Dehring Bunting & Golding Ltd v Sharon Williams & Basil Williams

• Jurisdiction: Jamaica
• Judge: BROOKS J.
• Judgment Date: 26 September 2002
• Judgment citation (vLex): [2002] 9 JJC 2701
• Court: Supreme Court (Jamaica)
• Date: 26 September 2002

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN EQUITY

IN CHAMBERS

BETWEEN

DEHRING BUNTING & GOLDING LIMITED

PLAINTIFF

AND

SHARON WILLIAMS

FIRST DEFENDANT

AND

BASIL WILLIAMS

SECOND DEFENDANT

CIVIL PROCEDURE - Writ for service of notice outside of jurisdiction - Summons for interim injunction - Equitable mortgage - Statute of Frauds 1677, s. 4

BROOKS J

1 The Plaintiff herein has presented two applications for the Court's consideration.

2 The first is an ex parte summons for leave to issue Writ of Summons and to serve notice thereof out of the jurisdiction upon the intended defendants and for substituted service. The second is an ex parte summons for an interim injunction.

3 Since some of the issues required for consideration in these applications overlapped they were heard concurrently.

4 The facts as gleaned from the affidavit evidence and a perusal of the court's file in respect of Suit No. CL1995/D007 are as follows:

• (1) The defendants are both Jamaican Citizens who now live outside of the jurisdiction of this Court. Their last known address was in the United States of America.

• (2) They are the registered proprietors of all that premises situated at Orange Bay in the parish of Hanover which premises are comprised in Certificate of Title registered at Volume 1243 Folio 267 of the Register Book of Titles (hereinafter called "the premises").

• (3) The First Defendant secured a loan from the Plaintiff in or about September 1993 in the sum of $500,000.00. The Plaintiff alleges through the Affidavit of its Vice President Patricia Martin that the First Defendant secured the loan by way of a Promissory Note as well as by an agreement "that the said loan would be secured by a mortgage to the Plaintiff of (the premises)". A handwritten note from the First Defendant promising to forward the title for the premises to the Plaintiff "as soon as possible" was exhibited to the affidavit.

• (4) The First Defendant defaulted in honouring her obligations under the loan and the Plaintiff herein sued her for recovery of the loan by Writ of Summons in this Court in Suit C.L.I995/D007 (hereinafter called "the former suit"). The First Defendant was the sole defendant in the former suit. Both defendants had migrated from Jamaica before the former suit was filed.

• (5) The Plaintiff lodged caveat #879374 with the Registrar of Titles preventing dealings with the land without notice, and also, in 1996, secured a judgment against the First Defendant in the former suit. In the fullness of time the Plaintiff secured an Order Nisi for the sale of the premises, the judgment debt not having been paid.

• (6) The Order Nisi for the sale of the premises was not made absolute for a variety of reasons and it has languished for a period in excess of four years. Indeed it has still, as at the date of hearing of these summonses, not been made absolute.

• (7) The defendants have recently caused an instrument of transfer of their interest in the premises to be lodged with the Office of Titles for registration and the Registrar of Titles has sent a notice to the Plaintiff warning it of the intended action.

• (8) Earlier on the very day of the commencement of the hearing of these applications the Plaintiff secured an order of this court in the former suit extending the time of the effect of the Order Nisi until the completion of the sale of the premises. This order, as it is understood, ought to effectively prevent any dealings with the property until the fulfillment of that event. Counsel for the Plaintiff has expressed reservation as to the efficacy of the system to achieve that end.

• (9) The Plaintiff now wishes to have itself declared as an equitable mortgagee of the premises based on the agreement between itself and the First Defendant concerning the premises and the title for same.

5 It is against this background that the Plaintiff...