Woolaston (Leo Hugh) and Others v Aubrey George Brown and Others

• Jurisdiction: Jamaica
• Judge: SYKES J.
• Judgment Date: 01 July 2008
• Judgment citation (vLex): [2008] 7 JJC 0101
• Court: Supreme Court (Jamaica)
• Date: 01 July 2008

IN THE SUPREME COUT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2003 HCV 01302

BETWEEN

LEO HUGH WOLLASTON AND AUBREY CLARENCE WOLLASTON (As Executors for and on behalf of The Estate of Aubrey Charles Wollaston, deceased)

1 ^ST CLAIMANT

AND

LEO HUGH WOLLASTON AND AUBREY CLARENCE WOLLASTON (As Executors for and on behalf of The Estate of Aldine Brown, deceased)

2 ^ND CLAIMANT

AND

AUBREY GEORGE BROWN

1 ^ST DEFENDANT

AND

CRAFTON S. MILLER & COMPANY (A FIRM)

2 ^ND DEFENDANT

AND

MYERS, FLETCHER & GORDON

3 ^RD DEFENDANT

AND

VINCENT LOSHUSAN & SONS

4 ^TH DEFENDANT

AND

THE REGISTRAR OF TITLES

5 ^TH DEFENDANT

IN CHAMBERS

Charles Piper and Kanika Tomlinson for the claimants

Walter Scott and Anna Gracie instructed by Rattray, Patterson and Rattray for the second defendant

Dr. Lloyd Barnett and Tavia Dunn instructed by Nunes, Scholefield, Deleon and Company for the third defendant

Daniella Gentles instructed Livingston Alexander and Levy for the fourth defendant

Nicola Brown instructed by the Director of State Proceedings for the fifth defendant

APPLICATION TO STRIKE OUT CLAIM舒 NEGLIGENCE舒 DUTY OF CARE舒 ECONOMIC LOSS舒 CLAIM IN NEGLIGENCE STATUTE BARRED舒 RULE 26.3 (1) (b) and (c) OF THE CIVIL PROCEDURE RULES舒 REASONABLE GROUNDS TO BRING CLAIM舒 FRAUD UNDER THE REGISTRATION OF TITLES ACT-PLEADING FRAUD舒 NEED TO PARTICULARISE舒 SECTION 71 OF THE REGISTRATION OF TITLES ACT

CIVIL PROCEDURE - Claim - Application to strike out - Negligence - Duty of care - Economic loss - Claim in negligence statute-barred - Civil Procedure Rules 26.3(1) (b) and (c) - Reasonable grounds to bring claim - Fraud under Registration of Titles Act - Pleading fraud - Need to particularize - Registration of Titles Act s.71

SYKES J

1 This is an application by all the defendants except the first to strike out the claim made against them by the first claimant. The applications are made under rule 26.3 (1) (b) and (c) of the Civil Procedure Rules (CPR). I have struck out the claim in fraud against Crafton S. Miller and Company (CSM). The claim in fraud and negligence against Myers Fletcher and Gordon (MFG) is struck out. The claim against Victor Loshusan and Sons (VLS) for fraud is struck out. The claim against the Registrar of Titles is also struck out. All the claims that have been struck out were stricken under rule 26.3 (1) (c), that is to say, the pleadings do not disclose any reasonable grounds for bringing the claim.

2 At this stage I can deal with the application by the fifth defendant, the Registrar of Titles. At the hearing, Miss Brown was not called on by the court. Instead, having read her submissions and authorities, Mr. Piper was asked if he could resist her application. He conceded that he could not and so the claim against the Registrar of Titles was dismissed with costs of only $40,000.00 (because of the exceptional benevolence of Miss Nicola Brown, counsel for the fifth defendant) to the Registrar of Titles.

3 Miss Brown's insurmountable and unassailable propositions were founded on the Court of Appeal's decision of Registrar of Titles v Melfitz Limited and Keith Donald S.C.C.A. No. 9 of 2003 (delivered July 29, 2005). In that decision Smith J.A., delivering the leading judgment of the court, examined sections 68, 71, 158, 160, 161, 162, 164 of the Registration of Titles Act. His Lordship concluded that claims against the Registrar of Titles cannot be brought unless the preconditions laid down in the Registration of Title Act are met. The Registrar of Titles resides, as far as claims are concerned, behind a heavily defended fortress that cannot be easily breached. The statute sets out the route that must be followed if damages are being sought against the Registrar (see page 14 of the judgment). Anyone seeking damages against the Registrar must first seek compensation and if that fails, the person must file a notice of action against the Registrar one month before beginning such an action (see pp. 13 and 14 of judgment). Importantly, the court held that where a declaration, an injunction, a cancellation of titles or a retransfer is sought there is no need to join the Registrar (see page 13 of judgment). From this case, it is fair to say that the current claim against the Registrar was destined to fail from the moment it was conceived.

Genesis

4 The facts and circumstances that have led to this claim are now recounted. This comes from the particulars of claim filed by the claimants. Messieurs Leo and Aubrey Clarence Wollaston are executors of the estates of Aubrey Charles Wollaston and Miss Aldine Brown. In this judgment I shall use the middle name of Mr. Aubrey Charles Wollaston to refer to the claim of the first claimant. Thus this claimant is hereafter referred to as Charles. Where necessary I shall use the name Aldine to refer to the second claimant.

5 Charles lived with Aldine for a number of years at premises known as 12½ Molynes Road located in the parish of St. Andrew. This property was part of a larger property owned by Mr. Arthur Brown, the father of Mr. Aubrey George Brown (George), the first defendant. The larger property was subdivided into two parcels of land with each having its own title. The property in question here is registered at volume 1096 and folio 915 of the Register Book of Titles in George's name (the property). VLS is now the registered proprietor and so the only hope of removing VLS is by establishing a case of personal dishonesty against VLS which begins with pleading such a case properly.

6 The union of Charles and Aldine, like that of Adam and Eve, was fruitful, and the land, which is the subject matter of this dispute, was replenished and filled with eleven children, two of whom are Messieurs Leo and Aubrey Wollaston, the current executors of the estates of Charles and Aldine.

7 On June 9, 1982, Charles and George signed an agreement for sale in which George agreed to sell and Charles agreed to purchase the property for $36,000.00. The only special condition was that Charles should obtain (i) a mortgage of $24,000.00 from a financial institution at a rate of 14% and (ii) a letter of commitment, presumably from the mortgagee, within four weeks of the signing of the agreement. The third defendant, CSM, known at the time of the execution of the sale agreement as Miller, Mitchell and Co. had carriage of sale. At all material times this firm acted for the vendor, George. At no time was the firm retained by Charles.

8 The mortgagee turned out to be Royal Bank Trust Company (Jamaica) Limited (Royal). The attorneys for Royal were MFG, the third defendant. At no time was this firm retained by or acted for either Charles or George in the transaction.

9 Royal sought the greatest possible security for its loan. In addition to the personal covenant to repay the loan and the mortgage over the property, Royal required a guarantor for Charles' loan. To solve this problem, it was eventually proposed by CSM, after discussion involving CSM, George and Charles, and accepted by Royal that George would also be personally liable on the mortgage. Even though George would be liable on the mortgage the understanding was that Charles would service the loan and George would only be called upon if Charles defaulted. From the documents filed, it appears that George wanted some protection in the event that he was called on to repay the loan. In order to give George protection in the event that he became liable on his personal covenant to repay, it was agreed that George would hold an interest in the property being purchased by Charles. It is critical to note that this decision to provide protection for George was not required by the mortgagee. It was a solution devised by CSM, George and Charles, and the reason for putting it to the mortgagee must be because, in the normal course of things George's name on the title might impair the ability of the mortgagee to exercise its extra curial remedy, that is the power of sale, should it become necessary to do so. It is quite unusual, under the Registration of Titles Act, for the vendor's name to be on the title as retaining a legal interest in the property after it is sold. This is so even if the vendor is also the mortgagee.

10 The following letter dated April 18, 1983 from CSM to MFG sets out the proposal. It needs no comment. It reads:

We refer to your letter of 18 ^th March 1983 and previous correspondence dealing with the above matter [sale of land]. On 16 ^th April, 1983 Messrs. Aubrey Brown and Aubrey Wollaston called at our office and agreed that the property should be transferred in their joint names as tenants in common. In this way, it may not be necessary for a guarantee to be executed by Mr. Brown. The transfer to both parties however, will cease upon the repayment of the mortgage loan to Royal Bank Trust, and that he himself is not benefiting in any manner or form from the Mortgage (sic) proceeds, save and except for that he will hold the property as tenants in common with Mr. Wollaston as a result of the liability which he will undertake in being a party to the mortgage.

We hope this method will meet your approval, and the transaction will be duly carried out.

11 On April 22, 1983 MFG wrote to Royal informing it of the proposal and asked for its instructions in that regard. By letter of May 12, 1983, Royal approved the proposal. It was CSM's responsibility to draft the necessary documents to see that they properly reflected the proposal.

12 It appears that CSM sent a transfer under cover of a letter to MFG on June 1, 1983. I say appears because of the wording of MFG's response. MFG responded to this letter on June 2, 1983 and pointed out that the copy transfer sent to it:

... seems to refer to the transaction prior to the Trust Company's approval for their mortgage to be...