BARBADOS
[Unreported]
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL JURISDICTION
No. 940 of 2010
BETWEEN:
BUTTERFIELD BANK (BARBADOS) LTD CLAIMANTS
AND
MAYBELLA INC FIRST DEFENDANT
SANDREAN JUANN COOKE SECOND DEFENDANT
Before the Honourable Mr. Justice William J. Chandler, Judge of the High
Court
Ms. Richelle Connell of Messers Clarke Gittens and Farmer for the Claimant
2013: May 3, 9
DECISION
BACKGROUND
[1] The Claimant is a bank which granted loan facilities to the First and Second
Defendants secured by the charges by way of legal mortgage hereinafter
described in this decision.
[2] The First Defendant is a limited liability company registered under the
Companies Act Cap. 308 of the Laws of Barbados.
[3] The Second Defendant was the sole director of the First Defendant.
[4] On 24th April 2013 the Claimant filed an application pursuant to Part 46.2(2)
of the Supreme Court (Civil Procedure) Rules 2008 (the CPR) for an
Order permitting the Claimant to issue a Writ of Possession to enforce the
Order of Clarke J (ag) made on 23rd June 2011. Though the application was
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not headed without notice, the claimant sought to proceed on a without notice
basis. A summary of the terms of the Order of Clarke J (ag) is as follows:
1. The Defendant to deliver to the Claimant possession of:
Lot 219 Atlantic Shores, Christ Church and a 192nd part
share or interest of and in the Open Space on the Plan
certified on the 23rd day of February 1971 by L. G.
Quintyne, Sworn Surveyor.
2. The Defendant to deliver to the Claimant possession of:
553 square metres of land at Pegwell, Christ Christ
Church.
3. That there be a stay of execution until the 23rd day of
March 2012.
4. In the event that the Claimant obtains a sale of the
properties described in clauses 2 and 3 of this Order
before the 23rd day of March 2012 the Defendants do
vacate the said property and deliver vacant possession to
the Claimant prior to the completion of the sale upon
5. That the Claimant not be required to seek leave of this
Honourable Court to issue a Writ of Possession upon
expiration of the period in clause 3 of this Order.
THE EVIDENCE
[5] The Claimant filed an affidavit in support of its application on 24 April 2013.
This was sworn to by Mr. Anthony Leroy Pilgrim, a banker, employed by the
Claimant. At paragraph 8 of his affidavit he deposed that he received a letter
dated 2nd January 2013 from Mr. Zachary Cooke, son of the First Defendant
, which informed him that Sandrean Cooke (the deceased), the
Second Defendant, died on 24th November 2012.
[6] The 2nd January letter also advised that Messrs. Hanschell & Company
Attorneys-at-Law were appointed to represent the estate of the deceased.
[7] He further deposed that up to and including 24th November 2012 the
Claimant had not issued the Writ of Possession to enforce the Order of 23rd
June 2011.
[8] At paragraph 10 of his affidavit,
Attorney-at-Law, by letter of 13th February 2013 (sent by registered mail) to
Hanschell & Company, Attorneys-at-Law, demanded payment of the monies
then due under the loan facilities () given to the First and
Second Defendants and secured by Mortgages dated both dated the 31st day
of October 2007 and registered in the Land Registry as Deed Nos. 1865 of
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2008 and 9773 of 2007 respectively. This letter was exhibited to the affidavit
, inter alia, as follows:
We are instructed by Mr. Zachary Cooke that you act on
Demand is now made that you pay the sum of $1,965,162.56
together with legal expenses of $304.25.
[9] He deposed that the estate of the Second Defendant had failed to pay the
monies owed.
[10] Mr. Pilgrim deposed at paragraph 12 that the Claimant had found a willing
purchaser for the properties who had shown the interest in, and the capability
of, purchasing the same.
[11] Paragraph 13 of the affidavit provided an account and calculation of the
balance due under the loans. The balance under Loan Account No.
85000000545 was $1,931,289.88. The balance under Loan Account No.
80000009858 was $33,872.68. Interest continued to accrue under both loan
facilities.
THE ISSUE
[12] When the matter came on for hearing on 3rd May 2013 the Court raised with
Ms. Richelle Connell, Attorney-at-Law for the Claimant, the propriety of
asking the Court to make the Orders sought, without notice, in a situation
where the Second Defendant was deceased and there was no one appointed to
represent the estate.
[13] Accordingly, the issue arising in this matter is whether the Court ought to
permit the issuance of the writ of possession on a without notice application
where the Second Defendant has died and no letters testamentary have been
issued and no one has been appointed to represent her estate.
THE SUBMISSIONS
[14] On 7th May 2013 Ms. Connell handed to the Court her written submissions in
respect of the matter. Those submissions are, basically, as follows:
[15] Where a party to an action dies the normal practice is to allow the action to
continue either against or by the estate of the deceased by the appointed
personal representative of the estate (Part 21(6) CPR).
[16] Counsel contended that, in circumstances where there is no appointed
personal representative, the Court has the power to appoint a personal
representative to represent the estate of the deceased in order to have
proceedings continued.
[17] She further submitted that an application for leave to issue the writ of
possession may be made without notice under Part 46.3(1) CPR.
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[18] Counsel submitted that awaiting the appointment of a representative by the
Court will not change the inevitable; even if the Second Defendant were
present the result would be the same. Ms. Connell also submitted that there
was no legal point which could be taken for which the Second Defendant was
a necessary party; hence the application was made ex parte (without notice).
Counsel also submitted that the Order of Clarke J (Ag) did not require the
Claimant to seek the leave of the Court to issue a writ of possession.
[19] Ms. Connell also submitted that the overriding objective as outlined in Part
1.2 CPR is applicable. She contended that dealing with cases justly included,
but was not limited to, saving expense and dealing with matters in a way
which was proportionate to the financial position of each party. She reiterated
that the outcome would be the same whether a representative of the estate
was appointed or not.
[20] In support of her submission that the CPR contemplated situations where
there was no representative or none was appointed, Counsel pointed to the
letter dated 2nd January 2013, where the Claimant was advised that Hanschell
& Company were appointed to represent the interest(s) of the beneficiaries of
s estate. She also referred to the letter of 13th February 2013
where demand was sent to Hanschell & Company, in care of the estate of
Sandrean Cooke, for payment and the fact that there had been no response to
the letter nor payment of outstanding sums.
[21] Counsel raised two further points in her conclusion:
1. The Claimant would be unduly prejudiced as it had found
a willing and able purchaser for the properties, the debt
owed to the Claimant by the Defendants remained
outstanding and costs continued to escalate with each
passing day; and
2. The Second Defendant would suffer no prejudice by the
granting of the order sought without notice as the
outcome would be the same whether a representative was
appointed or not.
DISCUSSION
[22] Part 46.2 CPR provides:
A writ of execution may not be issued without permission where:
(d) the judgment debtor has died and the judgment creditor
wishes to enforce the judgment or order against the assets
personal representatives since the date of the judgment or
order;
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(f) the judgment was given or the order was made subject to
conditions.
[23] Part 46.3(1) CPR, quoted by Counsel for the Claimant, provides that:
An application for permission may be made without notice
unless the court otherwise directs, but must be supported by
evidence on affidavit.
[24] Part 46.3(2) provides that on an application for permission, the applicant
must satisfy the Court that they are entitled to proceed to enforce the
judgment or order and in particular:
(a) where the judgment is a money judgment, as to the
amount
(i) originally due; and
(ii) due together with interest at the date of the application;
(d) where rule 46.2 (d) or (e) apply, that a demand to satisfy
the judgment or order has been made on the person
holding the assets, and that that person has refused or
failed to do so.
[25] A proper interpretation of Part 46.2 CPR shows that a writ of execution may
be issued without permission where:
1. The debtor has died; and
2. The creditor wishes to enforce the Order against the
assets which have passed into the hands of the deceased
personal representatives since the date of the judgment or
order. (emphasis mine)
[26] No personal representative has been appointed by the grant of letters
testamentary. The debtor died intestate. Messrs. Hanschell & Company
cannot be described as the personal representatives of the estate of the
deceased. They are merely the Attorneys-at-Law representing those who are
applying for a grant.
[27] Under Part 46.3(d) CPR a demand to satisfy the judgment or order must be
made on the person holding the assets. In these circumstances, the demand
was made on Messrs. Hanschell & Company, as aforesaid, not on the son of
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the deceased who was made known to the Claimant. That is clear from the
13th February 2013 correspondence to Hanschell & Company. Part 46.3(d)
CPR requires demand to be made on the person holding the assets of the
deceased.
[28] Even if it could be argued that Messrs. Hanschell & Company were the
agents of the prospective applicants, without a grant of administration having
been given by the Court to the Son or some other person, the assets could not
be said to have passed to the personal representative nor the beneficiaries.
[29] In these circumstances, no one has the right to the assets of the deceased until
letters of administration are granted, since an administrator derives his power
from the grant of letters of administration, whereas, an executor derives his
authority from the appointment in the will.
[30] Counsel has, therefore, not properly addressed the requirements of Parts 46.2
and 46.3 CPR in her submissions.
[31] I agree with Counsel for the Claimant that the normal practice is to appoint
someone to represent the assets of the deceased by virtue of Part 21.7 CPR.
That is the reason why the issue was raised with Counsel in the first place.
[32] Part 21.7(1) CPR provides as follows:
Where in any proceedings it appears that a deceased
person was interested in the proceedings then, if the
deceased person has no personal representative, the court
may make an order appointing someone to represent the
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