Braywick Partners Ltd v Robert Mccook

• Jurisdiction: Jamaica
• Judge: Batts J.
• Judgment Date: 27 October 2023
• Court: Supreme Court (Jamaica)
• Year: 2023
• Docket Number: CLAIM NO. SU2022CD00450

BETWEEN

Braywick Partners Limited

Claimant

and

Robert McCook

Defendant

[2023] JMCC Comm 50

CLAIM NO. SU2022CD00450

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE COMMERCIAL DIVISION

Application for Summary Judgment — Arbitral award — Whether enforceable against guarantor — Whether guarantor can challenge arbitral award — Whether guarantor has a defense with a real prospect of success — Counterclaim — Whether guarantor entitled to judgment in default on the counterclaim — Observations on judicial function when declaratory or injunctive relief claimed.

Nico Pagan for Claimant instructed by Vaccianna & Whittingham.

Maurice Manning KC and Christopher Dunkley for Defendant instructed by Phillipson Partners

In Chambers (by Zoom)

Cor: Batts J.

1 By Notice of Application filed on the 10 ^th February, 2023 the Claimant seeks the following relief:

• 1) “That summary Judgment be entered against the Defendant pursuant to Supreme Court Civil Procedure Rules 2002 ( CPR) Rule 15.6 on the basis that the Defendant has no real prospect of successfully defending the claim.

• 2) Further or in the alternative, that this Honourable Court strike out the Defendant's statement of case pursuant to the CPR rule 26.3 (1)(b) and (c) as either an abuse of the process of the court or that the defence and counterclaim disclose no reasonable grounds for defending the claim or any reasonable ground for bringing a claim, respectively.

• 3) Consequent to orders made in terms of paragraphs 1 and or 2 above, a further order that judgment be entered in favour of the Claimant as against the Defendant as follows:

  • a. A judgment in the sum $38,405,041.10 or for such other sums as this Honourable Court may determine.

  • b. Interest at the daily rate of $9,863.01

• 4) That the requirement to file a defence to the Defendant's counterclaim be stayed pending the outcome of this application.

• 5) Costs to the Claimant

• 6) Such further or other relief as this Honourable Court deems fit.”

2 Affidavits were filed by both parties as well as written submissions supported by authorities. Each side also made oral submissions, for all of which I am grateful. I will however, in this short statement of reasons, reference only such as are necessary to explain my decision which was announced on the 27 ^th October 2023.

3 The genesis of this matter is the sale and purchase of certain shares. Laurajam Holdings Inc. (a company registered in St. Lucia and hereinafter referred to as Laurajam) entered into an agreement with Braywick Partners Limited (a company also registered in St. Lucia and the Claimant in this action). In that agreement Laurajam agreed to buy the Claimant's shares in Island Ice & Beverage Company Limited (a company incorporated in Jamaica and hereinafter referred to as Island Ice). The result would be that Laurajam would become the owner of 100% of the shares in Island Ice. It was a term of the said agreement that Laurajam would be allowed to make deferred payments. In consideration for the grant of the deferred payment arrangement Mr. Robert McCook (a director and/or shareholder of Laurajam and the Defendant in this action) gave a personal guarantee to the Claimant in respect of:

“ the whole principal, interest and other monies now due or owing or which may hereafter at any time or times become due or owing by Laurajam to Braywick”

4 A dispute arose between Laurajam and Braywick with respect to the said agreement for purchase and sale of shares. The matter was referred to arbitration and the arbitrator made a final award on the 6 ^th of April 2022 in in the amount of $42,299.835.62 with interest at a rate of 12% per annum being $9,863.01 per day from June 1, 2021 until payment of the award. Laurajam has made or is making, monthly payments, but the parties to the litigation both agree the balance now owing is $ 31,722,846.16.

5 The Claimant commenced this claim against the Defendant, Mr. Robert McCook, who gave the personal guarantee. Given the undisputed facts outlined above one would have thought the result of this application for summary judgment is obvious. However, Kings Counsel for the Defendant, in his usual careful and clear style, endeavoured to persuade me that there were triable issues. He took no issue with either the applicable law relating to summary judgment or that the test is whether the defence has a real prospect of success. Kings counsel agreed also that the court may at this stage have regard to documentation and determine whether although facts are disputed, a party has no real prospect of successfully challenging such facts.

6 King's Counsel urged me to find that there is no evidence that the principal debtor Laurajam is in default and that, as default is necessary to trigger the Defendant's liability under the guarantee, the defence has a real prospect of success. At any rate the Claimant, on whom the burden lies, has failed to establish that the defence has no real prospect of success. King's Counsel pointed to the fact that the arbitrator's award did not say when payment was to be made nor that payment was to be forthwith. Furthermore, he submitted, there is evidence that Laurajam had been making payments towards the award which were accepted by Laurajam. There was, he stated, no evidence to contradict the...