Arawak Woodworking Establishment Ltd v Ossie Lee

• Jurisdiction: Jamaica
• Judge: MARSH. J.
• Judgment Date: 27 July 2011
• Judgment citation (vLex): [2011] 7 JJC 2701
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. A179 OF 1987
• Date: 27 July 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

CLAIM NO. A179 OF 1987

BETWEEN

ARAWAK WOODWORKING ESTABLISHMENT LTD.

PLAINTIFF

AND

OSSIE LEE

DEFENDANT

Mrs. N. Foster-Pusey and Miss Anna Gracie instructed by Rattray Patterson Rattray for the Claimant/Respondent

Mr. Courtney Bailey and Miss M. Burke instructed by Dunn Cox for the Defendant/Applicant

CIVIL PROCEDURE - Costs - Security for costs - Application for - Application to vary order

In Chambers

MARSH. J

1 By Amended Notice of Application for Court Orders dated and filed on the 25 ^th day of May 2011, the Claimant/Applicant sought of this Court the following orders:-

• i. The time of service of this Application be abridged

• ii. That the order made by me on the 11 ^th March, 2011, that the Claimant provide security in the sum of $2,000,000.00 within seventy five (75) days be extended for a further seventy five (75) days.

• iii. Alternatively, that the said order be varied to allow the Claimant to place the lands comprised in Certificate of Titles registered at Volume 821 Folio 84 in the Register Book of Titles as security arid that the Claimant deliver up the Certificate of Title in respect of the same within Thirty (30) days of the date hereof.

• iv. Further or in the alternative that the Claimant be granted relief from the sanctions imposed pursuant to the order made by me on March 11, 2011.

• v. That costs of this application be costs in the Claim; and

• vi. Such further or other relief as this Court deems just.

2 The grounds on which these order are sought are as follows:-

• 1. The Applicant's delay was unintentional;

• 2. This application is filed within the time for complying with the said order.

• 3. The Applicant is unable to raise the security within the prescribed time and is anxious to proceed with the matter.

• 4. The Applicant will be unduly prejudiced if the order is not varied and/or extended.

• 5. The orders sought will not unduly prejudice the Respondent.

3 The Applicant Violet Taylor, Claimant's Managing Director Violet Taylor, in an affidavit to support this Amended Application sworn to on the 25 ^th May, 2011 deponed among other things, that when this court was making the Order on the 27 ^th day of May, 2011, Mrs. Foster-Pusey for the Applicant had intimated to the Court that Violet Taylor was offering as security six acres of land located at Mt. Lebanon in St. Andrew. The Court had declined to make the order as requested by Applicant's Counsel as there was no evidence (affidavit) before me, but the Court indicated that it would not be averse to making such an order if there was consent between the parties.

4 Mr. Bailey for the Respondent required instructions from his client. The order of the 27 ^th May 2011 was then made.

5 The land is valued by D.C. Tavares Realty Co. at $2,300,000.00 in a valuation dated 26 ^th April, 2006, an account in excess of the sum ordered by the Court. By letter dated 11 ^th March, 2011 the Claimant's attorney-at-law wrote to the Defendant's Attorney-at-law proposing the use of this parcel of land as security. By letter dated 22 ^nd March, 2011 the Defendant's attorney indicated that the Defendant was unable to agree to this arrangement.

6 The land has been listed for sale, subsequent to this but there has been no expression of interest to purchase the land at the price listed or ‘at any price at all.’ This has constrained the Applicant to apply to the Court as per the said Amended Application.

7 The matter is urgent as the Applicant is required to establish the security of $2,000,000.00 by May 2011 or be barred from continuing its action against the Respondent. The balance of justice, it is advised, lies on the favour of this ground of the orders sought, as at worst, the Defendant has to wait another seventy five (75) days for the grant of security as opposed to Claimant's bar from continuing the Claimant's case. Further the Affiant is of the opinion that the application is filed within the time for complying with the Court's order.

8 The Respondent Ossie Lee responded to the affidavit of Violet Taylor dated the 25 ^th May, 2011 and has deponed that he is not at all prepared to undertake the risk of any further litigation which could be consequent on his having to be involved in the valuation and sale of any property owned by the said Claimant's Managing Director Violet Taylor. This is so, having regards to history of the previous interactions with the Claimant and the said Managing Director. The Claimant's Managing director's own affidavit has indicated that there seems to be little prospects of the land being sold and it cannot therefore be considered security for costs in this matter.

Submissions

9 Mrs. Nicole Foster Pusey for the Claimant/Applicant, after court had ruled that time for service was abridged, as sought at one (1) of the orders sought on the said amended application made submissions on the Applicant's behalf. She pointed out that the Court's power to vary order made by it is to be found at Part 26.1(7) of the Civil Procedure Rules 2002. This provision reads -

‘A power of the Court under these Rules to make an order includes a power to vary or revoke that order.’

She referred to Part 26.8.1

‘Relief from Sanctions’ and in particular to Part 26.8(2-4)

10 She indicated that the failure to comply was not intentional, was promptly...