Pickering and Another v Wilkins and Others

• Jurisdiction: British Virgin Islands
• Judge: HARIPRASHAD-CHARLES J
• Judgment Date: 30 November 2009
• Neutral Citation: VG 2009 HC 29
• Court: High Court (British Virgin Islands)
• Docket Number: Claim No. BVIHCV2007/0008
• Date: 30 November 2009

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

Claim No. BVIHCV2007/0008

IN THE MATTER OF SECTIONS 140 & 117 OF THE REGISTERED LAND ACT CAP. 229 OF THE REVISED LAWS OF THE VIRGIN ISLANDS, 1991

AND

IN THE MATTER OF PARCELS 25 & 35 BLOCK 2640B WEST CENTRAL REGISTRATION SECTION OF THE LAND REGISTER OF THE VIRGIN ISLANDS

AND

IN THE MATTER OF AN APPLICATION FOR REGISTRATION AS PROPRIETOR BY TRANSMISSION OF PARCELS 25 & 35 FILED AT THE LAND REGISTRY OF THE VIRGIN ISLANDS AS INSTRUMENT NO. 3009 OF 2006

AND

IN THE MATTER OF A TRANSFER OF PARCELS 25 & 35 FILED AT THE LAND REGISTRY OF THE VIRGIN ISLANDS AS INSTRUMENT NO. 3019 OF 2006

AND

IN THE MATTER OF A TRANSFER OF PARCEL 25 DATED 9 JANUARY 2007

BETWEEN

Vincent Pickering

Cedric Pickering

Claimants

and

Jerry Wilkins

First Defendant

The Registrar Of Lands

Second Defendant

and

GCS Development Limited

Ancillary Claimant/Third Defendant

Appearances:

Ms. Sheryl Rosan of C.E. Dawson & Co for the Claimants

Mr. Baba Aziz, Principal Crown Counsel, Attorney General's Chambers for the Second Defendant, the Registrar of Lands

Mrs. Hazel-Ann Hannaway-Boreland of Harney Westwood & Riegels for the Ancillary Claimant/Third Defendant

Land — Fraudulent Transfer of Land — Rectification of land register — Bona Fide Purchaser for Value without Notice — Overriding Interest — Competing Minor Equitable Interests — Transmission on Grant de Bonis Non Administratus (with Will Annexed) — Reliance on Official Search Certificate — Effect of Purchaser's Interest noted in Stay of Registration — Torrens System Title by Registration and Indefeasibility of Title — Duty of Prudent Purchaser or Attorney — Personal Representative's Delay in Administering Estate — Purchaser For Value Causing or Contributing to Fraud Mistake or Omission — Jurisdiction of Court & Duty of Government to Indemnify under Registered Land Act in mistake or omission

Ernest Pickering, deceased (‘the testator’) appointed his children, Mavis Wilkins and Ernest Pickering Jr. as executors under his 1970 will. The beneficiaries were his ten children, including the executors and the Claimants. Ernest Pickering Jr. then appointed another beneficiary, Frederick Pickering to act in his place as executor. Between 2000 and 2004, both personal representatives Frederick Pickering and Mavis Wilkins died intestate without administering the estate, comprising of Parcels 25 and 35 of Block 2640B of West Central Registration Section (‘the property’). On 23 ^rd to 24 ^th October 2006, the First Defendant, Jerry Wilkins (son of Mavis Wilkins) obtained Letters of Administration over his mother's estate and applied for registration by transmission. In November 2006, the Registrar of Lands (‘the Registrar’) registered the First Defendant as proprietor over the entire property, rather than over of his mother's 10 ^th share. That same month, the Claimants obtained Grant de Bonis Non Administratus (with Will Annexed). On 9 ^th January 2007, the First Defendant executed a Transfer of Parcel 25 to GCS Development Limited (‘GCS’) for the sum of $125,000. On 15 ^th January 2007, the Claimants discovered that the First Defendant gained wrongful registration over the entire property and had sold Parcel 25. The Claimants informed the Registrar. On 16 ^th January 2007, GCS stamped the Transfer and submitted it to the Land Registry. On 19 ^th January 2007, the Claimants obtained a stay of registration over Parcel 25 and issued proceedings against the First Defendant and the Registrar for fraud and mistake respectively. On 7 ^th February 2008, GCS applied unsuccessfully for a variation of the 19 ^th January 2007 Order. On 8 ^th October 2007, GCS was added as the Third Defendant/Ancillary Claimant and sought a declaration and rectification of the register in its favour or indemnifying compensation from the Registrar. On 15 ^th February 2008, the Court, on application by the Registrar, struck out the indemnity claim by GCS holding that applications under Section 141 of the Registered Land Act should be submitted to the Registrar, as the court had no jurisdiction where statute appoints a specific tribunal for enforcement of a right. Default Judgment was entered against the First Defendant. The remaining issues proceeded for trial.

HELD:

• [1] GCS is a bona fide purchaser of the legal estate for valuable consideration without notice and as such, takes Parcel 25 free of any prior equitable rights over the Claimants and as such, the Registrar shall forthwith register Parcel 25 in favour of GCS.

• [2] In light of the fraud of the First Defendant and the concession of mistake on the part of the Second Defendant with respect to Parcel 35, the Registrar shall forthwith cancel the registration by transmission to the First Defendant and substitute the Claimants as proprietors.

• [3] In respect of the claim of indemnity against the Government, the proper party under the Crown Proceedings Act is the Attorney General and not the Registrar of Lands.

Introduction

HARIPRASHAD-CHARLES J

1 This is an unfortunate land dispute in which a fraudster purportedly transferred family land to an alleged bona fide purchaser for value without notice. The fraudster has since disappeared with the full purchase price leaving the court to decide which of the defendants is to suffer at the hands of the fraudster. The key issue which now confronts the court is who is entitled to Parcel 25 of Block 2640B of West Central Registration Section, Tortola (‘Parcel 25’).

Background facts

2 The background facts of this case are not in dispute. Vincent Pickering and Cedric Pickering (‘the Claimants’) are two of the ten lawful children of Ernest Pickering, deceased (‘the testator’). On 22 ^nd July 1970, the testator executed a will in which he appointed his daughter, Mavis Wilkins and his son, Ernest Pickering Jr. to be the executors and trustees of his will. Ernest Pickering Jr. then appointed Frederick Pickering, another of the lawful children of the testator, to act in his place. Frederick Pickering died intestate on 1 ^st February 2000 and Mavis Wilkins died intestate on 28 ^th February 2004 without administering the estate of the testator which comprised of Parcels 25 and 35 of Block 2640B of West Central Registration Section, Tortola (‘the property’). In his will, the testator directed that his trustee convert to money all his real and personal property and the net proceeds of the sale, subject to the sums that was needed to enable the sale and conversion, be bequeathed to his ten children who included his executors and the Claimants.

3 On 17 ^th August 2005, the Claimants applied for a Grant De Bonis Non Administratus (with the Will annexed) to the testator's estate. This was granted on 15 ^th November 2006. On 25 ^th August 2006, the First Defendant, Jerry Wilkins, one of the lawful children of Mavis Wilkins, applied for and was granted Letters of Administration to his mother's estate. On 23 ^rd October 2006, Mr. Wilkins made an application to the Land Registry to be registered by transmission as proprietor in place of Mavis Wilkins, deceased, of her interest in the property 1. On 3 ^rd November 2006, the Second Defendant, the Registrar of Lands (‘the Registrar’) registered Mr. Wilkins as the personal representative of Mavis Wilkins on the property when in actual fact, he was entitled to be registered as proprietor in place of his mother's one-tenth share of the property. On 6 ^th November 2006, the Registrar also registered transfers of the property to Mr. Wilkins personally for love and affection.

4 On 9 ^th January 2007, Mr. Wilkins executed an Instrument of Transfer transferring Parcel 25 to GCS Development Limited (‘GCS’) in full consideration for which GCS paid to him the sum of US$125,000. The Instrument of Transfer was duly stamped by the Inland Revenue Department upon payment of US$5,800 in stamp duty by GCS. On 16 ^th January, 2007, the Instrument of Transfer was submitted to the Registrar for registration.

5 On 15 ^th January 2007, the Claimants discovered that Mr. Wilkins had caused himself to be registered as the proprietor of the property and had transferred Parcel 25 to GCS. They brought the matter to the attention of the Registrar the same day.

6 On 19 ^th January 2007, the Claimants applied, ex parte, and were granted, among other things, an Order for the stay of registration of Parcel 25.

7 By a Fixed Date Claim Form issued on 2 ^nd February 2007 and a Re-Amended Statement of Claim filed on 22 ^nd February 2007, the Claimants instituted these proceedings against

Mr. Wilkins and the Registrar alleging fraud against Mr. Wilkins and mistake on the part of the Registrar in registering Mr. Wilkins as proprietor of the property. The Claimants seek, among other things, an order that the land register relating to the property be rectified by cancelling the registration by transmission of Mr. Wilkins and substituting it with the registration by transmission of the Claimants. They also seek an order for GCS to be compensated by the Registrar, or alternatively, that they be compensated by the Registrar in the amount of the market value of the property and compensation for the loss suffered.

8 On 7 ^th February 2007, GCS applied for a variation of the order of the court dated 19 ^th January 2007 to remove the stay and for the Registrar to register the transfer of Parcel 25 to GCS forthwith. GCS asserts that it is a bona fide purchaser for value without notice and that it is entitled to be registered as proprietor of Parcel 25 as against the Claimants. GCS further asserts that at the time of the transfer on 9 ^th January 2007, it had no knowledge of any dispute or claim against Mr. Wilkins' title and did not know of the claim until about 26 ^th January 2007.

9 In a written judgment delivered on 20 ^th June 2007 2, the court ordered, among other things, a continuation of the order which...