Finzi (Winston) and Anor v JMMB Merchant Bank Ltd

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[45] In his affidavit 19 , Mr Patterson explained that the agreement for sale had “incorrectly indicated that the properties were being sold under powers contained only in mortgage number 1612988”. In a paragraph of his affidavit 20 which greatly attracted Dr Malcolm’s attention in his submissions, Mr Patterson went on to state the following: “On June 26, 2015, we dispatched the instrument of transfer nominating Sandals Royal Caribbean Limited (‘SRC’), the nominee under the agreement, and (having received the funds from our client to close the transaction) a letter of undertaking to JMMB promising to pay the balance of the purchase price and costs related to the transaction. The Instrument of Transfer clearly indicated that the properties were being sold under powers of sale conferred by mortgage numbers 1633589 and 1612988. Further, the sale price recited in the Instrument of Transfer was adjusted to US$2,675,000.00 (from US$2,750,000.00) due to a significant loss of land arising from soil erosion which was discovered after the agreement was signed.” [46] Mr Patterson stated further 21 that ASL had only become aware of the attempts by Mr Finzi/Mahoe Bay to prevent the transfer to SRC on 23 July 2015. That is, the date on which he was advised by JMMB that the transfer, which had been lodged for registration on 7 July 2015, had been blocked, firstly by the ex parte interim injunction and, secondly, after the discharge of that injunction, by the conservatory order made by McDonald-Bishop JA (Ag) on 23 July 2015. 19 At para. 6 20 Para. 8 21 At paras 9 and 10
The submissions [47] I hope that I do no injustice to Dr Malcolm’s wide-ranging submissions by summarising them as follows: 1. In the light of the discrepancies in the documentation as to the price of the sale to ASL and the fact that the agreement for sale referred to mortgage numbered 1612988, while purporting to sell other lots not included in that mortgage, there is, at the very least, a strong hint of fraud sufficient to vitiate JMMB’s purported exercise of its powers of sale. 2. In any event, the downward adjustment in the price raises questions as to the bona fides of the entire transaction with ASL, given that (i) special condition 8 of the agreement did not permit renegotiation of the sale price in the manner in which it is alleged to have taken place in this case; and (ii) there is no evidence of an amended agreement documenting the alleged price adjustment and, in any event, it was misleading and improper to refer to the agreement as having been made on 21 April 2015, when it is clear the agreement, if any, as to the reduced price was not reached until 19 May 2015.
Page 1 and 2: [2015] JMCA App 32 JAMAICA IN THE C
Page 4 and 5: [8] Upon receipt of this informatio
Page 6 and 7: Subsequently, during the course of
Page 8 and 9: Justice Morrison should hear the ap
Page 10 and 11: [16] In Millar v Dickson (Procurato
Page 12 and 13: [20] Through their counsel, Mr Finz
Page 14 and 15: 2. That on April 18 th , 2015 with
Page 16 and 17: determination of the application, s
Page 18 and 19: Loan 2 J$98,382,690.26 J$77,897,227
Page 20 and 21: [34] Next, after summarising the re
Page 22 and 23: 4. The learned judge erred in faili
Page 24 and 25: e affirmed on the additional ground
Page 28 and 29: 3. Further, there were material mis
Page 30 and 31: the purchaser that this was an erro
Page 32 and 33: mortgagor, from exercising her powe
Page 34 and 35: submissions, a copy of mortgage num
Page 36 and 37: [62] Finally, on the power of sale

Finzi (Winston) and Anor v JMMB Merchant Bank Ltd

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