Duncanson & Company v East Wind Development Company Ltd
| Jurisdiction | Turks and Caicos Islands |
| Judge | Adderley P (AG) |
| Judgment Date | 27 October 2023 |
| Neutral Citation | TC 2023 CA 15 |
| Court | Court of Appeal (Turks and Caicos) |
| Year | 2023 |
| Docket Number | APPEAL CL/AP No 14/2023 |
And
And
The Hon Mr Justice Adderley, JA, President (Ag.)
The Hon Mr Justice John, JA
The Hon Mr Justice Turner, JA
APPEAL CL/AP No 14/2023
IN THE COURT OF APPEAL Appeal
Appeal — Attorney's Lien — Restrictions — Registered Land Ordinance — Interest in Land —Trust — Equitable Interest —
CL Action No 150 of 2022 begun by Originating Summons claims against the defendants that at all material the settlement agreement under which he claims created at common law a trust for sale and an equitable interest in all future net proceeds of sale and an unregistrable equitable interest in all “Phase II Lands 40311/31&32), that East Wind Development Ltd (“EWD”) at all material times was and is trustee of same for the plaintiffs, and that any deviation from the settlement agreement without the plaintiffs consent constitutes a breach of trust. On this basis the appellant applied to lodge a caution on lands belonging to the Respondents. This was refused by the Registrar of Lands. Subsequently the Registrar on his own accord lodged a restriction on the said lands belonging to the respondents and stated a case for the opinion of the Supreme Court under S. 146 of the Registered Land Ordinance seeking clarification on his decision to lodge such a restriction.
Selochan J. decided that the Registrar of Lands had erred in the exercise of his discretion under s.132 of the Registered Land Ordinance in registering Restrictions against lands (40311/31 & 32) in which the appellant alleged to have an interest. The Appellant appealed the decision of Selochan J.
HELD: The learned judge was right that the appellant did not have an interest in the property of the Defendants required by the RLO for a restriction to be registered against their properties and the Registrar of Lands was wrong in law to do so. We therefore dismiss the appeal with costs to the respondents to be taxed if not agreed.
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1 . Bott & Co Solicitors v Ryanair DAC [2022] UKSC 8; [2022] 2WLR 634
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2 . Candey LTD v Crumpler and Another (as Joint Liquidators of Peak Hotels and Resorts Ltd [2022] UKSC 35
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3 . Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd [2018] UKSC 21; [2018] 1 WLR
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4 . Lysaght v Edwards (1876) 2 ChD
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5 . Attorney General of the Turks and Caicos Islands and another v Richardson (as Trustee in bankruptcy of Yellowstone Club World LLC [2013] UKPC 9
Mr Beryn S. Duncanson for the Appellants
Mr Conrad Griffiths, KC and Devonte Smith with him for the Respondents
Ms Clemar B. Hippolyte, Sr. Crown Counsel, for the Attorney General and Registrar of Lands
This appeal is a part of a series of interlocutory appeals pending by the appellant namely, CL AP No 8 of 2023 which relates to the refusal of a stay by Gruchot J after dismissing an application for his recusal, CL AP No 11 of 2023whereby Selochan J refused an application to adjourn sine die after dismissing an application to stay proceedings pending an application for judicial review into the validity of the judge's appointment, CL AP No 12 of 2023 whereby Selochan J refused an adjournment after an application for his recusal, CL AP No 13 of 2023 whereby Selochan J dismissed an application for a stay pending the appeal against his decision not to recuse himself, and CL AP No 14 of 2023 an appeal against Selochan J's decision that the Registrar of Lands under the Registered Land Ordinance exercised his discretion wrongly when he removed restrictions had placed on registered land 40311/31 &32, East, Middle Caicos.
The overarching issue in these proceedings is CL Action No 150 of 2022 (“the Main Action”). That action which was begun by Originating Summons filed 11 October 2022 (“the Originating Summons”) claims against the defendants [the same as in this action] or seeks the determination of the court on a number of questions. The appellant claims that under a settlement agreement with the respondents the indebtedness to his firm including compound interest has accumulated to over $12 million dollars.
The claims or questions include:
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1. that there was at all material times a binding written settlement agreement between the parties for legal services to be provided by the plaintiff on terms set out in paragraph 1 of the originating summons.
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2. That the terms created at common law a trust for sale and an equitable interest in all future net proceeds of sale and an unregistrable equitable interest in all “Phase II Lands 40311/31&32) of East Wind Development Ltd (“EWD”) at all material times EWD was and is trustee of same for the plaintiffs.
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3. That any deviation from the settlement agreement without the plaintiffs consent constitutes a breach of trust, and certain other specific allegations.
The plaintiff claims that there have been misrepresentations and fraudulent breaches of the settlement agreement both in relation to him and the public revenue including among other things sales at an undervalue and that the relevant transfers be set aside, and he claims specific performance of the settlement agreement.
He prays for full disclosure of the Defendants' assets, bank accounts and so forth both in and out of the jurisdiction, damages, an accounting from all of the defendants, an order for payment of sums found due, and that a Charging Order be registered for the benefit of the plaintiff as against all of the Turks and Caicos known properties [listed in paragraph iii of the Relief claimed].
He asks that a charging order be made in respect of all those parcels remaining in the name of the 1 st defendant within the Phase II parcels of Block 40311, East Middle Caicos including without generality the claim as listed in the Originating summons.
This application was by Notice of Motion dated 21 August 2023 whereby the appellant asked the judgment and order of Mr Justice Chris Selochan, made in Supreme Court Action No.150/22 on 18 August 2022 be set aside or varied. That judgment and Order had declared that the Registrar of Lands had erred in the exercise of his discretion under s.132 of the Registered Land Ordinance in registering Restrictions against lands (40311/31 & 32) in which the appellant alleged to have an interest. That interest was claimed by virtue of the alleged settlement agreement dated 14 June 2007 between himself and the first and second respondent.
The alleged settlement appears on Duncanson and Co's letterhead and is signed by both parties. It reads as follows:
“Mr Dean Reeves
East Wind development Company Ltd Providenciales
By hand
Dear Dean,
ReRe: East Wind Development Company Ltd;40311/31 &32, East,
Middle Caicos, Second Phase Legal Fees by Agreement
I refer to our recent discussions by way of expansion of this firm's fee note dated 27 September 2004. By agreement with you on behalf of East Wind Development Company Ltd, this firm's legal fees shall be payable on the 2 nd phase as follows:
1. $20,00 upon the conveyance of Phase II registered in East Wind's name;
2. 1.5% on the full market value of all Closings of all sales and transfers from the Company in the 2 nd phase, SUBJECT to MINIMUM fee of $9,000 for such conveyance;
3. This firm is entitled to a brokerage fee of net 10% of the sale price or value for any independently brokered sale of East Wind Development lands (East Wind to ensure this arrangement with any listing agent/realtor)
Yours truly
Duncanson &Co
Sgd Beryn Duncanson
Sgd
Dean Reeves, Director
Accepted and agreed on behalf of East Wind Development Ltd This 14 th June 2007
Mr Duncanson helpfully outlined the chronology of events to place in context the registration of the restriction and its removal. It shows that after these appeals were listed, on Monday 18th September 2023 the Appellant filed a Petition for the Winding-Up of EWD [new Action W-1/2023]. On or about the Friday 22nd September 2023 the 1st respondent filed a Summons to restrain publication of any advertisement of the Winding Up Petition. The appellant also voluntarily gave his undertaking to the Court not to advertise the Petition for Winding-up until a determination of the respondent's respective application thereto.
The appellant submitted that the letter is referred to in the Notice as a Settlement Agreement, and came about as part of the culmination of negotiations over several years as outlined in paragraph 1 of the Originating Summons
It therefore created a lawyers lien, he submits.
He relied on authorities which were not relied on in the court below to support the view that lawyer's liens can arise from legal work carried out where there was a settlement and no litigation. He cited the authorities of Bott & Co Solicitors v Ryanair DAC 1, applied in Candey LTD v Crumpler and Another (as Joint Liquidators of Peak Hotels and Resorts Ltd 2, and submitted that those authorities supported his view that the settlement agreement gave him an equitable interest in 40311/31 &32, East, Middle Caicos owned by the company.
Mr Griffiths KC countered that an attorney's lien does not arise in non-contentious work. It also only applies to work already carried out, not to future work as provided for in the letter which he submits in any event is not a settlement agreement but simply a demand for fees.
The grounds of appeal are set out in the Notice of Appeal filed 21 August 2023. In summary as it relates to this issue:
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(i) the judge had no...
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