IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN 3
CAUSE NO. 416 of 2006 5 6
IN THE MATTER OF: THE PROPERTY OF ROBERT L.
GOLDEMBERG AN ALLEGED MENTALLY
INCAPACITATED PERSON 10 11
BETWEEN: (1) DAVID GOLDEMBERG
(2) JAMES TASSOFF
APPLICANTS 16 17
AND: EVA ROTMISTROVSKY
(A/K/A EVA ROTH) 20
RESPONDENT 22
Appearances: Mr. Duncan Henderson of Walkers for the Applicants
Mr. Kyle Broadhurst of Broadhurst Barristers for the
Respondent
Before: Hon. Justice Henderson
Heard: February 14, 2007
JUDGMENT
The applicants, David Goldemberg and James Tassoff, have been appointed 38 co-guardians of the property of Robert L. Goldemberg by order of the Superior
Court of New Jersey (Chancery Division: Bergen County, Probate Part) on Judgment — David Goldemberg et al v. Eva Rotmistrovsky et al Cause No. 416 of 2006 11.06.07 1 February 22nd 2006 (“the New Jersey Order”). The order was made on the 2 ground that Robert Goldemberg is an incapacitated person, unfit and unable to 3 govern himself and manage his affairs including financial affairs. Mr. 4 Goldemberg is eighty-one years of age and in declining health; he suffers from 5 dementia and has deficits in memory, judgment and abstract thinking.
7 David Goldemberg is a son of Robert Goldemberg and James Tassoff is a close 8 personal friend. The Respondent, Eva Rotmistrovsky, is Robert Goldemberg’s 9 long time companion. 10
Mr. Goldemberg and Ms. Rotmistrovsky have spent considerable time together 12 in the Cayman Islands. Mr. Goldemberg owns both movable property – 13 interests in certain annuity accounts and bank accounts – and real property – a 14 condominium at Ocean Club, another at Coral Bay Village and vacant land at 15 Patricks Island – in the Cayman Islands. 16
The originating summons seeks a declaration of this court recognizing that the 18 applicants are, by virtue of the New Jersey Order, co-guardians “of the property 19 and/or estate of the said Robert L. Goldemberg situated in the Cayman Islands.”
No distinction is made between personalty and realty. 21 Judgment — David Goldemberg et al v. Eva Rotmistrovsky et al Cause No. 416 of 2006 11.06.07 1 The entitlement of the co-guardians to deal with Robert Goldemberg’s personal 2 property in the Cayman Islands, and to sue for it if necessary, is not dependant 3 upon the obtaining of a recognition order: *Didisheim v London and* 4 *Westminster Bank* [1900] 15 (CA); *Gray v Royal Bank of Canada*, Cause 5 109/97, March 26, 1997 (Grand Court). This court is obliged to recognize their 6 appointment as long as there appears to be no reason to doubt the jurisdiction of 7 the New Jersey Court to make it. The position with respect to real property is 8 another question entirely, to which I will return below. 9
The co-guardians ask for more than simple recognition: they request an order 11 declaring that they are “authorized and/or empowered by virtue of the New 12 Jersey Order to recover the property and/or estate of the said Robert L. 13 Goldemberg situated in the Cayman Islands and to receive disclosure of all 14 information concerning such property and/or estate.” The affidavit evidence 15 suggests that they have encountered some difficulty in obtaining full 16 information about Mr. Goldemberg’s assets here. Ms. Rotmistrovsky says that 17 she has no objection to the recognition of the co-guardians in this jurisdiction 18 but questions why they need (or even want) an order permitting them to 19 “recover” property, some of which is owned jointly by Robert Goldemberg and 20 herself. 21 Judgment — David Goldemberg *et al v.* Eva Rotmistrovsky *et al* Cause No. 416 of 2006 11.06.07 1 The originating summons makes two further requests: for an order declaring 2 that, in the event of any disagreement between the co-guardians, the decision of
Mr. Tassoff will prevail; and a declaration that a certain health care proxy and a 4 certain medical power of attorney are null and void. These provisions appear in 5 the New Jersey Order and are governed by New Jersey law. This court has no 6 jurisdiction to deal with either question. Those requests are denied. 7 8 Robert Goldemberg owns, jointly with Ms. Rotmistrovsky, an interest in three 9 pieces of real property in the Cayman Islands. The guardian of a mentally 10 disordered person in a foreign country, appointed by the courts of that country, 11 is not entitled to bring proceedings for the recovery of immovables. To obtain 12 such authority in England, proceedings would have to be taken in the English 13 Court of Protection: *Dicey and Morris, The Conflict of Laws*, 13th edition, 14 paragraph 21-012; *Cheshire and North, Private International Law*, 12th edition, 15 page 774.
17 Each of these highly authoritative texts cites a single decision as authority for 18 the proposition: *Grimwood v. Bartels* (1877) 46 L.J. Ch. 788. That decision is 19 not binding upon me. It has never been judicially noticed in England and 20 Wales or in the Cayman Islands. *Grimwood*, Hall, V.C., refused to recognize 21 the right of a curator *ad bona* of an insane person (who had never been found to Judgment — David Goldemberg et al v. Eva Rotmistrovsky et al Cause No. 416 of 2006 11.06.07 1 be a lunatic in England) to deal with an interest in land. Without citing any 2 authorities, the Vice Chancellor held: > “It is clear that before the sale under the Partition Act, > the curator could not have come to this court and asked > that the share of the lunatic should be conveyed to him, > because, although he was entitled according to Chilean > law to have complete control over the property of the > lunatic, yet that power is necessarily controlled, as > regards real estate in this country, by the laws of this > country.” 12 The applicants invite me to conclude that *Grimwood* is not good law in the 13 Cayman Islands. They argue that the power over immovables granted to the co- 14 guardians by the New Jersey Order is identical to the power which Robert 15 Goldemberg could exercise here if he was not under a disability (except that the 16 co-guardians have no power to make a will and may only alienate, transfer or 17 encumber Mr. Goldemberg’s real property with the approval of the New Jersey 18 court). That appears to be correct. They also say, correctly, that they could 19 never be appointed guardians of Robert Goldemberg under the laws of this 20 country. David Goldemberg is not resident in the Cayman Islands and, as a 21 consequence, does not fall within the definition of “nearest relative” in section 22 2 of the *Mental Health Law* (1997 Revision). Robert Goldemberg is not a 23 “patient” within the meaning of that word as defined in the same section. 24 Neither David Goldemberg nor James Tassoff may apply for appointment as a 25 guardian under section 14 of the *Grand Court Law* (2006 Revision) because Judgment — David Goldemberg et al v. Eva Roimistrovsky et al Cause No. 416 of 2006 11.06.07 1 neither stands in a relationship to Robert Goldemberg of the sort specified in 2 Order 80 of the Grand Court Rules (see especially rules 17 and 28). The 3 applicants say, again correctly, that the jurisdiction of this court to grant 4 recognition to them is not precluded by any statutory provision in the Cayman
Islands. Finally, they argue that recognition would reduce the inefficiency of 6 the administration and the expense resulting from the creation of multiple 7 guardianships. The principle of comity should result in recognition of the 8 foreign appointment. 9 10 There is some merit in these arguments, but it must be recognized that 11 *Grimwood v. Bartels* has not been judicially noticed since its decision in 1877 12 because the proposition for which it stands is not controversial. Neither of the 13 leading texts suggests that it is. *Cheshire and North* remark (op. cit., at page 14 775) that the usefulness of the principle established by *Didisheim* is “limited” 15 because it has no application to immovable property. *Dicey and Morris* 16 comment elsewhere (op. cit., at page 511) that the rule that a court of a foreign 17 country has no jurisdiction to adjudicate upon the title to, or the right to 18 possession of, an immovable situate outside that country “rests on a very 19 slender basis of precedent, and its exact scope is a matter of some doubt.” 20 Neither text, however, contains a suggestion that the order of a foreign court 21 appointing a guardian over immovables in England would or should be Judgment — David Goldemberg et al v. Eva Rotmistrovsky et al Cause No. 416 of 2006 11.06.07 1 recognized in that country. In these circumstances, I see no justification for 2 departing from the long-established rule. 3 4 The co-guardian applicants are not without a remedy. Order 80, Rule 18 of the 5 Grand Court Rules empowers the court to direct that an application for the 6 appointment of a receiver be initiated by the Attorney General. That is the 7 traditional way in which this court comes to the aid of a foreign court in relation 8 to a patient's interest in immovables. I make that direction now. The Solicitor 9 General may, if she is so advised, choose to nominate one of the present 10 applicants as a joint receiver. 11 12 Having given this direction, I grant recognition to the co-guardians with respect 13 to the movable property of Robert Goldemberg in the Cayman Islands but not 14 with respect to immovables. 15 16 Dated this 11th day of June, 2007 17 18 Henderson, J, 19 Henderson, J. 20 Judge of the Grand Court 21
23 Judgment – David Goldemberg et al v. Eva Rotmistrovsky et al Cause No. 416 of 2006 11.06.07