George Anthony Hylton v Georgia Pinnock (as Executrix of the Estate of Dorothy Mcintosh, Deceased), Lloyd's Property Development Ltd and Lloyd E. Gibson

• Jurisdiction: Jamaica
• Judge: PANTON P , HARRIS JA , PHILLIPS JA
• Judgment Date: 01 April 2011
• Neutral Citation: JM 2011 CA 26
• Judgment citation (vLex): [2011] 4 JJC 0102
• Docket Number: SUPREME COURT CIVIL APPEAL NOS 17 & 84/2010
• Court: Court of Appeal (Jamaica)
• Date: 01 April 2011

JAMAICA

IN THE COURT OF APPEAL

[2011] JMCA Civ 8

BEFORE:

THE HON MR JUSTICE PANTON P

THE HON MRS JUSTICE HARRRIS JA

THE HON MISS JUSTICE PHILLIPS JA

SUPREME COURT CIVIL APPEAL NOS 17 & 84/2010

BETWEEN

GEORGE ANTHONY HYLTON

APPELLANT

AND

GEORGIA PINNOCK (as Executrix of the Estate of DOROTHY MCINTOSH, deceased)

1 ^st RESPONDENT

AND

LLOYD'S PROPERTY DEVELOPMENT LIMITED

2 ^nd RESPONDENT

AND

LLOYD E. GIBSON

3 ^rd RESPONDENT

^st

REAL PROPERTY - Agreement for sale - Injunction - Legal and equitable interest in property - Whether damages an adequate remedy - Registration of Titles Act, s. 140

PANTON P

1 [1] On 4 March 2011, we ordered as follows:

‘Appeal dismissed. Orders of Pusey J made on 21 October 2009 and 20 January 2010 affirmed. Costs of the consolidated appeal to the 1 ^st respondent Georgia Pinnock to be agreed or taxed.’

2 We promised then to put our reasons in writing. I agree with the reasons for judgment written by my learned sister Phillips, JA and have nothing to add.

HARRIS JA

3 [2] I too agree with the reasoning of my sister Phillips JA. There is nothing I wish to add.

PHILLIPS JA

4 Introduction

5 [3] This appeal concerns premises situated at Lot 4 on the approved subdivision plan for lands in Norbrook Heights, Saint Andrew, being part of the lands originally comprising lots 39 and 40 Norbrook Heights, Saint Andrew, and registered at Volume 999 Folio 4 and 5 respectively in the Register Book of Titles and now registered at Volume 1244 Folio 877 of the Register Book of Titles (the said property). The certificate of title for the said property is registered in the name of Lloyd's Property Development Limited (the 2 ^nd respondent), and in 1989 that company entered into two agreements for sale in respect of the said property, with two different persons, namely, the appellant and Dorothy McIntosh (since deceased, and now represented in the action by the executrix of her estate, the 1 ^st respondent). On the evidence thus far, it appears that neither party was aware of the other transaction at the time the transactions were entered into. The matter ultimately ended up before the courts as the parties endeavoured to protect their competing equitable interests.

6 [4] On 21 October 2009, on the 1 ^st respondent's application, Pusey J made an order directing the Registrar of Titles not to register any dealing with the said property for a period of six months from the date thereof, and in particular not to register transfer No. 1573499 from the 2 ^nd respondent to the appellant. He also ordered that the 1 ^st respondent should institute proceedings for the court to determine the party with legal and equitable ownership of the said property, within three months of the order of the court. On 20 January 2010, Pusey J made a further order extending the time to institute proceedings until 4 February 2010. Both of these orders are the subject of appeal no 17/2010. On 27 April 2010, a further restraint for a period of three months was made, by Edwards J (Ag), on the Registrar from registering any dealings with the said property, and in particular the appellant's said transfer, which order became the subject of appeal no 84/2010. On 23 September 2010, Panton P made an order consolidating the appeals.

7 Background

8 [5] As indicated, the history to this very interesting appeal commenced in 1989. Whereas the agreement for sale of the said property to Dorothy McIntosh was dated 12 June 1989, the agreement for sale to the appellant was undated save for reference to the year 1989. The agreements bore certain similarities and certain differences. The agreement with Dorothy McIntosh contained a purchase price of $120,000.00 payable by way of a deposit of $18,000.00 to the vendor's attorney- at-law as stakeholder, and the balance was payable on completion which was to take place within 180 days (12 December 1989), subject to the special condition which allowed the purchaser to obtain a mortgage, within the said 180 days, of up to 60% of the sale price. The vendor's attorney-at-law who had carriage of sale was Mr R. Hetram of 80 East Street. It was signed by Dorothy McIntosh as purchaser, and Lloyd Gibson, director of the 2 ^nd respondent, as vendor, witnessed by Mr Hetram, and it bore the seal of the company. The agreement for sale with the appellant contained a purchase price of $125,000.00 payable as follows: first deposit of $1,500.00 on the signing; second deposit of $11,000.00 on or before 18 July 1989; third deposit of $12,500.00 on or before 14 October 1989; the balance of $100,000.00 to be paid by 6 July 1990. Completion was fixed for on or before 6 August 1990. Mr R. Hetram of 80 East Street, the vendor's attorney-at-law, also had carriage of sale and the agreement was signed this time by Yvonne Gibson, director of the 2 ^nd respondent, as vendor and the appellant as purchaser.

9 [6] On 12 October 1992, Dorothy McIntosh lodged caveat no. 729262 against any dealing with the said property at the Office of Titles. The caveat was exhibited and showed that her address for the purposes of the caveat, was in care of ‘BALLANTYNE, BESWICK & COMPANY, Attorneys-at-law,’ and stated that their address for service was 66 Barry Street, Kingston. The caveator appointed that firm of attorneys as the ‘place at which notices or proceedings relating hereto may be sent’. The basis for the caveat was set out therein, namely the agreement for sale with the 2 ^nd respondent in respect of the said property, and it stated that she forbade any dealing with and/or registration of the said property without notice to her unless any intended registration would be subject to her claim. A statutory declaration was also lodged with the caveat.

10 [7] In 1993 suit no CLM 270 was filed, and on 30 April 1997 on the application of the 1 ^st respondent, the court (Panton J, as he then was) granted a decree of specific performance of the agreement for sale dated 12 June 1989, and declared that as against the 2 ^nd respondent, Dorothy McIntosh was the beneficial owner of the said property. Unfortunately however, she died on 25 December 1999. The court granted probate in her estate in the following year on 21 July 2000. Almost nine months later on 3 April 2001, Anderson J made an order directing the Registrar of the Supreme Court to sign the instrument of transfer to give effect to the order made on 30 April 1997, thereby directing enforcement of the order for specific performance. It was the evidence of the 1 ^st respondent in her affidavit of 19 January 2009 filed in support of the application under section 140 of the Registration of Titles Act (the Act) before Anderson J, that no steps were taken pursuant to completion of the transaction as prior to the grant of probate there were no funds available in the estate, and thereafter the property of the estate had to be collected by the executors and portions thereof liquidated to settle the costs of administration of the same. Another difficulty arose in that the agreement had not been stamped as might have been expected since the vendor's attorney-at-!aw had been placed in funds to do so by the receipt of the deposit, and any increased amounts due by way of penalty, could only be obtained subsequent to the grant of probate and through administration of the estate.

11 [8] Nothing further however appears to have taken place with regard to the completion of the sale to the 1 ^st respondent until the notice to caveator issued from the Office of Titles was received by the 1 ^st respondent's attomeys-at-law in January 2009.

12 [9] In the meantime, with regard to the other sales transaction between the 2 ^nd respondent and the appellant, no steps seemed to have occurred subsequent to the execution of the agreement for sale, with regard to the completion of the transaction, until many years later. In the appellant's affidavit filed and sworn to on 19 January 2009, the appellant deposed that after execution of the agreement he became aware of a caveat lodged against the parent title of the said property by Barclays Bank International Limited, the executor, by one Robert McGregor, which he said prevented the completion of the sale. There is no indication when the appellant became aware of this caveat. He also deposed to a dispute with a joint venture partner; the fact that the 3 ^rd respondent died in 1995; and that the 2 ^nd respondent had been struck from the register of companies, all of which he said affected the completion of the transaction. The appellant stated further that after extensive negotiations with Yvonne Gibson, the 3 ^rd respondent's widow, he was able to achieve the following: the reinstatement of the 2 ^nd respondent to the register of companies; the release of the above caveat; the arrangement of an acceptable undertaking for the balance of the purchase price; the receipt of the duplicate certificate of title for the said property and possession of the same. Indeed, the appellant said that he had ‘taken various steps in relation to the property’ and set them out. He said that he had cleared the same and kept it cleared, re-established boundaries, obtained valuations and topographical and other surveys; had discussions with builders in respect of construction on the property and used the property as security for financing from National Commercial Bank. No specific time was given for all of these efforts but it appears the activities occurred between 2007 and 2008, and on 8 December 2008 the attorneys-at-law then representing the appellant lodged the necessary documents at the Office of Titles (including a stamped instrument of transfer, and the duplicate certificate of title) attempting to effect transfer of the said property to the appellant. A caveat warning to the 1 ^st respondent was also enclosed.

13 [10] The lodging of those papers then caused the Registrar of Titles to issue the notice to...