Broadway Import Export Ltd and Morgan

 
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Supreme Court

Simmons, M. (Ag.)

C.L. L 68 of 1998

Sagicor Life Jamaica Limited (Previously known as Life of Jamaica Ltd.)
and
Broadway Import Export Limited and Morgan
Appearances:

Mr. Emile G.R. Leiba instructed by Myers, Fletcher & Gordon for the claimant.

Mr. Zavia T. Mayne for the first defendant.

Debt - Outstanding sum for rent and maintenance of premises due and owing to the claimant by the first defendant — The second defendant was sued in the capacity of guarantor — Application for summary judgment against the defendants — Partial judgment given — Whether rule 73 applies to proceedings as a whole or whether it may be applied to a part of those proceedings — Whether the judgment entered in 2007 was an amendment of that filed in 2002 — Whether the proceedings were automatically struck out under part 73 — Finding that the default judgment previously entered against the 1 st defendant is set aside — Provisional charging order against premises is set aside — Costs to the 1 st defendant — Leave to appeal granted.

1

Simmons, M. (AG.): On the 9th June, 1998 the claimant filed a Writ of Summons claiming the sum of seven million four hundred and seventy four thousand three hundred and sixty one dollars and ninety five cents ($7,474,361.95) for outstanding rent and maintenance for premises at 218 Marcus Garvey Drive occupied by the first defendant. The second defendant was sued in his capacity as a Guarantor.

2

The claimant applied for summary judgment or in the alternative a partial judgment in the sum of $3,242,829.89 against both defendants. On the 21st September, 2000, W.A. James, J. made an order that:–

“There be partial judgment for the plaintiff in the sum of $3,243,829.89 with interest at the rate contemplated by paragraph 5 of the Statement of Claim with effect from the 26th November 1996 to the date of judgment against the 2nd defendant with costs to the plaintiff to be agreed or taxed.”

3

It is important to note that up to that time the 1st defendant had not entered an appearance although service of the Writ of Summons and Statement of Claim was effected by registered post on the 18th June 1998. This is evidenced by the Affidavit of Fay Smith sworn to on the 5th October 1998. It should also be noted that from as far back as the 5th October, 1998, the claimant had applied for a judgment in default of appearance against the 1st defendant. This was supported by all the documentary evidence required at that time and the rule was that a judgment is deemed to be entered on the date of filing if all documents are in order – Workers Savings and Loan Bank Limited v. McKenzie and others (1996) 33 J.L.R., 410. For some reason, the judgment was not perfected or even considered by the Registrar and the claimant filed another default judgment on the 6th February, 2001 for the entire amount claimed. This was followed by a requisition sent by the Deputy Registrar to the claimant's attorneys on the 12th March 2001. Notations on the file suggest that there was some dispute as to whether the order made by W.A. James, J. applied to both defendants or only to the 2nd defendant who had filed a defence in which he admitted owing $3,243,829.89. The order as corrected by the learned judge refers to the 2nd defendant only but the judgment which was signed by the Deputy Registrar refers to both defendants.

4

This appears to be source of the confusion as to whether the default judgment being sought against the first defendant was being entered for the correct amount. According to a note on the file the order was corrected on the 30th July, 2001. The judgment however does not reflect this amendment. On the 26th March, 2002 the claimant filed another default judgment in respect of the 1st defendant but only in relation to the balance between the amount claimed and the partial judgment. This judgment was not perfected and the file remained dormant until the 13th March 2007 when another request for a default judgment was filed. The explanation given for this period of inactivity is that the Court's file was misplaced. There is no dispute between counsel as to whether this was the case. A requisition was issued by the Deputy Registrar and this was followed by the filing of another request for judgment on the 21st March 2007. This judgment was finally perfected on the 30th March, 2007. This was followed by the grant of a provisional charging order in respect of property registered at Volume 1048 Folio 73 of the Register Book of Titles in which the 1st defendant has a beneficial interest.

5

On the 20th May, 2009 the 1st defendant through its attorney-at-law Mr. Z. Mayne, filed an application to set aside the default judgment entered on the 21st March, 2007 on the ground that at the time when the default judgment was entered the claim against the 1st defendant had been automatically stuck out under rule 73.3(8) of the Civil Procedure Rules, 2002 (CPR). He argued that Rule 73.3(4) imposed an obligation on the claimant to apply for a Court Management Conference. The rule states -

“Where in any old proceedings a trial date has not been fixed to take place within the first term place within the first term after the commencement date, it is the duty of the claimant to apply for a Court Management Conference to be fixed.”

6

Mr. Mayne further submitted that these are ‘old proceedings’ as defined in the CPR and are subject to the transitional provisions contained in Part 73 of the CPR. ‘Old proceedings’ are defined as “any proceedings commenced before the commencement date.” The commencement date as stipulated in the CPR is the 1st January, 2003.

7

Mr. Mayne also made the point that although in this case, there were several applications for default judgment, some of which predate the 31st December, 2002, the documents were deemed not to be in the proper order by the Registrar. This it was submitted was crucial, as the transitional provisions do not apply to cases in which a judgment had been entered. The case of Conrad Graham K NCB SCCA No. 37 of 2009 (delivered September 25th, 2009) was cited to illustrate the point that under section 451 of the Judicature (Civil Procedure Code Law) (CPC), a default judgment takes effect from the date of filing if all of the documentation is in order.

8

He further submitted that because the default judgment was not entered until the 21st March 2007, part 73.3(4) of the CPR would apply. There is no dispute that the claimant did not apply for a Case Management Conference to be scheduled.

9

Mr. Mayne argued that the effect of the claimants' failure to apply for a Case Management Conference was fatal. In this regard it stated that Rule 73.3(8) would apply and the claim would have been automatically struck out as at December 31, 2003. The rule states-

“Where no application for a Case Management Conference to be fixed is made by 31st December 2003 the proceedings are struck out without the need for an application by any party.”

10

In support of this position, Mr. Mayne referred to Burgess v. Wynter C.L. 1997/BO55 (delivered January 26, 2006) in which Rule 73.3(8) was described by Sykes, J. as a “guillotine.” In that case Sykes, J. went on to state that it did not matter where the proceedings had reached in the non-Hilary Term group. His Lordship went on to state that “even if one has applied for judgment in default of defence, as in the instant case, and the documentation is in order you must apply for a Case Management Conference, even though one would be hard-pressed to see what possible value could flow out of such an application at that stage of the proceedings.”

11

The case of Brown v. Holiday Inn Jamaica Inc. Claim No. C.L. 2000/B110 (delivered July 7th, 2008) was also cited as supporting the position taken by the Court in the Burgess case.

12

Counsel submitted that the facts in the Burgess case are similar to those in this matter. In that case there were several applications for default judgment and the Registrar rejected all except that filed on the 21st March 2007. The Court...

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