Blake (Dermott Lewis) and Joan Blake v Keith Hustin
| Jurisdiction | Jamaica |
| Judge | Sinclair-Haynes, J |
| Judgment Date | 03 April 2006 |
| Judgment citation (vLex) | [2006] 4 JJC 0301 |
| Date | 03 April 2006 |
| Court | Supreme Court (Jamaica) |
REAL PROPERTY - Mortgages
Mr. Dermott Lewis Blake and Miss Joan Blake (claimants) agreed to grant Mr. Keith Huslin (defendant) a mortgage in the sum of US$141,000.00 with interest on the said sum at 10 percent per annum. The loan was secured by property registered at Volume 1357 Folio 167 of the Register Book of Titles.
By letter dated June 16, 2003, Mr. Huslin instructed the claimants to disburse the sum of J$589,675.00 to an account held by L'Oreal Caribe. This account was operated by Mr. David Gray, his business partner.
On June 18, 2003, Mr. Huslin wrote a note to Clough Long & Company, the claimants' attorneys, which instructed them to disburse the sum of $600,000.00. Five Hundred and Ninety-Three Thousand Two Hundred and Thirty-One Dollars ($593,231.00 was to be paid to L'Oreal and $6,769.00 to Clough Long & Company.
On June 19, 2003, Mr. Huslin executed the mortgage deed. However, First Global Bank Ltd. had a first mortgage over the property. The claimants sought to protect their interest in the property by lodging a caveat. On the said day, the sum of $589,675.00 was wired to the account of L'Oreal Caribe.
The defendant has not made any payments under the mortgage agreement. Consequently, the claimants have instituted proceedings against the defendant.
They have sought, inter alia, the following relief:
Should the first mortgagee sell the property, it shall account to them for any surplus of the sale proceeds.
The claim was served on the defendant on June 5, 2005. The defendant failed to comply with Rule 10.3 (1) which provides:
"The general rule is that the period for filing a defence is the period of 42 days after the service of the claim form."
On August 22, 2005, he applied to the court to have the time for filing and delivering his defence enlarged to August 22, 2006.
Defendant's Application
On September 8, 2005, the defendant filed an affidavit in support of his application to which he attached a defence. In his affidavit, he averred that upon receipt of the claim he consulted his attorneys for advice. The second week of June he consulted another attorney (his present attorney). However, it was not until the last week of July 2005 that he was able to pay his attorney's retainer. He was instructed to return to his attorney by mid August 2005. He did not contact them until September 7, 2005 because he had forgotten to do so and he had lost his cell phone. He stated, however, that his attorney made several efforts to contact him. He also averred that he has a good defence to the claimants' claim because he instructed the claimants' attorneys not to proceed with the loan and he did not collect the money.
In his defence which was attached to his affidavit, he stated that 20 minutes after he executed the mortgage he and his partner, the holder of the L'Oreal Caribe account, Mr. Gray, returned to Mr Clough's office and informed him not to proceed with the mortgage loan. He stated that Mr. Clough tried to dissuade him but he insisted that he did not wish to proceed with the loan because the interest rate was too high for United States currency. Further, he stated that Mr. Gray returned to Mr. Clough's office, collected the mortgage documents and destroyed them. Subsequently, he discovered that the money was disbursed. According to him, the money was disbursed without his knowledge and in contravention of his instructions to Mr. Clough.
Submissions by Mr. Abe Dabdoub
Mr. Dabdoub resisted the defendant's application for an extension. He contended trenchantly that the defendant has advanced no good explanation to excuse his delay as forgetfulness and the loss of his cell phone are not good reasons. Further, he contended, it was the defendant's responsibility to contact his lawyer. He relied on Winston Jones v Contraxx Enterprise Ltd. Supreme Court Civil Appeal No. 40/2004 and Norma McNaughty v Clifton Wright et al Supreme Court Civil Appeal No. 20/2005 delivered on May 25, 2005.
He denied vehemently the allegations that the defendant returned to Mr. Clough's office 20 minutes after and expressed the wish to cancel the mortgage. He insisted that Mr. Clough did not try to dissuade the defendant from cancelling the loan. Also, Mr. Gray did not return to Mr. Clough's office and collect the signed documents with the intention of destroying them.
Mr. Dabdoub contended that the onus was on the defendant to show that he has a real prospect of successfully defending the claim and he has failed to do so. He relied on Paulette Smellie v Richard Dougherty (Suit No. CLS 134/01) (unreported).
He submitted, inter alia, that a contract cannot be repudiated by one party. He relied on White & Carter Councils Ltd v McGregor [1962] 2 WLR HL 17, Khatijaban Liva Hasham v Zenab [1960] 2 WLR, Woodar Investment Development Ltd and Wimprey Construction UK Ltd. [1980] 1WLR, Sinason-teicher Trading Inter-American Grain Corp. v Oil Cakes & Oil Seeds Trading Co. Ltd [1954] 1 WLR.
Further, he submitted that that a mortgage cannot be varied by oral evidence.
Submissions by Mr. Paul Beswick
Mr. Beswick relied on Rule 26.1 (2) (c) which states:
"Except where the rules provide otherwise, the court may-
(c) extend or shorten the time for compliance with any rule practice direction, order or direction of the court even if the application for an extension is made after the time for compliance has passed."
He submitted that the reasons advanced by the defendant for his delay are credible explanations.
He also submitted that in considering the question of merit in defence and the likelihood of success, the court need not be satisfied that there is a real likelihood of success but merely that the defendant has an arguable case which carries some degree of conviction. He relied on Day v RAC Motoring Services Ltd. [1991] 1 AER 100.
Further, he submitted that the court should refrain from attempting to try disputed issues of facts at an early stage that should be reserved for trial. He submitted that Mr. Huslin's assertion that he countermanded the instructions to the claimants' attomeys-at-law raises serious questions of fact and law as to the legitimacy of the mortgage contract and subsequent disbursement which, if believed by a tribunal of fact, judgment would be entered against the claimants and in favour of the defendant.
Importantly, he argues that judgment has not yet been entered against the defendants; therefore they have acquired no...
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