Diana Elizabeth Williams v Allister Williams

• Jurisdiction: Bermuda
• Judge: Narinder K. Hargun
• Judgment Date: 24 March 2016
• Court: Supreme Court (Bermuda)
• Docket Number: CIVIL JURISDICTION 2015 : No. 183
• Date: 24 March 2016

[2016] SC 31 Civ

In The Supreme Court of Bermuda

CIVIL JURISDICTION 2015 : No. 183

Between:

Diana Elizabeth Williams

Plaintiff

and

Allister Williams (in the capacity of trustee for the estate of Donald James Williams)

1 ^st Defendant

and

Christopher Williams (in the capacity of trustee for the estate of Donald James Williams)

2 ^nd Defendant

and

Tito Williams (in the capacity of trustee for the estate of Donald James Williams)

3 ^rd Defendant

Mr. John Hindess, Marshall Diel and Myers, for the Plaintiff

Ms. Nancy Vieira, Maclellan and Associates, for the Defendants

Section 22 of the Conveyancing Act 1983 — whether burden of a covenant runs with the land — effect of orders made in divorce jurisdiction — whether such orders are personal to the parties

1 In these proceedings, Diana Elizabeth Williams (‘Mrs. Williams’), the Plaintiff, seeks judgment against Alastair Williams, Christopher Williams and Tita Williams, in their capacity as Trustees of the estate of Donald James Williams (‘Mr. Williams’), the Defendants, for damages for breach of a covenant to repair and insure certain residential property as set out in a Deed dated 30 November 1999 made between Mr. and Mrs. Williams. The claim is based upon the proposition that the covenant contained in the Deed runs with the land and is enforceable against the Defendants as they are Mr. Williams' successors in title.

Background

2 The factual background giving rise to Mrs. Williams' claim is uncontroversial. Mr. and Mrs. Williams were divorced in the Divorce Jurisdiction of the Supreme Court of Bermuda (case number 138 of 1997) and Decree Absolute was granted with respect thereto on 20 May 1999.

3 Financial arrangements between the parties in the divorce proceedings were dealt with by two Orders of the Supreme Court. By Order made on 16 April 1999, it was ordered that:-

• (i) That the Respondent [Mr. Williams] do pay to the Petitioner [Mrs. Williams] a lump sum of $300,000.

• (ii) Upon payment of the said sum, the Petitioner shall convey to the Respondent her one half share of the property Catlin, Between the Walls, Pitts Bay Road, Pembroke and the Respondent shall grant the Petitioner a life interest in Catlin Cottage.

• (iii) The Petitioner shall be entitled to the rents of Catlin Cottage from time to time when the Petitioner is not in occupation thereof.

• (iv) These orders shall be in full and final settlement of the claims of the Petitioner and the Respondent to ancillary relief and proceedings under the Partition Acts commenced by the Petitioner are dismissed.

4 By a subsequent Order dated 8 October 1999, it was ordered that the Order dated 16 April 1999 shall include the following provisions:-

• (a) The Respondent [Mr. Williams] shall be responsible for and shall pay for the exterior maintenance of Catlin Cottage; and

• (b) The Respondent shall be responsible for securing and paying for the on-going insurance obligations in respect to Catlin Cottage.

5 The above Orders were given effect to by a Deed made between Mr. & Mrs. Williams dated 30 November 1999. The Deed recited that (i) the Grantor (Mr. Williams) and the Grantee (Mrs. Williams) were divorced in the Divorce Jurisdiction of the Supreme Court of Bermuda; (ii) by an Order of the Supreme Court dated 16 April 1999, the Grantee was ordered to transfer her interest in the Property to the Grantor upon payment by the Grantor to the Grantee of a lump sum of $300,000, whereupon the Grantor was to grant the Grantee a life interest in the Property; (iii) by a further Order of the Supreme Court dated 7 October 1999, the Grantor was ordered to be responsible for the exterior maintenance and the on-going insurance obligations in respect of the Property; and (iv) as a result of the recited divorce, to carry out the terms of the said Orders of the Supreme Court regarding the conveyance of the land as well as the maintenance and insurance obligations, the Grantor and the Grantee have agreed to execute the Deed.

6 The operative part of the Deed provides:-

‘In pursuance of the Order of the Court, the Grantor does hereby grant to the Grantee a right of use and occupation of Catlin Cottage… and the rents and profits thereof for the remainder of her life and the Grantor covenants with the Grantee that he will be responsible during the Grantee's lifetime for the exterior maintenance and the on-going insurance obligations in respect to Catlin Cottage.’

7 Mr. Williams passed away on 22 March 2000. Since his death, Mrs. Williams maintains that the Defendants have refused to pay for any costs for the repair or maintenance of the exterior of the property or to meet the insurance obligations referred to in the Deed.

Rival Contentions

8 On behalf of Mrs. Williams, it is argued that the Deed expresses a positive obligation on Mr. Williams to maintain the exterior of the property and pay for maintenance of the property during the lifetime of Mrs. Williams. It is further argued that the positive covenant not only binds Mr. Williams, but also his successors in title as a result of the operation of Section 22 of the Conveyancing Act 1983 (the ‘Act’). Section 22 provides:-

‘ (i) A covenant relating to any land of a covenantor or capable of being bound by him, shall, unless a contrary intention is expressed, be deemed to be made by the covenantor on behalf of himself, his successors in title and the persons deriving title under him or them, and, subject as aforesaid, shall have effect as if such successors or other persons were expressed. This sub-section extends to a covenant to do some acts relating to the land, notwithstanding that the subject-matter may not be in existence when the covenant is made.

(i) For the purposes of this Section, in connexion [sic] with covenants restrictive of the user of land ‘successor in title’ shall be deemed to include the owners and occupiers for the time being of such land’.

9 Mrs. Williams also relies upon the enforcement of a positive covenant in equity and in that regard relies upon Wilkinson and Others v Kerdene Ltd [2013] EWCA Civ. 44.

10 The Defendants argue that the Deed in question accurately reflected the two Orders of the Supreme Court made in respect of the divorce of Mr. & Mrs. Williams. The short point taken by the Defendants is that the maintenance and insurance obligations referred to in the Order of 8 October 1999 were personal obligations of Mr. Williams and they ceased to be operative upon the death of Mr. Williams. The Defendants accept that Mr. Williams was obliged to comply with the covenant for the...