Bird v Bennett and Others

• Jurisdiction: Jamaica
• Judgment Date: 25 July 2011
• Date: 25 July 2011
• Docket Number: Civil Jurisdiction 2008 No. 308
• Court: Supreme Court (Jamaica)

In The Supreme Court of Bermuda

Civil Jurisdiction 2008 No. 308

BETWEEN:

Kim Bird

Petitioner

and

Francyna Bennett and others

Respondents

Mr C Rothwell for the Petitioner

Mrs Sadler-Best for the Respondents

The following case was referred to in the judgment:

Re Vickers: Jones v LambertBDLR [1999] Bda LR 57

Abstract:

Order for costs - Conduct of the proceedings by 5th Respondent

RULING ON COSTS of Kawaley, J

Introductory

1. In this matter the Petitioner, by Summons dated 16th June 2011, seeks an Order of Costs against the 5th Respondent on the grounds that costs should follow the event and alternatively on the grounds that the 5th Respondent has conducted the proceedings unreasonably (or has acted unreasonably in the conduct of the present partition action).

Findings: principles applicable to costs in partition actions

2. I have regard to my experience of partition actions generally and also to the case of Re Vickers; Jones v Lambert, Civ 1999/24, a decision dated 22nd October, 1999 of Acting Puisne Judge Michael Mello to which Mrs. Sadler-Best referred. I find that the usual rule that costs follow the event does not apply inflexibly to this type of action.

Findings: the apportionment of costs

3. On the other hand the Court cannot ignore the distinctive features of the present case, which I will summarize briefly as follows.

4. Firstly, it seems clear that the Petition had to be filed not because all of the co-owners were in dispute, but because the 5th Respondent having at some point agreed to the sale of the property with her co-tenants and subsequently changed her mind. I therefore find that the Petitioner should be entitled to the costs of the Petition and the related costs up to and including the 28th August 2009 when the initial Sale Order was obtained. I also find on the basis of the fact that this specific application was opposed, that the Petitioner should be awarded the costs of obtaining the 15 October 2009 Order.

5. As regards the remaining costs of the Petition, the position in my judgment is far from clear. I accept entirely that it appears to the Petitioner that some if not all of the offers that were received in a falling market were lost because the 5th Respondent was not responsive in a timely manner. However I am not satisfied on the evidence presently before the Court that any of the lost offers can fairly be laid at her door. In fact when one really looks at the evidence and takes note of the way in which the...