According to a Writ of Summons stamped by the Grand Court on June 6, 2024, Bilika Harry Simamba, a retired attorney, alleged that a member of the strata which manages his apartment at Hyre Point (either acting for herself or on behalf of the strata), is attempting to force the sale of his apartment to recover outstanding strata fees. Simamba argues that the actions amount to “actual and/or attempted blackmail, illegal appropriation of property, illegal sale, breach of trust, theft, conspiracy to defraud” as there is no “power in the Strata By-Laws nor in the Strata Titles Registration Act allowing a power to sale without a court order and court supervision.”
Based on the Writ, Simamba owns apartment number 8 in the property registered as Strata Plan 491 registered under the Strata Titles Registration Act. The property is located at South Sound, Block 15C, Parcel 252, commonly known as Hyre Point.
The Writ explained that Simamba “is involved in litigation in Ontario and because of an injunction issued in that case, applying to him and the other party to that litigation, a Judge of the Superior Court of Justice in Ontario issued an order on 28 January 2021 freezing all his assets, severely limiting his income during this time and ability to sell any asset.”
It is alleged that, due to the Canadian court action, Simamba “fell into arrears” on his strata payments.
At some stage, Strata Plan 291 commenced Summary Court proceedings in the Cayman Islands against Simamba to recover the outstanding amounts.
Concerning this, the Writ said that “in the summary court, Magistrate Hernandez issued a Charging Order Absolute on 22 November 2023 for the sum of CI$ 10, 005-82 on his apartment.”
The Writ alleges that, notwithstanding that Simamba made payments towards the outstanding amount, actions continue to be taken to attempt to sell his property to recover the balance outstanding.
Simamba alleges that the person purportedly acting on behalf of the strata cannot force the sale of his apartment because “recovery of mortgage debt and strata titles debt were different.”
He explained:
Under the former, in Cayman, there was an automatic power of sale in the mortgage agreement and in the Registered Land Act, section 75, without a court order so long as the sale was by “public auction”, which case law had interpreted to mean that a public sale through a public website was technically a public auction.
On the contrary, there is no equivalent power in the Strata By-Laws nor in the Strata Titles Registration Act allowing a power to sale without a court order and court supervision.
Based on the Writ, “The Magistrate, in a ruling delivered orally on 18 April 2024 and later in a written judgement dated 26 April 2024… refused to grant the order to sell, stating that she did not have an application before her that complied with the necessary procedural requirements.”
Notwithstanding this, the Writ alleges that the person purportedly acting on behalf of the strata “continued with measures to sell the property without a court order.”
As a result of the foregoing, Simamba is asking the Court for the following:
If the property is not sold by the time the court makes any orders, the Plaintiff seeks the following orders:
1. An injunction to prevent the First and Second Defendant from selling, advertising for sale or taking any action aimed at selling Apartment No. 8.
2. That the Grand Court exercise its power of discretionary review of decisions of the summary court by calling up the matter from the summary court and asking the First Defendant as to why she should not be punished for contempt of court and to punish her if she fails to purge her contempt.
3. General damages to be assessed.
4. Such other incidental orders as the court deems appropriate.
5. Interest on the said sums.
6. Costs.
If the property is sold before the court can grant an injunction:
1. A declaration that the sale was illegal and ordering annulment of the sale andorder return of the apartment to the Plaintiff, plus legal and other incidental costs.
2. If the apartment is not returned to the Plaintiff, the First Defendant and the Second Defendant shall pay the Plaintiff damages on the basis of the true value of the apartment.
3. General damages to be assessed.
4. Such other incidental orders as the court deems appropriate.
5. Interest on the said sums.
6. Costs in these proceedings.
