Arawak Woodworking Establishment Ltd v Jamaica Redevelopment Bank Ltd

• Jurisdiction: Jamaica
• Judge: HARRISON J.A
• Judgment Date: 14 May 2010
• Neutral Citation: JM 2010 CA 70
• Judgment citation (vLex): [2010] 5 JJC 1406
• Date: 14 May 2010
• Court: Court of Appeal (Jamaica)

[2010] JMCA App 6

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE HARRISON J.A THE HON. MISS JUSTICE PHILLIPS J.A THE HON. MRS JUSTICE McINTOSH J.A. (Ag)

BETWEEN

ARAWAK WOODWORKING ESTABLISHMENT LTD

APPLICANT

AND

JAMAICA DEVELOPMENT BANK LTD

RESPONDENT

Winston Taylor for the Applicant

Jermaine Spence and Courtney Bailey Instructed by DunnCox for the Respondent

CIVIL PROCEDURE - Dismissal for want of prosecution - Leave to appeal - Failure to file notice of appeal in time - Failure to file notice to extend time to appeal - Delay

HARRISON J.A

1 Introduction

2 [1] On 20 July 2009, Master Simmons (Ag.) dismissed a claim brought by Arawak Woodworking Establishment Limited (the applicant) against Jamaica Development Bank Limited (the respondent) for want of prosecution. The learned Master ordered as follows:

• "(i) Claim dismissed for want of prosecution

• (ii) Costs to the defendant to be taxed, if not agreed.

• (iii) Leave to appeal granted to the Claimant."

3 On 24 February 2010, we refused an application seeking extension of time within which to file the notice of appeal with costs to the respondent to be taxed if not agreed. We promised then to put our reasons in writing. So, this is a fulfillment of that promise.

4 The background

5 [2] The facts reveal that the applicant is a registered company under the laws of Jamaica. The respondent is a statutory body and an approved lending institution, registered under the laws of Jamaica.

6 [3] In or about the month of March 1974 the applicant issued to First National City Bank (FNCB), a debenture charging its undertaking, property assets, capital and goodwill as security for the sum of $120,000.00. Due to the applicant's inability to service its loan responsibly, FNCB placed the applicant in receivership under powers contained in the aforesaid debenture in or about August 1976. The applicant alleged that by letter dated 20 October 1976, the respondent had offered to take the applicant out of receivership on certain terms and conditions which were accepted by the applicant. The respondent then proceeded to put a new board in place and to appoint new officers of the applicant. Sums of monies were injected in the applicant by the respondent but it was contended by the applicant that at all material times, the respondent improperly exercised undue influence over the applicant and its affairs and thereby caused the affairs of the applicant to be improperly administered. As a result, the applicant filed a Writ of Summons in the Supreme Court on 1 September, 1981 and sought to recover damages from the respondent for negligence.

7 [4] Some twenty-eight (28) years seemed to have elapsed since the filing of the suit. There were periods when the parties were in discussion trying to arrive at a settlement. Finally, the respondent made an application to have the action dismissed for want of prosecution. On 20 July, 2009 the learned Master made the order referred to in paragraph 1 (supra).

8 Failure to file the notice of appeal on time

9 [5] The applicant having been granted leave to appeal failed to file the required notice of appeal within the prescribed fourteen days as required by rule 1.11 of the Court of Appeal Rules 2002 (the COAR). This notice was not filed until 11 November, 2009. So, a period of fifty-four (54) days at the very least (excluding the period during the legal vacation) had elapsed since the granting of leave to appeal by the Master.

10 [6] The records also revealed that the applicant had been advised by the Registrar of the Court of Appeal that it needed to apply to extend or enlarge the time for filing the notice of appeal. Despite this reminder, it was not until 21 January 2010 that the applicant filed a notice of application for court orders seeking an extension of time within which to file the notice of appeal. The notice of application and proposed notice of appeal were filed personally by the applicant. The firm of Rattray Patterson Rattray which formerly appeared on behalf of the applicant in the proceedings below had formally removed its name from the record.

11 [7] The notice of application sought the following orders:

"(i) The time for the filing of the Notice of Appeal in this matter be extended to the 11 ^th November 2009;

(ii) The Notice of Appeal filed on the 11 ^th November 2009 be deemed to stand in good stead;

(iii) No order as to Costs;...

(iv) ......"

12 [8] The grounds on which the applicant sought the above orders are as follows:

"(a) That the failure to comply by the Applicant has not been intentional;

(b) The Applicant is no longer represented by Counsel

(c) That the Claimant will be unduly prejudiced if the extension is not granted; and

(d) The Claimant believes she has a strong case for Appeal."

13 [9] The notice of application was supported by an affidavit sworn to by Mrs. Violet Taylor, managing director of the applicant. The affidavit evidence sets out, inter alia, background facts including termination of the applicant's attorney's retainership which she said was to a large extent responsible for the delay in filing the notice of appeal, and the proposed grounds of appeal if she were to be successful in the notice of application.

14 [10] Mrs. Taylor then deponed at paragraphs 6 – 9 as follows:

"6. The Court is being asked to grant the Claimant an extension of time as the Claimant meant no disrespect to the Court and the delay was wholly unintentional.

7. The Court is further being asked to grant the extension when it considers the prejudice to the Claimant herein. At the time this claim was commenced the Claimant was insolvent...