Benest and Syvret -v- Cann [2016] JRC 054 (04 March 2016)

judgment the deputy bailiff: 1. This is an application by the partners of Benest & Syvret (hereinafter called "the Plaintiffs") for an interim injunction against Alistair Charles Cann ("the Defendant") and the firm of Ogier ("Parties Cited") restraining the defendant and the parties cited from dealing with the defendant's share of the net proceeds of sale of the property Fa Yuen in St Peter ("the Property"). On 1 st December, 2015, the Court granted an interim injunction. These are our reasons.

2. It is the Plaintiff's case that they acted for the defendant in connection with matrimonial proceedings and the defendant incurred with them fees totalling £45,495.09. To date the defendant had paid £970 on account of the monies due and that the plaintiffs have, as a gesture of goodwill, reduced the sum claimed by £2,500. There remains, according to the plaintiffs claim, the sum of £42,000.09 due by the defendant to them.

3. It is further claimed that the defendant agreed that the balance of the fees and disbursements due by him to the plaintiff would be discharged from his share of the sale proceeds of the Property. The Property, which is in the joint names of the defendant and his wife, was the former matrimonial home. Requests have been made for payment or alternatively for an undertaking to discharge the same out of the sale proceeds of the Property but no undertaking has been forthcoming.

4. This matter is slightly unusual in that the plaintiffs are, at the present time, already protected as to the repayment of their claim because they have the benefit of a caveat or "opposition" obtained by them on 28 th October, 2015. This prevents the alienation by the defendant and his wife of the Property. That caveat is registered in the Public Registry in the usual way.

5. The reason for the present application is that the plaintiffs wish to raise the caveat to permit the property to be sold but nonetheless to secure, out of that part of the proceeds of sale to which the defendant is entitled, the repayment of their fees.

6. The defendant and his wife have accepted an offer on the Property and the contract of sale was due to be passed before the Royal Court on Friday 13 th November, 2015. Notwithstanding the requests of the plaintiffs, the defendant has refused to instruct the Parties Cited who act for him in the sale to provide an irrevocable undertaking to retain a sum out of the defendant's proceeds of sale to cover the plaintiffs claim.

7. In the light of the existence of the caveat it might have been expected that the plaintiffs need to do nothing and do not need to make this application to the Court. The plaintiffs have quite properly, however, taken the view that to retain the benefit of the caveat would prejudice the defendant's wife as the Property could not be sold and she would not receive the money to which she was otherwise entitled.

8. The defendant's wife, who was represented before us by Advocate Godden, submitted through counsel that the Property should be sold.

9. The defendant, who appeared in person, argued that the fees claimed were disputed in that although he did not dispute that he owed some fees to the plaintiff he did not agree the amount that was claimed. He also observed that the plaintiff was not his sole creditor and he had offered them a payment in settlement of their claims pro-rated to achieve equality between all of his creditors. He was considering whether or not he should be declared en désastre but had not taken legal advice to that effect. He identified a number of other creditors to who he owed money.

10. In reply the plaintiffs refer to the order of the Family Registrar of 3 rd July, 2015, and specifically the detailed reasons in the ancillary case between the defendant and his wife. This indicates, under the section relating to the husband's assets, the plaintiff in fact had access to assets and may well have incurred liabilities unnecessarily.

11. We do not need to form any view on the justification for the sum claimed by the plaintiff and the grounds that may or may not be available to the defendant to dispute it. The claim is prima facie well founded and at this point the Court is considering, in effect, the replacement of one form of interim freeze with another.

12. An interim injunction freezing the defendant's proceeds of sale in the hands of the Parties Cited would not operate as securing for the plaintiff any priority. It is not the equivalent of a proprietary claim. All it achieves is the protection against the dissipation of those assets whilst the plaintiff's claim is made good but it does not protect the assets from other claimants.

13. If we do not grant the interim injunction then the plaintiffs will retain the benefit of their caveat. There is currently no application before the Court for it to be raised. This would inevitably prejudice the defendant's wife and secure no advantage either to the defendant or indeed to anyone else.

14. In the circumstances we fully understand the plaintiff's application for the grant of an interim injunction on the confirmation provided to us by Advocate Benest for the plaintiff that on the grant of the injunction the caveat would be raised. Accordingly we granted the interim injunction in the terms as sought. No Authorities Page Last Updated: 29 Mar 2016 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII