NEW RIVER YACHT SALES INCORPORATED v ANDREW T. PRINSTER et al

·S:~' \:~? -:'" "1 '--' C.' (~P/>/ " '« ', SAINT LUCIA IN THE HIGH COURT OF JUS~~~ (CIVIL) , Suit No.SS9 of 1994 Between: NEW RIVER YACHT SALES INCORPORATED Plaintiff and ANDREW T. PRINSTER De f e ndant and ANDREW T. PRINSTER - The Opposant Mr, P. I. Foster and Mrs, C'Ja r e Malaykhan fo r Plaintiff Mrs. B. Floissac-Flemming Eor Defendarlt 19'7: March 14th & 21st JUDGM'ENT d'Auvergne, J By a Summons to file Opposition to Seizure and Sale supported by an Affidavit of the Defendant And rew T , Prinster filed on 13th March 1997 and served on the Plaint iff, the Defendant who is also the opposant sought to oppos e ~11e seizure and sale advertised on pages 99 and 100 o f the issue of the Saint Lucia Gazette dated 8th February, 1997. The subject matter of t he s e i zure and sale mentioned above is a parcel of land known as Lo! IF.~ compr i s jng of 14,348 sq feet with a building erected thereon at Saline Point , Cap Estate and registered ! in the Land Registry of St , Lucia as Block 125 9 B Pa rcel 9 in the names of Andrew T. Prins tel~ and Genevieve C. Prinster. Background The Plaintiff filed a l,"1ri t of Sun~tn() against the Def t cla ing damages in the s f US$ .00 or E.C.$587,43 .25 with interest on the 22nd f ,Tu 4 . On the 16th day of Novembe 94 an arte r of I unct was granted against the \"\" t ~ I' erms: ORDER Affi t fil herein on the 9th UPON READING the Summon day of November, 1994 UPON HEARING Counsel he P a ff icant. IT IS HEREBY ORPERED

1.That the Defendant rained an r of Inlunction is hereby granted restra ng t from or causing or permitti remove or t ing any st to remove out of the juri tion f s Court of his assets within the jurisdicti r from sposing of or transferring charging or diminishi r way r i th any of his assets w thin the uri ction &fid without prejudice to the gene ty f oregoing, in particular: (a) the property s Block 259B Parcel No.9 owned by the Defendant the inte st of t Defe~dant therein. (b) the property as Bloc 1259B Parcel No. 8/1 1 owned by the Def t or terest of the Def therein. Save insofar as the 11e of s h assets exceed the sum of US$216,216.00 or EC$5 ,1't37.2 The Defendant is t served w th a copy of the Order forthwith together wi i} copy of the Summons for Injunction, t- t supporting Affi f Summons. yl- .L L.

3.The Defendant shall apply t set as t s Order and the return that purpose shal November 24th, 1994.

4.s his application in the The Defendant shall sum of $750.00. was ed and it reads On the 8th December 1994 a ,: r as follows: ORDER ff. the P a UPON HEARING Counsel of November, 1994 rema s 16th That the Order made on t rare ac i in force and paragraphs spent. t in au t was filed on the On the 13th of June, 1995 inst t fendant. July 1995 was grant Ler except that a au i No further act ion was ta !l II t Plaintiff against 18th November 1994 a stry. rty of the Defendant "he La I note en passant that on L t Land ster for the property question, Block 1259 B Pa s d I Restrictior:.. Land is owned with right of Survivorship. No dealings in 1/2 shares except to other co-owners. On the 25th February 199 app l t on for Leave to file an Opposition to Seizure and Sale was ell red. On t 10th March 1997 leave w s grant the matter was on t 14th March 1997 in rs At t hearing Learned Coun r f sant a that the opposant was the own of an ivided half share of all that lot of land with build a t 18, Saline Point, Estate quarter of Gros Islet, registere n the stryof St. Lucia as Block 1259 B Pa

9.t title to on an She contended that the Def / undivided half share, and that his wife nevieve Prinster was the owner of the other If 11 re of the question, registered as Bloc 2 9 B Pa at the istry. She quoted Articles 1493, 1917 of t Civil Code to t emphasise and confirm her a a tor cannot seize j or. immovables other than that i t The said Articles of the Civ ides as llows: Code Dr Section 1493 "The creditor who has nt inst his debtor t in execution and caus in satis tion of such e l e, udgment, the property his except only the article pe a y t aWi ect t s prov' n t f the rules and formal Procedure. I! Section 1917 II Legal hypothec affe nera he presen and future immovables of the debt r Section 1923 I! (Am. 2 0 - 1918 ) Judic a esults from j~jgments of the courts of the Col payment of a specific sum of money. Such nts wise involve ~othec for interest and costs vi" ~ 1 I ng he amount e t t restrict con~ sp~r.~ ir .. g R strat on .... ........"...... - "-_ -0..","':" __ ": ~c also results from jud c al suretyship and from r cial act creating an obl gation pay a specific sum of money. Judicial hypothec affects generally he immovables owned by t debtor at the time of the istra f such hec and t e subsequently owned by h ess t ame are f seizure or are incapable of aliena on 0 s But the order of the Judge aut is t amount s or supplies for cultivation, rops and herwise under Article 1904 ers judicial hypothec its istration as prescr Article 2002 only on the immovables ecting ch the order was and in so far only as he same of t or who applied for, or of person who sent to, t r." further argued that t or could e t se zure and sale and that r t d so did not on belong to other party in this cas namely, nevieve Prinster. She quoted Section 519 0 the Code of Civil Procedure provides: OPPOSITIONS ANNUL "The party whose immovab e or ren are seized may oppose the seizure or the sale t reof, whet r his opposition be founded on matters of form or on matters E substance. Third parties may likewise ile S lrfl 1 opposition when they have an actual interest therein." ,. -- ~ - --- Procedure a Judge may o.:-de'· - -e S&_ wnc_e property after a petition has been made for sa e t whole prope said that no such petition had been made and therefore, in the absence of that petition, neither of judgment or nor the other 1/2 share of property can old at a judici sale. She also quoted Article 658 (7) of The Code of Civil Procedure of Lower Canada Second Edition Thomas P. Foran, M.A., B.C.L. ch is the same as Article 520 t St. Lucia Code of Civil Procedure Article 520 of the Code of civil Procedure provides as flows: OPPOSI IONS TO W TEDRAW ed by third s who "Opposition to withdraw e or rent under claim as their propert part f seizure. may r t sale of When the property is undiv s le t of a c tor t the whole property upon the peti revious served t defendant, such petition i s of t prope seiz opposant and the other If the sale be so ordered, h undiv proprietor has a clalm on the proceeds, according t h s s re the property. Article 658(7) of the Canadian Code ioned e ier provi s: "Where the opposant a pa f the immoveable seized by an opposition to wi hdraw, seizing creditor was not allowed to proceed wi h the sa the part unaffected by the opposition, especial as given no not ice of hlS petition to proceed to t de Chinic et vir '\'. Trust and Loan Co. of Canada, Q.B.R. 25 I Q.B. 1883." She concluded her argument stating hat in light of the passing of the Constitution of Lucia re was great Jrjubt as to whether Article 520 of Civil Code of Procedure was still good law. Section 6(1) of the Constitution of St. Lucia reads as flows: "No property of any s ripti 11 be lsori t possession of, and no nteres or rover rty of any description shal be compu s ily acquired, for a public purpose and exceot orovision is made a law applicable to that t of s sion or isit for t prompt payment of fu Learned Counsel for the Pl tiff tor commenc his s by making reference to sim r cas i the Courts in St. Luc a. He quoted Suit 237 of 1992 Renwick vs Chaussee Enterprises Ltd In hat case the wife of t tor fil an it to seizure and sale stating h the p y to be sold was Communi hat case s that the applicat was property. The decision ssed. He also quoted Case 299 of 1985 National Commercial Bank of st. Lucia and Austin Jude et al In that case like the Suit 237 of 1992 the fe was seeking to Community. Matthew, J ld ect her share and int s in h that, "in the light of Art le 520 he Code of Civil Procedure that the sale proceed ainst t properties. that the Petitioner first gets her share of t proceeds in the proportion to her interest and remainder to t Pla iff/Respondent after all the necessary deductions have been made. Counsel the ant t t was never served with a wri se z and tha bearing mi Article 1914 the er t must first partitioned. CONCLUSION In my judgment the Credit file serve petlt accordance wi Article 520 of Code of 1 Proc judgment debtor ieve ter t owner t ot of Block 1259B 9. Moreover, an pr ce d on the it s sold. My: order is as follows: itua at the sale all t lece Estate the quarter Gros s State St. Luc known as Lot 18 Point st ist St. Lucia as B k ed for sale udication by riff on the 2 of at 1 0 a. in the forenoon is set as will be no order as to Costs. ~'~ ~~ ........ . . .. ,. ...... .

SUZIE d'AUVERGNE

HIGH COURT JUDGE

Suit No. 559 of 1994 D’Auvergne, J Delivered: 21/03/97