Joy Ebanks v Phase III - Judgment

¶ IN THE GRAND HOLDEN AT GI CAUSE NO: 374 BETWEEN AND CORAM: Madam Appearances: Mr Stephen Barrie, M. Chilton Atkins & COURT OF THE CAYMAN ISLANDS GEORGE TOWN, GRAND CAYMAN OF 2005 JOY EBANKS PLAINTIFF PHASE III DEFENDANT Joy Ebanks-Hale for the Plaintiff of the Defendant

¶ [1] This is the the GCR. BACKGROUND

¶ [2] The admit- agreement Limited. To the Defendant 5th, 9th and-16th October 2006 JUDGMENT Plaintiff’s application for Summary Judgment pursuant to this are that the Plaintiff, Ms Joy Ebanks for the sale and purchase of land with the Defendant gave the Plaintiff a Vendors’ Mortgage ® on 25th October 2006. The Defendant gave the Plaintiff a Vendors’ Mortgage to Order 14 of into an dant, Phase III for the whole of and a further loan to cover the purchase of the premises.

¶ [3] A mortgage secure the the agree- Attorney ap- price and a further loan to cover the purchase of the Document and a Bill of Sale were executed by the payor’s interest in the property transferred to the Plaintiff for sale. In addition, the Plaintiff executed a go- pointing the Vendor her Attorney. furniture in the files in order to tiff pursuant to general Power of
4. The Plaintiff defaulted on the payments under the divers' agr exercising powers granted it under the Power of Atto the property to itself and entered into possession of the right of foreclosure against the Plaintiff's property was un contary to the law and the terms of the Charge. An Order setting aside the Defendant's execution of settlements and the money, executed a property. is said right of award land of the Transfer e)

¶ [6] The other RIGHT OF FORE

¶ [7] The questi entitled to

¶ [8] In support submitted: as common law and an order rectifying the register the Registration of the transfer pursuant to section Alternatively, an Order setting aside the Defendant's the Transfer of Land in respect of the Property in re dated 11th of April 2005 pursuant to the Fraudulent (1996 Revision): leads of claim were not advanced in the hearing before CLOSURE on of whether the Defendant foreclosed in fact and to show the determining issue. of the application for Summary Judgment, Counsel and cancelling 40 of the Law. execution of Your of itself Disposition law me. whether he was for the Plaintiff

¶ [1] That

¶ [2] That the

¶ [3] That Plain pro in e all transactions regarding the sale of land are governed by the the Law expressly forbids foreclosure on property by non-payment of money. the Defendant, using the Power of Attorney granting the Plaintiff, transferred the property to itself and entered into by reason only by default in payment of the effect, the Defendant foreclosed on the property. d by the it by him by the e monies owed;
4. The part

¶ [5] The stat cir

¶ [9] Counsel for would be wide enough transfer pro- ced in this use of the Power went beyond what was confides. it the use of the Power was in any event in contritory prohibition against foreclosure and illegitimstances, the defendant had no defence to the action. or the defendant in his submissions before the Court said he had given evidence to show that the plaintiff knew that he was permitted the defendant to enter into possession of property to himself and that it was agreed that the Po- rted that at trial he tential power was the premises and wer could be so used in the

¶ [10] At par "The und it w per

¶ [11] At trial, ho land was to fully aware was in fact

¶ [12] He submit- ted further, that this matter fell outside the provisions of using the power es that he was ly told that the on that she was and for which it if the Registered money" but secure the of any defa-

¶ [13] Counsel su- purpose fo- between thi available to as the vendor did not foreclose by reason of the performance of all obligations owed to the Lender by her (excerpts relied on in the Defence at para 5). omitted that as there was an issue of fact between the which the Power was executed and what the terms of parties were at the time of its execution, summary jud- the Plaintiff and the matter had to proceed to trial. non-payment or be as security to be ... in the event parties as to the if the agreement igment was not
DECISION:

¶ [14] The only between t That the e that is ad- Plaintiff.

¶ [15] I am of the that the V issue of fact between the parties is what was the parties when the Plaintiff appointed the defendant, erise of the power amounted to a foreclosure in fact anced is that the property was foreclosed on by ag- view that no amount of evidence going to show that t ndor was entitled to foreclose on the property if the P true agreement t her Attorney. s not denied. All sement with the he parties agreed ainriff defaulted could give any such re

¶ [16] The Regis- to be done.

¶ [17] S 78 stipul "For not land pri-

¶ [18] But may be the Defendant a real prospect of successfully defend- greement would be illegal. ered Land Law at section expressly states that all land in conformity with the Law. rates: the avoidance of doubt, it is hereby declared that the entitled to foreclose, nor to enter into possession...preclusion only that default has been made in the opinion..." S 72(b) ing the claim, as transactions are he chargee shall of the charged party part of the action the

¶ [19] On a propos- achieve wit be an agre- of the pub- Plaintiff co- charged property or construction of the Law any agreement use a Power at the Statute says is expressly forbidden, is illegal and ment to avoid a statutory provision made for the benef ic and would therefore be a statutory a provision could not, as the provision is designed to protect purchas- of Attorney to void. It would efit of a section ut of which the ers as a class."11
20. While it u protect a statutory p entered in default in submission

¶ [21] Even if I adopting t me to do, of success objectionable, as Mr Allen suggests, to create a Pow- Vendor's rights, it is objectionable to exercise that B rohibition against foreclosure. I reject the submission to possession of the premises for some other reason th payment. No other reason is advanced in the I he made in his argument has no merit. record on the basis that the assertions the Defendant the debt of the Court in Rescetyk v Wasylk21 as Mr my conclusion would still be the same: that the defen- at trial. The only conclusion a Court could reach at a er of Attorney to lower to avoid a that the Vendor an the Plaintiff's defence and the merits are true, Allen has urged ant has no hope trial is that the agree- the defend-

¶ [22] Mr Allen be allowed enforce it,

¶ [23] I grant the

¶ [1] That

¶ [2] That pow- And Order ent alleged by the defendant was illegal and that the t ant was void and of no effect. complained that the Plaintiff did not plead illegality, to rely on it, but where an agreement is illegal a whether the illegality is pleaded or not. Plaintiff's application for Summary Judgment and dec- the Defendant's exercise of foreclosure was unlawful, that transfer of Land was registered by mistake as toler to exercise foreclosure transfer of land to and ought not to Court will not are the defendant's

¶ [3] That

¶ [4] Costs Hon. Magistrate R Judge of the Grand the Registrar of Lands be directed to cancel the Register in favour of the Defendant to the Plaintiff. msay-Hale Court (Acting) ration of the