Harley Corporation Guarantee Investment Company Ltd v Estate Rudolph Daley, Etal Walters and RBTT Bank Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: PANTON, P , HARRIS, JA , DUKHARAN, JA
• Judgment Date: 20 December 2010
• Judgment citation (vLex): [2010] 12 JJC 2006
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2010

[2010] JMCA Civ 46

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE PANTON P THE HON MRS JUSTICE HARRIS JA THE HON MR JUSTICE DUKHARAN JA

SUPREME COURT CIVIL APPEAL NO 44/2007

BETWEEN

HARLEY CORPORATION GUARANTEE INVESTMENT COMPANY LIMITED

APPELLANT

AND

ESTATE RUDOLPH DALEY

1 ^ST RESPONDENT

AND

ETAL WALTERS

2 ^ND RESPONDENT

AND

RBTT BANK JAMAICA LIMITED

3 ^RD RESPONDENT

BETWEEN

RBTT BANK JAMAICA LIMITED

APPELLANT

AND

ESTATE RUDOLPH DALEY

1 ^ST RESPONDENT

AND

ETAL WALTERS

2 ^ND RESPONDENT

AND

HARLEY CORPORATION GUARANTEE INVESTMENT COMPANY LIMITED

3 ^RD RESPONDENT

Dr Lloyd Barnett, Keith Bishop & Miss Kerry-Ann Ebanks instructed by Bishop & Fullerton for Harley Corporation Guarantee Investment Co Ltd

David Batts & Miss Terry-Ann Brown instructed by Livingston Alexander & Levy for Estate Rudolph Daley

Mrs Nesta-Claire Smith-Hunter & Miss Marsha Smith instructed by Ernest A. Smith & Company tor Etal Walters

Vincent Nelson, QC & Christopher Kelman instructed by Myers Fletcher & Gordon for RBTT Bank Jamaica Limited

REAL PROPERTY - Ownership of property - Legal and beneficial - Mesne profits - Assessment of damages - Powers of sale under mortgage - Breach of contract - Negligence - Indemnity - Contribution

PANTON, P

1 I have read in draft the judgment of my sister Harris, JA and agree with her reasoning and conclusions. There is nothing further that I wish to add.

HARRIS, JA

2 These are consolidated appeals in which the RBTT Bank Jamaica Limited ("The Bank") and Harley Corporation Guarantee Investment Company Limited appealed against the order of Sykes J in which he delivered judgment in favour of the 2 ^nd respondent. On 25 September 2009 we allowed the appeals and made the following orders:

"Orders of Sykes J. set aside. It is hereby declared that Harley Corporation Guarantee Investment Company Limited is the legal and beneficial owner of all that parcel of land registered at Volume 1022 Folio 570 and is entitled to possession thereof.

The matter is remitted to the Supreme Court for assessment of mesne profits due from the respondent Etal Walters to Harley Corporation Guarantee Investment Company Limited.

Costs of the appeal and in the court below to the appellant Harley Corporation Guarantee Investment Company Limited."

It is further ordered that Daley's claim is remitted to the Supreme Court for assessment of damages.

3 We promised to put our reasons in writing and in obedience to that promise, we now do so.

4 The 1 ^st respondent, Rudolph Daley, now deceased, was the owner of a parcel of land at Exchange in the parish of Saint Ann registered at Volume 1022 Folio 570. By and with his consent, the bank, granted a loan to one Raymond Martin which was guaranteed by way of a mortgage on the security of the property. The mortgage fell into arrears. On 12 December 1992, Daley entered into a contract of sale with the 2 ^nd respondent Etal Walters for the sale of the property for the sum of $135,000.00. Walters paid an initial deposit of $100,000.00 on the purchase price and was put into possession. He subsequently constructed a dwelling house and a shop on the land.

5 A statutory notice dated 25 January 1994 demanding payment of the mortgage, addressed to Daley c/o Happy Holiday Tour & Car Rental, 3 Rennie Road, Ocho Rios, was issued by the bank in the exercise of its powers of sale. It appears that sometime after the notice was issued, Daley requested a further deposit of $35,000.00 from Walters which was paid and a receipt dated 3 June 1994 was issued by him to Walters. On 10 October 1994 Daley made a payment of $30,000.00 to the bank on account of the mortgage (loan account 5003549). On 10 January, 1995 a payment of $35,000.00 was made by Daley to the bank which is evidenced by a receipt showing that the payment was made with respect to "(1) Loan A/C 5003549 Raymond Martin $26, 292.50 (2) Fees re auction sale in connection with loan # 5003549 for $8707.50".

6 It was Walters' evidence that Daley and himself attended the bank, when he, Walters, paid the sum of $35,000.00 on account of the mortgage and they informed the loans officer, Mrs Joy Traille, that they had entered into the agreement for the sale of the land. He asserted that she gave them an assurance that the certificate of title would be released to Daley's attorneys at law to facilitate a transfer of the property to Walters and that she also stated that she would instruct the bank's lawyers to discharge the mortgage. Mrs Traille refuted that she held discussions with Walters and Daley at a joint meeting about the sale or that Walters had paid $35,000.00 towards the mortgage or that she had given any assurances to them. She stated that Walters attended the bank and told her of the agreement and that a man had told him that he had purchased the land from the bank.

7 On 14 December 1994 the bank advertised the property for sale by public auction as being land with foundation building. At the time of the agreement between Daley and Walters, no building was on the land. Only an incomplete foundation was on it. On 22 December 1994 the public auction was held. However, no bids were received. The property was subsequently sold to the 3rd respondent, Harley Corporation Guarantee Investment Company Limited ("Harley Corporation") by private treaty for the sum of $200,000.00 and was transferred to it on 18 March 1995. Following the sale the net proceeds of $52,961.14 was remitted to Daley by the bank.

8 On 30 April 1995 Harley Corporation served a notice to quit on Walters to vacate the property. His failure so to do, impelled it to commence on 15 May 1996, an action for recovery of possession of the property by way of Suit No. C.L. H 094 of 1996.

9 On 13 September 1995, by Suit No. C.L. D162 of 1995, Daley commenced proceedings against the bank, claiming the following:

• 1. Damages for Negligence and/or for Breach of Contract and/or Breach of Fiduciary Duty and/or Breach of Statutory Duty in that the Defendant by itself, its servants and/or agents purported to sell the property of the Plaintiff at a gross undervalue and at a time when it knew or ought to have known that the Plaintiff had already sold same and at a time also when the Plaintiff was servicing his Mortgage with the Defendant.

• 2. Further or in the alternative an account of the alleged or any sum due and owing under and by virtue of instrument of Mortgage dated the 29th day of July, 1991 and made between the Plaintiff and the Defendant.

• 3. A Declaration that the Plaintiff is entitled to an indemnity and/or contribution from the Defendant with respect to any or any alleged claim by Mr. and Mrs. Etal Walters of Exchange in the Parish of St. Ann with respect to their purchase of the said land from the Plaintiff.

• 4. Damages.

• 5. Costs.

• 6. Interest on such Damages as may be awarded.

• 7. Further or other Relief."

10 On 22 February 1996, by Suit No. C.L W 55 of 1996 Walters brought an action against Daley, the bank and Harley Corporation, seeking a declaration that he was the beneficial owner of the property which forms the subject matter of the dispute. On 17 October 1997, by Suit No. C.L. W 369 of 1997 Walters again initiated proceedings seeking a declaration in the same terms as sought in Suit No. C.L. W 55 of 1996, but the claim in the latter suit was against the Daley and the bank only.

11 Defences were filed in respect of each suit. All four suits were consolidated. On 30 January 2007 the learned trial judge made the following orders:

"IT IS HEREBY ORDERED as follows:-

• 1. That the sale in respect of All that parcel of land registered at Volume 1022 Folio 570 of the Register Book of Titles and being part of Exchange in the parish of Saint Ann by Power of Sale under Mortgage No. 654674 to Harley Corporation Guarantee Trust Company Limited be and is hereby set aside.

• 2. The Registrar of Titles is directed to remove the name of Harley Corporation Guarantee Trust Company Limited from Certificate of Title registered at Volume 1022 Folio 570 of the Register Book of Titles of Jamaica.

• 3. It is declared that Etal Walters is the legal and beneficial owner of All that parcel of land registered at Volume 1022 Folio 570 of the Register Book of Titles of Jamaica.

• 4. The declaration in paragraph three only comes into effect on payment in full of the balance of thirty five thousand dollars (JA$35,000.00) by Etal Walters to the Estate of Rudolph Daley.

• 5. The sum of Thirty-five Thousand Dollars ($35,000.00) and/or any balance remaining after payment to the mortgagee pursuant to paragraph 10 below, attracts interest at the rate of 33% per annum and is to be paid to RBTT Bank Jamaica Limited and Harley Corporation Guarantee Trust Company Limited jointly and severally to Estate Rudolph Daley from the 6 ^th day of March, 1995 to the date of payment.

• 6. That All that parcel of land registered at Volume 1022 Folio 570 of the Register Book of Titles and being part of Exchange in the parish of Saint Ann be transferred and registered in the name of Etal Walters and/or his nominee only after Etal Walters has paid the balance of thirty-five thousand dollars (JA$35,000.00) to the Estate of Rudolph Daley.

• 7. The Estate of Rudolph Daley and Etal Walters to pay such costs including taxes, duties, registration fee as they would have paid had the property been transferred in 1995 and any increase in costs of the transfer including taxes, duties, registration fee and any increase, or adjustments since 1995 to be borne by the RBTT Bank Jamaica Limited and Harley Corporation Guarantee Trust Company Limited jointly and severally.

• 8. The purchase price of Two Hundred Thousand Dollars ($200,000.00) which was paid by Harley Corporation Guarantee Trust Company Limited is to be refunded to it by RBTT Bank...