Billington v Webster

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Saunders, J
• Judgment Date: 29 February 2000
• Neutral Citation: AI 2000 HC 2
• Docket Number: Civil Suit No. 1 of 1994
• Date: 29 February 2000

High Court

Saunders, J.

Civil Suit No. 1 of 1994

Billington

and

Webster

Appearances:

Mr. Courtney Abel for the plaintiff

Mrs. J. Gumbs-Connor for the defendant

Mr. V. Hodge for Randy Webster

Judgment - Charge of land — Whether judgment that had become a charge could be avoided by evidence of a prior unregistered disposition of the land — Registered Land Ordinance, s. 23 — Judgments Ordinance, s.3.

Land registration - Objective to establish subject to the stated overriding interests, the conclusiveness and indefeasibility of registered title.

Saunders, J

1 Mr. Billington, the plaintiff, obtained a money judgment against the defendant on the 25 ^th October, 1995. Since then, he has been making steadfast but unsuccessful efforts to harvest the fruits of his judgment.

2 In June, 1999 Mr. Billington adopted a new approach. He applied to the court for an order for sale of a parcel of land standing in the name of the defendant.

3 Shortly after Mr. Billington had filed his application for an order for sale, a summons was filed on behalf of a Mr. Randy Webster. Randy Webster is the defendant's son. So as not to confuse the two Websters, I shall refer to the father as the defendant. The son, I shall address as Mr. Webster. Mr. Webster's summons sought leave to be heard on the application for the order for sale. That application was not pursued.

4 Mr. Webster then engaged new solicitors. The latter abandoned the first summons and filed a fresh application. The new summons asked the court to stay Mr. Billington's application for the order for sale “on the ground that the right title and interest in the said property belong to Randy Webster herein and not the defendant.” The question to be decided is whether Mr. Billington is entitled to the order for the sale of the parcel of land or whether he should be precluded from obtaining that order because of Mr. Webster's alleged “right title and interest in the said property”.

5 In support of his application, Mr. Webster's solicitor, his mother, and the defendant all swore affidavits. These affidavits allege that Mr. Webster had purchased the parcel of land from the defendant in 1993. A transfer was executed by the defendant to his son. Mr. Webster deliberately declined to register the transfer “in order to facilitate his father in his business so that he could continue to obtain advances for his trading……” Subsequent to the transfer, the defendant mortgaged the property to the Bank of Nova Scotia to secure certain advances from that bank.

6 Mr. Webster made no effort to register his transfer prior to Mr. Billington's application for the order for sale. It is nonetheless argued that a court of equity ought not to grant Mr. Billington the order for sale. Counsel for Mr. Webster submitted that in equity the property is owned not by the defendant but by Mr. Webster. This contention necessitates an examination of the relevant law.

7 Section 23 of the Registered Land Ordinance states that

“the registration of any person as the proprietor with absolute title of a parcel shall vest in that person the absolute ownership of that parcel together with all rights and privileges belonging or appurtenant thereto …”

The section goes on to state, at 23(b), that such absolute ownership is subject to “such liabilities, rights and interests as affect the same and are declared by section 28….not to require noting on the register.”

8 Section 23(b) contains a Proviso. The Proviso is to the effect that “nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.”

9 Section 28, in giving a listing of the overriding interests suggested by section 23(b), included in that list, at 28(e), “any unpaid moneys…….expressly declared by any written law to be a charge upon land.”

10 Section 3 of the Judgments Ordinance states:

“A judgment already entered up or hereafter to be entered up against any person in the Supreme Court shall operate as a charge upon all lands of such person within the Colony to the extent of his beneficial interest therein: Provided that no such judgment shall affect any such lands as to purchasers, mortgages, or creditors, unless and until the person entitled to the benefit of such judgment shall have filed an application to the court for an order for the sale of such lands towards satisfaction thereof.”

It is my view that a judgment of the High Court falls under the umbrella of section 28(e) of the Registered Land Ordinance.

11 How do all these statutory provisions inter-relate? It seems to me that, by reason of his name being registered as the proprietor, the law regards the defendant as the absolute owner of the land. Notwithstanding the alleged unregistered trust relationship the father had with his son, the defendant was entitled validly to mortgage the property, as he actually did, as well as to suffer a charge against the property. After the application for the order for sale was filed the lands became affected by Mr. Billington's judgment.

12 It was submitted that the defendant merely holds the property upon trust for his son and that as a matter of law the judgment creditor cannot get more than the judgment debtor could honestly give him. Reliance was placed on the case of Gill v. Continental Gas Co. [1872] L. R. 7 Exch.332 at 338.

13 That case involved a judgment creditor who had obtained a charging order over shares of the judgment debtor held in a company. The shares were on the company's...