De Zwarte Band and another v Kanhai and another
| Jurisdiction | UK Non-devolved |
| Judge | Sir Rupert Jackson |
| Judgment Date | 23 December 2019 |
| Neutral Citation | [2019] UKPC 48 |
| Date | 23 December 2019 |
| Docket Number | Privy Council Appeal No 0062 of 2017 |
| Court | Privy Council |
[2019] UKPC 48
Lord Wilson
Lady Black
Lord Briggs
Lady Arden
Sir Rupert Jackson
Privy Council Appeal No 0062 of 2017
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellants
Anand Beharrylal QC
Cathryn Sutcliffe
Joshua Hitchens
(Instructed by Richard H Sirjoo and Co)
1 st Respondent
Lynette Seebaran-Suite
Shelly Perryman-Pollard
(Instructed by Signature Litigation LLP)
Appellants:-
(1) De Zwarte Band
(2) Gebr Kraan Bandenservice BV
Respondents:-
(1) Glenda Kanhai
[(2) Reuben Kanhai] instructed by Ronald Dowlath
Heard on 25 November 2019
This judgment is in five parts, namely:
Part 1. Introduction
Part 2. The facts
Part 3. The appeal to the Judicial Committee of the Privy Council
Part 4. The relevant law
Part 5. Analysis and decision
This is an appeal by two judgment creditors against a stay imposed by the Trinidad and Tobago Court of Appeal upon an order for the sale of property over which they have charges. The property is the former matrimonial home of the two respondents. The appellants have charges on the husband's interest. The principal issue before the Board is whether the charges attach to the husband's interest as it was in 2012 or as it may become at the end of ancillary relief proceedings. A further issue is whether there are exceptional circumstances such as would justify postponing the sale for a significant period.
In this judgment the Board uses the following terms: “DZB” means De Zwarte Band, a company based in the Netherlands, the first appellant. “GKB” means Gebr Kraan Bandenservice BV, a company based in the Netherlands, the second appellant. “The wife” means Mrs Glenda Kanhai, the first respondent. “The husband” means Mr Reuben Kanhai, the second respondent. In summarising the relevant authorities we will refer to a husband as H and a wife as W.
Turning now to the relevant Trinidad and Tobago legislation, section 12(1) of the Married Persons Act, Chapter 45:50 provides:
“Subject to this section, in any question between husband and wife as to the title to or possession of property, either party may apply by summons to a judge, and the judge may make such order with respect to the property in dispute as he thinks fit …”
This provision is similar to section 17 of the Married Women's Property Act 1882 in England and Wales. It enables the court to declare what are the existing interests of each party in the disputed property.
Section 26 of the Matrimonial Proceedings and Property Act, Chapter 45:51 (“MPPA”) permits the court, on granting a decree of divorce, to make an order transferring property from one party to the other. This provision is similar to section 24 of the Matrimonial Causes Act 1973 in England and Wales. It enables the court to adjust the interests of each party in the disputed property as part of an overall financial settlement.
Sections 5, 7, 8 and 30 of the Remedies of Creditors Act, Chapter 8:09 (“ROCA”) provide:
“5. Every judgment or decree to be entered up against any person in the court shall operate as a charge upon all lands and rents of or to which that person shall at the time of entering up the judgment or decree, or at any time afterwards, be seized, possessed or entitled for any estate or interest whatever, whether in possession, reversion, remainder or expectancy, or over which that person shall at the time of entering up the judgment or decree, or at any time afterwards, have any disposing power which he might without the assent of any other person exercise for his own benefit, and shall be binding as against the person against whom the judgment or decree shall be entered up, and against all persons claiming under him after the judgment or decree, and shall be also binding as against his next of kin, and all other persons whom he might without the assent of any other person cut off and debar from any remainder, reversion or other interest in or out of any of the said lands and rents.
…
7. No judgment or decree of the court shall affect any lands as to purchasers, mortgagees or creditors, or have any preference against heirs, executors or administrators, in the administration of their ancestors', testators' or intestates' estates, any notice to any such purchaser, mortgagee or creditor, or to any such heir, executor or administrator notwithstanding, unless and until a memorandum or minute containing the name and the usual or last known place of abode and the trade or profession of the person whose estate is intended to be affected thereby, and the title of the cause or matter in which the judgment, decree, order or rule has been obtained or made, and the date of the judgment, decree, order or rule, and the amount of the debt, damages, costs or moneys thereby recovered or ordered to be paid, shall be left with the Registrar General, who shall forthwith enter the same particulars, together with the year and the day of the month when the memorandum or minute is so left with him, in a book in alphabetical order by the name of the person whose estate is intended to be affected by the judgment, decree, order or rule, and the Registrar General shall be entitled for any such entry to the sum of two dollars and 50 cents, and all persons shall be at liberty to search the same book on payment of the sum of one dollar.
8. Every judgment to be registered in the manner directed by this Act shall entitle the creditor, by virtue of the judgment, decree, order or rule, to the same remedies in equity against the lands charged by virtue of this Act, or any part thereof, as he would be entitled to in case the person against whom the judgment, decree, order or rule has been so entered up had power to charge the same lands, and had by writing under his hand agreed to charge the same with the amount of the judgment debt, or the amount made payable by the decree, order or rule, and interest thereon.
…
30. An order for sale shall be obtained by the party entitled thereto on a summons to be heard by a Judge in Chambers (in this Act referred to as a ‘summons for sale’) to be entitled in the action or other proceeding in course of which the order for execution has been made.”
In Trinidad Home Developers Ltd v IMH Investments Ltd [2003] UKPC 85, para 12 the Judicial Committee of the Privy Council characterised a charge on land arising under ROCA section 5 as a “judgment charge”. It is convenient to use the same term in this judgment.
After these introductory remarks, the Board must now turn to the facts.
For many years the husband and wife, together with their three daughters, lived at Lamp Post 13 Guaico Tamana Road, Sangre Grande, Trinidad and Tobago (“the property”), which they owned as joint tenants, each with a 50% interest. They ran a successful business, known as Kanhai's Tyre Centre (“KTC”). DZB and GKB were two of their suppliers.
Unfortunately, the marriage broke down. The husband moved out of the property. Relations between the husband and the wife became highly acrimonious and did not admit of any amicable resolution.
On 12 November 2010, the husband filed a petition for divorce. He refused to pay any significant maintenance for his wife and children. The husband maintained that after leaving the wife he had transferred KTC to his brothers (who were formerly employees), that he no longer had any stake in the business, and that he was unemployed. The business continued under the name Kanhai's Tyre Traders (“KTT”). The wife maintained that this was a sham; in reality the husband continued to own and run the business.
On 11 March 2011 the wife applied for an Avoidance of Disposition order. On 8 April 2011 the wife applied for a property settlement order pursuant to MPPA section 26. On 25 July 2011 the Family Court granted a decree nisi. The decree absolute followed some time later.
The resolution of the financial and property issues between the parties took far longer than the divorce proceedings. It was not until 23 October 2015 that Ramkerrysingh J delivered her judgment in respect of those matters. In summary the judge held as follows:
i) The husband and wife had equal beneficial interests in the property, which was to be held on trust for sale with power to postpone sale. The wife should continue to occupy the property until the youngest child attained the age of 18 or completed her full-time education. Thereafter the property should be sold and the proceeds divided equally between the husband and the wife.
ii) The husband was the true owner of KTT and the ostensible arrangement with his brothers was a sham. That business should be valued and the husband should pay one half of the value to the wife as a lump sum.
iii) The husband should pay maintenance for the children.
The wife regarded that judgment as unworkable on the basis that neither the husband nor his brothers would co-operate in the valuation exercise; furthermore, the husband would never pay a lump sum and there was no way of prising any substantial payment from him. By a notice of appeal dated 9 November 2015, the wife appealed to the Court of Appeal, contending that the proper order was one which transferred the property to her outright and left the husband as sole owner of the business. That appeal was heard on 24 June 2019, but judgment has not yet been delivered.
The Board must now turn to the litigation between the appellants and the respondents (“the debt actions”). On 4 July 2012 DZB issued a claim form in the San Fernando Sub-Registry of the High Court against the husband and the wife claiming TT$310,945 in respect of tyres delivered to KTC plus TT$1,470 costs. On the same day...
To continue reading
Request your trial
-
Professional Inspection Services Ltd v Jokhan General Contractors Ltd ((in Receivership))
...liquidation) v IMH Investments [2003] UKPC 85 8 T&T Securities and Exchange Commission v Lawrence Cole and others CV2010–02290 10 De Zwarte Band v Kanhai [2019] UKPC 48, page 11 Halsbury's Laws of England Vol. 49 (2015) paragraph [412] 12 Bennion on Statutory Interpretation (5 th ed) at p......
-
Emile Elias v Joseph Elias
...nature of section 5 of ROCA that was cited to us was the dicta of Sir Rupert Jackson in the Privy Council decision of De Zwarte Band and another v Kanhai and another where at paragraph 56 he stated, “ ROCA section 5 looks to the future as well as the present. It provides that every judgment......
-
Leonora Deslauriers v Guardian Assest Management Ltd
...of sections 5 to 8 of the Remedies of Creditors Act is to give a judgment creditor the rights of an equitable chargee.” See De Zwarte Band v Kanhai and Another [2019] UKPC 48 and Trinidad Home Developers Ltd v IMH Investments Ltd (No 3) [2003] 63 WIR 413 57 In Fisher and Lightwood's Law o......
-
Glen Fitzroy Alviarez Fuentes v Minister of National Security
...basis is not a fair and balanced approach. In support, Counsel referred the Court to the learning in the Privy Council decision of De Zwarte Band v Kanhai 34 Rule 56.7 (3) CPR states that the Claimant must file with the Fixed Claim Form an affidavit. Rule 56.7 (4) sets out the information w......