The Representation of T.N. Moustras and K. Moustras (Née Gavriel)

JurisdictionJersey
CourtRoyal Court
JudgeBailhache, Bailiff and Jurats de Veulle and Clapham
Judgment Date08 November 2006
Date08 November 2006
ROYAL COURT
Bailhache, Bailiff and Jurats de Veulle and Clapham
ne

R.J. Michel for the representors;

Miss S.C. Nicolle, Q.C., Solicitor General, as amicus curiae.

Cases cited:

(1) Jones (S.M.) v. Att. Gen., 2000 JLR 103, applied.

(2) Mayo Associates S.A. v. Cantrade Private Bank Switzerland (C.I.) Ltd., 1998 JLR 173, applied.

(3) X (Curatorship of), In re, 2002 JLR 259, applied.

Legislation construed:

Loi (1880) sur la Proprit Foncire (Revised Edition, ch.18.495, 2006 ed.), art. 23: The relevant terms of this article are set out at para. 17.

Land Lawhypothquehypothque conventionnelle simpleRoyal Court may make declaration that underlying debt repaid if satisfied on balance of probabilitiesif so, has inherent jurisdiction to order cancellation of hypothque in Public Registry, despite absence of statutory power

The representors sought a declaration that the debt underlying an hypothque conventionnelle simple had been repaid and an order cancelling the hypothque.

The respondents owned a property over which an hypothque conventionnelle simple for a loan of 9,000 had been secured in 1955. According to the records in the Public Registry, the loan had not been repaid and the hypothque remained on the records. The respondents, who wished to sell the property with unencumbered title, claimed that the loan had in fact been repaid in the 1960s but there was no evidence of this. They sought a declaration that the debt had been repaid and an order cancelling the hypothque in the Public Registry.

It was accepted that the Royal Court had no power to cancel an hypothque conventionnelle simple under the Loi (1880) sur la Proprit Foncire.

Held, ruling as follows:

(1) Although there was no direct evidence that the loan underlying the hypothque had been repaid in the 1960s, several other loans secured by hypothque on the same property had been repaid and the court was satisfied on the balance of probabilities that this loan had also been repaid. It would therefore make the declaration sought by the representors. It had power to grant declaratory relief as the issue raised a live practical question with practical consequences for the representors, i.e. it had a sufficient degree of reality or immediacy to have a practical bearing upon the resolution of an actual dispute or of a dispute likely to arise in the future ( paras. 11-12; para. 16).

(2) In addition, the court would order the cancellation of the hypothque in the records of the Public Registry. Although it did not have the power to cancel an hypothque conventionnelle simple under the Loi (1880) sur la Proprit Foncire, it had an inherent jurisdiction to do so when satisfied that the underlying debt had been repaid. The court's inherent jurisdiction derived from necessity, i.e. to enable it to act effectively as a court by giving it implied powers to do things ancillary to those which it had explicit powers to do. In the present case, an inherent power to order the cancellation of the hypothque was necessary and ancillary to the power exercised to make a declaratory judgment that the underlying debt had been repaid. An inherent jurisdiction could exist in respect of matters about which a statute was silent and could also supplement a permissive power granted by a statute, but it could not confer a power inconsistent with a mandatory statutory provision ( para. 17; paras. 20-22).

1 BAILHACHE, BAILIFF:

Introduction

This representation of Thomas Nicolas Moustras and Katina Moustras (ne Gavriel) ("the representors") has caused the ghost of a long-dead tax avoidance measure to flit from the shadows across this courtroom. There was a time, half a century ago, when it was fiscally advantageous for residents of the United Kingdom to invest in loans secured by simple conventional hypothecs in Jersey. By art. 27 of the Loi (1880) sur la Proprit Foncire, a loan secured by a simple conventional hypothec ("an HCS," to use the common acronym for an hypothque conventionnelle simple) is deemed to be an immeuble, or immovable property, and such property enjoyed certain exemptions at that time from estate duty under English law.

2 The history of the matter is that a contract of creation of an HCS securing a loan of 9,000 bearing interest...

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3 cases
  • HM’s Attorney General as Applicant
    • Jersey
    • Royal Court
    • 22 November 2016
    ...née Buchel v Hambros Bank (Jersey) Limited [2000] JLR 221. In the matter of the Representation of T N Moustras and K Moustras née Gavriel [2006] JLR 491. Loi (1880) sur la Propriété Foncière. Jones (SM) v AG [2000] JLR 110. Syvret v AG [2012] (1) JLR 132. United States v Montgomery and anot......
  • Eckman v Sidem International Ltd and Michault
    • Jersey
    • Royal Court
    • 21 July 2010
    ...considered. (4) Lever Fabergé Ltd. v. Colgate-Palmolive Co., [2006] F.S.R. 19; [2005] EWHC 2655 (Pat), referred to. (5) Moustras, In re, 2006 JLR 491, applied. (6) Patten v. Burke Publ. Co. Ltd., [1991] 1 W.L.R. 541; [1991] 2 All E.R. 821; [1991] F.S.R. 483, considered. (7) Showlag v. Manso......
  • Eckman v Sidem
    • Jersey
    • Royal Court
    • 21 July 2010
    ...Union Corporation SA [1994] JLR 269. In the Matter of the Curatorship of X [2002] JLR 259. Representation of T N Moustras and K Moustras [2006] JLR 491. Wallersteiner v Moir [1974] 3 AER 217. Patton v Burke Publishing Co Limited [1991] 2 AER 821. Lever Fabergé v Colgate Palmolive Co [2005] ......

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