Smith v Smith

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Collett and Forte, JJ.A.)
• Judgment Date: 26 November 2004
• Court: Court of Appeal (Cayman Islands)
• Date: 26 November 2004

Court of Appeal

(Zacca, P., Collett and Forte, JJ.A.)

E.E. SMITH (Administrator of the Estate of S. SMITH JNR.)

and

J.D. SMITH (Administratrix of the Estate of A. SMITH JNR.)

W.J. Helfrecht for the appellant;

P.A.K. & P.A. Broadhurstfor the respondent.

Cases cited:

(1) C, In re, 1994–95 CILR 262, applied.

(2) Harrison”s Share, In re, [1955] Ch. 260; [1955] 1 All E.R. 185, referred to.

(3) Pittalis v. Sherefettin, [1986] Q.B. 868;[1986] 2 All E.R. 227, referred to.

Legislation construed:

Public Recorder Law (1996 Revision) (Laws of the Cayman Islands, 1963, cap. 143, revised 1996), s.11: The relevant terms of this section are set out at para. 17.

Civil Procedure-judgments and orders-amendment-judge may with-draw or alter order before drawn up, entered and perfected even after delivery of written reasons supporting it-appeal lies against order made not against reasons given

Contract-specific performance-unclean hands-party dilatory in seek-ing enforcement of agreement of which in breach may be refused specific performance

The respondent applied to the Grand Court for rectification of the Land Register (the application being continued after his death by his administratrix, on behalf of his estate).

The land in question originally belonged to the parties” grandfather. On his death, the land passed to the appellant”s father, whose sister, acting without legal authority, gifted the land to the respondent”s father, who subsequently gifted it to the respondent. In 1970, the then administrator of the appellant”s father”s estate signed a quit claim to the respondent. In 1974 the appellant, as administrator of his father”s estate, applied to be registered with absolute title to the land but was instead registered with provisional title as he produced no documentary evidence.

In 1984 the parties signed another agreement, acknowledging that the appellant was the undisputed owner of the land, and agreeing that the respondent would vacate the land on 20 days” notice from the appellant, that on giving notice the appellant would give the respondent $3,000 to facilitate the vacation or rent alternative property for him, and that after the property had been vacated the appellant would pay the respondent $30,000. In 1988 the respondent registered the original quit claim and indenture by way of gift and applied to be registered as proprietor with absolute title. A restriction was entered on the register to prevent improper dealings which was to endure until final determination of the matter.

Shortly after, the appellant served notice upon the respondent to vacate the land. The appellant did not pay $3,000 to the respondent nor did he rent alternative property for him and in fact did nothing to enforce the

agreement. The administratrix of the respondent”s estate then commenced the present proceedings seeking rectification of the Land Register.

Judgment was reserved and the parties subsequently received a signed and sealed written judgment but could not agree the terms of the order. At a hearing to deal with interest and costs, although judgment had been delivered, counsel for the respondent was allowed to argue that the 1984 agreement could not and should not be enforced by the court. The judge then delivered another judgment reversing his earlier view and instead made an order in favour of the respondent refusing to order specific performance. The proceedings in the Grand Court are reported at 2003 CILR 146 and noted at 2004–05 CILR N [1].

On appeal, the appellant submitted that (a) at the time of delivering the second judgment the judge was functus officio in relation to all questions save interest and costs and therefore the second order and judgment was of no effect and should be set aside; (b) the judge could not reverse his order once he had given written reasons for it; and (c) the court should order specific performance of the 1984 agreement which had the effect of transferring ownership of the land in dispute from the respondent to the appellant.

Held, refusing to grant specific performance of the agreement:

(1) The appeal would be allowed to proceed against the order made by the trial judge supported by his second judgment. Until an order had been drawn up, entered and perfected, he could always withdraw or modify it, even when he had delivered written reasons for it, as an appeal was not from the reasons given, but from the order made. In this case no order had been finalized following the first hearing and the judge was therefore entitled to make an order and give a second judgment incompatible with the first (para. 5; paras. 7–8).

(2) The judge could not be faulted for refusing the grant of specific performance of the 1984 agreement. The respondent had become, by the quit claim, the absolute owner of the land in dispute. The agreement sought to establish that the appellant was entitled to be registered with absolute title, which he was not as the respondent”s absolute title would defeat his provisional title. The agreement did not, therefore, transfer ownership of the land in dispute and could not circumvent the restriction preventing improper dealings with the property. Additionally, there had been a long delay before the appellant sought to enforce the agreement, to which he himself had not adhered (para. 18; para. 28; paras. 32–34).

1 FORTE, J.A., delivering the judgment of the court: Before addressing the issues in the substantive appeal, we must deal with a preliminary issue concerning the exercise of jurisdiction by the learned trial judge.

2 The trial of the action took place on November 4th and 5th, 2002 at the end of which the learned judge reserved judgment. On April 7th, 2003, the attorneys for the parties received a written judgment signed by the learned judge and sealed with the seal of the Grand Court. In that judgment the learned judge held inter alia as follows (2003 CILR 146, at para. 58):

‘[The appellant] is entitled to ownership of Parcel 80 by virtue of the quit claim deed from [the respondent], dated June 18th, 1984. However, in order...