Harre CJ
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
CAUSE NO. 624/96
BETWEEN:
L.E. Kendal Ryan & Louise Priscilla Ryan (as administrators of the estate of Astley Kendal Ryan, deceased)
Plaintiffs
AND:
Ida Pearl Bodden
Defendant
For the Defendant - Mr. Ross McDonough
For the Plaintiffs - Mr. Pierre Lamontagne, Q.C. and Mr. Charles Adams
CORAM: Harre CJ.
REASONS FOR ORDER
This was an application by the defendant for summary judgment, as now permitted by Order 14 rule 12 of the Grand Court Rules. The cause relates to family land on Little Cayman. It was common ground that if the plaintiffs’ claim were dismissed the defendant must succeed on her counterclaim.
The matter was adjourned part-heard before me on 27th November 1997 and since that time there has been further amendment of the statement of claim and the issues for present purposes have been narrowed. What is now claimed is a declaration that the decision of the Registrar of Lands of 3rd November 1994 whereby he ordered that the land described as registration section Little Cayman East Block 91 A, Parcel 8 ("Parcel 8") be partitioned equally between the plaintiffs and the defendant was obtained by the fraud of the defendant and one of her privies; and damages and other
1 relief. It falls to me to consider the present application on the basis that the hypothesis of fraud is true. Any investigation of that would be for trial..
3
4 The plaintiffs are the son and the widow of the late Astley Kendall Ryan ("the deceased").
6
7 The defendant applied to the Registrar of Lands for the equal partition of Parcel 8 on 2nd September 1992 and the plaintiffs requested by a letter to the Registrar of Lands on 20th July 1994 that a part of Parcel 8 be transferred to them in their capacity as administrators of the estate of the deceased prior to any partition of the parcel taking place. The defendant had on the 27th June 1994 certified to the Registrar of Lands in writing that she had never agreed to transfer any part of her half-share in Parcel 8 to the deceased and that under an agreement between the deceased and her they were each to receive one-half. The defendant's husband, also gave a certificate in support of that, and to the effect that the handwriting on a copy of a memorandum or note of an agreement dated 27th February 1982 was not the defendant's. These events of 1994 were the outcome of a long history which I need not recount now.
18
19 The application for partition of Parcel 8 was heard by the Registrar of Lands on 2nd November 1994. The following is the relevant part of the record of that hearing -
21
22 "POINT AT ISSUE"
23 Leonard Edward Kendal Ryan on behalf of the other proprietor in common, objects to Ida Pearl Bodden's application for partition because he claims that his father (Astley Kendal Ryan) was promised by his grandfather that he was to be given some "96 feet"
of the subject land. Of a variety of documents and papers produced to me, including several affidavits, only one was directly in point, viz a photocopy of a letter dated February 27, 1982 reputedly in the hand of Ida Pearl Bodden and admitting inter alia “my brother to get 96 feet from Emmice Georgiana Ryans land at Little Cayman Block 91A, Parcel 8.” The original was produced to me for inspection by Leonard Edward Kendal Ryan. Ida Pearl Bodden, through Ms. Reid, denied having written the letter. Ms. Reid invited me to compare the hand writing and especially the signature with a copy of a Land Registry Form which Ida Pearl Bodden had signed in June, 1992 (sic) some four months after the date on the said letter.
Having compared the copy Registry Form with the original lodged in this Registry, I believe that the said Form carries Ida Pearl Bodden’s true signature. This signature is different in style and execution from that on the “letter.”
I now hold that, on a balance of probabilities, the said letter is not in the hand of Ida Pearl Bodden. Consequently I further hold that Little Cayman East, Block 91A, Parcel 8 is not subject to any overriding interest, nor to any duty or obligation by the proprietor of either share as a trustee. Accordingly, the proprietors each have a free and unencumbered 1/2 share in the freehold title.”
The defendant says that even if there was fraud on her part, the Registrar of Lands was bound by section 102(1) of the Registered Land Law (1995 Revision) (“the Law”) to partition Parcel 8 as he did because the plaintiffs and the defendant had expressly agreed that the land was to be held as tenants in common in equal shares. That proposition rests on Section 102 (1) of the Registered Land Law (1995 Revision) which reads as follows -
“An application for the partition of the land owned in common may be made in the prescribed form to the Registrar by -
(a) any one or more of the proprietors; or
(b) any person in whose favour an order has been made for the sale of an undivided share in the land in execution of a decree,
and subject to this and any other law by or under which minimum areas or frontages are prescribed or the consent of any authority to a partition is required, the Registrar shall effect the partition of the land in accordance with any agreement of the proprietors in common, or, in the absence of agreement, in such manner as the Registrar may order.'.
The defendant also contends that the alleged agreement is on its proper analysis a contract for the sale of land and that Section 37 of the Law (1995 Revision) applies to it. That section reads as follows -
"37. (1) No land, lease or charge registered under this Law shall be capable of being disposed of except in accordance with the Law, and every attempt to dispose of such land, lease or charge otherwise than in accordance with this Law shall be ineffectual to create, extinguish, transfer, vary or affect any estate, right or interest in the land, lease or charge.
(2) Nothing in this section shall be construed as preventing any unregistered instrument from operating as a contract, but no action may be brought upon any contract for the disposition of any interest in land unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and is signed by the party to be charged or by some other person thereunto by him lawfully authorised."
Clearly the alleged agreement does not comply with section 37 (2), either as an oral agreement as described in paragraph 11 of the Statement of Claim or on the basis of the memorandum or note dated 27th February 1982 which the plaintiffs assert was signed by the defendant.
I consider first whether the alleged agreement in this case is a contract for the disposition of an interest in land on which no action may be brought unless there is compliance with S. 37 (2) of the Law; and secondly if the answer to that question is
1 'yes' whether the Registrar should, as the plaintiff's claim, have nevertheless have
2 given effect to it in reaching his conclusion on the application to partition the land.
3
4 "Disposition" is defined as follows in S. 2 of the Law -
5
6 "disposition" means any act inter vivos by a proprietor
7 whereby his rights in or over his land, lease or charge are
8 affected, but does not include an agreement to transfer, lease
9 or charge."
10
11 That is a comprehensive definition. I think however that what I am concerned with in
12 relation to S. 37 (2) is an unregistered contract for the disposition of any interest in
13 land and the restriction there expressed on the bringing of an action upon such a
14 contract.
15
16 I am satisfied as to the following matters -
17
18 1. In making their submissions to the Registrar by their letter dated 20th July 1994
19 and appearing at the hearing on the application for partition of Parcel 8 on 2nd
20 November 1994 the plaintiffs were not "bringing an action" on a contract for the
21 disposition of land.
22
23 2. The registrar found, on the balance of probabilities that the letter dated 27th
24 February 1982 was not in the hand of the defendant and that consequently Parcel
25 8 was not subject to any overriding interest nor to any duty or obligation by the
26 the proprietor of any share as a trustee. What his finding on those matters would
1 have been if he had made a finding of fraud against the defendant is a matter for
2 speculation.
3
4 3. The issue is really this. The plaintiffs say that the relief which they now claim
5 rests on fraud. The defendant says that that is merely a cloak for an action - the
6 present action- brought on an agreement which does not meet the requirements
7 of S. 37 (2) of the Law.
8
9 4. The Registrar gave weight to the respective positions of the parties as persons who
10 had transferred half shares to themselves s beneficiaries under an intestacy
11 and referred to S. 23 of the Law.
12
13 5. There are issues of law and fact here which need to be determined at trial. I
14 declined to dismiss the plaintiffs action on the ground that it had no prospect
15 of success and accordingly dismissed the summons of the defendant.
16
17 Defendant to pay the plaintiff's costs of the summons to be agreed or taxed. Leave to
18 appeal granted.
19
20 $750 as security for the Plaintiff's costs of the appeal to be paid into Court.
21
22 G.E. Harre
23 Chief Justice
24
25
26 Order made 3rd April, 1998.
27 Written reasons dated 11th May, 1998