Kenroy Questelles v Bank of Saint Vincent and The Grenadines (formerly National Commercial Bank (SVG) Ltd)

• Jurisdiction: St Vincent and the Grenadines
• Judge: ‘Henry, J.’
• Judgment Date: 17 February 2021
• Judgment citation (vLex): [2021] ECSC J0217-1
• Court: High Court (Saint Vincent)
• Date: 17 February 2021
• Docket Number: SVGHCV2020/0092

[2021] ECSC J0217-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Before:

The Hon. Mde. Justice Esco L. Henry High Court Judge

SVGHCV2020/0092

Between

Kenroy Questelles

and

Vasilca Cato-Morgan (formerly Vasilka Questelles)

Claimants

and

Bank of Saint Vincent and The Grenadines (formerly National Commercial Bank (SVG) Ltd.)

First Defendant

and

The Registrar of the High Court of Saint Vincent and The Grenadines

Second Defendant

Appearances:

Mrs. Zhinga Horne-Edwards and Ms. Chelsea Alexander for the claimants.

Mr. Jadric Cummings and Ms. Anique Cummings for the first defendant.

Mrs. Joezel Allen for the second defendant.

ORAL DECISION BACKGROUND

‘Henry, J.’

1 Kenroy Questelles and Vasilka Catowere married. They are now divorced. The wife now carries the surname Cato-Morgan as she has since remarried. As part of the divorce settlement with Mr. Questelles, Mrs. Cato-Morgan transferred to himby Deed No. 3911 of 2000, her share in a property at Fountain that they owned jointly and registered by Deed of Conveyance No. 1328 of 1995. At the time of the divorce settlement, the property was mortgaged to the National Commercial Bank (the former bank) by Deed of Mortgage No. 1329 of 1995. The former bank has been succeeded by a new entity – Bank of Saint Vincent and the Grenadines (the bank). When the mortgage was fully satisfied in 2001, the former bank executed Deed of Reconveyance No. 90 of 2001 and inadvertently named Mrs. Cato-Morgan as one of the transferees although by then she held no interest in the property.

2 Mr. Questelles subsequently sold the property to Mr. and Mrs. A. Billinghurst and they in turn transferred it to S. Bowen who has since passed away. Ms. Zillia Dubissette was appointed Administrator of Ms. Bowens' estate. Mr. Questelles and Mrs. Cato-Morgan have applied 1 to the court for an order to rectify the referenced Deed of Reconveyance by deleting references to Mrs. Cato-Morgan as mortgagor; by replacing the pronoun reference ‘their’ with his; and by inserting a recital to reflect that Mrs. Cato-Morgan had transferred her interest to Mr. Questelles by Deed No. 3911 of 2000. The Bank and the Registrar of the High Court have been named as defendants.

3 The defendants have not opposed the claim. The Registrar submitted that she appears as a neutral party. Ms. Dubissette provided affidavit evidence 2 supporting the claim. All parties indicated their support for the rectifications. They also filed written submissions to like effect. An order granting rectification of the Deed of Reconveyance is therefore made in terms of the prayer in the claim.

ISSUE

4 The issue iswhether Deed of Reconveyance No. 90 of 2001 should be rectified?

LAW AND ANALYSIS

Issue – Should Deed of Reconveyance No. 90 of 2001 be rectified?

5 The Registration of Documents Act 3 (‘the Act’) provides the statutory frameworkwithin an application

for rectification of a Deed is determined. It stipulates 4 that applications be made by originating summons. Originating summonses are no longer used in the Eastern Caribbean Supreme Court. The Civil Procedure Rules 2000 (‘CPR’) 5 mandates that a Fixed Date Claim Form be used whenever any enactment provides that proceedings be initiated by originating summons or motion. This matter was initiated by Fixed Date Claim Form presumably in light of the referenced provisions of the Act and the CPR

6 Fixed Date Claims are customarily heard in open court. However, the Act 6 empowers the court to exercise its powers of rectification in chambers. The trial of this matter was scheduled for February 17 ^th, 2021 in opencourt. The court invited the parties to consider the referenced provisions and to indicate whether they had objections to the court making an order that the Fixed Date Claim Form be deemed a regular claim form so that the matter could proceed in chambers. There was no objection. The Fixed Date Claim form was deemed a regular claim form and the matter proceeded summarily in chambers on the basis of the affidavit testimony and without the need for the parties to give oral evidence. In this regard, the court observed that the provisions of the Act assume primacy over the CPR which is subordinate legislation.

7 Mr. Kenroy Questelles' and Mrs. Cato-Morgan's accounts 7 rehearsed the facts as summarized above. Mr. Questelles exhibited certified copies of the referenced deeds. They are requesting that references to ‘mortgagors’ in the Deed of reconveyance be replaced with ‘mortgagor’ since Mr. Questelles was the only mortgagor at that time. Their prayer for a consequential adjustment to the pronoun ‘their’ flows from that requested change. Their other proposed amendment of the Deed is for the inclusion of a paragraph to recite that Mrs. Cato-Morgan was not a mortgagor when the deed of reconveyance was executed, because she had by then transferred her interest to Mr. Questelles.

8 Kenroy Questelles and Vasilka Questelles are described respectively as the ‘purchasers’ and ‘mortgagors’ in the Deed of Conveyance No 1328 of 1995, Deed of Mortgage No. 1329 of 1995 and Deed of Reconveyance No. 90 of 2001. In the Deed of Transfer No. 3911 of 2000 they are referred to respectively as ‘transferor’ and ‘transferee’. In her affidavits filed in this claim, Mrs. Cato-Morgan has identified herself as ‘Vasilca Cato-Morgan formerly Vasilka Questelles’.

9 She explained that the name ‘Vasilka’ by which she was identified in...