Barbican Heights Ltd v Seafood & Ting International Ltd
| Jurisdiction | Jamaica |
| Judge | Stephane Jackson-Haisley |
| Judgment Date | 17 August 2016 |
| Neutral Citation | [2016] JMSC Civ 142 |
| Docket Number | CLAIM NO. 2014 HCV 00630 |
| Court | Supreme Court (Jamaica) |
| Date | 17 August 2016 |
[2016] JMSC Civ.142
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Stephane Jackson-Haisley
Master-in-Chambers (Ag.)
CLAIM NO. 2014 HCV 00630
Mrs. Sandra Minott-Phillips, Q.C. and Ms. Rachel McClarthy instructed by Myers, Fletcher & Gordon for the Claimant/Applicant
Ms. Gillian Burgess for the Defendant/Respondent
Part 15..2 of the Civil Procedure Rules
CIVIL PROCEDURE — CIVIL PROCEDURE RULES 2002, PART 15.2 — APPLICATION FOR SUMMARY JUDGMENT — REAL PROSPECT OF SUCCESSFULLY DEFENDING THE CLAIM — LEASE AGREEMENT — DEFENCE OF BARE DENIAL — FRAUD — ESTOPPEL.
The concept of saving expense, conserving resources and achieving expedition is an appealing one, even more so today when trial dates are far away and the cost of going to trial can be significant. In striving to achieve this concept many litigants apply for summary judgment in instances where it appears that the other party has no reasonable prospect of success.
The dicta of Lord Wolfe in Swain v Hillman [2001] 1 All ER 91 provides guidance on how a judge should exercise his discretion in deciding whether or not to grant summary judgment. In assessing the provisions of Part 24 of the Civil Procedure Rules of the United Kingdom which is similar to Part 15 of the Civil Procedure Rules of Jamaica, this is what Lord Wolfe MR had to say at paragraph 7 of that decision:
“It enables the court to dispose summarily of both claims and defences which have no real prospect of being successful. The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success … they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.”
At paragraph 14 he continued:
“It is important that a judge in appropriate cases should make use of the powers contained in Part 24. In so doing he or she gives effect to the overriding objectives contained in Part 1. It saves expenses; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose and I would add, generally that it is in the interest of justice.”
No doubt motivated by the prospect of securing an early resolution the Claimant/Applicant filed a Notice of Application for Court Orders on May 5 th 2016 and secured a hearing date of 21 st July, 2016. The Claimant/Applicant is a limited liability company incorporated under the Laws of Jamaica with its registered office at 107 Old Hope Road, Kingston 6 in the parish of St. Andrew. The orders sought pursuant to Parts 74 and 15 of the Civil Procedure Rules (CPR) are as follows:
- Mediation be dispensed with; 2. Judgment Issue for the Claimant on its claim in the sum of US$241,500.00 or its Jamaican Dollar equivalent at the date of payment; and 3. Costs of the action are awarded to the Claimant to be taxed if not agreed.
The grounds upon which the Claimant is seeking the Orders are as follows:
- Good faith efforts to settle have been made and were not successful; 2. The Defendant has failed to co-operate in having mediation convened; 3. The Defendant has no real prospect of successfully defending the claim.
The Defendant is also a limited liability company incorporated under the Laws of Jamaica. Its registered office is located at 5 Lindsay Crescent, Kingston 10 in the parish of Saint Andrew. The Defendant opposed the Claimant's application.
Briefly, the facts concern the rental of residential premises situated at 22 Millsborough Avenue, Kingston 6 in the parish of Saint Andrew. It is being alleged by the Claimant that it rented the premises to the Defendant for a term of five years commencing August 1, 2009. In support of this position the Claimant relies on a lease agreement purported to be signed by both parties. The Defendant denies that it entered into a lease agreement bearing that date but indicates that it did enter into a lease agreement bearing the date August 1, 2004 which ended July 31, 2009.
On July 21, 2016 when the matter came up for hearing, counsel for Defendant, Ms. Burgess sought an adjournment but this was strongly resisted by the counsel for the Claimant. The Defendant's attorney-at-law based its application for an adjournment on the fact that she had only come into the matter two days prior and hence had not filed any affidavits in response. Queen's Counsel indicated that they would not mount any opposition to the Defendant filing affidavits at a later date and so the Defendant's affidavits in response were filed subsequent to the commencement of the matter. This is noteworthy because under CPR 15 which governs summary judgments, CPR15.5 (2) indicates that a respondent who wishes to rely on evidence must file affidavit evidence and serve copies on the applicant and any other respondent to the application, not less than 7 days before the summary judgment hearing. The Defendant's attorney-at-law although indicating at the outset that they were opposed to this application had not complied with this section hence it became important to consider whether time would be extended for the Defendant to file affidavits in response. In keeping with the overriding objective of the CPR the time within which to file affidavits in response was extended. The application for adjournment which was sought by counsel for the Defendant was refused.
In support of its application the Claimant indicated that it intended to rely on the pleadings, other court documents and the affidavit of Ms. Sheryl Thompson. The claim is for Special Damages of US$241,500.00 and continuing plus interest and costs. The interest was not pursued at the summary judgment application.
By way of the Particulars of Claim filed on February 6, 2014 the Claimant alleges that both parties entered into a lease agreement dated August 1, 2009 pursuant to which the Claimant leased to the Defendant premises located at 22 Millsborough Avenue, Kingston 6 pursuant to which rent was payable to the Claimant in the sum of US$11,500.00 per month. On May 1, 2012 the Defendant defaulted in its monthly rental payments. By letter dated March 6, 2013 the Claimant, through its attorneys-at-law sent a letter demanding payment of the rental owed together with interest and legal fees.
It is duly alleged that at the time of filing the claim the Defendants were still in possession of the premises so rent continued to accrue and that the Defendant has failed, neglected and/or refused to pay the sums outstanding. It is also alleged that pursuant to Clause 3.7 of the lease agreement the Defendant agreed not to assign, sublet or part with possession of the leased premises without the Claimant's written consent, which consent the Claimant has never given. Further that pursuant to Clause 5.8 of the lease agreement, the lease may only be terminated in writing with six (6) months notice being given and that no such notice has ever been received by the Claimant. Appended to the Particulars of Claim is a copy of the signed lease agreement.
In support of the application, affidavit evidence was presented from Sheryl Thompson, legal counsel for Guardsman Group of Companies of which BHL is a part. Ms. Thompson pointed out that the Defendant was the lessee with responsibility for payment of the rent which it paid regularly until it fell into default in May 2012. Since that time the Defendant has been in default of its obligation to pay the rent and all efforts to collect the outstanding rent from the Defendant have been unsuccessful. Ms. Thompson emphasized that at no time did the Claimant give permission in writing for the leased premises to be assigned, sublet or otherwise parted with. In fact the Claimant only became aware of the Defendant's subletting arrangement with DYC Fishing Limited (DYC) when it commenced proceedings for recovery of possession against the Defendant in the Resident Magistrate's Court, now Parish Court. The Claimant recovered possession on March 12, 2014. Ms. Thompson adds that all efforts to convene mediation with the Defendant in accordance with the Court's Rules have failed.
The Claimant alleges that the Defendant has no real prospect of successfully defending the claim. Ms. Thompson has exhibited copy correspondence which she suggested illustrate a lack of co-operation on the part of the Defendant in respect of mediation. The details of the correspondence is as follows:
- Letter dated May 11, 2015 from Rattray Patterson Rattray addressed to the Registrar of the Supreme Court asking that the matter be referred to mediation; 2. Letter dated May 11, 2015 from Rattray Patterson Rattray addressed to Phillipson Partners, then attorneys-at-law on the record enclosing the referral to mediation forms and asking that they complete their portion; 3. Letter dated May 28, 2015 from Phillipson Partners addressed to Livingston Alexander & Levy and copied to Rattray Patterson Rattray indicating that they no longer have conduct of the matter and returning the mediation referral forms.
In its Defence the Defendant indicates that it did enter into a lease agreement with the Claimant dated August 1, 2004 which ended on July 31, 2009. However it denies entering into a lease agreement dated August 1, 2009 and puts the Claimant to strict proof. Further the Defendant says that the lease agreement with the Claimant ended in October 2009 when it gave up possession of the property and another entity DYC took up occupation and paid rent to the Claimant which it accepted without demur until May 2012 when DYC ceased to make any further payments to the Claimant. According to the Defendant, the Claimant had full notice of the change of...
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