Trustee in Bankruptcy v Five C Entertainment Ltd

JurisdictionJamaica
Judge HARRISON J.
Judgment Date13 November 2002
Judgment citation (vLex)[2002] 11 JJC 1301
Docket NumberSUIT NO. 395A OF 2002
CourtSupreme Court (Jamaica)
Date13 November 2002
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
SUIT NO. 395A OF 2002
BETWEEN
THE TRUSTEE IN BANKRUPTCY
APPLICANT
AND
FIVE C ENTERTAINMENT LIMITED
RESPONDENT

REAL PROPERTY - Mortgage - Whether mortgage registered in property is void - Whether or not a bankrupt can deal with his assets after a Provisional Bankruptcy Order has been made against him - Whether registration of mortgage in favour of third party over property vested in Trustee in Bankruptcy becomes indefeasible

1

IN CHAMBERS

HARRISON J
2

The Applicant filed this Originating Summons seeking inter alia:

  • a) A Declaration that the Mortgage No. 1163028 registered on the 8 th day of October 2001 to FIVE C'S ENTERTAINMENT LIMITED to secure the sum of One Hundred and Fifty Thousand Dollars United States Currency (US$150,000.00) with interest in respect of ALL THAT parcel of land part of TRAFALGAR PARK now known as LOT ONE HUNDRED AND FORTY-SEVEN A TRAFALGAR PARK in the Parish of SAINT AQNDREW being the Strata Lot numbered FOUR on the Strata Plan numbered Three Hundred and Seven and Three Hundred and Twelve undivided l/10,000 th shares in the common property therein and being all of the land comprised in Certificate of Title registered at Volume 1038 Folio 502 but now registered at Volume 1188 Folio 163 of the Register Book of Titles is void.

  • ....."

3

After hearing the evidence and submissions I reserved judgment since it was my considered view that I needed some time to consider the arguments. I must apologize however, for the delay in handing down the judgment.

4

The issues for consideration are:

  • 1. Whether or not a bankrupt can deal with his assets after a Provisional Order of bankruptcy has been made against him.

  • 2. Whether the registration of a mortgage in favour of a third party over property vested in the Trustee in Bankruptcy becomes indefeasible once it is noted by the Registrar of Titles on the registered certificate of title.

5

Keith Cooper (The Trustee in Bankruptcy) has deposed in an affidavit dated 24 th July 2002 as follows:

  • "1. I am the Trustee for the Estate of Ronnie Chin Loy (hereinafter called the Debtor) by virtue of a Provisional Order in Bankruptcy made by the Supreme Court of Judicature of Jamaica dated the 3 rd day of May 2000.

  • 2 That the assets of the Debtor vest in me from the 3 rd day of May 2000, the date of the Provisional Order.

  • 3. That my investigations of the affairs of the Debtor have revealed that the Debtor is the owner of various assets.

  • 4. That the Debtor is the registered proprietor of land registered at Volume 1188 Folio 163 of the Register Book of Titles.

  • 5. That endorsed on the said duplicate Certificate of Title is Mortgage No. 1163028 registered on the 8 th day of October 2001 to FIVE C'S ENTERTAINMENT LIMITED to secure the sum of One Hundred and Fifty Thousand Dollars United States Currency (US$150,000.00) with interest.

  • 6. That I have been advised and truly believe that enquiries made by officers of the Office of the Trustee in Bankruptcy have established that FIVE C'S ENTERTAINMENT LIMITED the registered mortgagee of mortgage No. 1163028 endorsed on the said Certificate of Title and the Respondent are one and the same Company.

  • 7. That the Debtor is shown on the Memorandum of Association of the Respondent as a subscriber and shareholder of the Respondent.

  • 8. That the Debtor is shown on the Articles of Association of the Respondent as asubscriber of the Respondent.

  • 9......"

6

There is no dispute that a provisional order in bankruptcy was made against the Debtor on the 3 rd day of May 2000. There is also no dispute that the Respondent and FIVE C'S ENTERTAINMENT LIMITED the registered mortgagee of the mortgage, is one and the same Company.

7

Now, how does the Bankruptcy Act deals with a provisional order in bankruptcy? Section 42 of the Act provides as follows:

"When a provisional order has been made against...

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