Brooks J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CIVIL DIVISION CAUSE NO. G 430 of 2013 BETWEEN: PATRICK GEORGE SMITH PLAINTIFF AND: 1. GREGORY ANTONIO SMITH 2. PATRICK GEORGE SMITH JNR. DEFENDANTS Appearances: James Kennedy instructed by Samson & McGrath for the Plaintiff Defendants in Person Before: The Hon. Mr. Justice Patrick Brooks (Actg.) Heard: 9th, 11th and 15th July 2014 JUDGMENT
In July 2009, Mr Patrick Smith signed an instrument of transfer to real property that had been his home for almost thirty (30) years. The transfer stated, in effect, that in consideration of the love and affection that he had for his sons, Gregory and Patrick Jnr, Mr Smith transferred the entire interest in the property to them. The transfer was duly recorded on the land register of the Cayman Islands.
Subsequent to signing that transfer, relations between Mr. Smith and his sons soured. On his account of the facts, they treated him badly. In December 2013, he filed a claim against them in this court asking that the property be declared to be owned by the three of them in equal shares. He also seeks, in his claim, an accounting from his sons for all the rent that they have collected from tenants of an apartment block Mr. Smith had constructed on the property.
The basis of his application is that the transfer did not reflect his intention at the time of signing. He asserted that he, at all times, intended to retain an interest in the property until he died. He states that his sons also knew, before he signed the transfer, that that was his intention. He stated that he had told them so. He has proffered no explanation for the transfer document stating as it does, or why he signed it in that condition.
Unfortunately, his sons have filed no statement of defence to the claim and have not secured attorneys-at-law to assist them. They have, nonetheless, attended court on the occasions that the case has been set for consideration.
In the absence of a defence, Mr Smith has filed an application asking for the relief set out in his statement of claim. BACKGROUND
Before assessing Mr Smith’s claim, it is best to set out its background.
The property is located in Grand Cayman and is at Registration Section Prospect, Block 22E Parcel 108. Mr Smith and his late wife Kathleen purchased the land in 1981 and built a house on it. The property became their home. It was used by Mr Smith as security for loans from time to time, and was, all material times, subject to a mortgage, executed by Mr Smith, to Cayman Islands Civil Service Association Co-Operative Credit Union (the Credit Union).
Kathleen died and, thereafter, Mr Smith built the block of apartments on the property. He let the apartments out to tenants and continued to repay the mortgage loan through instalments. That situation continued for a number of years.
Mr. Smith encountered serious health challenges in March 2009 and as a result defaulted in servicing the mortgage loan. He says that he consulted with a representative of the Credit Union. It is after that consultation that he decided to share his interest in the property with his sons. The instrument of transfer was prepared and duly signed in July 2009.
He asserts that the signed instrument of transfer did not reflect his intention. Instead of his sons being joined with him as co-owners of the property, it caused his entire interest in the property to be transferred to them. He was not, however, made aware of that situation for several months.
The day to day operation of the property continued unchanged until October 2009. In that month, Mr Smith states, he went, as usual, to collect rental from his tenants but was rebuffed. He spoke with his sons. Their position was that "they are the sole beneficial owners of the said property and that the plaintiff [Mr Smith] has no title, interest or share in the property or the rental income derived from the property" (paragraph 11 of the statement of claim.).
He filed the present claim in December 2013, but, as mentioned above, his sons, the defendants, filed no defence to enable the court to ascertain their stance in respect of the matter. Although it is not set out in the statement of claim, it is uncontested that the repayment of the mortgage loan is now seriously in arrears and the Credit Union is presently seeking to sell the property to recover its loan and the interest thereon. It is unlikely that Mr Smith or his sons can, either separately or together, secure the monies required to prevent the sale.
It is in that context that Mr Smith's application came before the court for hearing. PRELIMINARY POINT
On the first day of the hearing of the application, Mr Kennedy, appearing for Mr Smith, submitted, among other things, that as there has been no defence filed contesting Mr Smith’s assertions in his statement of claim, the court should accept those assertions at face value, and, grant the orders that Mr Smith seeks.
On his next appearance, Mr Kennedy submitted that the court should hear what the defendants had to say and, if the court were of the view that they had a triable issue to be raised, then the court could make the relevant orders for the matter to be placed for trial. Mr Kennedy relied on the case of Wallersteiner v Moir¹ in support of his submission.
The court did hear from the defendants, as it always intended to do. Having heard from them, it took time to consider the case, both as to Mr Kennedy’s preliminary point as well as substantively.
Having considered the matter, the court is of the view that these defendants have had ample time to state their defence but have failed to do so. They have indicated no intention or desire to do so. The claim should not be delayed any further by their recalcitrance. The writ of summons and statement of claim have been in their possession for some time. Other documents have also been served on them. They have ignored the requirements of the Grand Court Rules. ¹ [1974] 3 All ER 217
On 22 April 2014, a summons filed by Mr Smith, seeking relief under the Partition Law (1997 Revision), came on for hearing before Williams J. The defendants appeared and orders were made concerning another property which was included in Mr Smith’s claim. It is not necessary to set out the circumstances of that aspect of the claim as they have been dealt with by the orders made by Williams J.
The point is that the defendants have been aware of this claim for in excess of six months and have not sought to comply with the Grand Court Rules in any manner whatsoever. Mr Smith was right to file his summons applying for judgment in default of defence, as is allowed by GCR O.19 r.7. Even after having heard Mr Kennedy’s submissions, the defendants did not seek any adjournment in order to put themselves in a state of compliance.
The circumstances of this case are very different from those in Wallersteiner v Moir, where the plaintiff, who had failed to file a reply and defence to a counter-claim, applied for permission to do so. That case is, therefore, not helpful in this context.
For those reasons, and, based on the view that the court takes of Mr Smith’s application, the court has decided to bring the matter to conclusion without further delay. THE APPLICATION
The relevant portion of Mr Smith's summons for judgment in default of defence is contained in paragraphs 1 and 2 thereof. Those paragraphs state that he requests: "1. A declaration that the property at Registration Section Prospect, Block 22E Parcel 108 is held by the Plaintiff and Defendants in equal one third (1/3) shares. 2. The defendants do provide an account as of the date of filing of the account of all dealings by the Defendants with Registration Section Prospect, Block 22E Parcel 108 and of income derived from the land that has come into the hands of the Defendants within 56 days of the date of service of this order on the defendants."
Mr Kennedy submitted that the statement of claim asserts that the parties had come to an agreement that Mr Smith would be a co-owner of the property, with his sons, but that the agreement did not come into effect. He argued that by this claim, Mr Smith is seeking the assistance of the court in equity in bringing that agreement into effect.
Learned counsel submitted that, in light of the situation with the debt owed to the Credit Union, Mr Smith did not seek an order to rectify the land register, as a rectification of the register would serve no practical purpose. Mr Kennedy said that the declaration sought, along with the requested accounting, would address the issues between Mr Smith and his sons, and address the issue of any equity that the registered proprietors may still have in the property. That equity would manifest itself in any sums due to the registered proprietors after the sale of the property by the Credit Union.
Learned counsel, however, cited no authorities in support of his submissions, but he did bring to the court’s attention the case of Jones v Kernott\(^{2}\) as well as some material on constructive trusts and mistake. *Jones v Kernott* dealt primarily with people living together as husband and wife, and the indicators of a change of intention by them as co-owners in respect of their holding of the family home. The circumstances are therefore different from those in this case.
In response to the application and those submissions, Mr Gregory Smith, on behalf of both defendants, argued, in effect, that there had been no mistake made when the transfer document was signed. He stated that the effect of the transaction was well known to all concerned. He said that they all, including Mr Smith, were clearly aware that, by that transaction, Mr Smith was freed from the burden of the mortgage debt and the debt, instead, became the defendants. \(^{2}\) [2011] UKSC 53
Mr Gregory Smith's statements, had they been contained in a statement of defence, would no doubt have joined issue with Mr Smith's claim. The sons' position sharply contradicted Mr Smith's assertion that there was an agreement that he would "retain an interest [in the property] as a tenant in common".
The defendants have however declined to advance their position formally. Accordingly, the other statements made to the court, by both defendants, are not admissible for consideration. This is because they constitute evidence and, as will be explained below, the consideration of evidence is not allowed in applications such as this. THE RELEVANT LAW
The rule, upon which Mr Smith relies in applying to the court for judgment in default of defence, is GCR O.19 r.7. It states at paragraph (1): "(1) Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5 [dealing with other types of claims], then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim." (Emphasis supplied)
The highlighted portion of the rule implies two things. Firstly, that the court, in considering its judgment, will only consider the plaintiff's statement of claim. No reference to evidence is allowed in this procedure. This interpretation of the provision, as well as another complementary interpretation that will be set out below, is based on authority of some antiquity. Bowen LJ, in Young v Thomas\(^3\), summarised a similar provision in the then Rules of the Supreme Court of England & Wales thus: "...Order XXVII., rule 11, which provides that if the defendant makes default in delivering a defence, the plaintiff may set down the action on motion for judgment, and "such judgment shall be given as upon the statement of claim the Court or a Judge shall consider the plaintiff to be entitled to"." (Emphasis supplied)
Bowen LJ went on to interpret the effect of the provision highlighted above. He said: "...There is no doubt that, in determining the rights of the parties in the action, the statement of claim alone is to be looked to, and the reason for this rule is obvious, namely, that the facts stated therein are taken to be admitted by the defendant; and, as has been decided by Lord Justice Kay in Smith v. Buchan [36 WR 631], no evidence can be admitted as to those facts...." \(^3\) [1892] 2 Ch 134
The second implication to be drawn from the highlighted portion of O. 19 r. 7(1) is that the court is not bound to make the order that the plaintiff seeks. Lord Esher MR, in Charles v Shepherd\(^4\), made that clear while assessing the same rule considered by Bowen LJ. He said, at page 624: "...the Court is not bound to give judgment for the plaintiff, even though the statement of claim may on the face of it look perfectly clear, if it should see any reason to doubt whether injustice may not be done by giving judgment; it has a discretion to refuse to make the order asked for."
The latter principle was re-affirmed in Wallersteiner v Moir.
The question for this court is, to what relief is Mr Smith entitled. His statement of claim raises three issues. The first two turn on the broad principle of mistake. The first is a principle known in law by the Latin term "non est factum". The accepted translation of the term is "not his deed".
That principle allows for a person who has signed a document to say "although I signed it, that document does not reflect my intention; I should therefore not be bound by it". In practice, the principle is not easily available to persons. The decided cases emphasise the importance of certainty, especially in the commercial world. As a result, a person who seeks to distance himself from the contents of a document, he has signed, bears a heavy burden of proof in convincing a court that the document should be set aside on the basis that he did not intend to sign it as drafted. \(^4\) [1892] 2 QB 622 This is especially so when the document is one which is clearly intended to have legal consequences.
Lord Reid in Saunders v Anglia Building Society5 made it clear that a person cannot claim the benefit of the principle of non est factum just because he has not bothered to inform himself of the contents of the document that he has signed. That person must satisfy the court that he is entitled to the remedy provided by the principle. Lord Reid said at page 963 of the latter report: "...So there must be a heavy burden of proof on the person who seeks to invoke this remedy. He must prove all the circumstances necessary to justify its being granted to him, and that necessarily involves his proving that he took all reasonable precautions in the circumstances. I do not say that the remedy can never be available to a man of full capacity. But that could only be in very exceptional circumstances; certainly not where his reason for not scrutinising the document before signing it was that he was too busy or too lazy. In general I do not think that he can be heard to say that he signed in reliance on someone he trusted....." (Emphasis supplied)
The remedy provided by a successful claim to the benefit of the principle of non est factum, is that the document would be struck out as being void. 5 [1971] AC 1004; [1970] 3 All ER 961
The second principle raised by Mr Smith’s claim is one which allows a court to set aside or rectify a document on the basis that it was executed in ignorance or by mistake. Lord Walker SCJ in Pitt and another v Holt and another; Futter and another v Futter and others6 described it as a principle whereby “a voluntary disposition (typically a gift, outright or in settlement) may be set aside [or rectified] on the ground of mistake”. As in the case of non est factum, this remedy is only available in restricted circumstances.
In Pitt, Lord Walker comprehensively assessed the issues involved in the principle of mistake in the context of a voluntary disposition. In delivering the judgment of the English Supreme Court, he indicated that, in assessing an application for rescission of a document on the basis of the mistake of its maker, the court would normally have to be satisfied that there was a mistake either of the legal character of the transaction or as to some aspect of the facts or law involved in the transaction that was basic to that transaction. He indicated that a mistake must be distinguished from mere ignorance, inadvertence, and misprediction. As a result, forgetfulness, inadvertence or ignorance do not, as such, constitute a mistake, but one or more of those elements can lead to a false belief or assumption which the law will recognise as a mistake. Mere ignorance, even if causative, is insufficient. 6 [2013] 3 All ER 429
The previously stringent strictures guiding the analysis of cases were somewhat relaxed by Lord Walker's judgment. He stated that whereas it may not be clear on the facts of a particular case, whether or not a mistake occurred, the court should make a decision based on the justice of the case, and whether it was unconscionable to leave the mistake uncorrected.
Lord Walker encouraged a close examination of the material that was presented to the court in respect of the application. It is important to note that the relief that a finding of mistake requires, is the setting aside or rectification of the document said to have been so executed.
Apart from the issue of mistake, Mr Smith's claim also calls for analysis, the concept of trust. This is the third aspect raised by the claim. Two particular types of trust are raised by his statement of claim, namely, a resulting trust and a constructive trust. Although the distinction between these two categories of trust is not always relevant, it is, for these purposes, and especially because the defendants are self-represented, appropriate to outline the basic distinction between them.
The learned editors of Underhill and Hayton – Law of Trusts and Trustees (18th Ed) define a resulting trust as being one imposed by law. They state, in part, at paragraph 3.3: "Resulting trusts are trusts imposed by law on property in the hands of a gratuitous transferee (i.e. a transferee who has provided no valuable consideration for the transfer) where the transferor is regarded as retaining his beneficial interest...In many cases where property is gratuitously so transferred, there is evidence that the transferor intended to make a gift or loan or, in a very rare case, to abandon his interest in the property, in which cases the law will give effect to that intention, and no question will arise of a resulting trust being imposed."
Philip Pettit, in the fifth edition of his work Equity and the Law of Trust, gives examples of a resulting trust. One such example is set out at page 55 of his work: "iii Resulting trust The term resulting trust seems to be limited to three fairly well defined categories...secondly, where there is a voluntary conveyance or transfer into the name of another or into the names of the grantor and another where likewise there is prima facie a resulting trust for the grantor;..."
It may be convenient to note at this point that natural natural love and affection is not valuable consideration for a promise upon which an action may be maintained (see Tweddle v Atkinson7). It is also relevant to note that where a resulting trust is presumed to exist, that presumption may be displaced if the gift involved was said to be based on natural love and affection between parties related by blood, as in the case of a father and his 7 (1861) 1 B & S 393; (1861) 121 ER 762 progeny (see In re Eykyn's Trusts8; Halsbury’s Laws of England 5th Ed Vol 22 paragraph 318 note (6)).
Those principles were summarised in a practical example by the learned authors of Commonwealth Caribbean Law of Trusts – 3rd Ed. They state at page 84: "The presumption of a resulting trust [as arises where B voluntarily conveys his own property to T] is rebuttable by evidence of the real intention of B, for example by evidence that he intended to make a gift to T. Moreover, where B is the father or husband of T, there is a presumption of advancement (or gift) in favour of T. This presumption is also rebuttable by evidence that a gift was not intended."
Constructive trusts are categorised in Underhill and Hayton, at paragraph 3.6, as being imposed by a court of equity regardless of the intention of the transferor of the property. They state: "A constructive trust of property is a trust imposed by equity in respect of property...where equity considers it unconscionable for the owner of particular property to hold it purely for his own benefit."
Philip Pettit also gives an example of a constructive trust at page 55 of his work: 8 (1877) 6 Ch D 115 “A constructive trust is one imposed by a court of equity regardless of the intention of the owner of the property. The most important cases of what we may perhaps call pure constructive trust are...where a trustee makes some profit out of his trust which he will be compelled to hold as part of the trust property....”
In a resulting trust, therefore, the intention of the transferor is significant, whereas, in the case of a constructive trust, that intention may not be important. In neither category of trust will the fact that things did not turn out the way that the transferor anticipated, be a basis for inferring a trust. It is the circumstances existing at the time of the execution of the document which must be examined.
This was explained by Lord Walker in Pitt, when he examined the decision in Re Griffiths (dec’d)9. Mr Griffiths had executed certain documents on the expectation that he would live at least another seven years after signing them. The benefit of the transactions would only have been realised if he had lived for that period. He died, from cancer, just over a year after signing. Lord Walker explained that were it not for the trial judge’s finding that, at the time that Mr Griffiths signed, he did not have cancer and in fact had a life expectancy of in excess of seven years, the concept of mistake could not have availed Mr Griffith’s estate, and the transaction could not have been set aside. 9 [2008] 2 All ER 654
In Halsbury’s Laws of England Vol 98 (2013) 5th Edition, the learned editors address, at paragraph 117, the issue of a common intention to share ownership of land. They opine that if there has been at any time, prior to the acquisition of the property, an agreement whereby the parties decide that the property is to be shared between them beneficially, then that “agreement will normally be conclusive”.
That opinion is supported by the judgment of Lord Bridge of Harwich in the case of Lloyds Bank plc v Rosset10. His lordship stated that the court will look at, and give effect to the agreement which is directed at the acquisition of the property if it is shown that a party acted upon that agreement to his detriment. He said, at page 132: “The first and fundamental question which must always be resolved is whether, independently of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been: Once a finding to this effect is made it will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give 10 [1991] 1 AC 107 rise to a constructive trust or a proprietary estoppel." (Emphasis supplied)
Mr Smith's application for judgment will now be assessed against the background of those principles of law. APPLICATION TO THIS CASE
The defendants, having filed no defence, there was no evidence taken at the hearing of the application. During the hearing, reference was made to Mr Smith's affidavit in order to put the claim in context for the benefit of the self-represented defendants. There will, however, in obedience to the principle set out in Young v Thomas, be no reference to affidavit evidence in this analysis, although it would be important to look briefly at the uncontested documents used in the transaction in issue. It is also important to note, along those lines, that there was no, as there could not be, cross-examination of Mr Smith.
Paragraphs 6, 7 and 8 of Mr Smith's statement of claim set out the critical factors in his case with regard to this property. There he said: "6. The Plaintiff's intention was for the property to be held by him and the Defendants in equal one third shares as tenants in common and for the Defendants to take over management of the properties. This intention was expressed to his mortgage advisor at the Credit Union, Ms. Bridgette Christian and the two Defendants during a meeting at the Credit Union offices when the mortgage was transferred to the defendants in or around July 2009. The intention to deal with the property in this manner was common to both the plaintiff and the defendants at the time. 7. On 13 July 2009 the Plaintiff sign [sic] papers transferring the property to the Defendants for natural love and affection. The transfer papers indicated the property was to be held by the Defendants as joint proprietors. This was inconsistent with the intention of the plaintiff and inconsistent to [sic] the agreement as made by the parties. 8. At no stage was the Plaintiff's intention to gift the property to the Defendants in whole. At all times he intended to retain an interest as a tenant in common. The Plaintiff failed to obtain legal advice prior to signing the transfer papers and mistakenly believed the papers corresponded with his intention with the property being held as tenants in common, not as joint proprietors by the defendants to the exclusion of the plaintiff." (Emphasis supplied)
It is to be inferred from Mr Kennedy's submissions that Mr Smith is not seeking to rely on the principle of non est factum. Nor, although paragraph 8 of his statement of claim mentions the concept of mistake, did Mr Kennedy make any submissions in that regard. Learned counsel simply stated that Mr Smith was seeking the assistance of the court in bringing the agreement, made between the parties, into effect. The court divines from that statement that Mr Smith is relying on the concept of a trust, of whatever category the court deems fit, being found to exist.
It is perhaps best that Mr Smith is refraining to pursue the principle of mistake. Although his statement of claim is deemed admitted, he has, very curiously, omitted to give any details concerning his allegedly mistaken belief. He does not state, for example: a. who it was that prepared the transfer document; b. how it is that the document came to be in his possession; c. whether he read it or had it read over to him; d. whether anyone sought to explain it to him; e. how he came to sign it in the presence of a notary public Mr Brian P Connolly (who asserted in the jurat to the instrument of transfer that Mr Smith had acknowledged his signature "and that [he] had freely and voluntarily executed the instrument and understood its contents"); f. whether his sons had anything to do with the process of securing the document or its execution.
All the court has is Mr Smith's bald assertion that although he intended to retain an interest in the property, the document that he signed did not reflect that intention. That assertion is uncontested, as no defence has been filed, but is it sufficient to satisfy the burden placed on Mr Smith of convincing the court that there was in fact a mistake, as opposed to his "not scrutinising the document before signing it [because] he was too busy or too lazy" or "he signed in reliance on someone he trusted" (Saunders v Anglia Building Society)
There is no indication that Mr Smith was under any disability whatsoever when he signed the transfer. He has not indicated that his illness played any factor in the matter. At best, he says that he did not have the benefit of legal advice when he signed. That, however, is not a sufficient reason in a fairly straightforward transaction.
The circumstances are particularly unsatisfactory, but in light of the fact that Mr Smith does not seek to set aside or rectify the transfer document, the court will not grant him any relief on the basis of mistake.
It is now necessary to turn to the issue of trust. One of the elements of a resulting trust is that the person receiving the property in question did not provide any consideration or value in exchange for the transferor parting with his property. It has been shown from the cases cited above, that a father giving property to his sons is presumed to intend that they will become the beneficial owners. The presumption may be rebutted by evidence and, since there has been nothing to contradict Mr Smith's statement of intention, the issue of a resulting trust, which the presumption of advancement would have displaced, remains live.
It can be ascertained from the statement of claim, however, that there was valuable consideration given by the defendants in this case. Despite Mr Smith saying in paragraph 7, that he signed "transferring the property to the Defendants for natural love and affection" (a statement supported by the instrument of transfer itself), paragraph 6 suggests that there was more. The defendants were required to take over the burden of the mortgage loan. Mr Smith stated that "the mortgage was transferred to the defendants". This is the very point that Mr Gregory Smith stressed in his submissions to the court.
The existence of that burden suggests that they did give consideration and, thereby, militates against a finding for a resulting trust.
Despite that consideration moving from the defendants to Mr Smith, it is uncontested that the transfer was signed in the context of a common intention between all three. That common intention was that he would continue to hold an interest in the property in equal shares with them.
That being their agreement, and Mr Smith having acted to his detriment by signing the instrument of transfer and thereby divesting himself of what was previously his alone, it would be unconscionable for his sons to deny his entitlement to a beneficial interest in the property. He, therefore, satisfies the requirements for proving a constructive trust.
Accordingly, it must be found that the defendants are trustees for Mr Smith in respect of a one-third interest in the property. In other words, he is beneficially entitled to a one-third interest in the property.
It follows from that finding that he is entitled to an accounting from them as to their dealing with the income derived from the property. He is also entitled to a payment from them, of any sum found due to him as a result of that accounting. CONCLUSION
This case has raised a number of issues of law. The court would have benefitted from legal submissions from both sides. Unfortunately, the defendants sat on their rights and failed to file a defence to the claim. In the end, the court did not have the benefit of full legal submissions. It has decided, since Mr Smith has not pursued the relief of setting aside the transfer, not to grant any relief on the basis of mistake.
The court is obliged to find, however, because the defendants are, by failing to file a defence, deemed to have admitted it, that there was an agreement and a common intention that Mr Smith would hold a one-third interest in the property, along with them.
As the transfer of the legal interest has already been recorded on the land register, and the defendants bear the responsibility of the mortgage loan, it would not be practical to set aside those developments. It will be sufficient for the court to declare that Mr Smith is a beneficial owner of a one-third interest in the property and to make orders consequential on that finding. ORDER
The judgment to which Mr Smith is entitled on his statement of claim is, therefore, as follows: a. The defendants not having filed a defence, there shall be judgment for the plaintiff on the claim. b. It is hereby declared that the plaintiff and the defendants are the holders in equal shares of the beneficial interest in the property at Registration Section, Block 22E parcel 108, Grand Cayman (hereinafter called "the property"). c. The defendants shall, within 56 days of the date of service of this order upon them, or either of them, file and serve an account, as of the date of filing, of all dealings by them with the property and of all income derived from the property that has come into their hands. d. The account shall be verified by an affidavit and shall include the information required by the schedule attached to the summons, filed herein on 26 March 2014. e. The cause shall be listed for hearing no less than 28 days after the date upon which the account is to be filed by the defendants, at which hearing the accounts shall be taken and an assessment of any sums due to the plaintiff by the defendants shall be carried out. f. The defendants shall pay to the plaintiff, within 60 days of the date of the result of the assessment, such sums that are found due to him on the assessment. g. Liberty to apply. h. Costs to the plaintiff to be taxed if not agreed. Dated this the 15th day of July 2014 Honourable Mr. Justice Patrick Brooks Acting Judge of the Grand Court