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GRAND COURT PRACTICE DIRECTION NO. 5 OF 2012 Page 1 of 6 GRAND COURT PRACTICE DIRECTION NO. 5 OF 2012 PRACTICE  DIRECTION  ON  APPLICATIONS  UNDER SECTIONS 72, 75 AND 77 OF THE  REGISTERED LAND LAW (\u201cTHE RLL\u201d). In the recent past a number of decisions of this Court have dealt, in different ways, with the subject of applications under the RLL, for leave of the Court to enforce charges under the RLL by way of sale by private treaty. These Practice Directions seek to explain the practice of the Court which has emerged as the result of those decisions. Typically, Originating Summonses seek the following kinds of relief or variants thereof:\", \"element\": \"section\", \"heading\": null}, {\"eId\": \"sec_1\", \"num\": \"1.\", \"text\": \"Declaratory relief to the effect that the defendant chargor (\u201cthe chargor\u201d) is in default of payment under the charge;\", \"element\": \"section\", \"heading\": null}, {\"eId\": \"sec_2\", \"num\": \"2.\", \"text\": \"That the charge be enforced by sale of the charged property by way of public auction or private treaty, by the chargee acting in good faith and having regard to the interests of the chargor.\", \"element\": \"section\", \"heading\": null}, {\"eId\": \"sec_3\", \"num\": \"3.\", \"text\": \"That a reserved price be fixed for the sale by way of private treaty.\", \"element\": \"section\", \"heading\": null}, {\"eId\": \"sec_4\", \"num\": \"4.\", \"text\": \"That the property be listed for sale on the CIREBA Multi-listing System (\u201cthe MLS\u201d).\", \"element\": \"section\", \"heading\": null}, {\"eId\": \"sec_5\", \"num\": \"5.\", \"text\": \"That other terms and conditions of the sale be determined, if any. Page 2 of 6\", \"element\": \"section\", \"heading\": null}, {\"eId\": \"sec_6\", \"num\": \"6.\", \"text\": \"That leave be granted to issue a Writ of Possession with respect to the property.\", \"element\": \"section\", \"heading\": null}, {\"eId\": \"sec_7\", \"num\": \"7.\", \"text\": \"Alternatively, that the chargee be given reasonable access to the property for the purpose of viewing or for any other purpose in connection with the chargee\u2019s efforts to sell the charged property\", \"element\": \"section\", \"heading\": null}, {\"eId\": \"sec_8\", \"num\": \"8.\", \"text\": \"Costs. Whether or not any aspect of relief is granted will of course be a matter for the exercise of discretion by the Court having regard to the particular circumstances of each case, including the conduct of the parties (see section 77 of the RLL and National Building Society v Cranston 2011 (1) CILR 67 and Bank of Butterfield (Cayman) Ltd v. Thornton and Thornton Cause No. 307 of 2010 written decision given on 29th March 2011) Where the chargee has a power of sale under the charge and has complied with the requirements of the RLL for the giving of notice, the jurisdiction of the Court to exercise its discretion to vary or add to the provisions of section 75 of the RLL to allow the chargee to sell by way of private treaty (in addition to or instead of by way of public auction) will not be in dispute.  Section 77 provides that the parties to a charge may vary or add to the provisions of section 75: Page 3 of 6 \u201cprovided that such variation or addition shall not be acted upon unless the court, having regard to the proceedings and conduct of the parties and the circumstances of the case, so orders\u201d. Factors of importance to the exercise of the Court\u2019s discretion will include: a. That the property must not be sold at an undervalue (Paradise Manor Ltd. v. Bank of Nova Scotia 1984-85 CILR 437; Bank of Butterfield (Cayman) Ltd. v Jervis and Jackson  2011 (1) CILR 54; b. That the sale has to be in good faith (Paradise Manor Ltd v. Bank of Nova Scotia (above) and Bank of Butterfield v. Jervis and Jackson (above); c. The best evidence of market value is the reaction of the market (Scotiabank (Cayman Islands) Ltd.  v. Rankine 2004-05 CILR Note 26 and Bank of Butterfield v. Thornton & Thornton (above)); d. The standard of care required of the chargee: that of a reasonable man in respect of the conduct of his own private affairs (Paradise Manor Ltd v. Bank of Nova Scotia (above)); e. Leave to sell by private treaty at a reserve price set by the Court  will not usually be granted without previous attempts to market the property and to sell by public auction on the open market (Bank of Butterfield v. Jervis and Jackson (above); Page 4 of 6 f. Before leave to sell by private treaty at a reserve price set by the Court will be given, there will usually be to the satisfaction of the Court, evidence at least of attempts to sell by way of public auction (now defined to include sale by listing on the MLS at a reserve price set by the chargee aimed at realizing the true market value: see Scotiabank Trust v Ebanks and Gordon below. g. However, leave to sell by private treaty may be granted where there has been no prior attempt to sell on the open market where the Court is satisfied that it is in the interest of justice so to order, especially bearing in mind that attempts to sell by way of a formal public auction could add unnecessarily to the costs to be ultimately passed on to the chargor (National Building Society of Cayman v. Cranston (above)). Where such leave is granted to sell by private treaty (that is: without a reserved price being set), the order will usually be conditioned as being subject to the chargee \u201cacting in good faith and having regard to the interests of the chargor\u201d. h. \u201cSale by public auction\u201d does not necessarily require a formal auction with a bidding process conducted by an appointed auctioneer but \u201cin substance, the sale of a property through the MLS is a public auction\u201d (Scotiabank  & Trust (Cayman) Ltd. v. Cecilia Ebanks (as Page 5 of 6 administratrix of estate of Allan Ebanks) and Rudolph Gordon (as administrator of estate of Allan Ebanks) GC Cause No. 298 of 2010, Judgment delivered January 12th 2012. i. The sanction of the Court of a price obtained whether by public auction (by listing on the MLS or otherwise) or by private treaty, is more likely to be granted where the original asking price had been set by the chargee by reference to an independent valuation.  In this way the Court will be able more likely to conclude that the chargee has acted in good faith in exercise of its rights under the charge. j. There is no need for an application to the Court for placement of the property for sale by public auction (whether by way of a listing on the MLS or by formal auction) in the first instance by the chargee who, by virtue of the powers given under the charge and section 75 of the RLL, can sell by way of public auction without the leave of the Court (Bank of Butterfield v. Jervis and Jackson (above)). k. An application to the Court is necessitated only where leave to sell by private treaty (whether by fixing of a reserve price or otherwise) is required by way of a variation of section 75 of the RLL as agreed in the charge loan agreement. Page 6 of 6 l. Where the Court considers that a chargee has brought an unnecessary application for leave to sell by public auction, the Court will refuse to grant an order for the costs of so doing (Bank of Butterfield v. Jervis and Jackson (abo ve)). Other factors which the Court will consider will include: (i) the defendant(s)\u2019 position and whether they have notice of the application; (ii) whether the defendants are represented and have a proper understanding of the application; (ii) whether there is any element of unfairness or unreasonableness in the chargee\u2019s application; (iv)  whether an order for costs should be imposed upon the chargor, over and above any right that the chargee might have to recover costs under the charge loan agreement. Hon. Anthony Smellie Chief Justice 22nd May 2012\", \"element\": \"section\", \"heading\": null}], \"meta\": {\"notes\": null, \"workflow\": null, \"lifecycle\": {\"source\": \"#cilegis\", \"eventRef\": [{\"eId\": \"e_commence_2012_01_01\", \"date\": \"2012-01-01\", \"type\": \"generation\", \"source\": \"#cilegis\"}]}, \"references\": {\"source\": \"#canary\", \"TLCRole\": [], \"TLCEvent\": [{\"eId\": \"ev_commencement\", \"href\": \"\/akn\/ontology\/canary\/event\/commencement\", \"showAs\": \"commencement\"}], \"TLCPerson\": [], \"TLCConcept\": [{\"eId\": \"inForce\", \"href\": \"\/akn\/ontology\/canary\/concept\/temporal\/in-force\", \"showAs\": \"in force\"}], \"TLCProcess\": [], \"TLCLocation\": [], \"TLCOrganization\": [{\"eId\": \"cilegis\", \"href\": \"\/akn\/ontology\/canary\/organization\/editor\/cilegis\", \"showAs\": \"Cayman Islands legislation mirror (kyleg)\"}]}, \"temporalData\": {\"source\": \"#cilegis\", \"temporalGroup\": [{\"eId\": \"tg_inforce_2012_01_01\", \"timeInterval\": [{\"end\": null, \"start\": \"#e_commence_2012_01_01\", \"duration\": null, \"refersTo\": \"#inForce\"}]}]}, \"classification\": null, \"identification\": {\"source\": \"#cilegis\", \"FRBRWork\": {\"FRBRuri\": \"\/akn\/ky\/act\/amending\/2012\/48\", \"FRBRdate\": [{\"date\": \"2012-01-01\", \"name\": \"generation\"}], \"FRBRthis\": \"\/akn\/ky\/act\/amending\/2012\/48\/!main\", \"FRBRalias\": [{\"name\": \"cmsId\", \"value\": \"2012-0048\"}], \"FRBRauthor\": [{\"as\": \"#editor\", \"href\": \"\/akn\/ontology\/canary\/organization\/editor\/cilegis\"}], \"FRBRnumber\": \"48 of 2012\", \"FRBRcountry\": \"ky\", \"FRBRsubtype\": \"amending\"}, \"FRBRExpression\": {\"FRBRuri\": \"\/akn\/ky\/act\/amending\/2012\/48\/eng@2012-01-01\", \"FRBRdate\": [{\"date\": \"2012-01-01\", \"name\": \"generation\"}], \"FRBRthis\": \"\/akn\/ky\/act\/amending\/2012\/48\/eng@2012-01-01\/!main\", \"FRBRauthor\": [{\"as\": \"#editor\", \"href\": \"\/akn\/ontology\/canary\/organization\/editor\/cilegis\"}], \"FRBRlanguage\": \"eng\"}, \"FRBRManifestation\": {\"FRBRuri\": \"\/akn\/ky\/act\/amending\/2012\/48\/eng@2012-01-01.xml\", \"FRBRdate\": [{\"date\": \"2026-06-22\", \"name\": \"generation\"}], \"FRBRthis\": \"\/akn\/ky\/act\/amending\/2012\/48\/eng@2012-01-01.xml\", \"FRBRauthor\": [{\"as\": \"#editor\", \"href\": \"\/akn\/ontology\/canary\/organization\/editor\/cilegis\"}], \"FRBRformat\": \"application\/xml\"}}}, \"name\": \"act\", \"header\": {\"title\": \"PD-2012-05 - Practice Direction No 5 of 2012 - Applications under the Registered Land Law (SL 48 of 2012)\", \"actNumber\": \"48 of 2012\", \"longTitle\": null}}, \"doc\": null, \"bill\": null, \"judgment\": null}}","akn_full_text":"CAYMAN ISLANDS\n\nSupplement No. 1 published with Gazette No. 21\ndated 8th October, 2012.\n\n GRAND COURT PRACTICE DIRECTION NO. 5 OF 2012\n\nPage 1 of 6\n\nGRAND COURT PRACTICE DIRECTION NO. 5 OF 2012\n\nPRACTICE  DIRECTION  ON  APPLICATIONS  UNDER SECTIONS\n72, 75 AND 77 OF THE  REGISTERED LAND LAW (\u201cTHE RLL\u201d).\n\nIn the recent past a number of decisions of this Court have dealt, in different ways,\nwith the subject of applications under the RLL, for leave of the Court to enforce\ncharges under the RLL by way of sale by private treaty.\nThese Practice Directions seek to explain the practice of the Court which has\nemerged as the result of those decisions.\nTypically, Originating Summonses seek the following kinds of relief or variants\nthereof:\n1.\nDeclaratory relief to the effect that the defendant chargor (\u201cthe\nchargor\u201d) is in default of payment under the charge;\n2.\nThat the charge be enforced by sale of the charged property by way of\npublic auction or private treaty, by the chargee acting in good faith\nand having regard to the interests of the chargor.\n3.\n That a reserved price be fixed for the sale by way of private treaty.\n4.\nThat the property be listed for sale on the CIREBA Multi-listing\nSystem (\u201cthe MLS\u201d).\n5.\nThat other terms and conditions of the sale be determined, if any.\n\nPage 2 of 6\n\n6.\nThat leave be granted to issue a Writ of Possession with respect to the\nproperty.\n7.\nAlternatively, that the chargee be given reasonable access to the\nproperty for the purpose of viewing or for any other purpose in\nconnection with the chargee\u2019s efforts to sell the charged property\n8.\nCosts.\n\nWhether or not any aspect of relief is granted will of course be a matter for the\nexercise of discretion by the Court having regard to the particular circumstances of\neach case, including the conduct of the parties (see section 77 of the RLL and\nNational Building Society v Cranston 2011 (1) CILR 67 and Bank of Butterfield\n(Cayman) Ltd v. Thornton and Thornton Cause No. 307 of 2010 written decision\ngiven on 29th March 2011)\nWhere the chargee has a power of sale under the charge and has complied with the\nrequirements of the RLL for the giving of notice, the jurisdiction of the Court to\nexercise its discretion to vary or add to the provisions of section 75 of the RLL to\nallow the chargee to sell by way of private treaty (in addition to or instead of by\nway of public auction) will not be in dispute.  Section 77 provides that the parties\nto a charge may vary or add to the provisions of section 75:\n\nPage 3 of 6\n\n\u201cprovided that such variation or addition shall not be acted upon\nunless the court, having regard to the proceedings and conduct of the\nparties and the circumstances of the case, so orders\u201d.\nFactors of importance to the exercise of the Court\u2019s discretion will include:\na.\nThat the property must not be sold at an undervalue (Paradise Manor\nLtd. v. Bank of Nova Scotia 1984-85 CILR 437; Bank of Butterfield\n(Cayman) Ltd. v Jervis and Jackson  2011 (1) CILR 54;\nb.\nThat the sale has to be in good faith (Paradise Manor Ltd v. Bank of\nNova Scotia (above) and Bank of Butterfield v. Jervis and Jackson\n(above);\nc.\nThe best evidence of market value is the reaction of the market\n(Scotiabank (Cayman Islands) Ltd.  v. Rankine 2004-05 CILR Note\n26 and Bank of Butterfield v. Thornton & Thornton (above));\nd.\n The standard of care required of the chargee: that of a reasonable man\nin respect of the conduct of his own private affairs (Paradise Manor\nLtd v. Bank of Nova Scotia (above));\ne.\n Leave to sell by private treaty at a reserve price set by the Court  will\nnot usually be granted without previous attempts to market the\nproperty and to sell by public auction on the open market (Bank of\nButterfield v. Jervis and Jackson (above);\n\nPage 4 of 6\n\nf.\nBefore leave to sell by private treaty at a reserve price set by the\nCourt will be given, there will usually be to the satisfaction of the\nCourt, evidence at least of attempts to sell by way of public auction\n(now defined to include sale by listing on the MLS at a reserve price\nset by the chargee aimed at realizing the true market value: see\nScotiabank Trust v Ebanks and Gordon below.\ng.\nHowever, leave to sell by private treaty may be granted where there\nhas been no prior attempt to sell on the open market where the Court\nis satisfied that it is in the interest of justice so to order, especially\nbearing in mind that attempts to sell by way of a formal public auction\ncould add unnecessarily to the costs to be ultimately passed on to the\nchargor (National Building Society of Cayman v. Cranston (above)).\nWhere such leave is granted to sell by private treaty (that is: without a\nreserved price being set), the order will usually be conditioned as\nbeing subject to the chargee \u201cacting in good faith and having regard to\nthe interests of the chargor\u201d.\nh.\n\u201cSale by public auction\u201d does not necessarily require a formal auction\nwith a bidding process conducted by an appointed auctioneer but \u201cin\nsubstance, the sale of a property through the MLS is a public auction\u201d\n(Scotiabank  & Trust (Cayman) Ltd. v. Cecilia Ebanks (as\n\nPage 5 of 6\n\nadministratrix of estate of Allan Ebanks) and Rudolph Gordon (as\nadministrator of estate of Allan Ebanks) GC Cause No. 298 of 2010,\nJudgment delivered January 12th 2012.\ni.\nThe sanction of the Court of a price obtained whether by public\nauction (by listing on the MLS or otherwise) or by private treaty, is\nmore likely to be granted where the original asking price had been set\nby the chargee by reference to an independent valuation.  In this way\nthe Court will be able more likely to conclude that the chargee has\nacted in good faith in exercise of its rights under the charge.\nj.\nThere is no need for an application to the Court for placement of the\nproperty for sale by public auction (whether by way of a listing on the\nMLS or by formal auction) in the first instance by the chargee who, by\nvirtue of the powers given under the charge and section 75 of the\nRLL, can sell by way of public auction without the leave of the Court\n(Bank of Butterfield v. Jervis and Jackson (above)).\nk.\nAn application to the Court is necessitated only where leave to sell by\nprivate treaty (whether by fixing of a reserve price or otherwise) is\nrequired by way of a variation of section 75 of the RLL as agreed in\nthe charge loan agreement.\n\nPage 6 of 6\n\nl.\nWhere the Court considers that a chargee has brought an unnecessary\napplication for leave to sell by public auction, the Court will refuse to\ngrant an order for the costs of so doing (Bank of Butterfield v. Jervis\nand Jackson (abo ve)).\nOther factors which the Court will consider will include:\n(i)\nthe defendant(s)\u2019 position and whether they have notice of the\napplication;\n(ii)\nwhether the defendants are represented and have a proper\nunderstanding of the application;\n(ii)\nwhether there is any element of unfairness or unreasonableness in the\nchargee\u2019s application;\n(iv)  whether an order for costs should be imposed upon the chargor, over\nand above any right that the chargee might have to recover costs under\nthe charge loan agreement.\n\nHon. Anthony Smellie\nChief Justice\n\n22nd May 2012","akn_extracted_at":"2026-06-22 15:41:54.952862+00","cms_id":"2012-0048","law_type":"amending","year":"2012","number":"48","title":"PD-2012-05 - Practice Direction No 5 of 2012 - Applications under the Registered Land Law (SL 48 of 2012)","status":"spent"},"provenance":{"files":[{"file_id":"6640","expr_id":"1820","kind":"akn_xml","filename":"2012-0048.akn.xml","source_url":null,"storage_path":"\/Users\/q\/kyleg-data\/working\/AMENDING\/2012\/2012-0048\/2012-0048.akn.xml","content_md5":"ab00e7f081c6aedc04d608ca15735fcb","byte_size":"10722","http_last_modified":null,"fetched_at":"2026-06-22 15:41:55.013686+00"},{"file_id":"3639","expr_id":"1820","kind":"pristine_pdf","filename":"2012-0048.pdf","source_url":"\/cms\/images\/LEGISLATION\/AMENDING\/2012\/2012-0048\/2012-0048.pdf","storage_path":"\/Users\/q\/kyleg-data\/pristine\/AMENDING\/2012\/2012-0048\/2012-0048.pdf","content_md5":"51aceaac1cba0da6e2448c725762c08c","byte_size":"372088","http_last_modified":null,"fetched_at":"2026-06-16 04:01:11.032141+00"},{"file_id":"3640","expr_id":"1820","kind":"working_pdf","filename":"2012-0048.pdf","source_url":"\/cms\/images\/LEGISLATION\/AMENDING\/2012\/2012-0048\/2012-0048.pdf","storage_path":"\/Users\/q\/kyleg-data\/working\/AMENDING\/2012\/2012-0048\/2012-0048.pdf","content_md5":"51aceaac1cba0da6e2448c725762c08c","byte_size":"372088","http_last_modified":null,"fetched_at":"2026-06-16 04:01:11.032141+00"}],"paragraph_count":19,"latest_history":null},"quality":{"expr_id":"1820","doc_id":"1820","quality_state":"known_issue","quality_score":"75","needs_human_review":"t","deterministic_categories":"{title_mismatch}","llm_categories":"{}","repair_actions":"{strip_page_furniture,verify_title_metadata}","finding_severity_counts":"{\"high\": 1}","finding_summary":"stored title is not visible in the opening extracted text","assessed_at":"2026-06-22 15:29:46.555633+00","updated_at":"2026-06-22 15:29:46.555633+00"}}