Alexander Drysdale v Herman Farquharson
| Jurisdiction | Jamaica |
| Judge | Pettigrew Collins J |
| Judgment Date | 09 June 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. C.L. 1994 D. 130 |
(Executor in Estate of Phillip Powell deceased)
(Appointed as the personal representatives of the deceased Phillip Powell, for the purposes of these proceedings pursuant to Part 21.7 of the CPR and by order of the Hon. Ms Justice Straw dated the 4 th February 2008)
[2022] JMSC Civ 74
CLAIM NO. C.L. 1994 D. 130
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
[DIVISION]
Application to commit for breach of order — Whether applicants complied with requirements of Part 53 — Whether the application should have been commenced by Fixed Date Claim Form — Whether respondent bound by order of the court — What order is appropriate.
Mr Kevin Williams instructed by Messrs Grant, Stewart, Phillips & Co for the claimants.
Mr Herbert Hamilton and Miss Monique McLeod instructed by Lightbourne & Hamilton for Mr Enrico Powell.
The claimants/applicants filed a Notice of Application for Court Orders on the 14 th of October 2021 seeking the following orders:
-
1. That the respondent Enrico Powell having been in breach of order dated the 12 th of February 2021 issued by the Honourable Mrs. Justice Henry McKenzie shall be forthwith committed to prison for a period of six weeks or such other period as the court shall think fit until the said Enrico Powell shall purge his contempt and comply with the order of the 12 th February 2021.
-
2. In addition to or in the alternative to paragraph 1 hereof that the respondents Enrico Powell and Sean Allistair Powell do pay a fine for being in breach of the order of the 12 th February 2021 such fine to be in the amount of five hundred thousand dollars for each day that the said Enrico Powell and Sean Allistair Powell shall remain in breach of the order of the 12 th February 2021, such fine to commence on the day next following the date of the order herein.
-
3. In the alternative and/or in addition to paragraph 1 and/or 2 hereof that the respondents Enrico Powell and Sean Allistair Powell shall have their assets, including but not limited to their interest in the property registered at volume 806 folio 1, confiscated as a consequence of their breaches of the orders made by the Hon Mrs. Justice Henry McKenzie on 12 th February 2021.
-
4. An order authorizing the claimants and/or their duly appointed representative and/or agent to access the property (including accessing the building or structure on the land) registered at volume 806 folio1 located at 19 Norbrook Drive, Kingston 8 in the parish of St Andrew.
-
5. An order for the purpose of such access of the property and the building on the property the claimants and/or their representative and /or agent shall:
-
I. not be considered as having committed a trespass to or upon the said property; and
-
II. at the claimants' instance be accompanied by such security details, inclusive of a member of the Jamaica Constabulary Force, and no member of such security detail shall be taken to have committed a trespass to or upon the said property.
-
-
6. Costs of the application to the applicants to be agreed or taxed.
-
7. Such further and other orders as this Honourable Court deems just in the circumstances of this case.
The grounds relied on are the provisions of Civil Procedure Rules ( CPR) 45.4 (2) and 53 and the assertion that the respondents and in particular Enrico Powell, have breached certain orders of the Honourable Mrs Justice Henry McKenzie.
The relevant orders of Henry McKenzie J which the applicants are seeking to enforce are as follows:
It appears that Enrico Powell was the only respondent served in respect of the present proceedings. On the morning of the commencement of this hearing, he filed an affidavit but that document was not served on the applicants. Counsel for the applicant indicated that he had no knowledge of the contents of that affidavit.
-
2. On or before the 31 st day of March 2021 the defendants (Enrico Powell and Sean Allistair Powell) shall present to the claimants the Grant of Administration De Bonis Non in the estate of Phillip Powell and the original certificate issued by the Commissioner of Stamp Duty and Transfer Tax showing the payment of all duties on or relative to the estate of Phillip Powell.
-
7. The defendants shall within thirty days of the order herein deliver up to Grant Stewart Phillips and Co, the claimant's attorneys at law, the certificate of title replacing volume 806 folio 1 of the Register Book of Titles.
-
9. The defendants or any of them or any other person referenced in paragraph 3 of this order shall deliver up possession of the said property to the claimants' attorneys at law within 90 days of the date of the order herein or such longer period as expressly agreed in writing by the claimants' attorney at law to facilitate the sale and transfer of the property pursuant to this order.
The main issue arising is whether the applicants are in compliance with the requirements of part 53 of the Civil Procedure Rules, so as to enable the court to grant the orders sought or any of them. Each relevant sub rule will be examined to see if there was compliance. The court must also consider whether Enrico Powell is bound by the order of the court.
Before setting out the orders which it is alleged have been breached, it is necessary to give a brief history of this matter which has meandered through the courts since 1994, albeit with long intervals of inactivity. That history is taken from the affidavit of Mr Alexander Drysdale filed in support of this application on the 26 th of October 2021.
Both claimants entered into an Agreement for Sale in 1982 with Mr Phillip Powell for the purchase of 44,885 square feet of land owned by him. Phillip Powell is the father of the respondents. That portion of land is part of the lands comprised in certificate of title registered at volume 806 folio 1 of the Register Book of Titles. The civic address for that property is 19 Norbrook Drive Kingston 8. There is a portion of land consisting of 13, 324 square feet which is included in the said certificate of title and which it is not disputed, remains the property of the estate of Phillip Powell deceased. Phillip Powell died before the transaction was completed. I shall on occasions, out of convenience refer to Phillip Powell, Enrico Powell and Sean Allistair Powell by their first names. No disrespect is meant. The applicants will be referred to as the claimants or the applicants and the respondents as the defendants or the respondents.
In 1994, the claimants commenced the present claim. It was initially commenced against the executors of the estate of Phillip. The executors, Messrs Farquharson and Green died before the claim came on for trial. On the 4 th of February 2008, the Honourable Miss Justice Straw as she was then, made orders pursuant to rule 21.7 of the CPR appointing the respondents, personal representatives of the estate of Phillip for the purposes of the continuation of the claim. They effectively became the defendants in the matter. For some reason unknown, the names of the executors continued to appear in all pleadings and documents subsequently filed in the claim.
On the 25th and 27th of January 2010, the matter came before the Honourable Mr Justice Sykes as he was then. On the 27 th, he made various detailed orders which if carried out could have disposed of the claim. These orders were made by consent. For reasons that have not been fully explained, the orders of Sykes J were not given effect to.
On the 19 th of January 2021, an Amended Notice of Application was filed by the claimants. Orders were sought for the sale of the property. The defendants had also filed a Notice of Application for Court Orders on the 26 th of January 2021. Pursuant to the defendant's application Henry McKenzie J set aside a transfer that had been signed by the Registrar of the Supreme Court purportedly pursuant to the orders made by Sykes J. Apparently, the condition precedent to the signing of the order based on the orders of Sykes J, had not been fulfilled at the time the Registrar signed the order, hence the basis for the setting aside.
On the 12 th of February 2021, Henry McKenzie J made a number of orders. Among those orders are the ones in respect of which this application has been brought.
Mr Drysdale deponed that the defendants are in breach of the orders of Henry McKenzie J set out above and remain in breach, as at the date of the swearing of his affidavit. He gave viva voce evidence upon being cross examined at the hearing to the effect that they remain in breach.
Mr Drysdale deponed and the court observed that the timeline has long passed for compliance with the orders of the court. Mr Drysdale outlined in his affidavit what he described as steps taken in order to find alternative ways to resolve the defendants' non-compliance but stated that he has no alternative method of dealing with the breaches in respect of which he is asking that the committal order be made.
Mr Williams on behalf of the applicants asked the court to have regard to the fact that the respondent Enrico had full knowledge of the entire proceedings before the court since the beginning of his participation.
He referenced the fact that Enrico filed at least three affidavits in the matter: the affidavit in support of the application before Henry McKenzie J, which led to the February 12, 2021 orders, which was filed on the 27th January 2021, his affidavit of February 26, 2021 in support of the leave to appeal and that in support of the application for stay of execution filed on the 1 st of March 2021.
Counsel also...
To continue reading
Request your trial