Caribbean Outlets Ltd et Al v Mas Investment Ltd et Al

JurisdictionJamaica
CourtSupreme Court (Jamaica)
Judge ANDERSON. J.
Judgment Date05 November 2004
Judgment citation (vLex)[2004] 11 JJC 0501
Date05 November 2004
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
BETWEEN
CARIBBEAN OUTLETS LIMITED
1 ST PLAINTIFF
AND
BEVERLEY BARAKAT
2 ND PLAINTIFF
AND

JENNIFER MESSADO

3 RD PLAINTIFF
AND
DAVID RICKMAN
4 TH PLAINTIFF
AND
GARTH BARARAT
5 TH PLAINTIFF
AND
MAS INVESTMENTS LIMITED
DEFENDANT

CONSOLIDATED WITH SUIT NO. C.L. 2002/M 181

BETWEEN
MAS INVESTMENTS LIMITED
PLAINTIFF
AND
JENNIFER MESSADO
1 ST DEFENDANT
AND
BEVERLEY BARARAT
2 ND DEFENDANT
AND
DAVID RICKMAN
3 RD DEFENDANT
AND
GARTH BARARAT
4 TH DEFENDANT

CIVIL PROCEDURE - Summary judgment - Application - Order to vacate judgment - Order for de novo hearing on summary judgment - Stay of execution

ANDERSON. J
1

On the 19 th day of May, 2004, I had purported to deliver a ruling on an application for summary judgment in relation to this matter. In that ruling, I granted the application after a review of the affidavit evidence filed herein and having had the benefit of fulsome submissions by counsel on both sides. Shortly after delivery of my ruling, counsel for the Respondents against whom the ruling had been made pointed out that I had in my written judgment adverted to an affidavit of which she had only received an unsigned copy as at the first day of the hearing on February 23, 2004. That was the further affidavit of Joe Mahfood sworn February 20 2004 and filed on the 23 rd February 2004. From the recollection of both counsel, it seems that there had been an agreement to exclude this affidavit from consideration, although my own notes of that day's hearing, does not record this. After two days of hearing, the matter was adjourned part-heard on February 24, and came back before me over three weeks later, on March 18, by which time the Respondent had provided a further affidavit in relation to the incorporation of the company, Caribbean Outlets Limited. The issue of the unsigned affidavit was not raised at the subsequent continuation, and the court is not aware whether a properly executed copy was served on the Respondents attorney-at-law. In any event, Respondent's attorney asked that I vacate the judgment and order that the summary judgment hearing be started de novo before another court. Counsel for the successful applicant resisted this.

2

I requested and received written submissions with authorities, on what would be the appropriate way to deal with this matter and having had the benefit of submissions from both, I now affirm that the ruling should stand for the reasons set out below. I should point out a review of the information confirms that there is nothing in that affidavit which affected the decision at which I arrived. Nor does it affect the issue of whether there was a defence to the application for summary judgment which was made.

3

Ms. Davis for the respondent, conceded that a Judge can always amend in order. The order has not been perfected. The order may be "withdrawn, altered or modified" and she cites NOGA v ABACHA [2001] 3 All. E.R. 513 at 517.

4

She submits, however, that this power should only be exercised in circumstances such as "a plain mistake by the court, a failure of the parties to draw to the court's attention a fact or point of law that was plainly relevant or discovery of new facts subsequent to the judgment being given.

5

Another good reason was if the applicant would argue that he was taken by surprise by a particular application from which the court rules adversely to him and that he did not have a fair opportunity to consider."

6

While I agree with the first part of the submission, I hold that the second part beginning with "another" is clearly not applicable on the facts here.

7

Mrs. Gibson Henlin for the applicant agrees that it is trite law that a Judge does not have jurisdiction to vary or discharge his order once it has been drawn up and perfected.

8

In a case from 2001 in the Western Australia Supreme Court JEWEL WAIK PTY LTD AND ANOR v KONDININ GROUP, 2001 WL 1161282 (WASC) 2001 WASC 264 Roberts-Smith J had to consider the meaning of Order 21 r 10 of the rules of the Supreme Court of Western Australia. The rule is in the following terms:

"Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission may at anytime be corrected by the court on motion or summons without are appeal."

9

There is a similar provision in our own CPR at rule 42.10 which provides:

  • 1. The Court may at anytime (without an appeal) correct a clerical mistake in a judgment or order, or an error arising...

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