Cay Realty Ltd v Hadsphaltic Intl Ltd

• Jurisdiction: Jamaica
• Judge: (Luckhoo, Ag. P., Smith and Edun, JJ.A.)
• Judgment Date: 06 July 1973
• Court: Court of Appeal (Jamaica)
• Date: 06 July 1973

Court of Appeal of Jamaica

(Luckhoo, Ag. P., Smith and Edun, JJ.A.)

CAY REALTY LIMITED

and

HADSPHALTIC INTERNATIONAL LIMITED and SECURICOR LIMITED

D. Muirhead, Q.C. and W.K. Chin See for the appellant;

R.N.A. Henriques for the respondents.

Cases cited:

(1) Canning v. Farren, [1907] 2 I.R. 486.

(2) Hemming v. Williams(1871), L.R. 6 C.P. 480.

(3) Smith v. Williams, [1922] 1 K.B. 158, dicta of Sankey J. applied.

Legislation construed:

Judicature (Administration of Justice) Law (Laws of the Cayman Islands, 1963, cap. 74), s.210:

Subject to the provisions of this Law, an appeal shall lie to the Court of Appeal from the judgment, decree or order of the Grand Court in all civil proceedings . . . .

s.213(1): The relevant terms of this sub-section are set out at page 187, line 40 page 188, line 23.

s.213(4): The appellant shall within ten days after the day on which he receives such notice as aforesaid, draw up and serve on the respondent and file with the Clerk of the Court the grounds of appeal, and on his failure to do so, his right of appeal shall cease and determine.

Civil Procedure-appeals-costs-security for costs-bond set as security under Judicature (Administration of Justice) Law (cap. 74), s.213(1) to be of reasonable amount-to be related to probable costs of appeal not to value of property in dispute

Civil Procedure-appeals-costs-security for costs-failure to file grounds of appeal under Judicature (Administration of Justice) Law (cap. 74), s.213(4) not fatal to appeal if court has not set proper bond under s.213(1)

Civil Procedure-appeals-costs-security for costs-no statutory right of appeal against failure of Grand Court to set proper amount of bond under Judicature (Administration of Justice) Law (cap. 74), s.213(1)-Court of Appeal has inherent jurisdiction to devise procedure to facilitate appeal by remitting case for setting of proper bond

The appellant sought to set aside an order of the Grand Court requiring it to enter into a bond for the payment of the costs of an appeal to the Court of Appeal, or to reduce the amount of the bond.

The appellant gave oral notice of appeal against a decision of the Grand Court concerning property valued at US$900,000. Acting under s.213(1) of the Judicature (Administration of Justice) Law (cap. 74), the Grand Court ordered the appellant to enter into a bond of US$91,000 for the payment of any appeal costs awarded against it and the due performance of the judgment and orders of the Court of Appeal. The appellants application to the Court of Appeal seeking a bond of a lesser amount was dismissed on the ground that the appellant had not fulfilled the further procedural requirements of s.213 (which included the filing of grounds of appeal within a specified time) but the court also ruled that the Grand Court was in error in ordering a bond of such a size, since it should have had regard to the probable costs of the appeal rather than the value of the property at stake.

The appellant then re-applied to the Grand Court to set an appropriate bond and for an extension of the time within which to appeal against the original order selling the bond. The court refused to set a new bond (claiming that it had no jurisdiction to do so) but granted the application for an extension of time for appeal.

The appellant then filed the present appeal seeking (a) the quashing of the Grand Courts original order setting the amount of the bond; (b) the making of a new order fixing a reasonable amount for the bond; or (c) alternatively, a reduction in the amount already set.

The respondents submitted in limine that (a) the original appeal had ceased and determined because the appellant had failed to lodge its grounds of appeal as required by s.213(4) of the Judicature (Administration of Justice) Law and had not applied for an extension of time to do so; and (b) in any event, there was no right of appeal from an order made under s.213(1) and therefore the purported grant of leave to appeal against the original order was of no effect.

Held, remitting the matter to the Grand Court to set the amount of the bond:

(1) Section 213(1) of the Judicature (Administration of Justice) Law (cap. 74) required the Grand Court to set an amount for a bond which was reasonable in the circumstances of the case. The amount to be fixed was intended to reflect the probable costs of the appeal and should not be related to the value of the property in dispute. Accordingly, the Grand Court had erred in basing its calculation of the amount on the value of the property (page 189, lines 411; page 190, lines 1620).

(2) It was not fatal to the appellants case that he had failed to take the remaining steps required by s.213 (such as the filing of its grounds of appeal), since the section did not envisage that those steps had to be taken before an appropriate bond had been set under s.213(1) (page 191, lines 717).

(3)...