Anne George Claimant v Bernard Louis Daisley Cibc Caribbean Ltd Defendants [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: Mitchell, J
• Judgment Date: 04 February 2002
• Judgment citation (vLex): [2002] ECSC J0204-5
• Court: High Court (Saint Vincent)
• Docket Number: CIVIL SUIT NO. 354 OF 2000
• Date: 04 February 2002

[2002] ECSC J0204-5

IN THE HIGH COURT OF JUSTICE

CIVIL SUIT NO. 354 OF 2000

Between:

Anne George

Claimant

and

Bernard Louis Daisley

and

Cibc Caribbean Limited

Defendants

Mitchell, J

1 This was a constructive trust case. The action began by the filing by the Claimant on 21 August 2000 of an application for an interlocutory injunction. After various interlocutory applications, the Master on 16 March 2001 ordered that the filed affidavits stand as pleadings and that the matter be tried in open court by the judge.

2 The Claimant claimed a declaration that she is a beneficial owner of one half share or such other share as the court deemed fit of the property described in deed No 3341 of 1998; that the property be vested in the Claimant and the 1^st Defendant; an injunction restraining the Defendants or either of them from selling or disposing of the property; all necessary accounts, directions and inquiries; damages; and costs.

3 By her affidavit filed on 21 August, 2000, the Claimant deposed that she was the common law wife of the 1^st Defendant; that at the age of 13 she had started a relationship with the 1^st Defendant which had resulted in her having a child for him at the age of 14; that as a result of her pregnancy she had been sent to Trinidad; that she and the 1^st Defendant had thereafter lived separate lives; that about 5 years previously the 1^st Defendant had come in search of her in Trinidad and had begged her to forgive him and to restart the relationship; that she had agreed to do so and had uprooted herself and her children and had moved to St Vincent; that she and the 1^st Defendant had found lands to build a home on for them to live in; that in 1998 the land had been obtained and title registered in the name of the 1^st Defendant by deed No 3341 of 1998; that all her monies earned and saved in Trinidad had gone into the construction of the home on the land; that she also did physical work on the construction of the home; that in late 1999 unhappy differences had arisen between the two of them and out of an abundance of caution she had registered her beneficial interest in the Registry of Deeds by deed No 1528 of 2000; that all her savings had been tied up in the property that is now her only home; that the property is subject to a mortgage to the 2^nd Defendant; that by notice in the 'Searchlight Newspaper' the 2^nd Defendant had indicated its intention to sell the property on 23^rd August 2000; and that she had at all times since the construction of the home lived in the property.

4 On 23^rd August 2000, the court granted an ex parte interlocutory injunction restraining the Defendants from selling or disposing of the property until after the trial of the action or further order. At a subsequent hearing inter partes, the injunction was ordered to continue to trial or further order. No further order has been made.

5 On 14 December 2000 an affidavit by Andre Cadogan of the 2^nd Defendant bank (hereinafter "the bank") was filed. He deposed that in 1998 the 1^st Defendant had approached the bank and had subsequently received a loan of $65,000.00 secured by a mortgage; that he had held himself out to be the sole owner of the property in dispute; that the bank's solicitors had searched the Registry of Deeds and had found no encumbrances registered relating to the property; that the mortgage had been registered as deed No 3850 of 1998; that in 1999 the bank had upstamped the mortgage to the sum of $170,000.00 which had been secured by a deed of further charge registered as deed No 1337 of 1999; that the 1^st Defendant had become delinquent in paying the loan; that the bank had decided to exercise its powers of sale; that the bank had not been in a position to be able to investigate the domestic arrangements which the 1^st Defendant might have made; that deed No 1528 of 2000 had not constituted effective notice to the bank as it had been registered after the mortgage; that the Claimant had had considerable benefit from the use of the bank's funds; that the bank had done what was reasonable and in keeping with good business practice obtaining in St Vincent and the Grenadines to ensure that the property would provide the necessary security for the loan and that it was not encumbered in any way; that it was denied that the Claimant had any interest in the property that would have overridden the legal right of the 2^nd Defendant to recover monies owing to it under the deed of legal mortgage; that the bank was being unduly prejudiced by the Claimant's action in delaying the sale of the property as it was now unable to recover monies loaned to the 1^st Defendant in good faith; and, that the court was requested to make an order to have the property sold as provided for under the powers of sale of the mortgage deed and to remove the injunction placed on the sale of the property.

6 On 1 February 2001 the bank applied for an order discharging the interlocutory injunction. On the same date, in support of the application, Andre Cadogan swore a supplementary affidavit. In it, he deposed that the bank had extended an overdraft facility as well as other services to Civil Construction Ltd (hereinafter "thecompany"), a company managed by the 1^st Defendant; that the 1^st Defendant had signed a guarantee and postponement claim dated the 11^th February 1994 guaranteeing the payment to the bank of all present and future liabilities of the company; that the mortgage executed in 1998 by the 1^st Defendant had been made to support this guarantee; that on 19 April 1999 the 1^st Defendant had signed a letter acknowledging his acceptance of continued responsibility in relation to the liabilities of the company to the bank; that in consequence a second loan had been granted to the 1^st Defendant based on the security of a deed of further charge; that the Claimant had managed the 1^st Defendant's office and had been a director of the company and had been authorised to sign all transactions on behalf of the company, and on 20 May 1996 the Claimant had become a signatory to Account # 24021-14 which was the sole chequing account of the company; that the Claimant as a director of the company knew or ought to have known of the existence of the mortgage of the property in favour of the bank which had been executed on 1 December 1998 shortly after the property had been purchased; that the Claimant as a director of the company knew or ought to have known of the existence of the letter signed by the 1^st Defendant acknowledging his acceptance of continued responsibility in relation to the liabilities of the company; that the Claimant had been involved in managing the company from in or around May 1996, and if she had invested any money subsequent to 1998 on the construction of a building on the property she knew or ought to have known that the company had been in overdraft and that the overdraft had been guaranteed by the said property; and, that the impression that the Claimant was seeking to give to the court that she was an unknowing victim of the actions of the 1^st Defendant was erroneous and misleading.

7 To the above two affidavits, and in response to the application to discharge the injunction, the Claimant on 9 February 2001 swore and filed another affidavit, which to a large extent repeated what she had earlier deposed to in her affidavit of 21 August 2000. She deposed that she was the common-law wife of the 1^st Defendant; that in 1998 she and the 1^st Defendant had agreed to obtain lands and to build a home on it for them to live in; that the land referred to in deed No 3341 of 1998 had been obtained for that purpose; that she had used all her savings earned in Trinidad to put into the construction of the home on that land; that due to unhappy difference between her and the 1^st Defendant she had since registered her beneficial interest in the property by deed No 1528 of 2000; that all her savings were tied up in the property which was her only home where she lived with her children; that she had not been aware when the 1^st Defendant had given the mortgage and guarantee and had only become aware of them when the property had been advertised for sale; that she had been made a director of the company because not only had she put some of her savings into the company but she had worked in the company to help it develop without being paid a salary; that she had been informed by the 1^st Defendant that the bank was the company's bankers and she had been appointed a director with the ability to transact on behalf of the company; that she had no knowledge of the negotiations and arrangements between the 1^st Defendant and the bank; and, that had the bank conducted a full and proper investigation of the property they would have realised that she had been in occupation of it.

8 The Claimant on 6 March 2001 filed a further affidavit in support of her claim. In it she deposed that in the year 1998 she had not been a party to the mortgage, and that in any event in the year 1999 she had been living in the property and the bank by that time had been aware or ought to have been aware that she was living there with her children and had been reckless in advancing a further charge on the property to the 1^st Defendant; that she had never been made aware by either of the defendants of the mortgage or further charge on the property; that she had since learned that the 1^st Defendant had used the property to secure his Mastercard payments; that she had not received any benefit from the monies advanced by the bank to the 2^nd Defendant; that if the bank had properly investigated the property they would have discovered her interest in it as she had been living there with her children; that the bank had actual and/or constructive notice of her interest; that apart from the mortgage the bank had used the property to secure an overdraft No 32402114 in the sum of $58,899.66, a loan No 10004258 in the sum of...