Shernett Manning v Twin Acres Development Company Ltd

• Jurisdiction: Jamaica
• Judge: Dunbar Green J.
• Judgment Date: 21 April 2017
• Neutral Citation: [2017] JMSC Civ 54
• Docket Number: CLAIM NO. 2016 HCV 02320
• Court: Supreme Court (Jamaica)
• Date: 21 April 2017

[2017] JMSC Civ 54

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Coram:

Dunbar Green J.

CLAIM NO. 2016 HCV 02320

Between

Shernett Manning

Claimant/Applicant

and

Twin Acres Development Company Limited

Defendant/Respondent

And Between

Twin Acres Development Company Limited

Ancillary Claimant

and

Horace Manderson

1st Ancillary Defendant

and

Michael Gyles

2nd Ancillary Defendant

Mrs. Daniel Gentles Silvera and Mr. Adam Jones for the Claimant/Applicant instructed by Livingston Alexander

Miss Carol Davis for the Defendant/Respondent

Mr. Alton Morgan and Miss Kathrina Wilson for the 1 ^st and 2 ^nd Ancillary Defendants instructed by Alton Morgan and Company

PRACTICE AND PROCEDURE — Application to strike out Defence — Application for summary judgment — Estoppel — Equitable Mortgage — Whether Court should order sale of property — CPR, rules 15.2, 26.3, 55.2 and Part 66.

IN CHAMBERS

BACKGROUND

1 Twin Acres Development Company (The Defendant/Respondent and Ancillary Claimant) was the developer of an apartment complex at Constant Spring Estate, St. Andrew.

2 On 14 ^th December 2009 one of its directors, Mr. Manderson (1 ^st Ancillary Defendant) arranged for the sale of one of the apartments (lot 21/ B6) to Ms. Manning (The Claimant/Applicant). Further to the Sale Agreement, Ms. Manning lodged six million dollars ($6M) in two installments to Mr. Manderson's personal account, at his instruction.

3 The sale of the apartment was aborted by mutual agreement and a Settlement Agreement (The Agreement) was executed on terms that Twin Acres would repay the six million dollars and interest within 180 days. Another term of the Settlement Agreement was that the debt would be secured as a mortgage over the apartment. Pursuant to the Settlement Agreement, Ms. Manning registered a caveat against the title.

4 Twin Acres did not repay Ms. Manning and she filed suit for recovery of the sum.

5 This proceeding concerns an interlocutory application to strike out the defence, for summary judgement and an order for sale of the property to satisfy the debt.

The Application

6 An Amended Notice of Application was filed 15 ^th December 2016, seeking the following orders:

• (i) The Defence filed on 29 ^th September 2016 be struck out;

• (ii) Further and/or in the alternative, Summary Judgment be entered in favour of the Claimant in respect of the Claim for the amount of Nine Million Five Hundred and Seventy-Eight Dollars and Ten Cents ($9,572,548.10) together with interest at a rate of 10% per annum from 7 ^th June 2016 to the date of judgment on the Six Million Dollars ($6,000.000.00);

• (iii) Further and/or in the alternative, an Order that all that parcel of land part of Lot Twenty-One B and part of Constant Spring Estate known as part of Number Fourteen Stilwell Road in the parish of Saint Andrew being the Strata Lot numbered Four comprised in Certificate of Title registered at Volume 1399 Folio 793 of the Register Book of Titles known as Apartment B6, Twin Acres Apartments be sold to satisfy the sum of $6,000,000.00 plus interest at the rate of 10% per annum from 1 ^st July 2010 to the date of payment; and

• (iv) Costs be granted in favour of the Claimant to be taxed if not agreed.

7 The orders are sought on the following grounds:

• 1) The Defence filed has no real prospect of success and fails to disclose any reasonable grounds for defending the claim for the reasons that:

  • (b) the parties herein entered into a written agreement dated 7 ^th June 2010 (“the Settlement Agreement”) by virtue of which the Defendant acknowledged owing the Claimant $6,000,000.00 and it agreed to pay the Claimant the sum of Six Million Dollars ($6,000,000.00) (“the Principal”) together with interest at a rate of 10% per annum in consideration of the Claimant forbearing to demand immediate payment of the same sum within one hundred and eighty (180) days; and

  • (c) to date the Defendant has failed to pay any of the monies owing to the Claimant as agreed or at all in breach of the Settlement Agreement and/or has had the sum of $6,000,000.00 and used it for some other purpose.

• 2) The Defence provides no reasonable grounds for invalidating the Settlement Agreement.

• 3) The directors of the Company were authorised to:

  • (i) accept money on the Defendant's behalf; and

  • (ii) enter into the Settlement Agreement which continues to bind the Company.

• 4) The Defence filed does not disclose any reasonable grounds for defending the claim and is an abuse of the process. Accordingly, the Defence ought to be struck out pursuant to Rule 26.3 of the Civil Procedure Rules, 2002.

• 5) The Defendant had failed to comply with Rule 10.5(1) Civil Procedure Rules, 2002 in that it has failed to set out the facts with sufficient particulars on which it intends to rely. The Defence contains an allegation of fraud but it has not been sufficiently pleaded.

• 6) Further, the Claimant is an equitable mortgagee of ALL THAT parcel of land part of LOT TWENTY-ONE B part of CONSTANT SPRING ESTATE known as part of NUMBER FOURTEEN STILWELL ROAD in the parish of SAINT ANDREW being the strata Lot numbered FOUR comprised in Certificate of Title registered at Volume 1399 Folio 793 of the Register Book of Titles known as Apartment B6, Twin Acres Apartments (“the Property”) pursuant to a Settlement Agreement entered into by the Claimant and Defendant herein on 7 ^th June 2010.

8 Ms. Manning filed an affidavit on 17 ^th November 2016 in support of the application and sought permission to rely on affidavit of 8 ^th December 2016. The relevant paragraphs are reproduced below.

The Affidavit of the 8 ^th December, 2016

The Affidavit of the 17 ^th November 2016

• 3. On or about the 14 ^th December, 2009 I entered into an Agreement for Sale for the purchase of Apartment B6, Twin Acres Apartments comprised in Certificate of Title registered at Volume 1399 Folio 793 of the Register Book of Titles (“the Property”) from the 1 ^st Defendant/Ancillary Claimant, Twin Acres Development Company Limited. Pursuant to the said Agreement for Sale, I paid monies on account of the purchase price to Twin Acres Development Company Limited including a cheque for Two Million Dollars ($2,000,000.00) dated the 30 ^th November, 2009 and another cheque for Four Million Dollars ($4,000,000.00) dated the 22 ^nd December, 2009.

• 4. The aforesaid transaction was cancelled by mutual agreement between the parties but the 1 ^st Defendant/Ancillary Claimant did not have the liquidity to repay the said sum to me immediately. Accordingly on the 7 ^th June, 2010 I entered into a Settlement Agreement by virtue of which the 1 ^st Defendant/Ancillary Claimant acknowledged its indebtedness to me in the sum if Six Million Dollars ($6,000,000.00). I exhibit hereto photocopy of the Settlement Agreement marked “ SM 1” for identification.

• 5. In consideration of me forbearing from insisting on immediate payment from the company for the sum of Six Million Dollars ($6,000,000.00), the 1 ^st Defendant/Ancillary Claimant agreed that it would within one hundred and eighty (180) days from the date of the agreement or where there was a binding signed contract for the sale of the Property subsisting, pay to me the sum of Six Million Dollars ($6,000,000.00) together with interest from the 1 ^st July 2010 at 10% per annum.

• 6. The Settlement Agreement expressly provided that the Property would be charged as security for the debt to me together with interest and that upon demand the 1 ^stDefendant/Ancillary Claimant would make and execute in my favour, a legal mortgage over the Property. If the 1 ^st Defendant/Ancillary Claimant fails to establish that legal mortgage, the Settlement Agreement empowers me to act on the behalf (sic) of the 1 ^st Defendant/Ancillary Claimant and have the mortgage created, duly executed and registered on the title to the property in my favour.

• 7. Pursuant to the said Settlement Agreement and in support of my charge I lodged a caveat against the title to the said Property on the 29 ^th August 2012, prior to the judgment upon which the Provisional Charging Order is based being handed down and clearly prior to the Order granting the Provisional Charging Order. The endorsement on the title reads as follows:

  “Caveat No. 1778351 lodged on the 29 ^th day of August, 2012 by SHERNETT MARIE ALICIA MANNING estate claimed Equitable Interest pursuant to an Agreement dated the 7 ^th day of June, 2010.”

  I exhibit hereto photocopy of Certificate of Title registered at Volume 1399 Folio 793 marked “ SM 2” for identification.

• 8. The Agreement referred to in the above notation is the said Settlement Agreement between myself and the 1 ^st Defendant/Ancillary Claimant herein.

• 9. In the circumstances I have an equitable interest in the said Property over which a Provisional Charging Order has been granted in favour of L.D.T. Services Limited and Leon Forte , the 1 ^st and 2 ^nd Claimants named herein who must have been aware of my interest, yet failed to disclose it in the affidavit filed on the 30 ^th September, 2016 by Leon Forte. Indeed the Judgment which he is seeking to enforce refers to the fact that the 1 ^st Defendant/Ancillary Claimant is indebted to me for Six Million Dollars ($6,000,000.00) plus interest and that the Settlement Agreement acknowledge that the said Defendant company is indebted to me.

• 10. That on the 6 ^th June 2016 I filed suit (Claim No. 2016 HCV 02320) against the 1 ^st Defendant/Ancillary Claimant, Twin Acre Development Company Limited, to recover the sum of Six Million Dollars ($6,000,000.00) plus interest. A Defence has been filed in response. On the 17 ^th November, 2016 I filed a Notice of Application for Summary Judgment and/or to Strike out the Statement of Case. This application is listed for hearing on the 19 ^th December, 2016.

• “2. Sometime in 2009 I was looking to purchase property when I was introduced to Mr. Horace Manderson, as...