National Import-Export Bank of Jamaica v Montego Bay Investment Company Ltd

• Jurisdiction: Jamaica
• Judge: Wint-Blair, J
• Judgment Date: 05 May 2017
• Neutral Citation: [2017] JMSC Civ 67
• Docket Number: CLAIM NO. 2014HCV04257
• Court: Supreme Court (Jamaica)
• Date: 05 May 2017

[2017] JMSC Civ 67

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Wint-Blair, J.

CLAIM NO. 2014HCV04257

Between

National Import-Export Bank of Jamaica

Claimant

and

Montego Bay Investment Company Limited

Defendant

Lord Anthony Gifford, Q.C. and Mrs. Emily Shields for the Applicant.

Mr. Nigel Jones and Ms. Jessica Telfer for the Respondent.

Statutory interpretation — Sections 63 and 88 of the Registration of Titles Act — Registered land — Deed of Gift — Whether an unregistered transfer confers ownership of the land upon the transferee — Whether the execution of the instrument of transfer converts the transferor's intention into ownership on the part of the transferee — Sale of land

CORAM: Wint-Blair, J(Ag.)

1 The Court heard two applications in this matter. The first application concerned the legal position of Ms. Maureen Symister, the daughter of Mr. John Sinclair, deceased.

2 The application filed on December 5, 2016 by Ms. Symister sought the following orders:

• 1. “An order that the applicant, Maureen Symister is an interested party for the purposes of these proceedings.

• 2. A variation of the Final Charging Order granted on the 1 ^st day of February, 2016 and filed in this Court on the 3 ^rd day of February, 2016 to exclude Order 1 which reads – ‘All that parcel of land located at 14 Central Path, Calabar Mews, Kingston 20 in the parish of Saint Andrew contained in Certificate of Title registered at Volume 1302 Folio 860 of the Register Book of Titles from the list of properties which are subject to be charged pursuant to the summary judgment filed on the 18 ^th June, 2015’.

• 3. Costs and

• 4. Such further and of the [sic] Orders as this Honourable Court deems fit.”

The background to Ms Symister's application

3 A final charging order has been made by this Court over property at 14 Central Path, Calabar Mews, Kingston 20, Saint Andrew, registered at Volume 1302 Folio 860 of the Register Book of Titles. Mr. John Sinclair was its registered proprietor, (“the disputed property). Mr. John Sinclair is now deceased.

4 Ms. Symister asserted that the disputed property had been given to her in 1990 as a wedding gift by her father. This was an inter vivos disposition. The disputed property cannot therefore be considered a part of his estate and she desired the Court to vary the final charging order to exclude the disputed property.

5 The second application was brought by the respondent. The respondent is a financial institution which had obtained final charging orders over properties belonging to John Sinclair. An application for an order for the sale of land was filed on June 21, 2016 on its behalf seeking the following orders:

• 1. “That all that parcel of land located at 14 Central Path, Calabar Mews, Kingston 20 in the parish Saint Andrew, contained in the Certificate of Title registered at Volume 1302 Folio 860 of the Register Book of Titles be sold to satisfy the Summary Judgment entered against the 2 ^nd, 3 ^rd and 4 ^th Defendants on June 18, 2015;

• 2. That all that parcel of land located at Lot # 11 Blairgowrie part of Reading Pen in the parish of Saint James, contained in Certificate of Title registered at Volume 1448 Folio 575 of the Register Book of Titles be sold to satisfy the Summary Judgment entered against the 2 ^nd, 3 ^rd and 4 ^th Defendants on June 18, 2015;

• 3. That all that parcel of land located at 8 Hopefield Avenue, Kingston 6 in the parish of Saint Andrew, contained in the Certificate of Title registered at Volume 1092 Folio 463 of the Register Book of Titles be sold to satisy the Summary Judgment entered against the 2 ^nd, 3 ^rd and 4 ^th Defendants on June 18, 2015;

• 4. That the 3 ^rd and 4 ^th Defendant's agent, employee or whosoever may be in possession of the property comprised in the Certificate of Title registered at Volume 1302 Folio 860, Volume 1448 Folio 575 and Volume 1092 Folio 463 of the Register Book of Titles through the 3 ^rd and 4 ^th Defendants or with their knowledge, consent or otherwise deliver up possession of the land within seven days from the date of this order.

• 5. That the Claimant's legal representative shall have carriage of sale.

• 6. The Claimant is permitted to sell the property at [sic] private treaty.

• 7. The Claimant is permitted to list the property with real estate agencies and or real estate agents to facilitate the sale at private treaty in accordance with order 6 hereof.

• 8. The Claimant is entitled to recover the costs of valuations from the sale of the properties.

• 9. The Claimant is entitled to pay any realtor's fees, taxes and all other fees associated with the sale of the property from the purchase price.

• 10. The 3 ^rd and 4 ^th Defendants shall sign the Agreements for Sale and the Instruments of Transfer as required by the Claimant.

• 11. If the 3 ^rd and 4 ^th Defendants fail and/or refuse to comply with order 10 hereof the Registrar of the Supreme Court shall be empowered to sign the Agreements for Sale and Instruments of Transfer for the sale of the properties.

• 12. The 3 ^rd and 4 ^th Defendants shall within seven days from the date hereof produce the duplicate Certificate of Title for the property in order 1 hereof to Nigel Jones & Company.

• 13. If the 3 ^rd and 4 ^th Defendants fail and/or refuse to produce the duplicate Certificates of Title for the properties mentioned in Order 1 hereof, the Registrar of Titles shall issue a new title and dispense with the production of the duplicate Certificates of Title upon registration of the transfer.

• 14. Costs to the Applicant

• 15. Such further and other relief as this Honourable Court deems fit.”

6 The respondent asserted that the the estate of John Sinclair is justly indebted to it pursuant to a Judgment entered on June 18, 2015 in the sum of US$5,340,785.00 with interest at the rate of 3% per annum from the date of judgment to payment and J$927,161.44 with interest at a rate of 6% per annum from the date of judgment to payment. As well as costs to be agreed or taxed. The judgment debt remained partially unsatisfied at the date of hearing.

7 Having secured final charging orders over the properties sought in the application, the respondent wished to sell the properties to realize the fruit of its judgment.

8 Both applications were heard together with that of Ms. Symister heard first. The decision in respect of each application is set out in the conclusion below in the same order.

Background

9 Ms. Maureen Symister asserts that that she was given the disputed property in 1990 as a wedding gift by her father, Mr. John Sinclair. The instrument of purported transfer is dated March 11, 2013 and was signed by her father John Sinclair before his death. Ms. Symister did not execute the transfer until after the death of her father. The transfer was not registered before Mr. Sinclair died. Ms. Symister now claims that the disputed property had been the subject of an inter vivos disposition to her and should not form a part of her father's estate. The respondent now seeks to sell the disputed property as it has a final charging order naming the disputed property as one of those charged.

The Issue

10 The issue both counsel asked the Court to determine in respect of the first application was, what is the position of a transferee named in an instrument of transfer, made pursuant to section 88 of the Registration of Titles Act; when said transfer had been executed but not registered before the death of the transferor.

Submissions — Applicant

11 Lord Gifford, Q.C. for the applicant submitted that the Court should determine the following issues:

• I. The Court should determine the legal position of the transferee at the date of death of the transferor. The transferee was the owner of the land at the date of John Sinclair's death. He having fulfilled his intention to give the land to her by the execution of a transfer, she became its owner. Ownership is separate from registration. Ms. Symister was the owner of the land, she did not give the land back to the estate. Her instructions to cancel the transfer were based on the false representations of her father's counsel when she was told to reimburse the transfer tax paid to effect the transfer.

• II. Where the intention of the transferor is plain from the instrument executed by him, that action is effective to create ownership on the part of the donee or transferee even where there is irregularity in the transaction.

• III. Section 88 of the Registration of Titles Act provides that the transfer has to be registered. The ownership of registered land is registered so as not to leave the owner vulnerable to others with rival interests which could be registered against the title. In the case of Diana Johnson v Ivy Johnson Suit No. E 379 of 2000, Daye, J questioned whether there had been a transfer. The learned judge distinguished between an intended and an actual gift.

• IV. The evidence of Ms. Symister is that her father intended to give the land to her by way of gift. He had done everything necessary to convert intention into ownership by executing the instrument of transfer. The property had therefore been given to his daughter before he died. The property did not form a part of his estate. The death of the transferor should not affect the registration process, the transfer can be submitted for taxes to be paid on registration. The transferee of a registrable but unregistered interest had an equitable interest in the subject property and that the legal estate and interest would pass to her upon registration. The Torrens system as used in Australia and Canada allowed for a title in equity to the applicant upon the execution of the instrument of transfer until registration.

• V. Counsel for the applicant relied on the case of Byron Headley v Barrington Headley (1999) 3 JJC 2611 for the submission that the transfer by way of gift was an expression of the true intent of the...