C.I.B.C. Trust and Merchant Bank v Blair (Ian)

JurisdictionJamaica
Judge BINGHAM. J.A: , FORTE, P. , HARRISON, J.A.
Judgment Date26 February 2003
Judgment citation (vLex)[2003] 2 JJC 2601
Date26 February 2003
CourtCourt of Appeal (Jamaica)
IN THE COURT OF APPEAL
BEFORE:
THE HON MR. JUSTICE FORTE, P THE HON MR. JUSTICE BINGHAM, J.A THE HON MR. JUSTICE HARRISON, J.A
BETWEEN:
C.I.B.C. TRUST & MERCHANT BANK JAMAICA LTD. (TRUSTEE AIR JAMAICA PENSION PLAN)
1 ST DEFENDANT/APPELLANT
AND
IAN BLAIR (TRUSTEE AIR JAMAICA PENSION PLAN)
2 RD DEFENDANT/APPELLANT
AND
JOY CHARLTON (TRUSTEE AIR JAMAICA PENSION PLAN)
3 RD DEFENDANT/APPELLANT
AND
PHILLIP FORREST
PLAINTIFF/RESPONDENT
AND
PAUL HANNA
1 ND INTERVENOR
AND
PATRICK W. FOSTER
2 ND INTERVENOR
AND
RICHARD AYOUB
3 RD INTERVENOR
AND
VINCENT CHEN
4 TH INTERVENOR
AND
MICHAEL MATTHEWS
5 TH INTERVENOR
Dennis Morrison, Q.C., with Julianne Mais instructed by Dunn, Cox, for the 1 st , 2 nd & 3 rd appellants
Patrick Brooks & Katherine Francis for the 1 st , 2 nd & 3 rd Intervenors
David Batts & Leonard Green for the 4 th Intervenor instructed by Livingston, Alexander and Levy
Hilary Phillips, Q.C., for the 5 th Intervenor instructed by Grant, Stewart Phillips & Co.
The respondent Phillip Forrest appears on his own behalf
Derek Jones and Helga Mclntyre watching proceedings on behalf of Victoria Mutual Building Society a Creditor.

TRUSTEES - Trust Deed - Whether respondent had locus standi to proceed via Originating Summons under Trustee Act, s. 43 - Whether applicant had beneficial interest in monies held on Trust in Pension Plan - Resulting trust

BINGHAM. J.A:
1

On June 25 and 26, 2002, this Court heard submissions from learned counsel for the appellants, Mr. Dennis Morrison, Q.C. The arguments advanced by him were adopted by counsel for the interveners as also supporting their position in the appeal.

2

The respondent Phillip Forrest who was present throughout the hearing chose not to take any active part in the proceedings.

3

At the conclusion of the hearing we allowed the appeal, set aside the judgment entered below and ordered costs to the appellants. Such costs were ordered to be paid personally by the respondent and not from the trust funds. At that time we promised to reduce our reasons into writing. This we now do regretting any delay in giving effect to our undertaking to do so.

4

This present appeal has its genesis in the decision of the Board of the Judicial Committee of the Privy Council as a result of the judgment of their Lordships in Air Jamaica Limited et al v Charlton et al [1999] 54 W.I.R. 359.

5

The appellants are the trustees under a trust deed and pension plan which established a trust fund to be held by the appellants for the purpose of securing retirement pensions and other benefits for contributing employees of Air Jamaica Ltd., their widows and designated beneficiaries.

6

In the judgment of the Board delivered on April 28 1999, their Lordships ordered inter alia:

  • " (ii) That so much of the surplus as is attributable to contributions made by the company should be repaid to or retained by the company.

  • (iii) That so much of the surplus as is attributable to contributions made by members is divisible pro rata among members and estates of deceased members in proportion to their respective contributions without regard to the value of the benefits they have received and irrespective of the dates on which their contributions were made."

7

In relation to the question of costs their Lordships ordered that:

" (i) The costs of all parties to the appeal should be met out of the surplus before it is dealt with in accordance with declarations (ii) and (iii) above."

8

The costs payable as a result of the above order by reason of the agreement for the payment of the fees dated August 9 1994, between Clinton Hart and Company and the members of the Air Jamaica Pension Plan fell to be paid over to the said law firm as soon as the surplus referred to was in the hands of the said trustees.

9

It was against this background that respondent Phillip Forrest by way of an originating summons heard ex parte in chambers before Reid, J. obtained an Order whereby it was adjudged that one-quarter of the legal costs payable to the law firm Clinton Hart and Company, be paid to him pursuant to and in accordance...

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