Carr (Lambert) and Colleen Carr v Dudley Burgess

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 19 April 2006
• Judgment citation (vLex): [2006] 4 JJC 1901
• Court: Supreme Court (Jamaica)
• Date: 19 April 2006

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

Miss Carol Vassel for the claimants

Mr. Laurence Jones instructed by DunnCox for the defendant

BETWEEN

LAMBERT CARR

FIRST CLAIMANT

AND

COLLEEN CARR

SECOND CLAIMANT

AND

DUDLEY BURGESS

DEFENDANT

IN CHAMBERS

CIVIL PROCEDURE - Defence - Extension of time

1 APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO FILE DEFENCE

SYKES J

2 The application

3 1. This is an application by the defendant for an extension of time within which to file his defence in circumstances where his opponent has not agreed to the extension and the application is made out of the time prescribed by the old rules as well as the new to file a defence. He alleges that he has a good defence to the claim. The claim against him is for (i) specific performance; (ii) damages for breach of contract in addition to specific performance and (iii) further or other relief as well costs. The defendant rests his application on rules 10.3(9) and 26.1(2) (c) of the Civil Procedure Rules (CPR). The claim against the defendant was filed nine years ago and having entered an appearance did not file a defence.

4 2. Rule 10.3(9) of the CPR permits the defendant to apply for an extension of time for filing defence. Rule 26.1(2) (c) permits the court to extend or shorten time for compliance with any rule even if the application for an extension is made after the time for compliance has passed. The issue then is not whether the court has the power to extend the time for the defendant to file his defence but whether the court's discretion should be exercised in favour of the defendant in this particular case. The chronology of events is important. Let us now examine the history to see what accounts for this extraordinary delay in filing a defence.

5 The chronology

6 3. This is the history:

• a. the writ of summons was issued on April 25, 1997 seeking the remedies outlined above. This was in respect of land registered at volume 1190 folio 90 of the register book of titles;

• b. the statement of claim was filed on May 7, 1997;

• c. the writ of summons and statement of claim were served personally on Mr. Dudley Burgess on May 24, 1997 by Mr. Lueslin Graham;

• d. Ballantyne, Beswick and Company, attorneys for the defendant at the time, entered an appearance on June 3, 1997;

• e. on July 20, 1998, Dukharan J (Ag) (as he then was) granted an amendment to the statement of claim to include the reliefs sought by the claimants since these were omitted from the statement of claim filed on May 7, 1997;

• f. the amended statement of claim was filed on July 23, 1998 and served on the defendant's attorneys Ballantyne, Beswick and Company on September 9, 1998;

• g. on May 12, 1999, Mr. Lawrence Haynes, attorney at law, filed a notice of appearance for and on behalf of Mr. Dudley Burgess;

• h. no defence was filed between September 9, 1998 and May 12, 1999;

• i. on April 26, 2000, the claimants filed a notice of motion seeking that land registered at volume 957 folio 333 be transferred to them; that they be declared the true owners of land registered at volume 957 folio 333 and that the Registrar of the Supreme Court be empowered to sign and execute all such documents that are necessary to effect the transfer;

• j. on July 27, 2000, Mr. Haynes filed a notice of change of attorney in respect of the defendant;

• k. on September 21, 2000, Mr. Haynes filed yet another notice of change of attorney;

• l. no defence was filed between May 12, 1999 and September 21, 2000;

• m. also on September 21, 2000, the defendant filed a summons for extension of time to file and serve defence out of time;

• n. the claimants, on February 14 and 16, 2001, filed two affidavits in opposition to the defendant's summons;

• o. the notice of motion was reissued on March 31, 2001 and on August 7, 2001;

• p. the fate of the notice of motion and summons for extension of time is as follows:

  • i. the first date for the hearing of the motion was July 27, 2000. On that date Mr. Haynes appeared and the matter was adjourned sine die. Both sides were represented;

  • ii. the summons was set for hearing on November 28, 2000 and on that date, the matter was adjourned sine die for the claimants to file affidavit in response. Both parties were represented on November 28, 2000. This they did by February 14 and 16, 2001;

  • iii. on May 31, 2001, the motion was adjourned sine die. Only the claimants were represented;

  • iv. on October 10, 2002, the summons for extension of time was adjourned sine die because the file could not be located in the Supreme Court registry. The defendant was not represented;

  • v. on October 24, 2002, the claimants were absent and not represented. The matter was adjourned sine die because no bundle was filed and the file was missing;

• q. nothing happened until September 7, 2005, when the claimants again reissued the notice of motion for hearing on October 6, 2005;

• r. between October 10, 2002, and September 17, 2005, nothing happened to the summons to extend time for filing the defence;

• s. on September 17, 2006, Mr. Astley Smith served on Mr. Dudley Burgess a notice of application for court orders filed by Mr. Haynes, attorney at law for Mr. Burgess, asking that his name be removed from the record. The application was set for hearing on September 27, 2005;

• t. it appears that the application to remove Mr. Haynes' name was granted;

• u. on October 6, 2005, the notice of motion was adjourned to November 24, 2005, to permit Mr. Garth McBean to file documents indicating his formal appearance for Mr. Burgess. It seems that between October 6, 2005 and October 13, 2005, Mr. Burgess changed attorneys yet again;

• v. on October 13, 2005, DunnCox files a notice of change of attorneys for and on behalf of Mr. Burgess;

• w. there is no challenge to the assertions of Mr. Haynes in any of the affidavits filed by Mr. Burgess in support of his application. Mr. Haynes' affidavit contains the following assertions. I use his paragraph numbers:

  • 2. That some time in the month of May 1999 the Defendant (sic) herein came to my office with a Writ of Summons (sic) and Statement of Claim (sic) and gave me instructions to Enter an Appearance on his behalf.

  • 3. That I duly entered An Appearance (sic) on May 12, 1999, and I have been appearing for the Defendant (sic) on numerous occasions when the Notice of Motion was set for hearing.

  • 4. That over the last few years I have not been in receipt of any instructions from the Defendant (sic).

  • 5. That in the circumstances the Attorney/Client relationship has broken down and I respectfully pray that the Orders sought in the Notice herein be granted.

7 The affidavits of Mr. Dudley Burgess

8 4. Mr. Burgess filed two affidavits in support of support of the summons for extension of time. The first affidavit is dated September 21, 2000. He denied any knowledge of any agreement between himself and the claimants. He denied receiving any money from them. He asserted that in July 1983 he did not own any of the parcels of land in question. The affidavit admits that Mr. Bonner was his attorney at some point but that Mr. Bonner referred him to Mr. Ballantyne of the firm Ballantyne, Beswick and Company after the service of the writ of summons and statement of claim. According to Mr. Burgess when he did not hear anything from either Mr. Bonner or Mr. Ballantyne, he instructed Mr. Haynes.

9 5. It seems that Mr. Burgess was served with the pre-amended statement of claim because he has stated that Mr. Haynes told him that he need not file a defence because the statement of claim did not have any remedial request. He swore that the next time he heard from Mr. Haynes was in July 2000 when Mr. Haynes told him that a notice of motion for summary judgment had been served on him (Mr. Haynes).

10 6. The next affidavit filed by Mr. Burgess is dated January 23, 2006. This was in response to Miss Vassal's affidavits dated February 14 and 16, 2001, respectively. His affidavit made not attempt to explain his many years of inactivity or to address the charge by Mr. Haynes that instructions were not forthcoming. In this affidavit, he states that he bought the land registered at volume 957 folio 333, in 1985, from Mr. Rudolph Miles. He swore that he subsequently received a certificate of title registered at volume 1199 folio 90 on or about March 1986 being a part of the land registered at volume 957 folio 333.

11 7. He said that he subdivided the land registered at volume 1199 folio 90 into five lots. He claims that he did not instruct Mr. Bonner to sell any of these lots but he did ask Mr. Bonner to secure titles for four lots for land registered at volume 1199 folio 90. Finally he says that he never signed the receipt and would wish that it be subject to handwriting analysis.

12 The affidavits of Miss Carol Vassal

13 8. Miss Vassal filed two affidavits in this matter. The first is dated February 14, 2001. The second is dated February 16, 2001. The first one details the long pre-writ history in this matter. It is alleged, in the affidavit, that the claimants paid $14,000 to the defendant to purchase a plot of land known as lot 4 part of land registered at volume 957 folio 333 of the register book of titles. The affidavit has exhibited numerous letters going between Miss Vassal and Mr. Richard Bonner, attorney at law, for Mr. Burgess. These letters concerned the strenuous efforts by the claimants to complete the purchase of land. There is even a letter dated May 8, 1990, signed by Miss Vassal on behalf of the firm of Daley, Walker and Lee Hing, addressed to Mr. Dudley Burgess. That letter alleges quite specifically that the claimants bought land measuring 1 acre, 4/10 perches for $14,000...