Jersey Unreported Judgments

Property- reasons for granting summary judgment and certain declarations.

[2013]JRC244A

Royal Court

(Samedi)

5 December 2013

Before     :

Advocate Matthew John Thompson, Master of the Royal Court.

 

Advocate R. J. Michel for the Representor.

The First Respondent appeared in person.

The Second Respondent did not appear and was not represented.

Mr K Manning appeared as an Officer of the Court.

judgment

the master:

Introduction

1.        This judgment represents my reasons for granting summary judgment and certain declarations in the representor's favour. 

2.        In brief, the application by the representor concerned ownership of field 1726 in the Parish of St Ouen.  By a contract dated 15^th January, 2010, the first respondent purported to purchase the whole of field 1726 from the second Respondent.  The representor claims, however, that part of field 1726 belongs to him and not to the first respondent and he seeks a declaration to that effect. 

3.        The test on a summary judgment application generally is well known and therefore it is not necessary for me to set it out in this judgment.  However, I was asked to grant a declaratory judgment in favour of the representor.  I am satisfied I have jurisdiction to do so for the following reasons. 

4.        Firstly, in the matter of the Curatorship of X [2002] JLR 259, the Royal Court determined that it had jurisdiction to grant a declaratory judgment on any live issue before it.  This means any issue where there is a sufficient degree of reality or immediacy to have a practical bearing upon the resolution of an actual dispute or a dispute likely to arise in the near future.  In recognising the power to grant to declaratory judgments, the Court in Re X was heavily influenced by the approach taken in Scotland.  Paragraphs 17 and 18 of the judgment state as follows:-

"17 A great merit of the action of declaratory in Scotland is said to be its elasticity; the scope of its availability is potentially very wide.  In particular, the Scottish courts do not appear to have become involved in technical considerations of whether a right is future or hypothetical.  They have adopted a much broader approach.  That approach is conveniently summarised by Lord Clyde as follows (op. cit., para 8.06, at 272):-

"It has been observed that it is the function of the courts to decide only live practical questions and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs.  The courts are neither a debating club nor an advisory bureau.  Hypothetical questions will not be entertained.  The action cannot be used for the mere purpose of declaring legal propositions where no practical question or dispute lies beneath.  It is a matter of the circumstances of each particular case whether there is or is not a live practical question.  There must be a sufficient degree of reality and immediately before a declaratory will be granted.  If the declaratory will have a practical bearing upon the resolution of an actual dispute it will be competent.  It is sufficient for the competency of a declaratory that there be an actual consequence either pecuniary or in facto praestando.  This need not be an immediate practicality: a real possibility of the critical eventuality emerging may be sufficient."

18. We think that the broad and flexible approach summarized above is preferable to the more structured and technical approach which appears to hold sway in England, which is based partly upon historical considerations which have no application in Jersey.  The principles of Scottish law described above offer a sensible and convenient approach to the question of when the court should agree to give declaratory relief and we hold that they represent the correct approach under Jersey law.  We do not think that the court in Jersey Hotels (4) was purporting to hold definitively that the distinction between future and hypothetical rights went to the jurisdiction of the Royal Court to grant declaratory judgment but, if it did so hold, we respectfully disagree.  In our judgment, the court should not become embroiled in a technical consideration of whether a matter can be categorized as a future or hypothetical right.  The court should adopt a broader approach and consider whether there is a live practical question with practical consequences when deciding whether to exercise its discretion to grant declaratory relief."

5.        I consider that I can exercise that power on a summary judgment application.  Rule 7/2(1) of the Royal Court Rules 2004, as amended, provides as follows:-

"Judgment for plaintiff

(1) Unless on the hearing of an application under Rule 7/1 either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against the defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed" (emphasis added).

6.        I consider that the phrase in Rule 7 "as may be just having regard to the nature of the remedy or relief claimed" is broad enough to include a power to grant a declaratory judgment if I am otherwise satisfied that the legal test for granting of summary judgment is met.  I do not consider it just to restrict the jurisdiction vested in me to only monetary judgments and to require parties to go the expense of an application to the Royal Court if the matter is one that can otherwise be dealt with summarily. 

7.        In this case I am satisfied that there is a very real issue arising.    Both the representor, as the individual asserting a claim to part of field 1726, and the first respondent, as the individual who believed she had bought the whole of the field, wish to know where they stand. 

Procedural History

8.        The claim to part of field 1726 was made by way of a representation issued in June 2012.  The matter was adjourned repeatedly until 11^th October, 2013, when the matter was placed on the pending list by the first respondent. 

9.        The matter then came before me for directions on 13^th November, 2013.  At that hearing I adjourned the representation until 5^th December, 2013, for determination by way of summary judgment. 

10.      The representor filed his affidavit in support of the application for summary judgment within the time limits permitted by the Royal Court Rules.  No other party filed any evidence. 

Contentions

11.      As noted above, the representation concerns ownership of field 1726.  Field 1726 is in the Parish St Ouen adjoining Mont Matthieu.  In accordance with the following plan, broadly to the east of field 1726, is field 1727, and broadly to the west is field 1725. 

12.      On 15^th January, 2010 the first respondent entered into a contract of sale with the second respondent, the relevant part of which provided as follows:-

"The Vendor has sold in perpetuity to the Purchaser a certain field known as the "Champ de Terre En Campagne" (bearing the number "1726" in the Parish of St Ouen), the whole forming a single corpus fundi and as hatched in diagonal lines for identification purposes only on the extract of the Jersey Digital Map attached to this contract as a Schedule and having the "UPRN" 69214604 ("the Field",) containing 1 Vergée, 35 Perches, 15 Pieds Perche, with the party ownership of the boundary stones of the East and of the West (as described in a certain contract of hereditary purchase by Philip John Vautier dated 17th October 1908 from John Du Val (the former being predecessor in title both of the Vendor and of the owners of the fields to the East and to the West (bearing the Numbers "1725" and "1727" in the Parish of St Ouen and described hereunder) (refer thereto)), joining by the West a certain field (formerly two fields now joined together) known as "Les Champs de la Rocquonvoi" (bearing the number "1725" in the Parish of St Ouen) belonging to Enid Clare Quenault (née Quérée) (having right as devisee to the Will of Immovable Property of the late Mabel Quérée (née Vautier), her mother, which Will was registered In the Public Registry of this Island by Act of the Royal Court dated 13th March 1990, Mabel Quérée having right by contract of hereditary division or partage dated 23rd August 1947 of the immovable property of the late Philip John Vautier and Mary Ann Vautier (née Du Feu)), by the North to a field known as "Les Vaux Brideaux" (bearing the Number "1730" in the Parish of St Ouen) belonging to Lewis Russell Horace Grant and Hilary Beatrice Grant (née Taylor), his wife (having right by contract of hereditary purchase dated 4th August 2006 from Martin de Gruchy and Elizabeth Phyllis De Gruchy (née Quérée), his wife), by the East to a field also known as a "Champ de Terre en Campagne" (bearing the Number "1727" in the Parish of St Ouen), belonging to Roy Philip Vautier (also having right by the said contract of hereditary sub-division or "sous-partage" dated 18th October 1947 of the Immovable property of Philip John Vautier) and bordering by the South the public road known as "Le Mont Matthieu"".

13.      This contract purported to sell the whole field of 1726 containing one vergée 35 perches, 15 pieds. 

14.      The contract also described the representor owning field 1727, being situated broadly to the east of the field the subject matter of the contract. 

15.      The contract further noted that to the west of field 1726 is field 1725 belonging to Enid Claire Quenalt née Quérée. 

16.      The representor's claims are, firstly, he owned part of the field 1726 and, secondly, he did not own field 1727. 

Ownership of field 1726

17.      The representor's claim that he owns part of field 1726 arises from a contract of partage of the immovable property of Philip John Vautier and Mary Ann Vautier passed before the Royal Court 23^rd August, 1947, and a contract of sous partage passed on 18^th October, 1947. 

18.      Philip John Vautier and Mary Ann Vautier were the grandparents of the representor.  Their son Philip Charles Vautier had predeceased them.  The representor was therefore principal heir of Philip John Vautier.  The other parties to the contract of partage were Gladys Vautier and Mabel Vautier daughters of Philip John and Mary Ann Vautier and aunts to the representor. 

19.      By the contract of partage, the representor received for himself and his co-heirs, as the heirs to the estate of Philip Charles Vautier, the whole of field 1726 which was described as follows:-

"Un certain champ de terre en campagne, avec le fossé du Sud et la mitoyennete des bomes de l'Est et de l'Ouest contenant vingt-trois perches sept pieds ce qui monte suivant I'appréciation de cinquante Livres Sterling par vergée la somme de vingt-neuf livres deux chelins trois pennys et demi penny Sterling. Un certain champ de terre en campagne contenant une vergée dix perches six pieds ce qui monte suivant l'appréciation de cinquante livres Sterling par vergée à la somme de soixante deux livres seize chelins trois pennys Sterling". 

20.      In the same contract of partage it further provided as follows:-

"lesdits deux champs de terre en campagne se tenant et joignant ensemble joignant par l'Ouest à la terre échue à la troisième partie à ces présentes et par le Nord à celle de Monsr. Edouard Le Maistre et bordant par le Sud le chemin public appelé Le Mont Matthieu."

21.      By the same contract of partage Mabel Vautier received land including ownership of field 1725 which subsequently passed to her daughter Edith Claire Quenault. 

22.      In relation to field 1726, the contract of sous-partage divided field 1726 between the representor and his sister, the second respondent.  The contract of sous-partage provided that the representor would receive a field containing 23 perches 7 pieds and his sister would receive a field containing 1 vergée 10 perches 6 pieds.  The relevant parts of the partage state as follows:-

"For the Representor:-

"Un certain champ de terre en campagne avec le fossé du Sud et la mitoyenneté des bornes de l'Est et de I'Ouest contenant vingt-trois perches sept pieds ce qui monte suivant I'appréciation de cinquante livres Sterling par vergée à la somme de vingt-neuf livres deux chelins trois pennys et demi-penny Sterling."

"ledit champ de terre en campagne joignant par I'Ouest à la terre échue à la seconde partie à ces présentes et par le Nord à celle de Monsr. Edouard Le Maistre et bordant par le Sud le chemin public appelé Le Mont Matthieu."

For the Co-heir:-

"Et un certain champ de terre en campagne contenant une vergée dix perches six pieds ce qui monte suivant I'appréciation de cinquante livres Sterling par vergée à la somme de soixante-deux livres seize chelins trois pennys sterling."

"et ledit champ de terre en campagne joignant par l'Ouest à la terre échue à ladite Dlle. Mabel Vautier, femme mariée comme dit est, par le Partage principal ci-devant mentionné, par le Nord à celle de Monsr. Edouard Le Maistre et par I'Est à celle échue audit principal heritier à ces présentes et bordant par le Sud ledit chemin public appelé Le Mont Matthieu".

23.      It is quite clear from the above descriptions that the part of field 1726 inherited by the second respondent is bordered on the west side by field 1725, namely the field inherited by Mabel Vautier and now owned by Edith Quenault, and on the eastern side by the field inherited by the representor containing 23 perches and 7 pieds. 

24.      It is also clear from the description that the part of field 1726 inherited by the representor is described as being to the east of the field inherited by the second respondent as you would expect.  However, and this may be where the confusion later arose, the contract of sous-partage does not describe whose property is to the east of the field inherited by the representor.  For reasons I come on to later it is clear that, that the representor has never owned field 1727 and that field 1727 was acquired by Charles Vibert in the early part of the twentieth century and has since passed to his heirs. 

25.      The Representor in his affidavit at paragraph 12 deposes as follows:-

"Pursuant to the contract of Sous Partage referred to above, I have owned and possessed unchallenged for more than forty years land bordering on the public road "Le Mont Matthieu" measuring 23 perches 7 pieds, joining on its West the land of the Second Respondent and Co-heir and on the East the land owned by Mr Ronald John Vibert and others, and forming the Eastern part of Field "1726" on the Jersey Digital Map."

26.      His evidence was not challenged and is consistent with the contractual documentation to which I have referred.  It is also right to note that Mr Kevin Manning, who attended to help the Court, having been notified of the application at my direction, accepted very properly that a mistake had been made in relation to the contract of sale and therefore the representor's contentions were correct. 

27.      The representor also deposed that the western part of field 1726 had been owned by the second respondent since the contract of sous-partage passed on 23^rd August, 1947.  Again this evidence was not challenged. 

28.      The representor further explained that the land subject to the contract of sous-partage was acquired by Philip John Vautier by two contracts dated 17^th October, 1908, and 25^th August, 1917, (see folio 350/242 and 370/267 of the Public Registry) I also note that the by the contract dated 17^th October, 1908, field 1725 was acquired at the same time which is the field now owned by Edith Quenault as I have set out above. 

29.      I am therefore satisfied on the evidence before me that at all times since the contract of sous-partage the representor has owned the eastern part of field 1726 comprising 23 perches 7 pieds.  I am further satisfied that the second respondent since the same contract of sous-partage has owned the western part of field 1726 measuring one vergée 10 perches 6 pieds.  It follows the second respondent as at January 2010 did not have title to the whole of field of 1726 and therefore was not able to sell 1 vergée 35 perches 15 pieds to the first respondent.  She could only sell one vergée 10 perches 6 pieds.  I am also satisfied that there is no defence to the representor's assertions that the eastern part of field 1726, purportedly sold by the second respondent by a contract dated 15^th January, 2010, in fact belong to the representor. 

Ownership of Field 1727

30.      The contract of 15^th January, 2010, to which I have referred, also stated that the representor owned field 1727.  The representor in his representation and application states that at no time has he ever owned field 1727. 

31.      He deposes that field 1727 was acquired by Charles Vibert by two contracts dated 14^th July, 1917, (folio 370/175) and 9^th August, 1919, (folio 376/29). 

32.      The contract of 14^th July, 1917, also expressly noted that the land acquired was to the east of land owned by Philip Vautier.  The contract dated 14^th July, 1917, is therefore also consistent with the view I have reached in terms of ownership of the field 1726. 

33.      Field 1726 then passed by contract of partage dated 11^th September, 1954, to Hedley Charles Vibert.  Hedley Charles Vibert died on 15^th August, 1980, and by his Will of immovable property dated 19^th October, 1978, registered in the Royal Court on 19^th August, 1981, he gifted all other lands in St Ouen to three of his sons.  This included field 1727. 

34.      Accordingly I am also satisfied that when the contract of sale dated 15^th January, 2010, between the first respondent and second respondent referred to the representor owning field 1727 that was a mistake.  Field 1727 belongs to three of the sons of Hedley Charles Vibert. 

Relief

35.      In light of the conclusions I have reached I declare pursuant to Rule 7 of the Royal Court Rules 2004, as amended as follows:-

(i)        that the representor has title to that part of field 1726 in the Parish of St Ouen containing 23 perches 7 pieds more particularly described in a contract of sous-partage passed before the Royal Court on 18^th October, 1947, between the representor and the second respondent;

(ii)       that at the date of the contract of sale passed before the Royal Court between the second respondent and the first respondent on 15^th January, 2010, when the second respondent purported to sell of the whole of field 1726 containing one vergée thirty five perches fifteen pieds the second respondent only owned the western part of the field 1726 comprising one vergee ten perches six pieds also more particularly prescribed in the said contract of sous-partage dated 18^th October, 1947;

(iii)      that the first respondent by virtue of the contract of sale of 15^th January, 2010, with the second respondent only acquired the western part of field 1726 comprising one vergee ten perches six pieds; and

(iv)      a copy of the Act of Court recording this decision shall be filed in the Public Registry. 

Other issues

36.      When the representor first commenced proceedings there was also an issue in relation to the first respondent enjoying a right of way over that part of field 1726 I have found is owned by the representor.  I was told at the directions hearing on 13^th November, 2013, that this was no longer a live issue.  I was also told that field 1726 has been measured and boundary stones have been put in place.  All that remains, therefore, is for the parties to pass a contract confirming this decision, recognising the new right of way and the location of the boundary stones, which I was informed will now occur. 

Costs

37.      In relation to costs, the representor is entitled to its costs which he has limited to the sum of £10,000 (ten thousand pounds) plus disbursements.  However, because the mistake that occurred is not the fault of the first respondent, I ordered that enforcement of costs be stayed until 31^st January, 2014.  This is to allow discussions to take place between the first respondent and Mr Manning in relation to who might pay such costs and secondly to allow the first respondent time to raise funds to pay such costs if agreement cannot be reached. 

Authorities

Curatorship of X [2002] JLR 259.

Royal Court Rules 2004.