Khemlani (Gui Luchmandas) and Monica Khemlani v Amidos Ltd Warrington Williams, Maureen Williams, and Others

• Jurisdiction: Jamaica
• Judge: Coram: D. MCINTOSH J
• Judgment Date: 25 February 2005
• Judgment citation (vLex): [2005] 2 JJC 2501
• Date: 25 February 2005
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

GUL LUCHMANDAS KHEMLANT

1 ^st CLAIMANT

AND

MONICA KHEMLANI

2 ^ND CLAIMANT

AND

AMIDOS LIMITED

1 ^ST DEFENDANT

AND

WARRINGTON WILLIAMS

2 ^nd DEFENDANT

AND

MAUREEN WILLIAMS

3 ^rd DEFENDANT

AND

SUPERONE LIMITED

4 ^th DEFENDANT

AND

PETER MARTIN

5 ^th DEFENDANT

AND

LORNA MARTIN

6 ^th DEFENDANT

AND

BANK OF NOVA SCOTIA JAMAICA LIMITED

7 ^th DEFENDANT

CIVIL PROCEDURE - Consent Order

Coram: D. MCINTOSH J

1 The claimants seek to set aside the consent order made between themselves and the defendants pursuant to claim No. HCV 1857/2003. That consent order was entered by Rattray J on the 29 ^th April, 2004.

2 Their application is based on the grounds that the covenants endorsed on the Certificate of Title, registered at Volume 996 Folio 253 were not properly imposed thereon and that at the time of the making of the consent order all parties in this claim who were also the parties in claim No. HCV 1857/2003, were mistaken as to the imposition and enforceability of the said covenants.

3 At the start of the hearing the claimants sought to amend their claim. This was refused as the amendments sought did not comply with the Civil Procedure Rules 2003.

4 There was cross-examination of Gul Khemlani, first claimant and of

5 Dr. Harding and Warrington Williams for the defendants.

6 BASIC FACTS

• (a) The claimant are the registered proprietors of land registered at Volume 996 Folio 256 of the Register Book of Title (lot No. 258 of the Register Book of Title (lot No. 87).

• (b) The first defendant is the registered proprietor of land registered proprietors of land registered at volume 996 Folio 260 of the Registered Book of Titles (lot No. 89).

• (c) The second and third defendants are the registered proprietors of land registered at Volume 996 Folio 260 of the Register Book of Titles (lot No. 89).

• (d) The fourth defendant is the registered proprietor of property registered at Volume 996 Folio 261 of the Register Book of

• (e) Titles (lot 90).

• (f) The fifth and sixth defendants are the proprietors of land registered at Volume 996 Folio 254 of the Register Book of Titles (lot 83).

• (g) The seventh defendant is the registered proprietor of property registered at Volume 998 Folio 260 of the Register Book of Titles (lot 133).

• (h) The claimants' land and the defendants' land were formerly part of land registered at Volume 579 Folio 3 of the Register Book of Titles which was previously owned Reginald Cluer. Land registered at Volume 579

  Folio 3 the Register Book of Titles is hereafter referred to as "the development land".

7 In or about 1963 Reginald Cluer, being the owner of the development land, laid the development land out into lots and subdivided same. The lots are set out in the Deposited Plan bearing No. 2573. That Mr. Cluer pursuant to an Instrument directed to the Registrar of Titles obtained splinter titles or Certificate of Titles for eighty lot which include the claimants' and defendants' land. The Instruments by which the titles for the eighty lots were obtained is dated 21 ^st May 1993 and bears Miscellaneous Number 25445 given to it by the Registrar of Titles. It was by this Instrument that Mr. Cluer directed the Registrar of Titles to endorse the restrictive covenants set out on the Title for each of the eighty (80) lots were duly issued by Registrar of Titles and pursuant to the request or direction of Mr. Cluer the restrictive covenants as set out in the Instrument are endorsed on each title for the eighty lots and the titles exhibited to the documents in this matter for the defendants and the claimants are but a sample of these titles with the said endorsement.

8 In or about July 2003 the defendants became aware that the claimants were carrying out construction on the claimants' land. The defendants were of the view that the claimants were building on the claimants' land in breach of restrictive covenant, particularly restrictive covenant No. 9 which prohibits construction of more than one dwelling house on the premises.

9 Consequent on this discovery the defendants instructed their attorneys-at-Law, Livingston, Alexander & Levy, to file an action against the claimants seeking certain declarations including declarations that the defendants are entitled to benefit of the restrictive covenants and that the claimants and the claimants' land were bound by the restrictive covenants and a declaration that the claimants were acting in breach of the restrictive covenants and also seeking a permanent injunction to restrain the claimants from acting in breach of the said restrictive covenants. [See pages 217 to 271 of the main bundle for Claim Form and Particulars of Claim] . In addition, an application was made to the Honourable Mr. Justice Reid for an interlocutory injunction to restrain the construction of the offending structures until the trial of the claim ( pg. 283–287 of the main bundle] . This interlocutory injunction was granted by Mr. Justice Reid on 12 ^th December 2003. The claimants filed an Appeal in the Court of Appeal against the Order of Mr. Justice Reid but the appeal was eventually withdrawn on 29 ^th March 2004. The claim brought by the defendants against the claimants was set for trial in the Supreme Court on 29 ^th , 30 ^th June and 2 ^nd July 2004 and pre-trial review was set for 29th April 2004 (para. 15 Affidavit of Oswald Harding, p. 212 of the main bundle] .

10 Prior to date set for the pre-trial review the parties, through their Attorneys-at-Law, negotiated a settlement and this settlement is encapsulated and set out in the Consent Order made before Mr. Justice Rattray on 29 ^th April 2004 [pg. 56 of main bundle] .

11 THE CLAIMANTS SUBMISSION

12 The Claimant's submitted that an operative mistake, sufficient to vitiate a contract, may arise from ignorance or a misconception/misapprehension of the relevant facts/law at the material time the contract was made.

13 SEE: HALSBURY LAWS OF ENGLAND (4 ^th EDITION) VOLUME 32, paras. 6 and 7.

14 In such circumstances, where the court finds that there is an operative mistake, common between all the parties, the court ought to treat the ensuing contract as having never been made and set aside the same.

15 SEE: GALLOWAY-V- GALLOWAY (1913 – 1914) 30 T.L.R. 531 at 532 Per Ridley J . It is clear from EXHIBIT GLK-8 (page 56 of the Record) that the Consent Order is premised on the parties' beliefs that the covenants are enforceable. If this Honourable Court finds otherwise, the basis of the Consent Order would cease to exist in law and fact and as such, it is submitted, must be set aside.

16 A Consent Order, even one in an executed form where at feast one party to the order has acted upon its terms and provisions may be set aside on any justifiable ground. Per Lindley L.J in HUDDERSFIELD BANKING COMPANY LIMITED -v- LISTER 7 SON LIMITED at 280 - 282 and Vaughn Williams J at 276.

17 A Consent Order evidences a contract between the parties and it is to be subject to all the ordinary principles of Contract Law. SEE: SUPREME COURT PRACTICE 1988 - Para. 4608. The claimants submit that the law is very clear that where there is a common mistake which fundamentally and radically changes the agreement between the parties to the extent that had the parties known of the mistake beforehand they would not have entered that agreement, the common mistake is operative to void the agreement.

18 SEE: BELL -v- LEVER BROTHERS LIMITED [1932] A.C.

ASSOCIATED JAPANESE BANK LIMITED -v- CREDIT DU NORD LIMITED [1989] 1 W.L.R. 255 at 268 - Letter E and 269 Letters B - D. COOPER - v - PHIBBS (1867) LR 2 HI. 149 SCOTT -v- COULSON (1903) 2 Ch .249

NORWICH UNION FIRE INSURANCE SOCIETY LTD -v- WILLIAMS H. PRICE [1934] ALL E.R. Rep. 352

19 The circumstances that led to the Consent Order, were that the following state of affairs, factual and legal, were assumed to exist (erroneously) that, is:

• i. That all the parties were derived from a common vendor and cut from a common miscellaneous instrument; and

• ii. The covenants endorsed on all the Certificates of Title were legally imposed, properly annexed to the lands and that the benefits and burdens ran with the lands.

20 In those circumstances it was reasonable to believe that the covenants burdened the claimants' land and enured for the benefit of the defendants' lands.

21 There is no doubt that on the 29 ^th April, 2004 and the days leading up thereto, all the parties in Claim No. 2003/H.C.V. 1857 were of the view and did so believe that the covenants appearing on all the Certificates of Titles to the parties' respective properties were properly imposed and that the burden and benefits were properly annexed and run with the land. If this Honourable Court finds that these covenants were not properly imposed, especially on the claimants' land, then the Consent Order in Claim No. 2003/H.C.V 1857 was based on a fundamental misconception, sufficient to ground a mistake in law and fact, which entirely vitiates the said Consent Order and in those circumstances, the Consent Order must be set aside.

22 If the Court finds that the covenants were not properly imposed on the parties' land and/or that there was no building scheme in existence at the time when the first transferees acquired title to their respective parcels of land, then of necessity, the court must find that on or about the time of the Consent Order the parties were labouring under a mistake which was the essence of the contract. The claimants submit that if the court finds that there was such a common mistake at the material time, that mistake must be taken to be fundamental and will vitiate the entire contract. As Lord Atkin noted in BELL -V- LEVER BROTHERS LIMITED (Supra) at p. 218 (dicta approved by Steyn J. in Associated Japanese Bank Limited -v- Credit du Nord (supra). A common...