Guy Chong v Winston Chong

• Jurisdiction: Jamaica
• Judge: Hutchinson, J
• Judgment Date: 14 May 2021
• Neutral Citation: [2021] JMSC Civ 86
• Docket Number: CLAIM NO. SU2020CV03960
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. SU2020CV03960

Between

Guy Chong

Applicant

and

Winston Chong

Respondent

Representation: Yakum Fitz-Henley instructed by Ramsay Smith for the Applicant.

Obika Gordon instructed by Frater, Ennis and Gordon for the Respondent.

Application for recovery of possession — request for indemnity — procedure for bringing an action for indemnity — manner in which proceedings for possession of lands should be instituted

CORAM: Hutchinson, J

INTRODUCTION

1 The application before me was filed on behalf of Mr Guy Chong who is the Defendant to a claim filed by his brother in respect of property located at 38 Neptune Avenue, Kingston 17. The application seeks a number of orders; the main ones being as follows;

• 1. The Claimant shall forthwith quit and deliver up possession of the property located at 38 Neptune Avenue, Kingston 17 in the parish of Saint Andrew.

• 2. The Claimant shall indemnify the Defendant in respect of all rent and mortgage payments the Defendant is required to pay by the registered proprietor of the property as a result of the Claimant's continued possession of same.

2 In respect of the first order, this was qualified by Mr Fitz-Henley to be an application for an order for the Claimant to quit the premises as no order was being sought for recovery of possession given the fact that the Applicant had transferred possession of same to a third party. It was contended however that, inspite of the transfer of ownership, the Applicant still retained the requisite standing to bring this action given the fact that it was by his license that the Respondent had been permitted to occupy the premises.

3 The Claim brought by Mr Winston Chong against the Applicant seeks a number of orders in respect of the 38 Neptune Avenue, on the basis that he had acquired an equitable interest in same. He also seeks orders that the property be sold and the net proceeds divided in accordance with the equitable interest that the Court may declare him as having in same. I note that the first hearing of that Fixed Date Claim Form is scheduled for the 25 ^th of May 2021.

4 From the affidavits which have been filed in this application it is evident that the property has now been sold to a third party as the Respondent/Claimant's caveat has lapsed and the Court had refused to grant his application for an injunction barring the sale/transfer of the property on the 26 ^th of November 2020. The Applicant has sought the foregoing orders on the basis that his brother who he described as a licensee, had resided at the relevant premises with his permission and had failed to honour the terms by which it had been agreed that he could be made a co-owner of same.

5 Once the decision had been made by the Applicant to sell the property he averred that the Respondent was served with a notice to quit but had failed to comply with same. The urgency of the application was underscored by the fact that the Purchaser had been promised vacant possession of the property which the Applicant has failed to deliver and the concern was expressed that he could be sued by the Purchaser for any rent or mortgage payments which this failure may occasion.

6 In support of this application, Mr Fitz-Henley relied on a number of authorities. In respect of the Respondent's classification as a licensee, and the lawfulness of the Applicant's revocation of said license, reference was made to the decisions of Burghardt and Burghardt v. Taylor [2012] JMSC Civ. 126 and Minister of Health v. Bellotti [1944] 1 All ER 238. Counsel also argued that since the property had changed owners the claim against the Applicant can no longer be pursued and should now proceed against the new owner.

7 In relation to the request for indemnity, Counsel submitted that a right to indemnity exists where the relation between the parties is such that there is an obligation upon the one party to indemnify the other. He submitted that there are instances in which the law attaches a legal or equitable duty to indemnify another arising from an ‘assumed promise’ by an individual person to do that which, under the circumstances, he ought to do’. It was argued that this is one such case as there is documentary evidence to show that;

• i. The Claimant was aware of the intention to sell the property from 2019;

• ii. He had the opportunity to stop the sale of the property once the caveat was warned, but did not do so;

• iii. He had been required to quit the property since March 15, 2021 and his continued possession caused the Defendant to incur expenses which he would not have otherwise incurred.

8 In his submissions in response, Mr Gordon asserted that the application is misconceived. He argued that the request for an order for the Respondent to quit the premises and/or for recovery of possession must be grounded on a legal or beneficial Interest in the land. He asked the Court to note that the Applicant had exhibited a title which shows that Mr Guy Chong no longer owns the property and as such has no legal or beneficial interest in same. He made reference to the Court of Appeal decision of Leroy Morrison and others v Campbell 2017 JMCA Civ 14 and asked the Court to take special note of paragraph 15 where in discussing the principle of recovery of possession, Straw JA (Ag) as she then was, emphasised the need for the Applicant to prove title. He submitted that applying these principles to the instant claim, the Court should not be asked to make an order generally in respect of property in which one has no legal or beneficial...