Capital and Credit Merchant Bank Ltd v Isaac Gordon

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 25 May 2011
• Judgment citation (vLex): [2011] 5 JJC 2501
• Court: Supreme Court (Jamaica)
• Date: 25 May 2011
• Docket Number: CLAIM NO 2010 CD 00011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMERCIAL DIVISION

CLAIM NO 2010 CD 00011

IN CHAMBERS

BETWEEN

CAPITAL AND CREDIT MERCHANT BANK LTD

CLAIMANT

AND

ISAAC GORDON

DEFENDANT

Mrs M. Georgia Gibson-Henlin and Mrs Carissa Messado instructed by Henlin, Gibson-Henlin for the Claimant.

Mr Brian Moodie instructed by Samuda and Johnson for the Defendant.

Civil Procedure – Payment by instalments, application for - Claim for a specified sum of money – Acknowledgment of service filed denying all liability – Defence admitting a debt but disputing quantum – Whether application for payment by instalments appropriate - CPR rr. 14.6, 14.7, 14.8, and 14.9

Civil Procedure – Summary judgment, application for – Claim for a specified sum of money – Defence filed admitting a debt but disputing quantum –Defence not stating basis for dispute – Affidavit filed explaining the basis of the dispute Whether defence reveals reasonable cause for defending the claim – Whether summary judgment appropriate - Whether judgment on admission appropriate - CPR rr. 2.4, 10.2, 10.5, 15.2 and 26.3

BROOKS, J

1 On or about 25 July 2008, Capital and Credit Merchant Bank Ltd (‘the bank’) loaned Mr Isaac Gordon the sum of $3,000,000.00 to assist him with the purchase of certain equipment for the motor vehicle repair trade. Mr Gordon defaulted on the loan and the bank filed the present claim in order to recover $4,059, 741.54, as being the sum due under the loan as at 5 February 2010. The bank also claimed interest on the outstanding principal of $2,730,151.10, from 5 February 2010 to the date of payment of the debt.

2 Mr Gordon filed an acknowledgement of service in which he denied liability. He, however, filed his defence out of time and the bank filed an application for summary judgment. That application is the first of two, presently for consideration by the court. In the second, Mr Gordon has applied to pay ‘the amount due which is to be determined’, by instalments.

3 The questions for determination are, firstly, whether Mr Gordon is entitled to have his application considered and secondly, whether his defence, as filed, has any real prospect of success. If it is found that the defence has no real prospect of success the court will then have to decide whether summary judgment should be granted or some other course of action taken.

4 The application to pay by instalments

5 Mr Gordon filed his acknowledgment of service later than the 14 days specified by rule 9.3 (1) of the Civil Procedure Rules 2002 (the CPR). In it, he stated that he wished to defend the claim. He did not admit the claim or any part thereof. Although he also filed his statement of defence late and without permission, that defect was cured, by an order of the court, during the course of the hearing of these applications.

6 Contrary to the indication given by the acknowledgement of service, the defence averred that Mr Gordon ‘does not deny liability but disputes the principal amount and the interest claimed on the basis that the said amounts are not owed’. The defence went on to state that Mr Gordon wished ‘to cross examine the Claimant on the issue of quantum and to make submissions to the Court at the Assessment’.

7 Counsel for the bank, Mrs Gibson-Henlin, submitted that Mr Gordon's application to pay by instalments cannot succeed, because it does not comply with the requirements of the CPR, concerning applications for payment by instalments. Mr Moodie, acting for Mr Gordon, did not seek to resist those submissions.

8 Mrs Gibson-Henlin is on good ground in respect of her submissions. The rules, under part 14 of the CPR, concern the entry of judgment where the defendant admits liability in respect of the claim. Where the claim is for the payment of money, rule 14.9 stipulates that a defendant, who is an individual, may make a request for time to pay the amount claimed. Rule 14.9 (1) states:

‘A defendant who -

• (a) makes an admission under rules 14.6, 14. 7 or 14.8; and

• (b) is an individual,

may make a request for time to pay.’ A request for time to pay includes a request to pay by instalments (see rule 14.9 (2)).

9 My reading of that rule is that it is only a defendant who makes an admission pursuant to rules 14.6, 14. 7 or 14.8, who may apply for time to pay. Rule 14.6 applies to a defendant who admits the whole claim in the acknowledgment of service . Rule 14.7 applies where the defendant, in his acknowledgment of service or in his defence , admits liability in respect of a specified sum of money or a specified proportion of a claim for an unspecified sum of money . Rule 14.8 applies where the amount of the claim is not specified but the defendant admits liability in the acknowledgement of service.

10 The instant claim is only for a specified sum of money. As a result, rule 14.8 is excluded from consideration. Mr Gordon has, however, not brought himself within the provisions of either rule 14. 6 or 14.7. This is because he has not admitted the whole of the claim in his acknowledgment of service ( per r. 14.6); nor has he admitted a specified sum or a specified proportion of the claim, in ether the acknowledgment of service or his defence ( per r. 14.7).

11 Having placed himself outside the purview of these two rules (rule 14.8 not being applicable), Mr Gordon is precluded from making any application for permission to pay by instalments. His application must, therefore, fail.

12 Whether summary judgment is...