Patricia Yorkston Claimant v Tamarind Village Inc. Defendant/Ancillary Claimant v Steve Meade Ancillary Defendant [ECSC]

• Jurisdiction: St Lucia
• Judge: WILKINSON, J
• Judgment Date: 06 April 2011
• Judgment citation (vLex): [2011] ECSC J0406-3
• Court: High Court (Saint Lucia)
• Docket Number: SLUHCV2009/0465
• Date: 06 April 2011

[2011] ECSC J0406-3

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

SLUHCV2009/0465

Between:

Patricia Yorkston

Claimant

and

Tamarind Village Inc.

Defendant/Ancillary Claimant

and

Steve Meade

Ancillary Defendant

WILKINSON, J

1 Cross applications came on for hearing, one for security for costs filed 10^th December 2010, by the Defendant, and the other filed 20^th December 2010, by the Claimant for an inhibition to prevent the Defendant and other Parties from dealing with the Defendant's property or in the alternative a freezing order of the proceeds of sale of the property.

2 The Defendant's application filed at 10^th December 2010, sought the following:

• 1. The Claimant be ordered to pay into Court the sum of fifty-four thousand dollars ($54,000.00) representing security for the costs of the claim within 14 days of the date of the order.

• 2. Unless the Claimant pays the said sum into Court as ordered the claim is struck out on the expiration of the 14^th day after the date of the order with prescribed costs to the Defendant.

The grounds of the application were as follows:

• 1. The Claimant is ordinarily resident out of the jurisdiction.

• 2. The Claimant has filed this claim and has further sought to inhibit any dealings with the property registered as Block and Parcel 1456B 864, and/or the proceeds of the said property which said property belongs to the Defendant.

• 3. The Defendant is not aware of any property which the Claimant has or may have in Saint Lucia in order to enforce any order for costs which the Defendant may get in the event that the Defendant is successful in this suit.

• 4. The Court has power pursuant to CPR Rule 24 to order a Claimant to pay security for costs of a claim.

3 The Claimant's application filed 20^th December 2010 sought the following orders:

• 1. An inhibition order to prevent or prohibit the Defendant, or any other interested parties in dealing with Block and Parcel 1456B 864 and in particular prohibiting the registration of any transfer or sale in respect of the said Parcel.

• 2. In the alternative, a freezing order, freezing the proceeds of the sale of the said Parcel in an amount equivalent to the value of the Claim filed by the Claimant in the substantive matter.

The grounds of the application were as follows:

• 1. By a Reservation Contract and Condominium Purchase Agreement made on 6^th March 2008, and 3^rd July 2008, respectively between the Claimant and the Defendant, the Parties contracted and agreed that the Claimant would purchase a condominium from the Defendant at the Tamarind Village Development.

• 2. In reliance on the said agreements, the Claimant duly paid to the Defendant the sum of five thousand United States dollars (USD$5,000.00) with respect to the Reservation Contract and the sum of eighty five thousand United States dollars (USD$85,000.00) pursuant to the deposit requirement under the Condominium Purchase Agreement.

• 3. The Claimant has now discovered that the Defendant has removed a caution previously placed on the Parcel, by the Claimant without the Claimant having had the opportunity to object to the removal of the caution or ever being served with the Notice of Removal of Caution or ever having signed the notice as being received by the Claimant in accordance with section 109 of the Land Registration Act. The Claimant has further discovered that the Defendant is in the process of or on the verge of selling the only property or asset of the Defendant being the parcel of land known as Block and Parcel 1456B 864.

• 4. The Claimant therefore is at risk of having no assets against which her judgment could be enforced should she be successful at trial. The Claimant's claim is for the return of her deposit and reservation fee and therefore the Claimant has an interest in the proceeds of the sale. An urgent inhibition is the only way the Claimant can secure the return of her deposit and reservation fee upon the sale being executed.

• 5. Should the sale take place it is likely the directors of the Defendant will return to Europe to whereabouts unknown to the Claimant further frustrating her claim. If the property is sold and the Claimant is denied the inhibition order being sought, the Claimant's claim would be rendered nugatory as the Defendant will dissipate the proceeds leaving no assets remaining within this jurisdiction in the name of the Defendant.

4 The Defendant filed one affidavit deposed to by Mrs. Cathy Walker at 10^th December 2010, and which affidavit sought to address both applications although the Claimant's application was filed subsequent. For the record, the Claimant had filed an earlier identical application at 8^th November 2010, to that file 20^th December 2010, but when neither Counsel nor the Claimant appeared at the time fixed for the hearing on 17^th December 2010, the application was struck out. The Claimant filed two affidavits, one on 20^th December 2010, to support her application for an inhibition order and or in the alternative a freezing order, and one on 13^th January, 2011 in rebuttal to the Defendant's application for security costs.

5 The Defendant is a company incorporated at Saint Lucia. At December 2008, its only shareholders were Mr. Martin Walker and Mrs. Cathy Walker, husband and wife, and they hold 50 common shares each. Its only directors are also Mr. Martin Walker and Mrs. Cathy Walker. The Defendant purchased for one million three hundred thousand dollars (EC$1,300,000.00) and with the assistance of a mortgage in the sum of one million, sixty-nine thousand, one hundred and thirty-six dollars (EC$1,069,136.00) from the Bank of Nova Scotia a lot of land registered in the Land Registry as Block and Parcel 1456B 864 and situate at Cas-En-Bas in the Quarter of Gros Islet. The balance due on the mortgage for payoff at 8^th December 2010, was one million, two hundred and two thousand, two hundred and eighty-one dollars and seventy-five cents (EC$1,202,281.75). Interest is being calculated at the daily interest factor of $274.7070. Upon the Parcel the Defendant had proposed to construct condominiums. This proposal has now been abandoned.

6 A second company, Consolidated Design Services Ltd.(CDS) was also incorporated at Saint Lucia, and the shareholders of the company are Mrs. Cathy Walker with 60 common shares, Mr. Juan Charlemagne with 20 common shares, and Ms. Carmen Taylor with 20 common shares. The Defendant engaged CDS to prepare architectural drawings for a 32 unit condominium development on its Parcel, prepare interior design concepts, market and offer for sale the condominiums.

7 CDS hired a third company, East Caribbean Real Estate Limited to market and find purchasers of the condominiums. East Caribbean Real Estate Limited acted through a number of persons including its director Mr. Steve Meade and manager, Ms. Anne Dickinson. There was exhibited an email dated 4^th December 2008, between Mrs. Walker and Mr. Steve Meade which shows Mr. Steve Meade at the web address of "stluciarealestate.co.uk" and email address of steve@stluciarealestate.co.uk. This is noted as the Claimant refers to St. Lucia Real Estate Limited as being the entity with which she interacted and not East Caribbean Real Estate Limited.

8 The Court was given sight of an email exchange from an investigating officer DC 4152 Steve Conroy at England which suggests that there is a trial ongoing in the Reading Crown Court at the United Kingdom and which trial involves Mr. Steve Meade. The email spoke of a court appearance by him at 28^th September 2010, and an adjournment to 10^th November 2010. No further details were provided as to what the case might be about in the email.

9 Purchase of the condominiums was to occur by way of firstly a Reservation Contract where upon execution a proposed purchaser such as the Claimant was to pay a non refundable reservation fee of five thousand United States dollars (USD$5,000.00). Secondly, the Reservation Contract was to be followed up by execution of a Condominium Purchase Agreement. At execution of the Condominium Purchase Agreement a purchaser was required to pay 20 percent of the purchase price, in this instance the Claimant was required to pay eighty-five thousand United States dollars (US$85,000.00). A purchaser was given a credit of the reservation fee. The additional payment terms are of no moment here as the transaction before the Court went no further than this.

10 There was no evidence that the Defendant received the payments made on the Condominium Purchase Agreement. Indeed the Claimant said that it was not until 6 months later that the Defendant communicated with her directly and informed her that the deposit was not receive. There had never been communication between the Parties before.

11 The Claimant acted through Saint Lucia Real Estate Limited and according to her exhibit at 12^th March 2008, executed a Reservation Contract and paid via a debit to her credit card the reservation fee of five thousand United States dollars (US$5,000.00). The Reservation Contract stated the Parties to it were Consolidated Designs Services Ltd. and Claimant. The copy exhibited by the Claimant bore only her signature. The Reservation Contract provided banking details for CDS at the Bank of Saint Lucia, Castries, Saint Lucia.

12 CDS between March and April 2008, received the Reservation Contract signed by the Claimant from East Caribbean Real Estate Limited without the reservation fee of five thousand United States dollars (US$5,000.00) and it took the decision not to sign the Reservation Contract. The reservation fee was received at September 2008, and at this time Mrs. Walker says CDS sent by mail a package containing an unsigned Condominium Purchase Agreement to the Claimant for her signature.

13 Curiously, three months earlier, at 3^rd July 2008, there was executed a Condominium Purchase Agreement which stated the...