Carlton W.S. Murray v Proprietors' Strata Corporation Plan No. 272

• Jurisdiction: Jamaica
• Judge: Sonia Bertram Linton, J
• Judgment Date: 28 January 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2018 HCV 00603

[2022] JMSC Civ. 09

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2018 HCV 00603

Between

Carlton W.S. Murray

Claimant

and

Proprietors' Strata Corporation Plan No. 272

Defendant

Ms Tamiko Smith instructed by Ramsay Smith for and on behalf of the Claimant.

Mr Mikhail Williams instructed by Taylor, Deacon and James for and on behalf of the Defendant.

Bill of costs — Disputed Attorney's fees — Whether Attorney's bill of costs was excessive and inequitable — Whether the Court has jurisdiction to refer the Bill of Costs to the Registrar of the Supreme Court for Taxation — Whether Defendant can charge Claimant maintenance for property in their possession by Order of the Court.

IN OPEN COURT

Sonia Bertram Linton, J

THE APPLICATION

1 Mr. Murray by way of Amended Fixed Date Claim Form filed on June 13, 2019 is seeking remedy against Proprietors' Strata Corporation Plan No. 272. The Claimant is seeking the following Orders:

• 1. “An Order that this claim be consolidated with Consolidated Claims No. 2006 HCV 00554 and 2008 HCV 00128 for the purposes of determining the issues herein.

• 2. An Order for an Account to be made in relation to the sale of Strata lot 105 comprised in Certificate of Title registered at Volume 1179 Folio 185 of the Register Book of Titles pursuant to Judgment entered on the 29 ^th of January, 2009 by the Defendants.

• 3. An Order that the Defendants account for the excess sum of $2,439,535.20 paid to the 1 ^st Defendant above and beyond the Judgment award made on the 29 ^th of January, 2009.

• 4. An Order that interest at a rate of 6% per annum be applied on the balance proceeds of sale for which the Claimant is entitled calculated from date the sale was completed.

• 5. An Order that the 2 ^nd Defendant hand over the balance proceeds of sale for which the Claimant is entitled to.

• 6. Costs

• 7. Interest

• 8. Such further or other relief as the Honourable Court deems just.

• 9. Liberty to apply”

2 The Grounds on which the Applicant seeks the orders are as follows:

• 1. That on the 29 ^th of January, 2009 the 1 ^st Defendant obtained Judgment in their favour against Virginia Murray in the Consolidated Claims No. 2006 HCV 00554 and 2008 HCV 00128 in the sum of $2,999,420.20 being outstanding maintenance claimed for together with costs.

• 2. The 2 ^nd Defendant as Counsel for the 1 ^st Defendant successfully enforced the Judgment by way of an Order for Sale made on the 14 ^th of April, 2010.

• 3. The Vendor's Statement of Account prepared by the 2 ^nd Defendant sets out a sum of $5,438,995.40 as “Amount paid on outstanding Maintenance to PSP 272 Penthouse No.2 Oxford Manor Apts. In accordance to Court Order for possession dated March 2011.” That this sum exceeds the Judgment sum awarded by $2,439,535.20.

• 4. That to date the 2 ^nd Defendant has failed to provide a statement of account for this overpayment.

• 5. Further, to date the 2 ^nd Defendant has failed to pay over the balance proceeds of sale that the Claimant is entitled to.

• 6. The Orders are being sought in accordance with Part 41 of the Civil Procedure Rules, 2002 as amended (hereinafter referred to as CPR).

• 7. The Consolidated Claims are set for Taxation on the 11 ^th of July, 2019 and the 2 ^nd Defendant's Bill of Costs will likely extinguish the balance proceeds of sale for which the Claimant is entitled…

3 By consent, paragraph one of the Amended Fixed Date Claim Form was abandoned on November 11, 2019.

THE EVIDENCE

4 The evidence on behalf of the Claimant was contained in the Supplemental Affidavit of Carlton W.S Murray in Support of the Amended Fixed Date Claim Form filed on June 13, 2019.

5 Mr. Carlton Murray is the son of Virginia Murray, a former registered proprietor for strata lot 105 comprised in Certificate of Title registered at Volume 1179 Folio 185 of the Register Book of Titles. He says this property forms part of the Proprietor Strata Corporation Plan No. 272. Mr. Murray stated that he has locus standi to bring the claim on behalf of Mrs. Virginia Murray by Power of Attorney registered under Liber Series 779 and Folio 27. Therefore, he could speak to the issues based on his personal knowledge to the best of his information and belief.

6 The Claimant said Mrs. Murray fell behind in her maintenance payments and on the 10 ^th of February 2006 the First Defendant brought a claim against her for outstanding maintenance in the sum of $1,004,402.80. Subsequently, another claim was filed against Mrs. Murray in 2008 for outstanding maintenance in the sum of $2,999,420.20. On January 29, 2009 judgment was entered against Mrs Murray in the sum of $2,999,420.20 being the outstanding maintenance together with costs.

7 On November 18, 2009 the First Defendant filed a Notice of Application for Court Orders to sell the property and on the 14 ^th of April 2010 the order for sale of the property was granted. The First Defendant then made a request for issue of a writ of possession against Mrs. Murray which was executed on or about the 23rd March 2011. Subsequently, the strata lot 105 was sold in or about August 2016 for the sum of $16,000,000.00 and the Statement of Account revealed that the Attorney's fee was 4%. The Statement of Accounts further revealed that the sum of $5,438,955.40 was paid over to the First Defendant for the outstanding maintenance said to be based on the Court Order dated March 2011. However, Mr. Murray claims this is an overpayment of $2,439,535.20 which is almost twice the judgment sum for which he said there was no explanation in the Statement of Account.

8 On November 11, 2019 the Court ordered the First Defendant to file and serve Affidavit in Response to the Amended Fixed Date Claim Form and Supplemental Affidavit of Carlton Murray by January 31, 2020. The Court also ordered that no Affidavits were to be filed after March 13, 2020 except with leave of the Court.

9 However, the Court records indicate, that the First Defendant did not file the Affidavit in Response. In fact, the only Affidavit that was done by the Defendant was filed on June 23, 2020. Furthermore, this Affidavit of Mr. Williams, Attorney-at-Law for the Defendant was in support of the Amended Notice of Application for Court Orders seeking to obtain additional orders. His affidavit supported the application to obtain the sum of $500,000.00 held by the Defendant to be used as security for costs in the event the court makes an order for costs in favour of the Defendant. The Defendant did not comply with the Oder of the Court.

THE SUBMISSIONS

Counsel for the Claimant

10 Counsel made oral arguments which were buttressed by written submissions all of which the Court has considered. The Court ordered the parties to file their Skeleton Arguments and List of Authorities by May 29, 2020. The record indicates that Claimant did so on June 23, 2020.

11 Ms. Smith began her oral submissions by referring to paragraph 2 of the Order made by Mr. Justice Gayle on April 14, 2010 and account for the charge of $5,438,955.40. She also asked the Court to take note that there was no explanation for the two (2) valuation fees which was attributed to Mrs. Virginia Murray. Counsel also referred to paragraphs 15, 21 and 22 of the Supplemental Affidavit of Carlton W.S Murray in Support of the Amended Fixed Date Claim Form filed on June 13, 2019. She highlighted these sections to emphasize that the Claimant along with his mother had been plagued with substantial health issues. The paragraphs are reproduced below:

• “15. That neither my mother nor I, am aware of any Order made March 2011 in the Consolidated Claims awarding Judgment sum of $5,438,955.40 to the 1 ^st Defendant. That by my calculation of this sum is an overpayment of $2,439,535.20.

• …

• 21. That my mother Virginia Murray has had a host of health challenges including colon cancer. Attached hereto and marked “CW 13a” and “CW 13b” for identity are documents from Einstein Cancer Centre Montgomery dated July 2, 2015.

• 22. that while I am doing all I can to assist my mother, I too have been plagued by health challenges including a spinal nerve injury and a heart attack. Attached hereto and marked “CW 14a”, “CW 14b”, “CW 14c, “CW14d”, “CW 14e” and “CW 14f”.”

12 Ms. Smith then referred to the Defendant's Bill of Costs and submitted to the court that it did not contain any billable items. Furthermore, she stated that even if the Defendant were to argue that they were entitled to maintenance charges up to the date of possession, they failed to indicate when they in fact obtained that possession. They also failed to state what, if anything, prevented them from obtaining such possession from the date the recovery of possession was granted to March 2011. There was also no explanation for the interest rate and sums charged even though the Defendant billed for maintenance with interest of 20% per annum for outstanding maintenance owed over thirty days.

13 Counsel submitted that the issues for the Court to determine are;

• a. Whether the Defendant has an obligation to act in good faith when exercising an Order for Sale and whether it had done so in all the circumstances?

• b. Whether the Defendant has an obligation to account for duplicated and/or excessive charges and fees?

• c. Whether the Defendant was entitled to continue imposing maintenance...