Pickering and Another v Wilkins and Another

• Jurisdiction: British Virgin Islands
• Judge: HARIPRASHAD-CHARLES J,Indra Hariprashad-Charles
• Judgment Date: 20 June 2007
• Docket Number: Claim No. BVIHCV2002/0227
• Court: High Court (British Virgin Islands)
• Date: 20 June 2007

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

Before: Her Ladyship Justice Indra Hariprashad-Charles

Claim No. BVIHCV2002/0227

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

(1) Vincent Pickering

(2) Cedric Pickering

Claimants

and

(1) Jerry Wilkins

First Defendant

(2) The Registrar of Lands

Second Defendant

Appearances:

Ms. Hazel-Ann Hannaway of Harney, Westwood & Reigels for the Applicant

Ms. Cheryl Richards of C.E. Dawson & Co. for the Claimants

Mr. Baba Aziz, Senior Crown Counsel, Attorney General's Chambers for the Second Defendant

Cases referred to and considered in the judgment

1. Siskina (Cargo Owners) v Distos Compania Naviera S. A. (‘the Siskina’) [1979] A.C. 210.

2. American Cyanamid Co. v Ethicon Ltd. [1975] 3 All ER 510.

3. Rasu Maritima v Perusahaan Pertambangan [1978] Q. B. 644.

4. Ninemia Maritime Corporation v Trave GmbH (‘The Niedersachsen’) [1983] 1 WLR 1412.

5. Gibbs v Messer [1891] A.C. 248.

6. FBO 2000 (Antigua) Limited v Vere Cornwall Bird and Others. [Civil Case No. 0130 of 2003] High Court of Antigua and Barbuda.

7. Spiricor of Saint Lucia Ltd. v Attorney General of Saint Lucia and another, [1996] 55 WIR 128.

8. Strand Securities Ltd. v Caswell [1965] Ch. 958.

9. Hunt v Luck [1901] 1 Ch. 45.

10. Abbey National Building Society v Cann and another [1990] 1 All ER 1085.

11. Equipment Rental and Services Limited v Texaco (West Indies) Limited, Civil Appeal No. 16 of 1997, Commonwealth of Dominica. Judgment delivered on 26 October 1998.

12. Frazer v Walker (1967) A.C. 569.

13. Racoon Limited v Harris Turnbull [1997] A. C. 158.

14. Williams v Papworth (1900) A.C. 563.

15. Gwendolyn Wynter v Joan Joseph (as personal representative of the estate of Pearlina Luke-Wynter, [Civil Case No. 0326 of 2003] High Court of Antigua and Barbuda.

16. Ecedro Thomas the lawful Attorney for Alice Thomas and Alphonso Thomas, the Administrators of the Estate of Caesar Augustus Thomas, deceased v Augustine Stoutt and others, Civil Appeal No. 1 of 1993, Judgment delivered on 12 May 1997.

17. John Alfred Kirnon (deceased on 6 April 2000) by his Executrices Mary Kathleen Kirnon and Sarah Roslind Kirnon and others v Charles Kirnon, High Court Montserrat Suit No. 27 of 1995, Judgment delivered on 8 June 2004.

18. Chowood Limited v Lyall [1930] Ch. D (No.2) 156.

19. Skelton v Skelton 37 WIR 181.

20. St. Aubyn and Others v Attorney General [1952] A.C. 15.

21. J. & H. Just (Holdings) PTY. Ltd. v Bank of New South Wales (1971) 125 CLR 546.

CATCHWORDS:

Land Registration — Claim for rectification of register — Allegation of fraud on the part of registered proprietor and mistake on the part of Registrar of Lands — Registered proprietor sold land to Applicant — Applicant paid full purchase price to registered proprietor — Court granted ex parte a stay of registration of the transfer of the land — Application by Applicant to remove stay on ground that it is a bona fide purchaser for value — Whether Court had jurisdiction to grant stay — Should court have granted an order of inhibition — Jurisdiction to grant injunction where it is just and convenient to do so — principles applicable to the grant of an injunction — Sections 23, 27, 28 (1) (g), 38, 42, 117, 118, 122, 124, 127, 140 and 141 of the Registered Land Ordinance considered

HEADNOTE

The Claimants are two of the ten lawful childrenx of Ernest Pickering, deceased (“the testator”). The testator appointed two of his children, Mavis Wilkins and Frederick Pickering as executors of his will. The First Defendant is the lawful son of Mavis Wilkins. The estate of the testator consisted of Parcels 25 and 35 of Block 2640B of West Central Registration Section. 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 to his ten children. Frederick Pickering died intestate on 1 February 2000 and Mavis Wilkins also died intestate on 28 February 2004 without administering the estate of the testator.

On 17 August 2005, the Claimants applied for a Grant De Bonis Non Administratus (with the Will annexed) to the estate of the testator which was granted on 15 November 2006. The First Defendant obtained Letters of Administration to his mother's estate on 24 October 2006. On 23 October 2006, he made an application to the Land Registry to be registered by transmission as proprietor in place of Mavis Wilkins of Parcels 25 and 35. On 3 November 2006, the Registrar of Lands registered the First Defendant as the personal representative of Mavis Wilkins on the entire Parcels 25 and 35. On 6 November 2006, the Registrar of Lands also registered transfers of both parcels to the First Defendant personally for love and affection.

On 9 January 2007, the Applicant purchased Parcel 25 from the First Defendant for the consideration of $125,000. The Applicant paid this sum in full on 9 January 2007 by bankers' cheques. The First Defendant transferred the land to the Applicant on 15 January 2007. On 18 January 2007, the Claimants applied for and obtained an Order for the stay of registration of the transfer of Parcel 25 to the Applicant (‘the Order’).

On 6 February 2007, the Applicant applied for a variation of the Order to remove the stay of registration and for the Registrar of Lands to register the transfer of Parcel 25 to it.

HELD:

• 1. A stay of registration is reserved to the Registrar of Lands. However, the Court has the power to order an inhibition inhibiting the registration of any dealing in land. An inhibitory order is analogous to an order of injunction and the principles applicable to the grant of an injunction apply to the making of such an order.

• 2. To claim that a right over land is an overriding interest, the person has to be in actual occupation because that is the only way that the inquiry referred to in paragraph 28 (g) could be done. The Claimants have identified the rights that they have to the land but has not adduced any evidence that they were in actual occupation of the land. As such, the rights that they allege cannot be considered an overriding interest pursuant to section 28 (g).

• 3. The Applicant's interest was not registered. It was awaiting registration and therefore, it cannot enjoy the protection of indefeasibility. However, it may still benefit from certain protections in accordance with section 38 if it is found to be a bona fide purchaser for value without notice since the First Defendant is registered as proprietor of Parcel 25.

• 4. The question of whether the Applicant is a bona fide purchaser for value without notice and has an equitable interest in land and the issue of the priority of its equitable interest as opposed to the Claimants are matters to be determined at trial.

• 5. The Claimants have made out a prima facie case of fraud against the First Defendant and there is a serious issue to be tried in respect of the fraud.

• 6. By the operation of law, the First Defendant should not have been registered on Parcels 25 and 35 as personal representative of Mavis Wilkins. Those parcels of land belong to the unadministered estate of the testator. Mavis Pickering was only entitled to a one-tenth share of the testator's estate; not the entire portion so the First Defendant could only have been registered as personal representative of Mavis Wilkins of her one-tenth share.

• 7. The Claimants have made out a prima facie case of mistake against the Registrar of Lands and there is a serious issue to be tried in respect of the mistake.

• 8. Section 118 of the Act deems the personal representative a proprietor. However, this deeming provision does not magically convert the property of the deceased's estate to the personal representative personally. The personal representative is only so deemed to allow him to carry out the wishes of the testator and properly administer the testator's estate or to administer the deceased's estate according to law if the deceased died intestate.

• 9. If fraud or mistake is proved at trial, the court may have no alternative but to order rectification of the register as the Applicant is not the registered proprietor. The Applicant is not seeking indemnification. To grant the removal of the stay of registration would in effect give it a relief at the interlocutory stage of the proceedings which it may not be entitled to at trial.

• 10. The Court should not come to any conclusion at this stage of the proceedings as to whether the Applicant is a bona fide purchaser for value without notice.

• 11. The failure of the Claimants to place a caution should not debar them from obtaining the relief sought.

• 12. Damages may not be adequate to compensate the Claimants as they have stated that they hold strong, sentimental attachment to the property. The balance of convenience lies in favour of the Claimants as the Applicants.

HARIPRASHAD-CHARLES J

1 On 7 February 2007, GCS Development Limited (‘the Applicant’) applied for a variation of the Order of the Court dated 19 January 2007 to remove the stay in paragraph ‘iv’ from the said Order and for the Registrar of Lands (‘the Second Defendant’) to register the transfer of Parcel 25 to the Applicant forthwith. The Applicant is a BVI Company. It is not a party to the...