Barrington Green v Andrea Green
| Jurisdiction | Jamaica |
| Judge | Dunbar Green JA,F Williams JA |
| Judgment Date | 03 February 2023 |
| Neutral Citation | JM 2023 CA 10 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2022CV00048 |
| Court | Court of Appeal (Jamaica) |
| Year | 2023 |
[2023] JMCA Civ 5
IN THE COURT OF APPEAL
THE HON Mr Justice F Williams JA
THE HON Mrs Justice Dunbar-Green JA
THE HON Mr Justice Brown JA
SUPREME COURT CIVIL APPEAL NO COA2022CV00048
and
and
and
and
Written submissions filed by Nunes Scholefield Deleon & Co for the appellants
Written submissions filed by Tricia A Smith-Anderson for the respondents
(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)
This is a procedural appeal from the decision of Master S Reid (Ag) (as she then was) (‘the learned master’) given on 6 April 2022, wherein she granted an application, filed on behalf of the respondents (defendants below) on 20 May 2021, for an extension of time in which to file a defence to the appellants’ claim for, among other things, specific performance of an agreement for sale.
On 1 February 2002, the appellants (claimants below) entered into an agreement for sale with the now deceased vendor, Moses Williams, to purchase a lot of land, part of a larger parcel in Tower Hill, in the parish of St Mary, registered at Volume 1443 Folio 917 and Volume 1440 Folio 645 of the Register Book of Titles (‘the property’), for a purchase price of $800,000.00. The appellants purportedly paid stamp duty and transfer tax on the sale and received letters of possession (dated 3 December 2008 and 3 April 2009) to take effect on 1 February 2002. They entered into possession and erected an incomplete dwelling. Sub-division approval was granted in 2006 but title was not transferred to the appellants.
The vendor died on 11 November 2014, and on 3 May 2018, a “Grant of Administration with the Will Annexed”, in the vendor's estate, was granted to the respondents (children of the vendor).
On 18 March 2020, the appellants filed a claim against the respondents seeking a number of orders and declarations to facilitate the completion of the sale, including orders for specific performance and breach of contract, and alternatively, a declaration of title by adverse possession. On 17 April 2020, the claim form and particulars of claim were served on the respondents.
On 4 May 2020, an unfiled acknowledgment of service was served on the appellants. However, the respondents failed to file a defence within the time stipulated by the Civil Procedure Rules (‘CPR’).
On 11 June 2020, pursuant to rules 12.10(4) and 12.10(5) of the CPR, the appellants filed an application for judgment in default of defence, supported by an affidavit of urgency sworn by Catherine Minto, attorney-at-law for the appellants.
On 24 June 2020, the respondents filed a defence in which they admitted to the agreement between the parties and grant of possession but challenged the appellants to strict proof of their assertion that the purchase price had been paid in full. They sought to rely on alleged assertions by the vendor, during his lifetime, that the appellants had only paid a deposit towards the purchase of the property. The amount of the deposit was not indicated.
Almost a year after filing the defence, the respondents, on 20 May 2021, filed an application seeking an extension of time in which to file their defence. The principal grounds of the application were that: (i) the defence filed on behalf of the respondents was filed out of time; (ii) the failure to file the defence in time was neither deliberate nor intended to disregard or abuse the process of the court; (iii) the respondents had a good defence to the claim; (iv) the appellants would not be prejudiced if the orders sought were granted; and (v) it is in the interests of justice for the orders sought to be granted.
The respondents' attorney-at-law, Mrs Gloria Brown, swore an affidavit in which she explained that a junior attorney-at-law had been assigned the matter but failed to act on it. This was discovered in early to mid-May 2021 when an inventory of the file was done following the junior attorney's departure from the firm. The proposed defence was not exhibited.
On 5 July 2021, the appellants filed an affidavit in opposition to the application for extension of time. The primary contention was that the 4th respondent did not have a good defence.
The learned master, having examined the defence, made an order granting the extension of time to file defence and that the defence, filed on 24 June 2020, is permitted to stand. The appellants were ordered to file their reply within 14 days of the orders. Leave to appeal was also granted.
In the notice and grounds of appeal, filed on 20 April 2022, the appellants challenged the exercise of the learned master's discretion to grant an extension of time for the respondents to file and serve a defence, on the following grounds:
“a. The learned Master erred as a matter of fact and/or law and/or wrongly exercised her discretion when she granted the Respondents/Defendants an extension of time to file Defence.
b. The learned Master erred as a matter of law and/or wrongly exercised her discretion when she implicitly found that there was no need for an Affidavit of Merit on an application for an extension of time to file Defence out of time, in circumstances where an application for default judgment had also been filed. The learned Master instead found that the ‘overriding objective’ of the Civil Procedure Rules was the determining factor.
c. The learned Master erred as a matter of law and/or wrongly exercised her discretion when, (in the absence of an affidavit of merit), she proceeded to consider the Defence which was improperly and irregularly filed by the Respondents/ Defendants, after the Appellants/Claimants had already filed an application for default judgment.
d. The learned Master erred as a matter of law when she implicitly found that the test on an application for extension of time to file Defence when default judgment was being sought, is whether there are: ‘ Issues to be Tried’. Further, the learned Master failed to identify the ‘issues to be tried’.
e. Further and/or alternatively, the learned Master erred as a matter of fact and/or law and/or wrongly exercised her discretion when she found that there were issues to be tried, in spite of the admissions made by the Defendants in the irregular Defence, that was considered.
f. That the learned Master erred as a matter of law and/ or wrongly exercised her discretion when she found that the Overriding Objective weighed in favour of granting the extension of time having regard to:
(i) The eleven (11) month delay in the filing of the application for extension of time. The delay was inordinate, having regard to the facts in the matter, including the fact that on being served with the late defence, the Appellants'/Claimants' attorney immediately informed the Respondents/Defendants attorney, that the Defence filed was late;
(ii) The Defence was inordinately late, and there was no explanation for the late filing of the Defence;
(iii) The Appellants/Claimants had filed an application for judgment, almost two (2) weeks before the Defence was filed, and eleven (11) months before the application for extension of time;
(iv) The Respondents/Defendants were not treating with the matter, or the sale, with any urgency, or expeditiously. And the Appellants/Claimants were being prejudiced by these delays;
(v) There was no valid or legally viable defence before the Court to the claim as filed, for specific performance of the contract, damages for breach of contract, and/ or adverse possession; [and]
(vi) That the learned Master erred as a matter of fact and law and/ or wrongly exercised her discretion when she found that the Appellants/ Claimants had suffered no prejudice by the delay in obtaining title for land purchased almost twenty years ago, and, that the Appellants/Claimants would not be further prejudiced by awaiting a trial date.” (Emphasis/Italics as in the original)
In their written submissions, the appellants made five main points, summarised below.
1. There was no affidavit of merit before the learned master. The sole affidavit which was filed in support of the application for extension of time was that of counsel. No draft defence was exhibited and the affidavit did not set out any factual matters or evidence which could be relied on to ground and/or substantiate a defence to the action. There was also no statement, under oath, as to the facts which would be relied on by the respondents to challenge the claim.
2. The learned master erred, in the absence of an affidavit of merit, to have considered and or given weight to the defence which was filed outside the time limits prescribed by the CPR, and without the leave of the court or consent of the appellants.
3. In the alternative, even if the learned master determined that it was appropriate to consider the defence, an examination of the defence would reveal that there was, in fact, no legally viable defence to the claim. The respondents have admitted the crucial aspects of the claim, that is, the agreement for sale and breach of the agreement by the vendor. In all other respects, the respondents have simply “not admitted” the majority of the claim. They would also be relying on alleged hearsay discussions with the vendor.
4. In light of these factors it is not certain why this matter was remitted to trial, the learned master having failed to indicate what were the issues to be tried, or cite any breach on the part of the appellants.
5. The learned master erred when she found that the overriding objective weighed in favour of the respondents, given the obvious delays in the completion of the sale, complying with the CPR, and filing...
To continue reading
Request your trial