Auburn Court Ltd v Delbert Perrier et Al

• Jurisdiction: Jamaica
• Judge: ANDERSON, J
• Judgment Date: 24 June 2004
• Judgment citation (vLex): [2004] 3 JJC 1001
• Docket Number: SUIT NO. C.L. 2002/A-O36 IN COMMON LAW
• Court: Supreme Court (Jamaica)
• Date: 24 June 2004

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

SUIT NO. C.L. 2002/A-O36

IN COMMON LAW

BETWEEN

AUBURN COURT LIMITED

1ST PLAINTIFF

AND

DELBERT PERRIER

2ND PLAINTIFF

AND

NATIONAL COMMERCIAL BANK JAMAICA LIMITED

1ST DEFENDANT

AND

RBTT JAMAICA LIMITED

2ND DEFENDANT

AND

FINSAC LIMITED

3RD DEFENDANT

AND

REFIN TRUST LIMITED

4TH DEFENDANT

^{st rd th nd}

CIVIL PROCEDURE - Summons - Dismissal of action - Whether claim disclosed no cause of action - Whether frivolous and vexatious and an abuse of the process of court

ANDERSON, J

1 There were at these hearings, three (3) summonses before the Court. The first to be heard and the one which is the subject of this judgment, is an application by way of summons made on behalf of the 1 ^st , 3 ^rd and 4 ^th defendants and is:

"An application on the part of the 1st, 3rd and 4th Defendants for AN ORDER THAT:

• 1. The action be dismissed as against the 1st, 3rd and 4th Defendants:

  • (a) as disclosing no cause of action; and/or

  • (b) as being frivolous and vexatious and an abuse of the process of the court on the grounds that:

    • i) the debt subject of the action is no longer the property of the 1st or 4th Defendants; and,

    • ii) the debt subject of the action has never been the property of the 3rd Defendant;

    • iii) a similar action (Suit No. CL. 2000/A-O50) brought by the plaintiffs in respect of the said debt against, inter alia , the 1 ^st and 3 ^rd Defendants was discontinued on the 21st day of September, 2000;

    • iv) the Plaintiffs are vexatious litigants;

• 2. Such further or other relief as this Honourable court deems fit;

• 3. Costs of this application and the action generally to the 1st , 3rd and 4th Defendants".

2 HISTORY

3 The matter presently before this Court represents but one chapter in a long history of events, dating back to a loan made in or around 1984 to the First Plaintiff by a bank, then known as the Jamaica Citizens Bank, ("JCB"). The present second defendant herein ("RBTT"), is the institution that emerged from the merger of several banks including the JCB. That loan had been the subject of an action by the bank against the first-named plaintiff herein, (Suit No: CL. J 576 of 1985) and the bank had in 1985, obtained a default judgement against the then defendant in the sum of four million, nine hundred and twenty-nine thousand, seven hundred and ten dollars and sixty-six cents ($4,929,710.66). So far as we can tell, that judgment has never been appealed. Indeed, the sum in the default judgment was disputed by the defendant and they brought an action against JCB seeking certain remedies including an account and declarations in respect of the said judgment. That action by the 1 ^st -named Plaintiff against the bank (Suit No. CL 1991/A-019) was heard by the Court on November 21,23,24, & 25, 1994 and judgment was delivered on April 18, 1997.

4 The orders/declarations sought in the 1991 suit were as follows:

• a) that an account be taken between them and that the defendants account to the plaintiff for the sums of money paid to them by the plaintiff, Jihije Limited and Delbert Perrier in relation to a judgment debt in Suit CL. J576/1985 for the sum of $4,929,710.66;

• b) A declaration that the unpaid balance of the mortgage loans secured by registration mortgage No. 424336 and mortgage No. 436171 registered at Volume 955 Folios 565 & 566 of the Register Book of Titles merged into the judgment debt in Suit CL. J576/1985 entered on either the 15 ^th or the 24 ^th January 1986.

• c) A declaration that the unpaid balance of the mortgage loan (the existence of which is not admitted) secured by the registration of mortgage No. 363566 on certificate of title registered at Volume 1108 Folio 908 of the Register Book of Titles merged in the judgment debt of Suit No. CL. J576/1985 entered on either the 15 ^th or the 24 ^th January 1986.

5 His Lordship, Wesley James, J. had this to say:

"I do not think it is necessary for me to determine the issues dealing with registration and stamping of mortgages. These issues although addressed by Counsel for the Plaintiff did not arise on the pleadings for my determination. The fact is there is a judgment obtained 15 ^th January 1986.

Judgment

• 1) An account of all monies received by the Defendant or any person on its behalf from 17/2/84 to 15/1/86 and of the manner in which the said sums have been applied by the defendant.

• 2) To account and establish what balances are due as of 15/1/86 on (a) the mortgage loans 424336 and 136171 and (b) on the Demand Promissory Note.

• 3) To calculate the amount of interest on the amount found to be due as of 15/1/86 on the mortgage loans at the covenanted rate of interest and to calculate the interest on the Demand Promissory Note at the rate of 6% per annum.

• 4) That all account and calculations be made to the Registrar of the Supreme Court within six (6) weeks of the Order".

6 On July 4, 1991 before Theobalds J., at an application for an Interlocutory Injunction by the Plaintiff (Auburn), in the 1991 suit, the plaintiff consented to an Order in the following terms:

• 1) That the Plaintiff/Applicant do pay to the Defendant/Respondent the sum of Four Million seven Hundred and Eighty-Five Thousand, Five Hundred and Eighty-six Dollars and Forty-Four Cents ($4,785,586.44) on or before the expiration of the said period of four (4) weeks.

• 2) That upon the receipt of the sum of money referred to in the foregoing paragraph of this Order the Defendant /Respondent do hold the sum of three million and eighty-five thousand five hundred and ninety-six dollars and forty-four cents ($3,085,596.44) of this amount in an escrow interest-bearing account in the joint names of the parties herein pending completion of this action, accrued interest to be paid to the successful party.

• 3) That the balance of One Million Seven Hundred Thousand Dollars ($1,700,000.00) is to be kept by the defendant/respondent and credited in respect of the sum of money which the defendant/respondent claims is due to them from the Plaintiff.

• 4) That upon payment of the sum mentioned in paragraph (-) above, the defendant/respondent shall release all securities which it now holds in respect of the said sum of money which the defendant/respondent claims is due, and discharge all the garnishee orders which it obtained in the suit No. CL. 1985/J-576.

7 On May 3, 2000, the first and second plaintiffs commenced another action, (this time by way of Originating Summons) against the first defendant; the Financial Sector Adjustment Company Limited and Union Bank, the predecessor of the 2 ^nd Defendant herein, Suit No. CL. A050/2000, and on May 10, 2000they secured an ex parte injunction before Theobalds J. that: "the defendants by their servants and/or agents be restrained from selling the plaintiffs premises or in any way interfering with the plaintiffs quiet possession of the said premises for a period of eight (8) days from the date hereof in relation to the premises set out and described at paragraph 2 of the affidavit of Delbert Perrier sworn on the 10 ^th day of May 2000". That action was the subject of a summons to strike out action as against the second and third defendants in that suit. That suit was wholly discontinued by a Notice of Discontinuance filed in this Court on September 21, 2000.

8 For completeness, I should point out that at a hearing before me on October 21, 2001 for the extension of an ex parte interim injunction granted on September 26, 2001, in relation to suit C.L. 1991 A-019,I refused the application on the grounds, inter alia , that that suit had been determined by the judgment of James J., and that there was no basis for the joinder of Refin Trust Limited, (the fourth defendant herein), nor the Financial Sector Adjustment Company Limited. Neither of these two (2) defendants had been parties in the suit decided by James J., but had been added as defendants pursuant to an Order on an ex parte application for an injunction to postpone the sale of properties, on September 26, 2001.

9 In summary therefore, this history has involved:

• a) A default judgment for $4,929,710.66 which has not been appealed but was the subject of a second action;

• b) A second suit challenging the amount and the make-up of the default judgment;

• c) A consent order at a hearing for an interlocutory injunction, pursuant to which $4,785,586.44 was to be paid to JCB, partly beneficially and partly to be held in escrow. There is no evidence that this apportionment took place.

• d) A judgment in the second suit that ordered an accounting which apparently has not been done;

• e) The filing of a third suit which was subsequently the subject of a Notice of Discontinuance.

• f) The filing of a fourth suit (the third by the Plaintiff) which has precipitated the application to strike out.

10 I do agree with the view expressed in the submissions for the 1 ^st , 3 ^rd and 4 ^th defendants that: "The payment and mortgages referred to (in the 1991 action) were at the heart of that action. They are also at the heart of this action". That this is the case, (at the very least in practical, if not legal terms), is confirmed by the following paragraphs of the Amended Statement of Claim in the instant matter.

11 The repayment of the loan for which the Secondnamed Defendant obtained the default summary judgment was secured by

• 1. Mortgage No. 424336 endorsed on the Certificates of Title for premises No. 47–49 Trinidad Terrace, Kingston 5, in the parish of Saint Andrew, registered at Volume 955 Folio 565 and 566 of the Register Book of Titles.

• 2. Mortgage No. 410707 endorsed on three (3) Certificates of Title for premises No. 2 Musgrave Avenue, Kingston 5, in the parish of Saint Andrew, registered at:

  • a. Volume 459 Folio 78, now Volume 1294 Folio 828

  • b. Volume 1168 Folio 322, now Volume 1276 Folio 783

  • ...