REPUBLIC OF TRINIDAD AND TOBAGO Civ. App. P307 of 2014 Claim No. CV2009-04381 IN THE COURT OF APPEAL BETWEEN DAVID DESLAURIERS AND LEONORA DESLAURIERS AND Appellants/ Judgment Debtors GUARDIAN ASSET MANAGEMENT LIMITED Respondent/ Judgment Creditor Panel: *************** R. Narine J.A. P. Moosai J.A. Appearances: Mr. I. Benjamin instructed by Mr. F. Al-Rawi for the Appellants Ms. D. Peake S.C. and Mr. K. Gosine instructed by Ms. S. Indarsingh for the Respondent. DATE DELIVERED: 24 th July, 2015. Page 1 of 21
I have read the judgment of Narine J.A. and agree with it. P. Moosai, Justice of Appeal. JUDGMENT Delivered by R. Narine J.A. 1. The facts of this case are not in dispute and may be summarised as follows: FACTS: (i) On 20 th November 2009 the respondent filed a claim against the appellants for breach of contract in relation to a loan secured by the appellants to finance the construction of two residential towers situated at Hevron Heights ( the Hevron Heights property ). (ii) On 25 th October 2011, judgment was given to the respondent in relation to the claim and that judgment was registered the same day. (iii) On 7 th December 2011 the appellants applied for a stay of execution of the judgment pending an appeal and on the 1 st June 2012 the application was dismissed and the appellants were ordered to pay the costs of the application for the stay agreed in the sum of $100,000.00. The judgment for costs of the application for the stay was registered at the Registrar General s Office on 6 th March 2013. Page 2 of 21
(iv) By Deed of Assent registered as No. 18372 of 1998 the second appellant was assigned the unexpired residue of the term of one hundred and ninety nine years in a property situate at Victoria Square, Port-of-Spain ( the Victoria Square property ). There are no encumbrances on the property except for the 2011 and 2013 judgments that were registered by the respondent. The ground floor of the building standing on the property is tenanted to Columbus Communications Ltd, which held a lease for a term of three years from 1 st April 2007 and has remained in possession since then. (v) By an unregistered Deed of Settlement dated 8 th December 2009 the second appellant purported to create a trust of the Victoria Square property in favour of her children. In recital No. 4 of the Deed the settlor indicated her intention to convey the legal title to the trustees, who were stated to be her children. No such conveyance of the property from the settlor to the trustees was ever executed. (vi) By application dated 30 th August 2013 the respondent sought an order for the sale of the second appellant s interest in the Victoria Square property to satisfy the judgment debt, interest and costs due to the respondent pursuant to the judgment made on the 25 th October 2011. (vii) On 29 th September 2014, the judge made an order granting vacant possession of the Hevron Heights property pursuant to an application made by the respondent on 22 nd April, 2013 as mortgagee. (viii) On 27 th October 2014 the trial judge ordered the sale of the second appellant s interest in the Victoria Square property. At the date of the decision the debts owed to the respondent amounted to the sum of $30,789,570.63. Reasons for the decision were subsequently provided on the 30 th January 2015. Page 3 of 21
(ix) On 24 th November 2014 the appellants filed a notice of appeal challenging the decision of the learned judge. 2. Before the trial judge three main issues were ventilated. In essence they were: (a) Whether in exercising his discretion to order a sale of the Victoria Square property, the trial judge should have taken into consideration the value of the Hevron Heights property, and the order of possession made in respect thereof in favour of the respondent. (b) Whether the unregistered deed of settlement dated 8 th December 2009 created a trust of the Victoria Square property in favour of third parties, and (c) Whether the proceedings should have been served on a third party (Columbus Communication Ltd.) which was a tenant of a substantial portion of the Victoria Square property. 3. The appellants initially filed six grounds of appeal and sought leave to amend its notice of appeal to include three additional grounds. The original grounds were: 1. The learned judged erred in law in failing to grant the defendants/judgment debtors/appellants an extension of time to make submissions on the question whether the second defendant/second judgment debtor/second appellant had validly declared herself a trustee of the said property ordered to be sold in favour of her children, even though he was told by letter dated October 22 nd 2014, that Senior Counsel appearing for the defendants/judgment debtors/appellants could not make submissions on this point because of a conflict of interest, and made the order without the benefit of the defendants/judgment debtors/appellants submissions on this point, and thereby deprived the defendants/judgment debtors/appellants of their right to be heard; Page 4 of 21
2. The learned judge erred in law in finding that the trust instrument did not constitute a declaration of trust by the second defendant/second judgment debtor/second appellant in favour of her children; 3. The learned judge erred in law in finding that the Remedies of Creditors Act ( ROCA ) does not give the court a discretion to factor in the value recoverable in relation to the other property (hereinafter referred to as the Hevron Heights property ) which was being held by the claimant/judgment creditor/respondent as security for the judgment debt and in respect of which the claimant/judgment creditor/respondent enjoyed a right of sale and had obtained an order for possession; 4. The learned judge erred in law in failing to consider whether in the exercise of his discretion under section 38 of ROCA to attach conditions to the sale of the said property, he could order that the sale not take place until the Hevron Heights property had been sold; 5. The learned judge erred in law in finding that there was no need to serve the proceedings on the tenant of the property, Columbus Communications Limited. 6. The learned judge erred in law in finding that the judgment creditor/respondent was entitled to rely on the valuation report it had commissioned. The additional grounds were: 7. The learned judge erred in law in failing to seek from the appellants further authorities on the question whether the second appellant had declared herself a trustee of the Victoria Square property; Page 5 of 21
8. The learned judge erred in law in having regard to the evidence of Ms. Jo- Anne Julien, Attorney-at-Law as expert evidence on a point of law as to the construction of the Deed of Settlement and the law as to the declaration of trust; 9. The learned judge erred in law in failing to direct the commissioning of an up to date valuation report for the Victoria Square property by a reputable and competent valuator directed to conduct a valuation inspection of the premises; 4. The trial judge held in summary that: (i) On a construction of the relevant provisions of the ROCA, the court was not required to take into account the value of other property of the judgment debtor. (ii) The deed of settlement expressly provided for the transfer of the Victoria Street property to the trustees (her children). No such transfer was ever effected. Accordingly, the appellant retained the beneficial interest in the property. (iii) The order for sale was granted subject to the tenancy of Columbus Communications Limited. Accordingly, there was no prejudice to the tenant by reason of the order. THE APPLICATION TO AMEND: 5. The order for sale of the Victoria Square property was made on 27 th October 2014. On 16 th December 2014, the appellant applied to a single judge of the Court of Appeal for a stay of execution of the order for the trial judge. An affidavit of instructing attorney for the appellants was filed in support of the application. A draft amended notice of appeal was annexed to the affidavit as FAR12. Page 6 of 21
6. On 20 th January 2015, the appellants proceeded to file an amended Notice of Appeal in identical terms to FAR12. However, no application to amend had been filed and no leave had been obtained to amend the notice of appeal. 7. On 28 th January 2015, the single judge extended the time for the filing of the notice of appeal to 10 th November 2014, when it had been actually filed. On 19 th February 2015, the single judge granted a stay of execution of the order for sale. Unsurprisingly, the single judge made no order with respect to the amended notice of appeal, that had been filed, since no application had in fact been filed to amend the original notice of appeal filed on 10 th November, 2014. 8. On 6 th March 2015, the appellant filed an application before the single judge seeking clarification of the order made on 19 th February 2015. As appears by paragraph 6 of the affidavit of instructing attorney for the respondent, on the hearing of that application on 13 th April 2015, the single judge pointed out that no application had been made to amend the notice of appeal, and so no clarification was required. She proceeded to dismiss the application as misconceived. 9. Civil Proceedings Rule (CPR) 64.14 provides that an application to the Court of Appeal must first be heard by a single judge. CPR 64.18 (2) provides that any order made by a single judge may be varied or discharged by the court, which is defined by CPR 64.1 (2) as the Court of Appeal, which generally sits as a panel of three judges. One notable exception is contained in CPR 64.9 which provides for a panel of two judges for the hearing of procedural appeals from decisions of a master or judge of the High Court. 10. The respondent contends that there was no application to amend made before a single judge, and hence no decision of a single judge to be appealed to the court. Even if there were such a decision, the appeal lies to the full court, comprising three judges. Page 7 of 21
11. The appellants submit that the application was made orally to the single judge, and there was no prejudice to the respondent by reason of the proposed amendment, since the respondent had notice of same since December, 2014. The respondent contends that mention was made of the proposed amended notice of appeal before the single judge, but upon objection made by the respondent, the matter was not pursued. 12. Curiously, the application to amend filed on 19 th March 2015, is expressly addressed to the full court, and seeks orders for permission to rely upon and dispense with re-service of the Amended Notice of Appeal filed on 20 th January 2015, even though there has been no determination of any application by a single judge. On the face of the notice itself filed on 19 th March 2015, there still is no application to amend the notice of appeal. 13. Accordingly, I uphold the submission of the respondent that there is no proper application before this court to amend the notice of appeal. 14. However, even if there were a proper application before this panel, even on a cursory examination, the proposed amended grounds disclose no realistic prospects of success. 15. With respect to the proposed amended ground No. 7, the appellants were afforded every opportunity to present their case before the trial judge. They filed affidavits and were permitted to make full oral submissions before the judge. On 13 th October 2014, having received oral submissions from both parties, the trial judge ordered the parties to file and serve authorities on the issue of the purported declaration of trust by 22 nd October, 2014. Not having received any further authorities the trial judge proceeded to give his decision as promised, on 27th October, 2014. In the circumstances, this proposed ground is clearly without merit. Page 8 of 21
16. With respect to the proposed ground No. 8 the trial judge considered an affidavit of an experienced Attorney-at-Law with a specialized conveyancing practice, who expressed an opinion on the legal effect of the terms of the unregistered deed of settlement executed by the second appellant. The trial judge noted in his Reasons that the appellants had ample opportunity to file an affidavit to challenge the evidence of the Attorney-at-law, but failed to do so. Even so, while the judge clearly accepted the opinions expressed by the deponent, he was careful to note in paragraph 22 of his Reasons, that since it was an issue of law, he was nonetheless required to make a determination of the applicable law and resolve the issue on [his] own accord. Having done so, he concluded that the legal effect of the deed was simply a declaration of an intention to create a trust at some future time, contingent upon a conveyance of the property. The trial judge went on to hold that no valid trust came into being by virtue of the deed. It follows that the trial judge made his own determination of the issue as a matter of law. Accordingly, this proposed ground is devoid of merit. 17. Likewise, the proposed ground No. 9 is clearly without merit. It is another instance of the appellants failure to properly put forward their case, and blaming the trial judge for the consequences of their own failure. The appellants placed before the judge a valuation report of Linden Scott and Associates dated 10 th November, 2009. The respondent provided a report of the same valuer dated 23 rd February 2012, which gave the value of the Victoria Square property as $16 million, $2 million less than the 2009 report. The trial judge heard the application in October 2014. Surely, if the appellants wished to controvert the 2012 valuation, it was for them to bring such evidence before the judge. Having failed to do so, it is wholly inappropriate for the appellants to now contend that somehow the trial judge erred in law by failing to order an up to date valuation which should have been put into evidence by the party seeking to rely on it. Page 9 of 21
THE FIRST ISSUE: 18. The nub of the appellants complaint is that in deciding whether to grant the order for sale of the Victoria Square property the judge declined to factor in the value recoverable by a possible sale of the Hevron Heights property. Indeed, the judge expressed the view that to do so would be to impose an additional criterion not expressly imposed by the Remedies of Creditor Act (ROCA). 19. The relevant provisions of ROCA are: 37. A summons for sale may also issue without the issue of any order for execution by any judgment creditor whose judgment is registered and the registration of which is in force and effective, on the filing of an affidavit showing, to the best of the knowledge of the applicant or other deponent, the lands to which it is alleged the debtor was beneficially entitled at the time of registration of the judgment, or at any time after the registration and before the issue of the summons for sale, and the nature of the beneficial interest, and referring by their registered numbers to the material deeds and assurances affecting the lands, and giving the names and addresses of the persons to be served with the summons. 38. If at the return of the summons for sale it is proved to the satisfaction of the Judge that the debtor was at the time of the registration of the judgment, or at any time after the registration and before the issue of the summons for sale, entitled to the sole immediate unconditional beneficial interest, legal or equitable, in the lands sought to be affected, or in any several and ascertained portion thereof, there shall be a declaration accordingly, and the same shall be ordered to be sold on such conditions as to advertisement, date, conditions of sale, description, reserved price, if any, and otherwise, as the Judge shall by his order direct, and the Registrar shall, after Page 10 of 21
the sale has been confirmed as hereinafter provided, execute and deliver to the purchaser thereof, without further order, a conveyance thereof in fee, to be prepared by the purchaser and which shall (subject as to land under the Real Property Act to the provisions of that Act) have the same effect as if the execution debtor had conveyed the same to the purchaser for all his estate and interest therein. 20. It is clear from the evidence that the respondent complied with all the requirements as provided by Section 37 for the issue of a summons for sale. There was a judgment against the applicants, which was registered, and the registration was in force. There was an affidavit in support of the application setting out the beneficial interest of the judgment debtor in the property, and referring to the registered number of the material deed. 21. It was equally clear that the respondent fulfilled the requirements set out in Section 38 for the grant of an order for the sale of the property. It must be noted that the language of the section is mandatory. Once the judge is satisfied that the judgment debtor was, at the time of the registration of the judgment, or at any time of the judgment, or at any time after the registration and before the issue of the summons, entitled to the beneficial interest in the property, there shall be a declaration accordingly, and the same shall be ordered to be sold (emphasis added). The section goes on to confer a discretionary power on the judge to impose such conditions as he see fit as to advertisement, date, conditions of sale, and reserved price. 22. Having regard to the clear words of sections 37 and 38 of ROCA, and the evidence before the judge, the decision to order a sale of the property was one which it was clearly within his power to make. However, the appellants contend that the trial judge erred in law in failing to consider whether in the exercise of his discretion under section 38 he could attach a condition that the sale of Victoria Square should not take place until the Hevron Heights property was sold. This Page 11 of 21
submission appears to be based on the court s discretion to impose conditions of sale, upon ordering the sale of property under section 38. 23. The submission appears to be based on an extravagant interpretation of conditions of sale which the trial judge may impose upon ordering a sale under section 38. The term condition of sale in relation to the sale of real property usually has to do with such matters as provisions for the payment of deposits, instalments or balances of the purchase price, time for such payments, date, time and place of completion of the sale, and generally such arrangements that are usually required for sales and conveyances of real property. An interpretation of conditions of sale so as to include an event such as the sale of other property not included in the summons for sale in my view could hardly have been intended by the framers of section 38. 24. Before this court, the appellants made a belated attempt to rely on section 54 of ROCA, to suggest that the trial judge should have granted a stay of further execution of the sale of the Victoria Square property until further order. 25. Section 54 of ROCA provides: 54. If it does not appear desirable that the ascertained beneficial interest of the debtor should be sold, the Judge may, at the return of the summons, order further execution by sale of land to be stayed till further order, and may award equitable execution by the appointment of a receiver in respect of the beneficial interest of the execution debtor, or may appoint the creditor, or any person nominated by him, receiver thereof without remuneration, or may, on such terms as may be just, and at the cost of the creditor to be charged by him against the beneficial interest of the execution debtor, appoint a receiver of the entire rents and profits of the said land or of any part thereof, or may order any person in receipt of the rents or profits to pay into Court the whole or such proportion thereof as shall be directed to the Page 12 of 21
credit of the cause or matter, for such time or to such amount as shall be just. 26. No application for a stay of execution of the sale, or for the appointment of a receiver pursuant to section 54 was made by the appellants before the trial judge. In fact, Ms. Peake has indicated that the section was never cited to the judge. There was no attempt by the appellants to invoke the discretion bestowed on the judge by section 54. Not having invoked the section 54 discretion of the judge, it is not permissible for the appellant to suggest to this court that the judge erred in law in not exercising it. 27. Even so, the trial judge did consider the issue as to whether the court should factor into its decision the value of other property of the judgment debtor not comprised in the summons for sale. The judge considered the issue and concluded that to do so would be to impose additional criteria not expressly required by the legislation. I have not been persuaded that the decision has been shown to be plainly wrong, assuming that the judge was in fact exercising a discretion under section 38. 28. In addition, in my view the trial judge would have been wrong to refuse the order on the basis that the judgment creditor had obtained an order for possession of the Hevron Heights property over which it holds a mortgage. A judgment debtor is not entitled to specify or select the means by which a judgment creditor may enforce a judgment. A judgment creditor is entitled as of right to enforce a judgment which he has lawfully obtained against a judgment debtor by all or any means of execution prescribed by the relevant rules of court: per Lord Brandon of Oakbrook in Roberts Petroleum Ltd. v. Kenny Ltd. (C.A.) approved by Lord Brightman in the House of Lords in the same case at [1983] 2 AC 192 at 207. 29. It follows that a refusal of the order for sale of Victoria Square, or the staying of such an order pending sale of Hevron Heights, would be tantamount to permitting the judgment debtors in this case to dictate to the judgment creditor the means by which they may enforce their judgment, and would constitute an impermissible Page 13 of 21
interference with the common law right of the judgment creditor to enforce its judgment by any or all means of execution permitted by the rules of court. 30. Even so the judge did consider whether such a course should be pursued. He noted that the valuation of the Hevron Heights property in the sum of $77 million was disputed by the respondent. There was evidence as well, that prospective purchasers had made deposits of some $33 million. The outstanding debt owed to the respondent stood at almost $31 million at the time of the filing of the application for sale. The trial judge noted as well that there was no guarantee that the property would realize on sale the amount for which it was valued. It followed that the sale of the Hevron Heights property, while convenient to the appellants, may not have realized the full amount of the judgment debt then owing. THE SECOND ISSUE: 31. The basic contention of the appellants is that by virtue of an unregistered deed of settlement dated 8 th December 2009, the second appellant transferred the Victoria Square property to third parties, namely her children Daniel David Deslauriers and Lindsay Leah Deslauriers. If the deed of settlement in fact effected such a transfer, it follows that the trial judge could not validly order the sale of the property since section 38 of ROCA expressly provides that the judge must be satisfied that the sole immediate unconditional beneficial interest in the property is vested in the judgment debtor. 32. The parties to the deed are the second appellant referred to as The Settlor and Daniel David Deslauriers and Lindsay Leah Deslauriers referred to as The Trustees. The fourth and fifth recitals state: 4. The Settlor intends shortly to transfer the Trust Property [The Victoria Square property] into the names of the Trustees to be held by the Trustees upon the trusts hereinafter declared. Page 14 of 21
5. The Settlor desires that the settlement made by this deed shall take effect immediately upon the execution of this deed. 33. The operative part of the deed provides that the trustees shall hold the Trust Property upon trust to invest the income from same in the names of the trustees and with the consent of the settlor during her lifetime. From the proceeds of the trust investments the Trustees are empowered to pay the income to the settlor during her lifetime and thereafter as to capital and income to themselves equally. 34. It is not in dispute that the deed of settlement was never registered, nor was the property ever transferred to the trustees pursuant to recital number 4. The respondent submits that the failure to transfer the property to the trustees rendered the deed of settlement ineffectual to create a valid trust of the trust property. In order to do so, the settlor should have parted with her interest in the property. 35. Heavy reliance was placed by the respondent on the cases of Warriner v. Rogers (1873) LR 16 Eq 340, and Milroy v. Lord (1862) 4 De G. F. & J. 264; 45 ER 1185. In Warriner, Sir James Bacon VC opined at page 348: The one thing necessary to give validity to a declaration to trust the indispensable thing I take to be, that the donor, or grantor, or whatever he may be called, should have absolutely parted with that interest which had been his up to the time of the declaration, should have effectually changed his right in that respect and put the property out of his power, at least in the way of interest. 36. The case of Milroy v. Lord (supra) is still regarded as the locus classicus in this area of the law. The often cited dictum of Turner L.J. at pages 274-275 is worth repeating: I take the law of this court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settlor must Page 15 of 21
have done everything which according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol; but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this court, be resorted to, for there is no equity in this court to perfect an imperfect gift. The cases I think go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust. (Emphasis added). 37. It is not in dispute in this case that none of the methods outlined above by Turner L.J. has been effected in this case. There was no transfer of the property to the beneficiaries, or the proposed trustees, and there was no declaration by the settlor that she intended to hold the property on trust for the purposes of the settlement. This is hardly surprising since she expressly stated her intention to transfer the property to her trustees, and it would have been odd if she were to declare that she was holding the property in trust for herself, since she is named as an intended beneficiary of the income during her lifetime. Page 16 of 21
38. However, even if the deed were construed as creating a valid trust, it would run afoul of certain statutory provisions which are clearly designed to afford a measure of protection to bona fide purchasers for value, mortgagees and judgment creditors. 39. Section 10(1) of the Conveyancing and Law of Property Act Chapter 56:01 provides that all conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed. 40. Section 16 of the Registration of Deeds Act Chap19:06 provides: 16. (1) Every Deed whereby any lands in Trinidad and Tobago may be in any way affected at law or in equity shall be registered under this Act, and every such Deed duly registered shall be good and effectual both at law and in equity, according to the priority of time of registering such Deed, according to the right, title and interest of the person conveying such lands against every other Deed, conveyance or disposition of the same lands or any part thereof, and against all creditors by judgment of the same person so conveying such land. (2) Every such Deed that is not duly registered shall be adjudged fraudulent and void as to the lands affected by such Deed against any subsequent purchaser for value or mortgagee without notice of the same lands or any part thereof, whose conveyance shall be first registered. 41. The conjoint effect of the above statutory provisions are: (i) (ii) a conveyance of any interest in land must be by deed; in order to bind a judgment creditor of the transferor; the deed must be registered, and must be registered before the judgment; Page 17 of 21
(iii) an unregistered deed is void as against a subsequent purchaser for value or mortgagee without notice, whose conveyance is registered. 42. Mr. Benjamin had some difficulty in dealing with the issue as to whether or not a valid trust came into being vesting the beneficial interest in the Victoria Square property in third parties. His first difficulty arose in construing the deed of settlement itself. He sought to distinguish the case of Milroy v. Lord on the basis that in this case there was an express declaration of a trust on the face of the deed of settlement. However, when faced with the express words of the deed which described the second appellant as The Settlor and her two children as the The Trustees, and the fact that there was never a transfer of the property to the named trustees, Mr. Benjamin sought to salvage his position by submitting that the effect of the recital number 5 was that until the transfer of the property to the named trustees, the settlor must be taken as having declared herself as trustee for the purpose of carrying out her desire that the settlement should take effect immediately upon the execution of the deed of settlement. 43. The submission simply has to be stated to be rejected. In the first place, to construe the deed in such a way as to make the settlor a trustee flies in the face of the express words of the instrument itself. In addition, there is the conceptual difficulty of construing the document in such a way as conferring an equitable interest in the settlor herself, when she in fact had done nothing to divest herself of the legal and beneficial interest. 44. In addition, the appellants are caught by the express provisions of section 16 (1) of the Registrations of Deeds Act which in effect provided that a duly registered deed shall be good and effectual both in law and in equity against all judgment creditors of the person conveying the land. The converse is that an unregistered deed is not effectual as against a judgment creditor, whether it purports to affect the legal or the equitable interest in the land. Page 18 of 21
45. Mr. Benjamin sought to place heavy reliance on the decision of the Privy Council in T. Choitram International SA & ors. v. Pagarani & ors. [2001] 1WLR 1. In that case the donor executed a trust deed establishing a charitable foundation and appointed himself one of the trustees. He stated orally that he gave all his wealth to the foundation, expressly including deposit balances and shares in companies in the British Virgin Islands. After his death the beneficiaries of the donor on intestacy claimed to be entitled to the deposits and shares. The High Court and the Court of Appeal held that the donor had not made a valid gift of the deposit balances and shares to the foundation. The Privy Council disagreed. Their Lordships held the view that the donor had intended to make an absolute gift to the foundation, and not a gift which was revocable or conditional on the transfer of the specific assets. He had expressly declared himself to be a trustee of the foundation, and so the property was vested in him as trustee of the foundation. Accordingly, the deposit balances and shares in the companies had been included in his gift to the foundation. 46. The case of Choitram is clearly distinguishable on the facts. In that case the donor expressly appointed himself as one of the trustees of the foundation. In this case the trustees were expressly stated to be the children of the donor. In addition, the subject matter of the trust property in Choitram was deposit balances and company shares, not real property. As we have noted above there must be compliance with section 16 of the Registration of Deeds Act, in order for a transfer of a legal or equitable interest in land to be valid as against a judgment creditor, a purchaser for value or a mortgagee without notice of the purported transfer. 47. If such unregistered transfers of a legal or equitable interest in land were held to be legally binding on subsequent bona fide purchasers for value, mortgagees and judgment creditors, the inevitable result will be uncertainty and chaos in our system of conveyancing. It would mean that purchasers and mortgagees would not be able to rely on title searches. Conveyances of land will be subject to unregistered transfers which could surface at any time. Mortgagees will not be Page 19 of 21
able to obtain a proper security for loans. Judgment creditors who have registered their judgment will be defeated by unregistered instruments, possibly made for this very purpose. 48. In this case it has been brought to our attention that the unregistered deed of settlement was in fact executed on 8 th December 2009, just a month after the respondent filed its claim for breach of contract in relation to a loan secured by the appellants to finance the construction of two residential towers at Hevron Heights. The unregistered deed of settlement, according to Ms. Peake was brought to the attention of the respondent only in 2012, when an application for a stay of execution was heard before Bereaux J.A. in the Court of Appeal. This case provides an example of the mischief which the requirement of registration was intended to address. At the time of registration of the judgment, there were no encumbrances registered against the title, and at the time that the report on title was submitted before the trial judge on the application for sale, the title was found to be vested in the sole name of the second appellant free from encumbrances except for the judgment registered by the respondent. In these circumstances, a judgment creditor should be entitled to assume that the beneficial interest in the land is vested in the person registered as the owner in the records of the Registrar General. If it were otherwise, the procedure for the sale of the interest of a judgment debtor under the provisions of ROCA will be rendered useless. 49. For these reasons I find that there is no merit in this ground of appeal. 50. The appellants further submitted that the judge erred in law in finding that there was no need to serve the proceedings on Columbus Communication Limited which held a tenancy of the Victoria Square Property. The trial judge expressly considered whether he should exercise his power to order service on the tenant as a person holding an interest who might be affected by an order for sale of the property. Having considered the matter the judge concluded that any prejudice to the tenant could be avoided by making the order subject to the tenancy. I have not been persuaded that the trial judge was plainly wrong in exercising his discretion not to order serve on the tenant. Page 20 of 21
DISPOSITION: 51. It follows that this appeal is dismissed and the orders of the judge are affirmed. We will hear the parties on costs. Dated the 24 th day of July, 2015. R. Narine Justice of Appeal. Page 21 of 21