Karen Roden Layne v Gittens Agency Ltd and Grenada Cooperative Bank Ltd

• Jurisdiction: Grenada
• Court: High Court (Grenada)
• Judge: Glasgow, J.
• Judgment Date: 15 April 2025
• Neutral Citation: GD 2025 HC 14
• Year: 2025
• Docket Number: GDAHCV2016/0428

Karen Roden Layne

and

Gittens Agency Limited and Grenada Cooperative Bank Limited

Glasgow, J.

GDAHCV2016/0428

High Court

Appearances:

Shirlan Barnwell of counsel for the claimant.

Deborah Mitchell for the 1st defendant and ancillary claimant.

Deborah St. Bernard and Ian Sandy for the 2nd defendant and ancillary defendant.

Glasgow, J.

1 This claim throws up interesting questions about the relationship between the first defendant (“Gittens”), and the mortgagee, the second defendant (“GCBL”), once default is made on paying the sums due to the mortgagee on a mortgage. An even more curious concern is raised on the claim and that is, whether and what duties are owed by the mortgagee and/or mortgagor to a third party to that arrangement, the claimant (“Mrs. Roden Layne”). Mrs. Roden Layne claims that she was engaged to find a buyer for the mortgaged property, and brought the instant claim against Gittens and GCBL for alleged losses she suffered through their actions. A factual background is necessary to contextualise and resolve the dispute.

SOME SALIENT FACTS

2 Gittens and another related entity, Gittens Holdings Limited, entered into an agreement with GCBL to borrow sums of money from GCBL by way of an arrangement termed a ‘Transfer of Mortgage’ and ‘Deed of Further Charge’ dated 2nd day of March 2012. However, of these two entities, Gittens was the only entity against which Mrs. Roden Layne brought this claim. The sums lent by GCBL to Gittens under the agreement were secured by a mortgage over property owned by one Dorothy Gittens (“the property”). The property is located at Grand Anse, St. George's in Grenada. Further advances of money under the loan agreement between Gittens and GCBL were secured by a Deed of Further Charge over the property dated 10th October 2012.

3 The sums lent to Gittens by GCBL and the terms for repayment have not been laid before the court, but it appears that by December 2014, Gittens had defaulted on repaying the sums due under the mortgage agreement. It seems that both Gittens and GCBL discussed efforts by either of them to sell the property. At some point the discussions concluded in what is termed an ‘Amicable Sale Agreement’ dated 3rd December 2014 (“the sale agreement”). The essence of the sale agreement suggests that the parties decided terms on which they would pursue their individual right to sell the property. In particular, the terms of the sale agreement made it plain that GCBL at no point undertook to forego its rights both at statute and by way of the mortgage agreement, to sell the property further to Gittens' default on the mortgage.

4 The relevant parts of the sale agreement reveal the following—

• (1) Gittens' total outstanding liability to GCBL as at 3rd December 2014 amounted to $3,931.021.31. The agreed appraised value of the property was $4,247,100.00. Gittens and GCBL agreed that in respect of Gittens' efforts to sell the property, it would list the property for sale with one of the real estate agents who held an agency agreement with GCBL at the reserve price of $4,000,000.00. The agreed real estate agent was stated as Century 21;

• (2) Should either party sell the property on or before 15th March 2015, 75% of the interest accrued would be forgiven;

• (3) If the property was not sold by 15th March 2015, the reserve price would be reduced by 15% and the accrued interest as at 15th March 2015 would be reduced to 50% of the accrued balance;

• (4) GCBL agreed during the first six months of the sale agreement, that is, until 15th June 2015, that it would not list the property for sale “via the respective media available but give…” Gittens the opportunity to obtain a willing buyer. It is of importance though that notwithstanding this forbearance, GCBL reserved its right to sell the property but with the restriction that it would pursue its right to sell otherwise than through the channels of “the respective media”;’

• (5) If the sale did not take place by 15th June 2015, the reserve price would be reduced by a further 15% and interest forgiveness would stand at 25% of the accrued balance. The parties also agreed that if the property was not sold by either party by 15th June 2015, GCBL would then proceed to advertise the property “via its website and other mediums (sic), in order to stimulate interest in the market and secure a sale”;

• (6) If no sale took place by 15th September 2015, GCBL would proceed to public auction at the last reserved price stated at paragraph (5) above and interest forgiveness would stand at 15% of the accrued balance of the debt owed to GCBL by Gittens;

• (7) If the property was not sold by public auction, GCBL would attach further reductions to the sale price as it saw fit;

• (8) The parties then agreed as to how “the net proceeds” of a sale would be distributed. Specifically it was agreed that 60% of the sale proceeds would attach to the loan debt to reduce it and 40% would be utilised to settle Gittens' other outstanding liabilities to GCBL in a manner to be approved by GCBL;

• (9) The other term and condition of significance to the distillation of the issues before the court is the condition that the sale agreement would commence on 3rd December 2014 and terminate on 15th September 2015.

5 Mrs. Roden Layne claims that she entered into an agreement with Gittens to find a buyer for the property. She also claims that she entered into that arrangement with one Ben Gittens (“Mr. Gittens”) who represented to her that he was the managing director of Gittens and was so authorised to engage her services. The terms of the agreement seem not to have been in written form but for the reasons to follow nothing turns on this fact. According to Mrs. Roden Layne, she entered the agreement with Mr. Gittens in December 2015. I observe however that the letter from her lawyer to GCBL dated 2nd August 2016 instructs that she “entered into contract with Mr. Ben Gittens” in January 2016.

6 From the pleadings it appears that sometime in February 2016, Mrs. Roden Layne entered into a course of conversations with one Jonathan Steele of Steele's Auto (“Mr. Steele”) about selling the property to him or his company. It would seem from the facts as well that Mrs. Roden Layne and Mr. Steele visited the property in February 2016 and that he expressed an interest in buying same. He subsequently spoke to Mrs. Roden Layne on or around 24th February 2016 and made an offer of an amount at which he wished to purchase the property.

7 Mrs. Roden Layne then contacted Mr. Gittens to inform him of Mr. Steele's offer. Mrs. Roden Layne's claim is that Mr. Gittens requested a higher price for the sale of the property than that offered by Mr. Steele. Mr. Gittens' counter offer was then conveyed to Mr. Steele through Mrs. Roden Layne. There is no evidence that Mr. Steele made a further offer to Mrs. Roden Layne with respect to the property.

8 The facts reveal that sometime during March 2016, Mrs. Roden Layne again spoke with Mr. Gittens who then told her that Mr. Steele had approached GCBL and negotiated a price for the purchase of the property from GCBL. Mrs. Roden Layne claims that this was when she first became aware that the property was mortgaged to GCBL. In her witness statement she complains that “I asked Ben why he didn't tell me that the bank was also trying to sell the property. He said that he never focused on that because he was the one who engaged me and any sale I got would be a matter between me and him.” [Mrs. Roden Layne's witness statement filed 30th October 2018 at paragraph 22] (Bold emphasis and underline mine)

9 On 20th April 2016, Mrs. Roden Layne met Mr. Gittens at a funeral in Woburn St. George. Mrs. Roden Layne asserts that Mr. Gittens then told her that GCBL had sold the property to Mr. Steele's father, Derek Steele. She then asked him about her commission. Her evidence states that Mr. Gittens indicated that it looked like Mr. Steele and GCBL were “trying to deal me out.” [Mrs. Roden Layne's witness statement filed 30th October 2018 at paragraph 22]

10 On 21st April 2016, Mrs. Roden Layne pleads that she contacted Mr. Steele and expressed her concerns about the entire affair. Her evidence is that Mr. Steele gave her an email address and asked her to put her concerns in writing, which she did via email dated 22nd April 2016.

11 On 25th April 2016, Mrs. Roden Layne wrote to GCBL (through an email sent to GCBL's Mrs. Jacqueline Phillip). Mrs. Roden Layne's evidence is that the purpose of her email “was to put the Bank on notice that I was the person who had introduced Jonathan Steel (sic) to the MBH property and that I was therefore the person who was entitled to the commission if a sale of the property was closed with Jonathan Steele.” [Ibid at paragraph 25] GCBL's Mrs. Jacqueline Phillip responded to Mrs. Roden Layne's email by way of email of the same date.

12 In July 2016, Mr. Gittens informed Mrs. Roden Layne that GCBL had completed the sale to Mr. Steele and had paid the commission to real estate agents, namely Terra Caribbean.

13 Mrs. Roden Layne made several efforts to have GCBL pay the commission she claimed was owed to her but these efforts were refused by GCBL, which maintained the posture that it did not know Mrs. Roden Layne was engaged to sell the property and that it did not in fact have any agreement or business relations with Mrs. Roden Layne to that effect.

14 Now, it is a fact that the real estate agent Terra Caribbean was involved in this entire affair. As such, something must be said of that entity's role in this matter. Mr. Gittens says in his witness statement that he was unaware that Terra Caribbean was engaged. In fact, he claims that when he was contacted by Mr. Steele's father, Derek Steele, he was of the view that Derek Steele's discussions with him were further to the referral made by Mrs. Roden Layne. According to his evidence, the discussions with Mr. Derek Steele did...