PARTITION LAW (1997 Revision)

CAYMAN ISLANDS PARTITION LAW (1997 Revision) Supplement No. 14 published with Gazette No. 6 of 16th March, 1998. PUBLISHING DETAILS Revised under the authority of the Law Revision Law (19 of 1975). Originally enacted— Cap. 117-1st January, 1964. Revised this 9th day of September, 1997. Page 2 Revised as at 9th day of September, 1997 c CAYMAN ISLANDS PARTITION LAW (1997 Revision) Arrangement of Sections Section Page 1. Short title ...................................................................................................................................5 2 Definitions and interpretation .....................................................................................................5 3 Power of Court to direct sale instead of division .........................................................................6 4 Sale on application of parties interested to the extent of one moiety ..........................................6 5 As to purchase of share of party desiring sale ............................................................................6 6 As to request for sale or undertaking to purchase on behalf of persons under disability .............6 7 As to terms on which parties interested may bid ........................................................................7 8 Parties to partition suits and proceedings therein .......................................................................7 9 Power of Court in certain cases to dispense with service of notice of judgment .........................7 10 Power to declare parties trustees, and to make orders thereon ..................................................8 11 Provisions as to proceeds of sales of property where service of notice is dispensed with ..........8 12 How sale moneys to be paid ......................................................................................................9 13 Provisions in case of two or more sales of property ...................................................................9 14 Powers and privileges of Commissioners in partition .................................................................9 15 Duties of witnesses .................................................................................................................. 10 16 Cost of Commissions and witnesses ........................................................................................ 10 17 Power as to costs .................................................................................................................... 10 18 Power to make general orders, and effect thereof .................................................................... 10 SCHEDULE 11 Summons to Witnesses 11 Partition Law Section 1 CAYMAN ISLANDS PARTITION LAW (1997 Revision) 1. Short title 1. This Law may be cited as the Partition Law (1997 Revision). 2 Definitions and interpretation 2. (1) In this Law — “action” includes a suit; “Judge” means a Judge of the Grand Court; “judgment” includes a decree or order; and “the Court” means the Grand Court. (2) For the purposes of this Law, an action for partition shall include an action for sale and distribution of the proceeds; and in an action for partition it shall be sufficient to claim a sale and distribution of the proceeds, and it shall not be necessary to claim a partition. c Revised as at 9th day of September, 1997 Page 5 Section 3 Partition Law 3 Power of Court to direct sale instead of division 3. In a suit of partition, where, if this Law had not been passed, a decree for partition might have been made, then if it appears to the Court that by reason of the nature of the property to which the suit relates, the number of the parties interested or presumptively interested therein, the absence or disability of some of those parties or any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions. 4 Sale on application of parties interested to the extent of one moiety 4. In a suit for partition, where, if this Law had not been passed, a decree for partition might have been made, then if the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the property to which the suit relates, requests the Court to direct a sale of the property, and a distribution of the proceeds, instead of a division of the property between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and give all necessary or proper consequential directions. 5 As to purchase of share of party desiring sale 5. In a suit for partition, where, if this Law had not been passed, a decree for partition might have been made, then if any party interested in the property to which the suit relates requests the Court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the Court may, if it thinks fit, unless the other parties interested in the property, or some of them, undertake to purchase the share of the party requesting a sale, direct a sale of the property, and give all necessary or proper consequential directions, and in case of such undertaking being given the Court may order a valuation of the share of the party requesting a sale in such manner as the Court thinks fit, and may give all necessary or proper consequential directions. 6 As to request for sale or undertaking to purchase on behalf of persons under disability 6. In an action for partition a request for sale may be made, or an undertaking to purchase given, on the part of an infant, person of unsound mind or person under any other disability, by the next friend, guardian, committee in lunacy (if so authorised by order in lunacy) or other person authorised to act on behalf of the person under such disability; but the Court shall not be bound to comply with any such request or undertaking on the part of any infant unless it appear that the sale or purchase will be for his benefit. Page 6 Revised as at 9th day of September, 1997 c Partition Law Section 7 7 As to terms on which parties interested may bid 7. On any sale under this Law, the Court may, if it thinks fit, allow any of the parties interested in the property to bid at the sale on such terms as to non-payment of deposit, or as to setting off, or accounting for the purchase money, or any part thereof, instead of paying the same, or as to any other matters as to the Court seem reasonable. 8 Parties to partition suits and proceedings therein 8. Any person who, if this Law had not been passed, might have maintained a suit for partition, may maintain such suit against any one or more of the parties interested, without serving the other or others, if any, of those parties; and it shall not be competent to any defendant in the suit to object for want of parties; and at the hearing of the cause the Court may direct such enquiries as to the nature of the property, the persons interested therein and other matters, as it thinks necessary or proper, with a view to an order for partition or sale being made on further consideration; but all persons who, if this Law had not been passed, would have been necessary parties to the suit, shall be served with notice of the decree or order on the hearing, and after such notice shall be bound by the proceedings as if they had been originally parties to the suit, and shall be deemed parties to the suit; and all such persons may have liberty to attend the proceedings; and any such person may, within a time limited by general orders, apply to the Court to add to the decree or order. 9 Power of Court in certain cases to dispense with service of notice of judgment 9. (1) Where, in an action for partition, it appears to the Court that notice of the judgment on the hearing of the cause cannot be served on all the persons on whom that notice is by this Law required to be served, or cannot be so served without expense disproportionate to the value of the property to which the action relates, the Court may, if it thinks fit, on the request of any of the parties interested in the property, and notwithstanding the dissent or disability of any others of them, by order dispense with that service on any person or class of persons specified in the order, and instead thereof may direct advertisements to be published, at such times and in such manner as the Court shall think fit, calling upon all persons claiming to be interested in such property who have not been so served to come in and establish their respective claims in respect thereof, before a Judge in Chambers, within a time to be thereby limited. (2) After the expiration of the time so limited, all persons who shall not have so come in and established such claims, whether they are within or without the jurisdiction of the Court (including persons under any disability), shall be bound by the proceedings in the action as if, on the day of the date of the order dispensing with service, they had been served with notice of the judgment service whereof is dispensed with; and thereupon the powers of the Court under section 10 shall extend to the interests of all such persons in the property to which the action relates as if they had been parties to the action; and the Court c Revised as at 9th day of September, 1997 Page 7 Section 10 Partition Law may, if it shall think fit, direct a sale of property, and give all necessary or proper consequential directions. 10 Power to declare parties trustees, and to make orders thereon 10. Where any decree shall be made in any partition suit for a sale or partition of any lands, it shall be lawful for the Court to declare that any party to the suit wherein such decree is made, is a trustee of such lands, or of any part thereof, and thereupon it shall be lawful for the Court to make such orders as to such trustees and lands as it might make concerning any other trustees or lands held in trust. 11 Provisions as to proceeds of sales of property where service of notice is dispensed with 11. Where an order is made under this Law dispensing with service of notice on any person or class of persons, and property is sold by order of the Court — (a) the proceeds of sale shall be paid into Court to abide with further order of the Court; (b) the Court shall, by order, fix a time at the expiration of which the proceeds will be distributed, and may, from time to time, by further order, extend that time; (c) the Court shall direct such notices to be given, by advertisements or otherwise, as it thinks best adapted for notifying to any persons on whom service is dispensed with, who may not have previously come in and established their claims, the fact of the sale, the time of the intended distribution and the time within which a claim to participate in the proceeds must be made; (d) if, at the expiration of the time so fixed or extended, the interests of all the persons or classes of persons interested have been ascertained, the Court shall distribute the proceeds in accordance with the rights so ascertained; and (e) if, at the expiration of the time so fixed or extended, the interests of all the persons interested have not been ascertained, and it appears to the Court that they cannot be ascertained, or cannot be ascertained without expense disproportionate to the value of the property or of the unascertained interests, the Court shall distribute the proceeds in such manner as appears to the Court to be most in accordance with the rights of the persons whose claims to participate in the proceeds have been established, whether all those persons are or are not before the Court, and with such reservations, if any, as to the Court may seem fit in favour of any other persons (whether ascertained or not) who may appear, from the evidence before the Court, to have any prima facie rights which ought to be so provided for, although such rights may not have been fully established, but to the exclusion of all other persons; and thereupon all such other persons shall, by virtue of this Page 8 Revised as at 9th day of September, 1997 c Partition Law Section 12 Law, be excluded from participation in those proceeds on the distribution thereof; but, notwithstanding the distribution, any excluded person may recover from any participating person any portion received by him of the share of the excluded person. 12 How sale moneys to be paid 12. Any money to be paid under any sale made under this Law, may, if the Court thinks fit so to direct, be paid to any trustees approved by the Court, or be paid into the Treasury to attend the orders of the Court under any law enabling the Court to invest at interest the moneys of suitors as the Court may direct. 13 Provisions in case of two or more sales of property 13. Where, in an action for partition, two or more sales are made, if any person who has by virtue of this Law been excluded from participation in the proceeds of any of those sales establishes his claim to participate in the proceeds of a subsequent sale, the shares of the other persons interested in the proceeds of the subsequent sale shall abate to the extent, if any, to which they were increased by the non-participation of the excluded person in the proceeds of the previous sale, and shall, to that extent, be applied in or towards payment to that person of the share to which he would have been entitled in the proceeds of the previous sale if his claims thereto had been established in due time. 14 Powers and privileges of Commissioners in partition 14. Commissioners appointed by the Court in any suit for partition shall have the powers of a Judge to summon witnesses and to call for the production of books, plans and documents, and to examine witnesses and parties concerned on oath; and no Commissioner shall be liable to any action or suit for any matter or thing done by him as such Commissioner. All summonses for the attendance of witnesses or other persons, or the production of documents, may be in the Form in the Schedule, and shall be signed by one of the Commissioners, and oaths may be administered by any one of the Commissioners. c Revised as at 9th day of September, 1997 Page 9 Section 15 Partition Law 15 Duties of witnesses 15. All persons summoned to attend and give evidence, or to produce books, plans or documents at any sitting of any Commissioners appointed by the Court in any suit for partition, shall be bound to obey the summons served upon them as fully in all respects as witnesses are bound to obey subpoenas issued from the Court. Every person refusing or omitting without sufficient cause to attend at the time and place mentioned in the summons served on him, and every person attending but leaving the Commission without permission of the Commissioners, or refusing without sufficient cause to answer, or to answer fully and satisfactorily to the best of his knowledge and belief all questions put to him by or with the concurrence of the Commissioners, or refusing or omitting without sufficient cause to produce any books, plans or documents in his possession or under his control, and mentioned or referred to in the summons served on him; and every person who, at any sitting of the Commission, wilfully insults any Commissioner, or wilfully interrupts the proceedings of the Commission, is guilty of an offence and liable on summary conviction to a fine of sixty dollars, and in default of payment to imprisonment, with or without hard labour, for three months. 16 Cost of Commissions and witnesses 16. The costs of all proceedings under any Commission shall be in the discretion of the Court, and shall be taxed as other costs are taxed, and the witnesses before the Commissioners shall be entitled to the same remuneration as that to which they would be entitled for giving evidence under similar circumstances in the suit before the Court. 17 Power as to costs 17. In any suit for partition the Court may make such order respecting costs as it thinks fit. 18 Power to make general orders, and effect thereof 18. It shall be lawful for the Chief Justice, from time to time, to make general orders for carrying out, in proceedings in the Court, this Law, and such orders may also prescribe the mode in which Commissions under any decree in any partition suit shall be executed, and the number of Commissioners that shall be appointed for executing such Commissions. All such orders shall take effect as general orders of the Court. Page 10 Revised as at 9th day of September, 1997 c Partition Law SCHEDULE SCHEDULE Summons to Witnesses To A.B. (name of person summoned, and his calling and residence, if known). You are hereby summoned to appear before (here name the Commissioners), appointed by the Grand Court to enquire (state briefly the subject of enquiry) at (place) upon the............. day of................................ , l9...........at ........................o’clock, and to give evidence respecting such enquiry. (If the person summoned is to produce any document add) And you are required to bring with you (specify the books, plans and documents required). Therefore fail not at your peril. Given under the hand of............................................................... , Commissioner, this.................day of............................, 19...................... Publication in revised form authorised by the Governor in Council this 9th day of September, 1997. Carmena H. Parsons Clerk of Executive Council c Revised as at 9th day of September, 1997 Page 11