Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 21 of 2021

Meridian Mortgage Corporation Ltd. v. Blue Water Villas&Spa Ltd. (CL 21 of 2021) [2021] TCASC 10 (27 April 2021);

Law report citations
Media neutral citation
[2021] TCASC 10
Coram
Simons QC, J

IN THE SUPREME COURT

TURKS AND CAICOS ISLANDS

ACTION NO. CL-12/2021

 

BETWEEN:                                          

MERIDIAN MORTGAGE CORPORATION, LTD.                                                                                                                     

PLAINTIFF

AND

BLUE WATER VILLAS & SPA, LTD

DEFENDANT

 

Before:                                                 Hon. Mr. Justice Carlos W. Simons, QC

 

Appearances:                                   

Mr. Neale Coleman of Wessex Fairchild, Attorneys for the Plaintiff

Mr. George Missick of Geordins, Attorneys for the Defendant

 

Date Heard:                                       Wednesday, 21 April 2021

Date Delivered:                                Tuesday, 27 April 2021

Venue:                                                 Court No. 5, Graceway Plaza, Providenciales

 

_____________________

WRITTEN REASONS

______________________

Background

1. On 21 April 2021, I granted the Plaintiff an Order for Sale by private treaty under the Chargee’s remedies provisions of the Registered Land Ordinance (Cap. 9.01) (RLO). It was a routine application that would normally have been granted unopposed in the usual course, except that Mr. Missick for the Defendant pressed various points in resistance. When I rejected Mr. Missick’s submissions he asked if the Court would provide written reasons. I do so now.

The Application

2. As its name suggests, the Plaintiff is a mortgage company. It lent money to the Defendant in the repayment of which the Defendant defaulted. The Plaintiff held a registered charge over the Defendant’s land by way of security and the default gave rise to the Plaintiff’s right to engage the Chargee’s remedies provisions of the RLO. These remedies include the power of sale by private treaty with the approval of the Court where, as here the parties agree that s.75 of the RLO should be varied to permit such sale (Charge, clause 9 (d)).

 

3. The Plaintiff’s application came on by way of Originating Summons supported by affidavit under O.7 r.2 of the Supreme Court Rules 2000. It is not necessary for the purposes of these Written Reasons to rehearse either the form of the application or the grounds set out in the affidavit. Neither is in dispute. Rather, Mr. Missick’s objections, so far as they can be distilled from his oral submissions, went to three main issues.

The Objections Raised

4. First, Mr. Missick said that because the company had been struck from the Register the Court cannot make an order against it, in his words “you cannot make an order against a dead company.” Second, in support of this proposition he referred me to the Note at para. 15/7/15 of the White Book. And thirdly, he complained about service – he said that there is no 2015 charge registered against the property and that the affidavit of service was bad because it does not show in what capacity the person acknowledging service of the s. 72 RLO notice acted.

 

5. In support of his client’s case Mr. Missick also filed an affidavit on the morning of the hearing. It was days late and laced with typographical errors for which Mr. Misick apologized – he said it was drafted as he was in-flight. It was sworn by one Douglas Crawley, a principal of the Defendant company and aside from complaining about service, the burden of the affidavit was directed to persuading the Court to adjourn the matter for 60 days as there was alternative financing available to pay out the Plaintiff’s loan. A so-called “commitment letter” from one Southern Cross Capital Group Ltd. was exhibited to the affidavit.

The Objections Answered

6. Mr. Coleman for the Plaintiff directed the Court to complete answers to each of Mr. Missick’s objections. He brought to the attention of the Court that the Defendant company had been struck from the Register as of 10 March 2021, having not paid its annual return fees since incorporation. To show this to be the case, he offered the Court a copy of the Gazette dated 12 March 2021 and a Company Search dated 21 April 2021, both of which I felt I was entitled to look at as official government generated documents. There was no suggestion from Mr. Missick that this was not true, though he did complain that the material should properly have been exhibited to an affidavit to be received as evidence.

 

7. Surprisingly, Mr. Missick said he was unaware that his client had been struck off the Register and neither is it mentioned in Mr. Crawley’s affidavit. Clearly the standing of the Defendant company was a matter of relevance to the application and a matter of which the Court ought to have been informed by the Defendant. The fact that it was not, could only undermine confidence in the averments made in Mr. Crawley’s affidavit and the submissions made by Mr. Missick.

 

8. In answer to Mr. Missick’s contention that the Court “cannot make an order against a dead company” Mr. Coleman showed me s.258 (3) (b) of the Companies Ordinance 2017 which provides that “The fact that a company is struck off the Register of Companies does not prevent…any creditor from making a claim against the company and pursuing the claim through to judgment or execution…”. Mr. Missick’s submissions on this point were therefore wrong. Neither could they have been considered if he was unaware of the striking off until the hearing.

 

9. Secondly, it is difficult to see how the note at para. 15/7/15 of the White Book helps Mr. Missick’s case in the face of local legislation to the contrary. Mr. Coleman urged the Court that the note related to the English Companies Act 1985 and is displaced by the TCI Companies Ordinance and I accept that to be the case.

 

10. Additionally, the note seems not to be relevant to the extent that it speaks to pending actions by a plaintiff company that has been wound up and subsequently dissolved. In this case, the company is a defendant to proceedings commenced before the company was struck from the Register and it appears not to have been formally dissolved. Mr. Missick’s submissions on this point were therefore also wrong, on both counts.

 

11. Finally, as to service, Mr. Coleman answered Mr. Missick’s contention that there was no 2015 charge on the property by pointing to the Chargee’s consent dated 27 February 2015 for the transfer of the property from one Christian Edward August Harris to the Defendant. It is also clear from the Land Register that the proprietor of the property is the Defendant company and that the charge is the Plaintiff. There could therefore have been no merit in this submission.

 

12. Mr. Coleman also referred the Court to the service of notices provisions of s. 151 of the RLO. In this case there were exhibited to the Plaintiff’s affidavit, an affidavit of service showing the notice to have been served on the registered office of the Defendant, and a notation acknowledging receipt signed by an attorney in that office. Mr. Missick contended that the notice ought to have been addressed to the Defendant at its registered office and that the Chargee’s remedies provisions of the RLO were therefore not properly engaged. However, the address used matched the address on the Land Register and as I understand it, the Defendant’s registered office is also located at that address. Besides, the acknowledgement of receipt of the notice was given by an attorney at that address. There is no merit in the service objection.

 

13. As to the adjournment for 60 days to allow alternative financing to fall into place, the Defendant has been struck off the Register and under s. 258 (1) of the Companies Ordinance the company and its directors and shareholders are prohibited from acting in any way with respect to its affairs except as permitted by s. 258 (2). The negotiation and conclusion of a financing agreement is not among the permitted matters and the Court has no power allow it. In any event, as Mr. Coleman observed if alternative financing is really on offer the existence of the order for sale does not prevent the principals of the Defendant company from restoring it to the register, taking up the offer and paying out the Plaintiff.

Conclusion

14. It was for all these reasons that I rejected Mr. Missick’s submissions and granted the order that the Plaintiff sought, with costs to the Plaintiff.

 

15. I began by saying these written reasons were requested by Mr. Missick. I end by noting that the request was made notwithstanding the Court had not been given the courtesy of a skeleton argument or copies of authorities relied upon. Judicial is not well-spent in reconstructing and distilling counsel’s submissions from judge’s notes and recollections. Counsel should be mindful of the utility of written submissions, and the time saved, and the accuracy achieved by their use.

 

 

 

Sgd.

Hon. Mr. Justice Carlos W. Simons, QC

27 April 2021