Claimants in land dispute ordered to pay legal costs before hearing can commence in new application

The claimants in a civil suit filed in 2022 which was struck out have been ordered by the Supreme Court to pay the defendant's legal costs before a claim filed last year over the same land dispute can proceed.

Master in Chambers Carla Thomas assessed the costs at $250,000 and ordered that the amount or any other agreed sum should be paid to the defendant, Peter Chin, before September 6.

After proof of payment has been made then the claimants or the parties are at liberty to approach the Registrar of the Supreme Court for a date to be fixed for the first hearing of the fixed date claim form, Thomas ruled.

The claimants Ethlyn Wilson and her son Carlton Wilson are seeking a declaration that they have acquired possessory title and are the owners of Lot 52 part of Eltham, St Ann which they have occupied in excess of 30 years.

They are asking the court to declare that the transfer of title should not have been effected while a caveat was registered against the property.

Ethlyn Wilson's husband Claude Oliver Wilson, who used to live on the property, died in January 1973. 

The claimants stated that in the 1980s, Ethlyn received a letter regarding a will purporting to be that of her deceased husband.

The letter indicated that the defendant, who is the nephew of the deceased, had ownership or an interest in part of the property. 

A caveat was then lodged by the widow Ethlyn on the title for the  property.

It is the claimants' contention that despite the caveat, which was lodged in July 1987, the title was transferred to the defendant Chin on adverse possession.

The claimants state that they have been paying land taxes, have built houses on the land and have lived in open, quiet and undisturbed possession on the property in excess of 12 years.

The defendant, who is being represented by attorney-at-law Jerome Spencer, had applied for a stay of proceedings until the legal costs were paid.

When the matter came before the court in May, Spencer, who is representing Chin, who is the representative of the estate of Herbert Chin, argued that the first claimant, Ethlyn Wilson, had brought a similar claim in 2022 which was struck out and the legal costs were awarded to the defendant. 

He said to date the costs were not paid.

Spencer said though there was no express provision in the Civil Procedure Rules conferring jurisdiction on a court to make the order being sought, the court had an inherent jurisdiction to grant such a stay.

He cited authorities to support his submissions.

Attorney-at-law Omar Oliphant, instructed by ZDO, who is representing the claimants, argued that they were not provided with a bill of costs by the defendant.

He submitted that the defendant, in providing no costs associated with the first claim, was in breach of rule 65.18 of the Civil Procedure Rules.

In granting the order, Master Thomas said, “in applying the factors adumbrated in the authorities, as I previously indicated, there is no denial that both the instant claim as well as the 2022 claim concern the same subject matter and are based upon the same facts and grounds and the only substantial difference between the two is the addition of the 2nd claimant as a claimant in these proceedings. There is nothing before me on which I can make a determination that the intent of the claimants in bringing this claim is to abuse the court's processes.

“However, I also consider that the previous proceedings having been struck out must have been due to some fault on the part of the claimants. In addition, the application for stay has been made at an early stage of the proceedings. In the light of these circumstances, I am of the view that it would be fair to require the claimants to pay the costs of the 2022 proceedings before requiring the defendant to expend his time and resources to mount a defence to what is in substance the same claim.”

She then assessed the legal costs and ordered the claimants to pay the amount of $250,000 or such other sum that may be agreed by the parties by September 6.

- Barbara Gayle

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