Audrey Allwood v Administrator General of Jamaica and Mega Marketing Ltd

• Jurisdiction: Jamaica
• Judge: E. Brown, J
• Judgment Date: 28 February 2014
• Neutral Citation: [2014] JMSC Civ 29
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2013HCV06306
• Date: 28 February 2014

[2014] JMSC Civ. 29

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2013HCV06306

Between

Audrey Allwood

Claimant

and

Administrator General of Jamaica

1st Defendant

and

Mega Marketing Limited

2nd Defendant

Ransford Braham Q.C., Clayton Morgan and Stacey Salmon instructed by Clayton Morgan & Co. for the claimant

Mrs. Tana-Ania Small-Davis and Mikhail Jackson instructed by Livingston Alexander & Levy for the 2 ^nd defendant

Ms. Kedia Delahaye and Ms. Geraldine Bradford for the 1 ^st defendant

Interim injunction — whether serious question to be tried — proprietary estoppel — promissory estoppel — adequacy of damages.

IN CHAMBERS

E. Brown, J

On the 24 ^th January, 2014 I handed down my decision refusing the application for an interim injunction. These are the reasons for doing so.

THE CLAIM

1 Between 1999 and 2013, the claimant Ms Audrey Allwood and Damion Black shared a relationship which appears to have been both deeply personal and as well outwardly commercial. To them a child was born, so they partnered in parenting and participated together in Jamaica's commercial life. Life, unfortunately, ended suddenly for Damion Black on the 10 ^th July 2013. He died of congestive cardiac failure thirty-one (31) minutes after admission to the University Hospital of the West Indies. He was sixty-two (62) at the time of his death. The funeral service for Damion Black was held on the 18 ^th July 2013. As will be seen, the commencement of litigation in this matter coincided with the funeral service.

2 This Without Notice of Application for Court Orders (WNOACO) was filed on the 13 ^th November 2013 along with the Claim Form and Particulars of Claim. The claim is for, inter alia , a declaration that the claimant is entitled to the beneficial interest (or such portion thereof as this honourable court may determine) in the property known as 9 Edgecombe Drive, Kingston 6 in the parish of St. Andrew, and registered at volume 1459 and folio 783 of the Register Book of Titles (the Edgecombe Property). The 2 ^nd defendant is the registered owner of the Edgecombe Property. By the WNOACO the claimant seeks an interim injunction against the 2 ^nd defendant, whether by itself, its servants and, or its agents from selling, transferring or disposing of the Edgecombe Property, or an interest therein.

3 The WNOACO came before Simmons J on the 21 ^st November 2013. This application rested on four grounds. Firstly, that the 2 ^nd defendant advertised the Edgecombe Property for sale. Secondly, that the 1 ^st and 2 ^nd defendants represented to the claimant that the Edgecombe Property belonged to her and her two daughters. Thirdly, that if the Edgecombe Property is sold the claimant's interest will be forever defeated. Fourthly, that justice requires that an injunction be granted to protect the claimant's interest until trial.

4 Although listed as a WNOACO, the 2 ^nd defendant was represented at the hearing of the application and gave an undertaking ‘not to sell, transfer, or dispose of’ the Edgecombe Property ‘or an interest therein until the hearing of this Notice of Application.’ Simmons J therefore adjourned WNOACO for hearing on today's date. The foregoing, however, does not represent the origins of the matter before the court and so a brief history of its journey through these hallowed halls is necessary.

BACKGROUND

5 The claimant, then represented by Naylor and Mullings Attorneys-at-Law, first filed a Notice of Application for Court Orders (the July Application) along with supporting affidavit on the 18 ^th July 2013. The other parties to that claim were Ryan Black, the 1 ^st defendant and the Administrator General of Jamaica, the 2 ^nd defendant. The July Application was filed in advance of a Claim Form and Particulars of Claim. In the July Application, the claimant sought the following:

1

That there be a mandatory injunction that an interim manager of Mega Marketing Limited be appointed by the Administrator General of Jamaica without delay. 2. That Ryan Black have no further dealings with the assets of the deceased intestate, Damion Black and the assets of Mega Marketing Limited, his servants and or agents until further order of this court or by written designation of the Administrator General of Jamaica, 3. That Ian Wong his servants and or agents, Ryan Black, his servants and or agents are hereby restrained from any dealings with the assets of Damion Black, deceased pending the intervention of the Administrator General. 4. That the 1 st Defendant, Ryan Black do give an account of all monies received by him or taken on his order particular monies withdrawn from the National Commercial Bank and monies taken from Mega Marketing Limited situate in Kingston and St. Andrew.

6 The claim for injunctive relief in the July Application was grounded on two bases. First, that Ryan Black may dissipate the assets before the matter proceeds to trial or may return to the United States of America where the judgment of this court will be unenforceable. Secondly, that Ryan Blake may put the proceeds of the estate beyond the reach of the claimant, thereby rendering any judgment she may receive useless.

7 The July Application came before Cole-Smith J on the very day of its filing and the orders sought were granted with certain amendments. “Without delay” was deleted from order one and substituted with, “within 28 days from the date hereof”. An order five was added granting the Administrator General Letters of Administration ad colligenda bona for the estate of Damion Black. Order six required Ryan Black to deliver to the Administrator General all documents, including some which were particularized, and a firearm belonging to Damion Black.

8 In the wake of these orders came a Notice of Application for Court Orders filed on the 19 ^th July by the 2 ^nd defendant against the claimant, wherein she was named Audrey Allwood-Barrett, (the defendant's July Application). The defendant's July Application was also filed ahead of the statement of case and was heard by K. Anderson J on the same day. K. Anderson J made orders whereby the claimant, her servants or agents shall not:

• a. attend upon the business premises of Mega Marketing Limited (hereinafter referred to as ‘the company’) at either of its branch offices;

• b. deal with any asset or property whatsoever of the Company whether located within Jamaica or not; and

• c. hold herself out to anyone or to any business entity whatsoever as having any legal or beneficial interest whatsoever in the Company.

9 At the adjourned inter partes hearing before Sharon George J, all the orders made by Cole-Smith J were discharged except for those granting Letters of Administration ad colligenda bona to the Administrator General and the claimant's undertaking. Additionally, Sharon George J ordered the claimant to pay to the 1 ^st defendant, ‘Such sums as the Court hereinafter orders in respect of the First Defendant's losses by reason of the Order, including losses sustained by Mega Marketing Limited.’ The claimant was also ordered to pay Ryan Black's costs of the application after taxation or agreement. These matters remained unaddressed at the hearing before me.

THE AFFIDAVIT EVIDENCE

10 In the claimant's affidavit of the 18 ^th July 2013, that is, the evidence upon which the claimant relied to obtain the orders from Cole-Smith J, she said she lived with Damion Black for twelve (12) years in a common law relationship and together they operated Mega Marketing Limited, an import based business. The claimant operated Fit Farm Limited which Damion Black assisted with from time to time. They operated other businesses together and separately but Mega Marketing Limited and Fit Farm Limited were their main businesses and they depended on the incomes from both to pay their bills and support their lifestyles. Additionally, they also hired managers to oversee the businesses and to ensure they were run properly.

11 The claimant continued at paragraph six (6):

‘Damion Black held the majority of the shares (100) in Mega Marketing Limited and managed the said company as a director. There were two other shareholders who held one share each in the company. His son, Ryan Black, who resides overseas, was a director and company secretary for Mega Marketing Limited. He played no active role in the day-to-day affairs of the company.’

After swearing to the fact of Damion Black's death one week earlier, the claimant continued, he left no will and his estate is unrepresented. The claimant went on to speak to the alleged dealings of Ryan Black and others with the assets of the deceased, including Mega Marketing Limited. At paragraph nine (9) the claimant said she devoted her time and energy to Mega Marketing Limited and that she managed it jointly with Damion Black for over ten (10) years. The claimant declared that she had put her life's savings as well as time and energy into Fit Farm Limited. She went on to assert that she has an interest in the property of both companies and in the assets of Damion Black as his common law spouse.

12 The claimant continued, at paragraph twelve (12), that Ryan Black informed her that Damion Black remained a married man, that he the 1 ^st defendant was now in control of the estate and only her child who was fathered by Damion Black was entitled to anything. The claimant went on to say that the assertion of Damion Black's marital status was a blatant lie. She had conducted a search of the court records for Miami Dade County and found the divorce record, which she exhibited.

13 The claimant averred that Ryan Black lived and worked in Florida, USA and that were he to convert the assets and funds of Damion Black and Mega Marketing Limited to himself she would not be able to pursue him there. It was her understanding that Ryan Black...