Bernard Walker v Michelle Edwards-Walker
| Jurisdiction | Jamaica |
| Judge | F Williams JA,Simmons JA,V Harris JA |
| Judgment Date | 07 July 2023 |
| Neutral Citation | JM 2023 CA 86 |
| Docket Number | SUPREME COURT CIVIL APPEAL 91/2016 |
| Court | Court of Appeal (Jamaica) |
and
[2023] JMCA Civ 37
THE HON Mr Justice F Williams JA
THE HON Miss Justice Simmons JA
THE HON Mrs Justice V Harris JA
SUPREME COURT CIVIL APPEAL 91/2016
IN THE COURT OF APPEAL
Practice and procedure — Whether the application for extension of time to file a claim under the Property (Rights of Spouses) Act ought to have been considered before the application for extension of time to file an affidavit in response — Property (Rights of Spouses) Act ss 13 and 14 — Civil Procedure Rules 2002 rr 8.8 and10.2
Written Submissions filed by Samantha Smith-Daley for the appellants
(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)
I have read in draft the judgment of Simmons JA. I agree with her reasoning and conclusion and have nothing to add.
The 1 st appellant, Bernard Walker (‘Mr Walker’) and the 2nd appellant, Edris Edwards (‘Ms Edwards’), are son and mother, respectively and are registered as joint tenants of all that property registered at Volume 1169 Folio 53 of the Register Book of Titles and situated at John Town Road, Port Antonio in the parish of Portland (‘the property’).
The respondent, Michelle Edwards-Walker (‘Mrs Edwards-Walker’) and Mr Walker are husband and wife but are now separated.
By notice of appeal filed 5 October 2016, Mr Walker and Ms Edwards (collectively referred to as ‘the appellants’) seek to set aside the order of Kirk Anderson J (‘the learned judge’) made on 11 May 2016, which reads as follows:
“1. [Ms Edwards'] oral application for permission to make an oral application for an extension of time to file [an] Affidavit in response out of time, is denied.
2. [Mr Walker's] written application for permission to allow [his affidavit] in response, which was filed out of time to stand, is denied.
3. Costs of the oral and written application [sic] [for the appellants] are granted in favour of [Mrs Edwards-Walker] and such costs shall be taxed if not sooner agreed.
4. A date shall be set for the adjourned first hearing of the Fixed Date Claim Form filed on the 1st day of October, 2015.
5. The adjourned first hearing of the Fixed Date Claim Form which was filed on the 1st day of October, 2015, shall be held before a Judge in Chambers and on that hearing date, the Fixed Date Claim Form shall be treated as an undefended claim.
6. The [appellants'] oral application for leave to appeal this Court's Order is denied.
7. [Mrs Edwards-Walker] shall file and serve this Order.”
They also seek an order that Mrs Edwards-Walker's fixed date claim form be struck out and further and/or alternatively that the time for the appellants to file and serve their defence be extended by 28 days from the date of this court's order.
In about 2015, Mrs Edwards-Walker filed a claim under the Property (Rights of Spouses) Act (‘PROSA’) against Mr Walker and Ms Edwards, seeking a beneficial interest in the property. At the time, Mr Walker and Mrs Edwards-Walker had been separated for over 12 months. The orders sought are as follows:
“(i) That the time prescribed for [Mrs Edwards-Walker] to seek Orders under [PROSA], be extended to the date hereof and
(ii) A declaration that [Mrs Edwards-Walker] has a one-half beneficial interest in [the property], by virtue of Mrs Edwards-Walker's contribution to the improvements made to the said dwelling house pursuant to Section 14 of PROSA, and
(iii) That [Ms Edwards] has no beneficial interest in [the property] and
(iv) That [the property] be put up for sale to satisfy [Mrs Edwards-Walker's] interest therein.
(v) That the sum owing to Carib Construction Electrical Services be first taken from the proceeds of the sale of [the property] and Mrs Edwards-Walker be given one-half of the net residue and
(vi) That [Mr Walker] and/or [Ms Edwards] be given a right of first refusal to buy [Mrs Edwards-Walker's] interest in [the property]. The said right of first refusal is to be exercised by [Mr Walker] and [Ms Edwards] within six (6) calendar months and
…”
The fixed date claim form was supported by her affidavit dated 30 September 2015.
On 6 January 2016, the appellants filed an acknowledgement of service indicating that they had been served with the fixed date claim form and affidavit in support on 22 December 2015. They also signalled their intention to defend the claim. On 20 April 2016, the affidavit of Mr Walker in response to Mrs Edwards-Walker's affidavit was filed. On the same day, the appellants filed a notice of application for permission for Mr Walker's affidavit in response, that was filed out of time, to stand as if filed within time. The application was supported by a second affidavit of Mr Walker.
Mr Walker, in his affidavit in support of the application, set out his reasons for failing to file his affidavit in response to the fixed date claim form within the stipulated time. He explained that having been served with the claim form and supporting affidavit on 22 December 2015, he consulted an attorney-at-law, but due to his impecuniosity, he was unable to retain counsel at that time. He deposed that he intended to challenge the claim and retained counsel as soon as he was able to do so. In the circumstances, he asked that his affidavit in response filed out of time be allowed to stand as if filed within time.
On 11 May 2016, the notice of application came up for hearing before the learned judge who made the orders at para. [3] above.
On 20 September 2016, leave to appeal the decision learned of the learned judge was granted by this court.
In their notice of appeal, the appellants list 11 grounds of appeal, which are as follows:
“i) The Learned Judge erred in fact and in law in concluding that [Mr Walker] had no affidavit in support of his application.
ii) The learned judge erred in fact and in law when he ruled that [Mr Walker] sought to rely on, in support of his notice for extension of time, the affidavit for which leave for extension of time to file a defence was being sought.
iii) Further and or in the alternative the learned judge erroneously found that no evidence was before him in support of the application when, even if he were right, which we do not submitted [sic] he was, the learned judge had the power to swear and take evidence from the [appellants] who were present in court.
iv) The Learned Judge erred in fact and in law when he treated with the application made by the [appellants] for and [sic] extension of time and for the permission for affidavit file[d] out of time to stand before treating with the applications of the Fixed Date claim form [sic] and in particular the [appellant's] application for extension of time under the [P]roperty [R]ights of [S]pouses [A]ct.
v) The Learned Judge erred in fact and in law when he made rulings against the [appellants'] applications both written and oral for [an] extension of time to file a defence to a claim which at the time was not properly before the court as it was statute barred.
vi) The Learned Judge erred when he failed to appreciate that there are triable issues joined between both parties and the questions to be answered requires evidence from both parties for the court to make a determination.
vii) The Learned Judge erroneously exercised his discretion in denying the [sic] [appellants'] application for [an] extension of time by failing to appreciate the grounds and basis relied on by the [appellants] in support of their application for [an] extension of time.
viii) The Learned Judge erred in fact and in law when he failed to appreciate the totality of [t]he [appellants'] application and recognize that considerable [sic] more prejudice and injustice would be meted out to the [appellants] [in] not granting the extension of time than would be [suffered by Mrs Edwards-Walker].
ix) The Learned Judge in exercising his discretion whether to grant or refuse leave erred in law by failing to abide by the overriding objective in that he did not consider the effect of the refusal to grant leave to file the Defence would have on the [appellants] and not balancing it with the prejudice, if any, the grant of the Application would cause to [Mrs Edwards-Walker].
x) The Learned Judge erred in fact and in law when he ruled that the [appellants'] application for permission for [the] affidavit in response to [the] Fixed Date Claim Form filed out of time to stand and oral application for an extension of time showed no good reason why the application should be granted.
xi) The learned judge erred in fact and [in] law when he failed to apply the test set out in Fiesta Jamaica Limited v National Water Commission Appeal No.19/2009 Page 14 paragraph 15 to determine whether the [appellants] were to be given an extension of time.”
This court's attention was directed to rules 10.2(1) and 10.3(1) of the Civil Procedure Rules, 2002 (‘CPR’), which provide that where a party wishes to defend a claim, a defence is to be filed and served within 42 days of the date of the service of the claim. Where there has been a failure to comply with that rule, an application may be made for an extension of time within which to do so (see rule 10.3(9) of the CPR). The court, in granting such an application, can have regard to rule 26.1(2)(c) of the CPR, which directs that in the exercise of its general powers of management, it may extend the time for compliance with any rule, practice direction, order or direction of the court even if the application is made subsequent to the time for compliance.
It was submitted that the factors that are to be taken into account by the court in the exercise of this discretionary power are as summarized by Lightman J in Commissioners of Customs and Excise v Eastwood Care...
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