereof or if requested by the Chargor the Bank may exercise without further notice all the powers conferred on mortgagees by virtue of the Law as hereby varied or extended and all the powers and discretions hereby conferred either expressly or by reference on a receiver appointed hereunder and the date of such demand shall (without prejudice to the equitable right to redeem) be the redemption date. Nothing that shall be done by or on behalf of the Bank or a receiver appointed by it shall render it or him liable to account as a mortgagee in possession for any sums other than actual receipts.

7.2 In addition to the remedies provided by Section 72 of the Law the Bank shall, whether or not a receiver has been appointed, have the right to foreclose or enter into possession of the Charged Property or both in the same circumstances as would allow the Bank to exercise the power of sale or appoint a receiver.

7.3 Upon the exercise of its power of sale the Bank shall have the right to sell the Charged Property by private treaty as well as by public auction.”

9 The Charge Form RL9 signed by the Defendant in the presence of the Bank's Officer dated 23 October 2012, conforms...