Webb v Webb

• Jurisdiction: Cayman Islands
• Judge: (Smellie, J.)
• Judgment Date: 21 February 1997
• Court: Grand Court (Cayman Islands)
• Date: 21 February 1997

Grand Court

(Smellie, J.)

WEBB (D.L.)

and

WEBB (O.B.) and WEBB (M.)

COWCATCHER COLLECTION LIMITED

and

HAWKES (R.) and HAWKES (B.)

J.R. McDonough and W.J. Helfrecht for the plaintiffs;

J.K. Martinez-Thompson, P. Lamontagne and Mrs. G.E. Nervik for the interveners;

Mr. Webb appeared in person;

Mr. Hawkes did not appear.

Cases cited:

(1) -Irani Fin. Ltd. v. Singh, [1971] Ch. 59; [1970] 3 All E.R. 199.

(2) -Mums Inc. v. Cayman Capital Trust Co., C.A., March 28th, 1990, unreported, followed.

(3) -National Westminster Bank Ltd. v. Stockman, [1981] 1 W.L.R. 67; [1981] 1 All E.R. 800.

(4) -Paradise Manor Ltd. v. Bank of Nova Scotia, 1984–85 CILR 437, considered.

(5) -Perry v. Phoenix Assur. PLC, [1988] 1 W.L.R. 940; [1988] 3 All E.R. 60.

Legislation construed:

Judicature Law (1995 Revision) (Law 11 of 1975, revised 1995), s.29: The relevant terms of this section are set out at page 29, lines 14–18.

Third Schedule: The relevant terms of this Schedule are set out at page 29, line 20 – page 30, line 9.

Registered Land Law (1995 Revision) (Law 21 of 1971, revised 1995), s.2: The relevant terms of this section are set out at page 32, lines 14–17.

s.37(1): The relevant terms of this sub-section are set out at page 32, lines 8–13.

s.100: The relevant terms of this section are set out at page 33, lines 12–21.

Civil Procedure-execution-charging order-no charging order to be made over judgment debtor”s beneficial interest in jointly-owned land-charge is ‘disposition’ under Registered Land Law (1995 Revision), s.2 requiring all joint proprietors” consent under s.100(1)(a)

The plaintiffs in two consolidated cases applied for charging orders nisi which had been imposed over the matrimonial homes of the defendants to be made final.

In one case the plaintiff had obtained judgment in respect of child maintenance arrears against her former husband and in the other, judgment in default had been entered with regard to a contractual debt. In each case the plaintiff now sought to secure the debt against the defendant”s beneficial interest in a property owned jointly with his wife, and the wife intervened on the basis that the court had no power to make a charging order.

In the case of Webb v. Webb the plaintiff also sought a final charging order over a separate property solely owned by the defendant.

The plaintiffs each submitted that (a) it was clear from the wording of para. 2(1) of the Third Schedule to the Judicature Law (1995 Revision) that any beneficial interest in land of a judgment debtor could be charged and the making of the charging order would not itself be a disposition requiring the co-proprietor”s consent under s.100(1)(a) of the Registered Land Law (1995 Revision); and (b) an order could and should be made despite s.100(1)(a) which precluded the future enforcement of a charge by sale of the property, since enforcement could be achieved by other means, for example by the appointment of a receiver over the property to receive income for the benefit of the plaintiff.

The intervening spouse in each case submitted in reply that (a) since the defendant”s beneficial interest in the property was co-extensive with his legal interest, a charge over the property would still be a ‘disposition’ of the land within the meaning of s.2 of the Registered Land Law (1995 Revision), requiring the consent of his co-proprietor under s.100; and (b) the stated purpose of imposing a charge was, according to para. 3(3) of the Third Schedule to the Judicature Law (1995 Revision), to enable enforcement of a judgment debt by sale, and since there was under Cayman law no practicable means of enforcing a charge over jointly-

owned land without the consent of all co-proprietors, such a charge could not be imposed.

Held, refusing the applications and discharging the charging orders nisi:

(1) The defendant in each case held no separate identifiable beneficial interest in the land to which a charge could attach. Furthermore, the making of a charging order was a disposition within the meaning of s.2 of the Registered Land Law (1995 Revision) since it affected the rights of proprietors and therefore required the consent of all joint proprietors under s.100(1)(a), regardless of whether it purported to attach to the defendant”s beneficial or legal interest in the property (page 32, line 43 – page 33, line 29).

(2) Since the intention of the Third Schedule to the Judicature Law (1995 Revision) was to allow for the enforcement of a judgment debt against the proceeds from the sale of property, that law did not enable a charge to be imposed over a beneficial interest in jointly-owned property. Since Cayman law did not give power to a joint proprietor to sever his interest in the property and there was no statutory scheme imposing a trust for sale under which such a charge would attach to the proceeds of a future sale, there was no practicable means of enforcement and therefore no justification for making an order (page 33, line 30 – page 34, line 21).

(3) Accordingly, the charging orders nisi with respect to the two jointly-owned properties would be discharged and the applications to make them final refused. The charging order nisi over the property solely owned by Mr. Webb would be made final, since none of the above objections was relevant to his interest in that property (page 35, lines 4–14).

SMELLIE, J.: The issue presented in each of these actions is whether
15	there is power in the court to make charging orders in favour of a
judgment creditor over property in respect of which the judgment debtor
is registered as joint proprietor. Whilst unrelated in any other respect, the
two actions have been consolidated for the purposes of the determination
of that common issue.
20	In Webb v. Webb the judgment creditor is the former wife of the
respondent judgment debtor. She has obtained a judgment against him in
respect of arrears of maintenance for the child of the former marriage. In
an effort to secure that judgment she has obtained a charging order nisi
over property at George Town East, Block 14D, Parcel 113, which is
25	registered in the names of the respondent judgment debtor and his present
wife as joint proprietors. The wife claims to have had no notice of the
proceedings leading up to that charging order nisi and, not being herself a
party to, or in any way liable for that judgment debt, has intervened to set
aside the order on the basis that the court had no power to make it.
30	In Cowcatcher Collection Ltd. v. Hawkes the plaintiff sued on a
contractual debt and obtained a default judgment against the defendant. In
order to secure that judgment the plaintiff obtained, in Cause 353 of 1996,
a charging order nisi over property at Bodden Town, Block 44B, Parcel
276, which is registered in the names of the defendant and his wife, the
35	intervener in the cause, as joint proprietors. The intervener in that cause
also is in no way liable for the debt and she therefore asserts that there is
no power to charge the jointly-held matrimonial property with it.
The facts and circumstances recited above are undisputed. The
question then is a matter of law: Can a charging order be made in respect
40	of land which is held by joint proprietorship and where the debt to be
secured is not owed by all joint proprietors?
It is conceded by counsel on behalf of both judgment creditors, and
correctly so in my view, that there can be no basis for impeding or
interfering with any interest of a joint proprietor who is not liable for the
45	debt. What is, in essence, being advanced, is the argument that the

judgment debtor has a beneficial interest in the land-in his undivided,

unidentified, aliquot

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