Leon O’Garro and Paul O’Garro v Randolph Carr

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT VINCENT AND THE GRENADINES SVGHCV2008/0157 BETWEEN: PAUL O’GARRO of Fair Hall in the State of St. Vincent and the Grenadines (In substitution for LEON O’GARRO Deceased) FIRST CLAIMANT -and- PAUL O’GARRO of Fair Hall in the State of St. Vincent and the Grenadines SECOND CLAIMANT AND – RANDOLPH CARR formerly of the State of St. Vincent and the Grenadines but who is believed to be living abroad DEFENDANT Appearances: Mr Parnel R. Campbell Q.C. Counsel for the Claimants, and Mr Carlyle Dougan Q.C. Counsel for the Defendant. ------------------------------------------ 2015: Jan.14 Mar. 18 Apr. 15 ------------------------------------------- Decision BACKGROUND

[1]Henry, J. (Ag.): The subject matter of this claim is property located at Prospect which allegedly served as the residence of Leon O’Garro deceased. Paul O’Garro is Leon O’garro’s grandson allegedly. The claim in this matter was commenced by Leon O’Garro and Paul O’garro by Fixed Date Claim Form. Leon O’garro has since died. Paul O’garro was substituted in his place and now represents his estate’s interest in the claim. From the pleadings, it is alleged that Randolph Carr once resided with Mr and Mrs Leon O’garro in the property at Prospect. It is alleged further that Mrs O’Garro is Mr Carr’s aunt. By Deed of Gift 2499 of 1997 the subject property was purportedly conveyed to Randolph Carr, ex facie by Leon O’Garro. Leon O’Garro subsequently executed Deed of Gift No. 3433 of 2003 purportedly transferring the property to Paul O’Garro.

[2]Paul O’Garro seeks an order from the court revoking the former Deed on the ground that it is a fraudulent conveyance which Leon O’Garro did not knowingly sign. Randolph Carr contends that the deed is not fraudulent and he has counter-claimed seeking among other things a declaration that he is entitled to possession of the property. Paul O’Garro filed submissions on two preliminary points of law, the first in respect of non-payment of stamp duty on the impugned Deed which he contends makes it inadmissible. He argues that Randolph Carr’s counterclaim for possession of the property is statute-barred. He seeks an order firstly, that Deed of Gift 2499 of 1997 is inadmissible.

[3]Secondly, he asserts that any right which Randolph Carr might have had in the property has become statute-barred through adverse possession based on Leon O’Garro’s unbroken occupation and possession (to the exclusion of Randolph Carr) from 1997 until his death. Consequently, he has mounted a challenge to Randolph Carr’s defence and counterclaim presumably seeking to have his defence and counterclaim struck out. Alternatively, he might have contemplated that it would lead to successful disposition by summary judgment. He has stopped short of expressly seeking either order but such intention may be implied. Randolph Carr filed submissions in response belatedly countering that Paul O’Garro faces similar issues with respect to the admissibility of Deed No 3433 of 2003. The implication is that the O’Garros’ statements of case should be struck out. He contends however that the preferred outcome is for a full ventilation of all the issues at trial.

ISSUES

[4]The issues which arise for consideration are whether: 1. Deed No. 2499 of 1997 and/or Deed No. 3433 of 2003 should be ruled inadmissible in the proceedings? 2. Randolph Carr’s statement of case should be struck out or summary judgment entered for Paul O’Garro, representative of Leon O’Garro’s estate or for Paul O’Garro in his personal capacity? 3. Paul O’Garro’s statement of case brought in his personal capacity or as representative of Leon O’Garro’s estate should be struck out?

ANALYSIS

Issue No 1 – Should Deed No. 2499 of 1997 be ruled inadmissible in these proceedings?

[5]Paul O’Garro submits that Deed of Gift 2499 of 1997 erroneously describes Leon O’Garro as Randolph Carr’s father. He contends further that the two are not blood relatives as implied in the attached statutory declaration of the attorney who registered the deed and that the attorney made a mistake by declaring that the transfer did not attract stamp duty. He submits that the deed was subject to payment of stamp duty and was improperly exempted because of those dual assertions on the face of the document. Further, Paul O’Garro argues that while Randolph Carr neither admits nor refutes that Leon O’Garro is his father, he implicitly acknowledges the non-existence of that blood relationship between them. Consequently, he contends that the non-payment of stamp duty renders the deed inadmissible as evidence in the proceedings.

[6]Randolph Carr submits in response that if Paul O’Garro’s submission is correct and Deed No 2499 of 1997 is thereby rendered inadmissible, the same principle will apply in respect of Deed No 3433 of 2003. He contends that this is because as on the pleadings, there is no satisfactory evidence of the existence of the relationship of grandfather and grandson between Leon O’Garro and Paul O’Garro. In this regard, Mr Carr argues that he does not accept that such a relationship exists because the pleadings indicate that Leon O’Garro was not married to Paul O’Garro’s grandmother when she conceived his mother. Mr Carr maintains that unless it is established that Leon O’Garro is the father of Paul O’Garro’s mother, there is no proof of that relationship before the court. He contends further that proof of that relationship for purposes of succession to property can be provided only through admission or establishment of paternity during the putative father’s lifetime. He cited the Status of Children Act and McKenzie v Sampson in support of these submissions. The judges in that case considered the provisions of that Status of Children Act. Mr Carr concludes that the justice of the case demands full ventilation of the issues at a trial and the court may exercise its discretion to enable the parties to make the necessary arrangements to pay the prescribed stamp duty on the respective Deeds.

[7]The law mandates that (with few exceptions) that documents dealing with title to and transfer of real estate must be registered in the Registry of the High Court. Once registered, documents operate at law and in equity to convey the right, title or interest it purports to transfer according to the priority of the date of registration. Inter vivos conveyances or transfers of real property attract stamp duty if the sale price differs from the open market price, except where the parties to the agreement are spouses, brothers and sisters, parents and children, grandparent and grandchild. A Deed of Gift or Conveyance which is not stamped with the prescribed stamp duty is not admissible in evidence in court unless and until the applicable stamp duty and a penalty are paid.

[8]Nonetheless, the presiding judge is empowered to grant an adjournment to facilitate the payment of stamp duty. In exercising this discretion, the judge is required to take account of all the facts and circumstances of the case including whether any party would be prejudiced by such adjournment. In doing so he must take into account the overriding objective of the Civil Procedure Rules 2000 (“CPR”) which is to dispense with matters fairly and justly. There is no evidence before the court on which to assess the relevant facts regarding Paul O’Garro’s mother’s paternity or that of Randolph Carr. It would likely be prejudicial to the parties to render a decision on the pleadings with no evidence having been led by any of them. I agree with Randolph Carr’s submissions that it is just to permit a full ventilation of this issue at the trial and to defer a ruling on the admissibility of the Deeds until that time. Both parties are represented by experienced and learned Queens Counsel who have both demonstrated a full appreciation of the applicable law and legal principles and their capacity to provide appropriate guidance to their respective clients on whether stamp duty is payable and if so how much. I make no finding regarding whether either Deed attracts stamp duty. This is however an appropriate case which requires scrutiny by the Accountant General. The learned Registrar will accordingly be permitted to provide him with a copy of this decision. Issue No. 2 – Should Randolph Carr’s statement of case should be struck out or summary judgment entered for Paul O’Garro, representative of Leon O’Garro’s estate or for Paul O’garro in his personal capacity?

[9]Part 15 of the CPR establishes the procedural framework governing application and disposal of summary judgment proceedings. The court is empowered to give summary judgment on the claim or an issue in the claim if it considers that the claimant on the one hand has no real prospect of succeeding on, and the defendant on the other hand has no real prospect of successfully defending the claim or issue. However, summary judgment is not available in proceedings begun by fixed date claim.

Summary judgment

[10]A party seeking summary judgment must serve a Notice of Application not less than 14 days before the hearing of the application supported by affidavit evidence. In the application he must identify the issues that he proposes the court to deal with. Paul O’Garro has not filed a Notice of Application and affidavit in support in his personal capacity or as representative for Leon O’Garro’s estate pursuant to these provisions. There is therefore no formal application for summary judgment before the court as contemplated by those rules. Furthermore, this claim having being commenced by Fixed Date Claim Form is not amenable to summary judgment. If the import of Paul O’Garro’s submissions on this issue is to move the court to grant him summary judgment, this is not permitted and his request would have to be dismissed. No order for summary judgment can therefore be made in favour of any of the parties in this case.

Striking out – Randolph Carr’s statement of case

[11]Paul O’Garro submits that based on the pleadings, the court is entitled to find that: i) Leon O’Garro resided continuously in the disputed property which served as his home and the source of his livelihood at all material times; ii) Leon O’Garro never relinquished possession of the disputed property at any time and his continuous possession must be accepted as evidence that he exercised adverse possession in opposition to Randolph Carr’s paper title in Deed No. 2499 of 1997; iii) Randolph Carr would have acquired the right to immediate possession of the disputed property immediately on registration of Deed No. 2499 of 1997 yet he never entered possession of the disputed property, having lived in the USA at all material times, and he did not bring a claim to enforce any such right or interest until 2003 by which time his claim would have been barred. Paul O’Garro submits that consequently Leon O’Garro’s continued occupation of the disputed property made him a person in adverse possession in the absence of: a) any claim, admission or proof that he did so with Randolph Carr’s consent; or b) acknowledgment of Mr Carr’s title to the property; c) any pleadings tending to establish a trust relationship between Leon O’Garro as trustee and Randolph Carr as beneficiary; iv) Leon O’Garro remained in adverse possession for 12 years and over one month; and in those circumstances any right, title or interest acquired by Randolph Carr through the disputed deed became statute-barred and extinguished by September 2009 before Leon O’Garro died. Based on the foregoing, the O’Garros presumably seek an order that Randolph Carr’s statement of case be struck out in respect of any right, title or interest he might have acquired by Deed No. 2499 of 1997.

[12]Essentially, the O’Garros seek an order striking out Randolph Carr’s Defence on the ground that it does not establish any basis on which Mr Carr can successfully defend Leon O’garro’s claim to adverse possession of the disputed property. Carr counters that striking out the defence is not the appropriate manner for the court to determine issues related to adverse possession and limitation.

[13]The court may strike out the whole or part of a claimant’s or defendant’s statement of case if it discloses no reasonable ground for bringing or defending the claim. However, the court exercises this discretion “sparingly and only in the most clear and obvious cases … because it errs on the side of having trials on the merits of cases.” When considering an application to strike out a statement of case, the court reviews the statements of case and examines the particulars to see if a cause of action is thereby established. During this exercise, it is assumed that the allegations contained in the pleadings are truthful and the court is not required to conduct a detailed and minute examination of the facts, allegations and documents to ascertain whether it discloses a cause of action.

[14]Similarly, the court is not concerned with analyzing the evidence to determine its prospects of success or whether a party can prove his case. The court must be mindful that even if the case is weak and not likely to succeed that is no basis for striking it out, provided that the statement of claim or particulars discloses a cause of action or raises a question which the judge must decide. The court is also required to give effect to the overriding objective to deal with cases justly.

[15]This matter was initiated by Fixed Date Claim Form on May 13, 2008. The O’Garros obtained leave of the court to effect service on Mr Carr by publication in the Newspaper. Randolph Carr filed his Acknowledgement of Service on June 12, 2008 acknowledging service of the claim form and statement of claim on June 9, 2008. He filed his Defence on August 22, 2008. Both his Acknowledgement and Defence were filed within the 42 days specified by court order. The O’Garros filed a Reply three years later. Five years and three months after filing his defence, Randolph Carr filed an amended Defence and Counterclaim to which the O’Garros filed an Amended Reply to Amended Defence, Defence to Counterclaim and Counterclaim to Counterclaim a month later. Just last month, some 7 years after the initial claim, Mr Carr filed a Reply to the Claimant’s Defence to Counterclaim and Defence to the Claimants’ Counterclaim to Counterclaim. This multiplicity of protracted pleadings raises the sub-issue of which pleadings are relevant in determining the O’Garros’ application and Mr Carr’s cross-application.

Sub-issue: Which pleadings are validly before the court?

[16]No procedural irregularity arises with respect to filing of the Defence. The O’garros’ Reply was filed within the extended time period granted by the court. It is therefore validly filed. Randolph Carr has not applied for extension of time to file his Amended Defence but it is not invalidated for that reason. The general rule is that a Defence should be filed within 28 days after service of the claim form and may by agreement between the parties be filed up to 56 days after that deadline. Mr Carr’s Amended Defence was filed late having being filed after the 42 days in the court order. However, his Defence is not thereby invalidated because a defendant may file a Defence late without leave of the court and may apply for extension of time to do so. He is also entitled to amend his statement of case once without the court’s leave, provided it is done before the first case management conference.

[17]Although, no case management conference (so called) appears to have been fixed, this is not an irregularity in the proceedings as this case was commenced by Fixed Date Claim Form. Accordingly, the court is empowered to exercise case management powers from the first hearing throughout the progress of proceedings until the case is fully resolved. Prior to the date of filing Amended Defence and Counterclaim, the learned Master (at the first hearing) gave directions for the matter to be set down for an urgent hearing as soon as possible after the August/September 2011 long vacation. No further case management conferences were held before the filing of the Amended Defence and Counterclaim or after. Implicit in this Order is the notion that a further case management conference was being dispensed with. In such a case, it would have been necessary for Mr Carr to obtain the court’s permission to file his Amended Defence and Counterclaim. Otherwise, it would be deemed to be validly filed.

[18]The court has a duty to actively manage cases by among other things fixing timetables and otherwise controlling the progress of the case. Sadly, that duty was not observed in this case. The state of the pleadings suggests that case management directions are desirable. It would be unjust in those circumstances to penalize either party by denying them the benefit of the legal positions contained in pleadings filed after the first hearing as no further case management conference directions were given. In those circumstances, in deciding whether to strike out either statement of case, the court must have regard to all pleadings filed up to this point.

[19]The issues of adverse possession and limitation are raised for the first time in the O’Garros’ Defence to Counterclaim and Counterclaim to Counterclaim where they aver inter alia: “15. … it is therefore common ground that the Defendant never entered into physical possession of the disputed premises from the date of registration of the Defendant’s alleged Deed of Gift Number 2499 of 1997 … continuously until the death of the First Claimant Leon O’Garro on 27th September 2009, a period of 12 years, 1 month and 12 days. 16. … the Claimants aver that for the purposes of section 17 of the Limitation Act … the Defendant’s cause of action (if any) would have arisen on 16th August 1997. By the date of death of the First Claimant on 27th September 2009, therefore a period of over 12 years and 1 month would have elapsed during which the Defendant had not brought any action against the First Claimant to establish possession, let alone to recover possession of, the disputed property… the First Claimant’s said possession was throughout that period adverse to the Defendant’s purported interest in the disputed property in that … the First Claimant remained in possession of the disputed property as owner thereof…as Life Tenant… up to the date of his death.”

[20]Randolph Carr’s Reply and Defence expressly raise an assertion that Leon O’Garro occupied the disputed property with his consent. He asserts: “3. In reply to paragraphs 15 and 16 the Defendant avers that after the First Claimant had transferred title to the said property he consented to the First Claimant continuing in occupation thereof as his home which he considered in all the circumstances to be fitting and appropriate. The Defendant denies the Counterclaim on the following grounds: 4. The Defendant repeats paragraphs 2 and 3 of the Reply to the Claimants’ Defence to Counterclaim.”

[21]This averment suggests that Leon O’Garro had Mr Carr’s consent to reside in the disputed property. It provides a viable defence to the O’Garros’ argument that Leon O’Garro has successfully defeated Mr Carr’s claim, right or interest in the property through adverse possession and limitation. Accordingly, there is no basis on which the court can conclude that Mr Carr’s statement of case does not disclose any reasonable ground for defending the O’Garros’ claim to adverse possession. I therefore dismiss the O’Garros’ application that Randolph Carr’s statement of case may be struck out in respect of any right, title or interest he might have acquired by Deed No. 2499 of 1997.

Striking out – O’Garros’ statement of case

[22]Randolph Carr challenges the O’Garros’ reliance on Deed No. 3433 of 2003 as their basis for claiming adverse possession. He submits that Leon O’Garro could not have acquired a claim to adverse possession when that Deed was executed in 2003, a mere six years after the first Deed was registered. This appears to be a misstatement of the O’Garros’ position. As I understand it, the O’Garros are asserting adverse possession from August 1997 to September 2009, and not from 1997 to 2003. If however the pleadings admit of that interpretation, Mr Carr argues that Deed No. 3433 of 2003 would have the effect of creating in Leon O’Garro’s favour, not an interest in the property, but merely a voluntary assignment of expectancy. He submits that the Deed was voluntary and no valuable consideration was provided in exchange for the assignment. In those circumstances, he contends that Leon O’Garro is a volunteer who created an imperfect trust which equity would not enforce.

[23]Mr Carr points to the Statutory Declaration (which is attached to that deed), made by Mrs Cato, attorney for Leon O’Garro where she declares that the transfer operated and effected for no consideration. In her words: “...the transaction evidenced by the instrument annexed hereto made between LEON O’GARRO and PAUL O’GARRO and dated the 26th day of September 2003, and signed by me as the legal practitioner preparing the same, is a bona fide transfer of property operating wholly and exclusively as a voluntary disposition inter vivos for no consideration in money or money’s worth...”(underlining added)

[24]Mr Carr cites the case of Re Ellenborough as authority for the contention that while a volunteer may assign future property, possibilities and expectancies for value in equity and successfully enforce those interests in a court, he is not permitted to do so in the absence of valuable consideration under the contract. He argues that since the purported transfer to Paul O’Garro was effected without valuable considerable, it is not enforceable in a court and the O’Garros may not rely on it to enforce any right in the disputed property. The O’Garros have made no submissions in response. While there is merit in Mr Carr’s submission, it could conceivably be defeated depending on the outcome of any subsequent intervention by the Accountant General with respect to the matter of stamp duty addressed previously or through other related processes. In all the circumstances, this too is a point which is best resolved at trial. I am not satisfied on these submissions that the O’Garros’ statement of case fails to disclose grounds for bringing the action in relation to the O’Garros’ claim to adverse possession. I will therefore not order that it be struck out.

[25]Having considered the respective submissions, the applicable principles as rehearsed above and the overriding objective, this is an appropriate case in which justice is best served by having all of the issues (discussed in this decision) determined at a trial. The implicit applications for orders that Deeds No. 2499 of 1997 and 3433 of 2003 be declared inadmissible and to strike out the respective statements of case are refused.

ORDER

[26]It is therefore ordered as follows: 1. The O’Garros’ application for an order that Randolph Carr’s statement of case be struck out in respect of any right, title or interest he might have acquired by Deed No. 2499 of 1997 is dismissed. 2. Randolph Carr’s application for an order that the O’Garros’ statement of case be struck out in respect of any right, title or interest Leon O’Garro and/or Paul O’Garro claim to be created or acquired by Deed No. 3433 of 2003 is dismissed. 3. No order for summary judgment is made in respect of the O’Garros application. 4. No order is made as to whether Deed No. 2499 of 1997 and/or Deed No. 3433 of 2003 are admissible in these proceedings. A decision on both counts is deferred until the trial of this matter. 5. No order as to costs.

[27]Having regard to the length of time that has elapsed since this matter commenced, and the other circumstances alluded to in this judgment, it is fitting that full and final case management directions be given as soon as possible with a view to expediting the trial of this matter. The court expresses gratitude to all counsel for their submissions. ….………………………………… Esco L. Henry HIGH COURT JUDGE (Ag.)