Beautifit Ltd v Financial Institutions Services Ltd et Al

JurisdictionJamaica
Judge SINCLAIR-HAYNES, J (Ag.)
Judgment Date16 March 2004
Judgment citation (vLex)[2004] 3 JJC 1601
CourtSupreme Court (Jamaica)
Docket NumberSUIT NO. HCV 02209/2003
Date16 March 2004
IN THE SUPREME COURT JUDICATURE OF JAMAICA
SUIT NO. HCV 02209/2003
BETWEEN
BEAUTIFIT LIMITED
CLAIMANT
AND
FINANCIAL INSTITUTIONS SERVICES LIMITED
1 ST DEFENDANT
AND
JAMAICA REDEVELOPMENT FOUNDATION INC.
2 ND DEFENDANT
AND
DENNIS JOSLIN JAMAICA INC.
3 RD DEFENDANT
st
nd rd

MORTGAGES - Promissory note - Injunction - Fraud - Whether the defendant attached a debt to the claimant's account knowing the same was not owed

SINCLAIR-HAYNES, J (Ag.)
1

On the 22 nd September 1988, Beautifit Limited, the claimant in this matter, mortgaged two parcels of land as security for a loan of $540,000.00 and overdraft facilities of up to $500,000.00 from Century National Bank. The assets of CNB have been acquired by Financial Services Limited (F.I.S) which sold these assets to Jamaica Redevelopment Foundation (Inc.). Dennis Joslin is an agent of Jamaica Redevelopment Foundation. Joslin is now seeking to sell property owned by Beautifit Limited, which was secured by the mortgage in satisfaction of a sum of $2,422,554.40, which was secured by a promissory note. Beautifit Limited denies any indebtedness to the Defendants and insists that Beautifit Career Fashions Limited, a separate entity but a sister company, executed the promissory note in favour of CNB.

2

The Defendants have asserted, however, that the Promissory note, which secured the sum of $2,422,554.40, was executed by Beautifit Limited and the aforesaid mortgage further secured this debt.

3

Beautifit Limited sought an injunction restraining the defendants from selling or otherwise disposing of the lands, the subject of the mortgage. This application was refused by Anderson J. on the 5 th of February, 2004. Since the refusal of the injunction by Anderson J., Beautifit Limited has obtained an opinion from Carl Mingo Major, a Consultant Document Examiner who asserts that the seal impressed on the Promissory note was in fact that of Beautifit Career Fashions Limited and not that of Beautifit Limited.

4

Beautifit Limited is again seeking an interim injunction.

5

It contends in the further affidavit of Mr. Aubrey Smith that it did not execute promissory note dated 27 th May, 1992 nor was it the beneficiary of the loan in the sum of Two Million Four Hundred and Twenty Two Thousand Five Hundred and Fifty-Four Dollars and Forty Cents ($2,422,554.40). Mr. Aubrey Smith averred that the promissory note was executed by a sister company, Beautifit Career Fashions. He further averred that in the execution of that promissory note, the seal of Beautifit Careers Fashions Limited was impressed upon the document. Further, that the repayment of the said loan was demanded of Beautifit Limited by F.I.S, whilst a similar demand for repayment was made by Refin Trust Limited (an assignee of F.I.S) of Beautifit Career Fashions Limited.

6

Beautifit Limited has levelled allegations of fraud against the defendants. The fraud relates to the purported combining of the loan secured by the promissory note to Beautifit Career Fashions Limited (sister company) with the accounts of Beautifit Limited to create a new debt, allegedly owed by Beautifit Limited and secured by mortgage of Beautifit Limited. It is the contention of Beautifit Limited that the monies owed on the said mortgage were fully repaid.

7

The claimant has now confirmed that the seal on the promissory note was indeed not the claimant's but the sister company's. The defendants, it contends, have knowingly attached to the accounts of the claimant a debt it doesn't have.

8

SUBMISSIONS BY MR. DAVID JOHNSON

9

Mr. David Johnson and Mr. Christopher Kelman on behalf of the Defendants have raised a preliminary point of law opposing this application.

10

Mr. David Johnson contends as follows:

  • 1. the evidence upon which the claimant sought to rely in support of its application of the 05.02.04, is the same it is now advancing in support of its present application;

  • 2. the evidence of fraud...

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