Taalib-Din v Provost Marshal

• Jurisdiction: Bermuda
• Judgment Date: 18 October 2018
• Docket Number: Civil Jurisdiction 2018 No 207
• Date: 18 October 2018
• Court: Supreme Court (Bermuda)

[2018] Bda LR 92

In The Supreme Court of Bermuda

Civil Jurisdiction 2018 No 207

Between:

Khomeini Taalib-Din

Plaintiff

and

Provost Marshal

Defendant

Mr J McSweeney for the Plaintiff

Mr D Williams for the Defendant

The following cases were referred to in the judgment:

Financial Services Authority v Rourke [2001] EWHC 704

Marshall v Wakefield and Acardo [2009] Bda LR 25

Oatham v Dickens [1977] Bda LR 1

Davis v Minister of Finance [2018] Bda LR 84

Establishing and extinguishing judgment liens on real property — Priority between liens and mortgagee rights — Declaratory relief

JUDGMENT of Hargun CJ

Introduction

1. These proceedings, commenced by Originating Summons dated 12 June 2018, seek a number of declarations designed to confirm the legal position of various parties with respect to execution of their respective claims against a residential property at 5 Railway Trail in Southampton Parish (“the Property”). The relevant claimants are Clarien Bank Limited (“the Mortgagee Bank”), Khomeini Taalib-Din (“the Plaintiff”) and Mr Paul Harshaw and Canterbury Law Limited (“the Judgment Creditors”). Declaratory relief in relation to these various claims is said to be justified on the basis that such relief is necessary to effect a sale of the Property or otherwise promote a settlement between the parties.

Background

2. I take these background facts from the affidavit of the Plaintiff dated 11 June 2018. The Property was the family homestead of the Plaintiff's father, Mustafah Taalib-Din. Prior to his death in March 2006, the Plaintiff's father executed a will (“the First Will”) which left the Property to the Plaintiff and his sister, Hanifah Rukan Smith (“the Judgment Debtor”) to be divided equally between them “as tenants in common, per stirpes, absolutely but subject to a first option to purchase each other's share in the estate”.

3. The Plaintiff's father allegedly made a new will (“the Second Will”) at the hospital two weeks before his death. This Second Will was handwritten by the Judgment Debtor and gave the property to herself. The Second Will was granted probate on 6 November 2007 and on the same date the Judgment Debtor executed a Vesting Deed vesting the Property in her name.

4. On 26 February 2008, the Judgment Debtor obtained a mortgage in her sole name (“the Mortgage”) from the Mortgagee Bank in the sum of $205,000. The Mortgage deed expressly recited that the Judgment Debtor was the owner in fee simple of the Property. In this regard that the Mortgagee Bank expressly relied upon the Vesting Deed dated 6 November 2007.

5. On 2 March 2010, the Plaintiff commenced proceedings against the Judgment Debtor contesting the validity of the Second Will.

6. On 4 May 2012 Kawaley CJ made an Order on Judgment whereby the Second Will was declared to be invalid and the validity of the First Will was affirmed with the result that the Property was to be shared by the Plaintiff and the Judgment Debtor in equal shares as tenants in common. The Order expressly provided that “the said Probate granted to the (Judgment Debtor) on 6 November 2007 is hereby revoked” and that “the Vesting Deed dated 6 November 2007 vesting the property of 5 Riviera Estate, Southampton Parish SN03 in the (Judgment Debtor) is hereby set aside.” The order also awarded costs to the Plaintiff from the date of the re-amendment of the Statement of Claim.

7. The amounts due under the Mortgage to the Mortgagee Bank by the Judgment Debtor remain outstanding. As of 1 March 2018 the amount outstanding and payable to the Mortgagee Bank was $334,834.62 and interest continues to accrue at a rate of $45 per day.

8. Mr Harshaw and Canterbury Law Limited, having represented the Judgment Debtor in proceedings which resulted in the Order of 4 May 2012, proceeded to obtain judgments against the Judgment Debtor on account of unpaid fees...