China Sinopharm International Corporation v Rivi Gardner & Associates Ltd
| Jurisdiction | Jamaica |
| Judge | Palmer Hamilton J |
| Judgment Date | 08 April 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU 2020 CD 00174 |
[2022] JMCC Comm 12
CLAIM NO. SU 2020 CD 00174
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Civil Procedure-Application for a final charging order — whether mortgage pursuant to loan agreement ranks ahead of provisional charging order — nature of mortgage — nature of provisional charging order — whether interested person, part 48 — Civil Procedure Rules (CPR).
Ms Georgia Hamilton instructed by Georgia Hamilton & Co for the claimant/ applicant
The defendant did not appear and was unrepresented
Ms Amanda Montague and Ms Kimberley Brown instructed by Myers Fletcher & Gordon for interested person, GK Investments Limited
Ms Rita Allen-Brown instructed by RC Allen-Brown Attorneys-at-law for objectors Alberson Riley and Camille Wellington
The claimant/applicant, China Sinopharm International Corporation (‘China Sinopharm’), is a limited liability company registered under the laws of the Republic of China; it is involved in, among other things, the provision of services as building contractors. The defendant/respondent, Rivi Gardner & Associates Limited (‘RGA’), is a limited liability company incorporated under the laws of Jamaica. It was the developer of property located in the parish of St. Catherine, commonly referred to as ‘The Orchards’.
RGA had contracted China Sinopharm's services as building contractors in respect of the Orchards. A dispute arose between them regarding the termination of China Sinopharm's services as building contractors. By an agreement made on or about December 2019, the parties entered into a written agreement for the settlement of their dispute. It was an express term of the agreement that RGA would pay China Sinopharm the sum of forty million dollars ($40,000,000.00) in two equal tranches; one due December 31, 2019 and the other, January 31, 2020. If RGA failed to pay, China Sinopharm would be entitled to interest on the said amounts at a rate of 10% per annum from the payment due dates until payment in full. It was also an express term of the agreement that the sums together with interest would be recoverable summarily in the event of RGA's default.
RGA did not pay the sums agreed by the parties. This resulted in China Sinopharm instituting proceedings against it for the sums owed.
The claim form and particulars of claim (one document), dated April 6, 2020, was filed on May 1, 2020. No acknowledgment of service was filed on behalf of RGA. China Sinopharm therefore requested that judgment in default of failure to file an acknowledgment of service be entered. The request was filed on May 21, 2020. An affidavit of service sworn by Oswald Hamilton on May 21, 2020 was also filed. The registrar entered judgment in default as requested. 1
On August 7, 2020, a notice of application was filed on behalf of China Sinopharm; it sought an order for oral examination and it also sought an order for the production of documents. It was asked, among other things, that:
“Rivington Gardner, Architect… and Khalifa Scott, Administrator… directors of the Defendant Company, are to attend at the Supreme Court of Judicature of Jamaica at King Street… on the day of …at …a.m/p.m and such other day/s and time/s as may be ordered by this Honourable Court to be examined under oath as to what property or means the Defendant Company has, and as to any debts which are owing to the Defendant Company.”
The order was granted on September 16, 2020 by a learned Master. 2 Prior to this, a without notice of application for court orders was filed on September 14, 2020. It was asked that Delroy Brown, Building Contractor, Christopher Burgess, Engineer and Dennis Hickey, Marketer and Financier be allowed to intervene in the proceedings.
The grounds upon which the order was sought are, in part, as follows:
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(i) Rule 19.3 of the Civil Procedure Rules makes allowance for a party to intervene in proceedings and this is a proper case where the applicants, who are themselves also judgment creditors of the defendant, ought to be allowed to intervene;
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(ii) The applicants all wish to associate themselves with the claimant's application for oral examination of the officers of the defendant to ascertain its means and assets.
In support of their application, Mr Brown, Mr Burgess and Mr Hickey deposed to affidavits which were filed on September 14, 2020. They were permitted to intervene. 3 The oral examination was slated to be conducted on January 21, 2021. It was then adjourned to January 27, 2021.
On January 27, 2021, the affidavit of Mr Ray Williams was filed. Mr Williams deposed that he served Ms Khalifa Scott various documents including the without notice application for court orders for oral examination. Another affidavit was filed on January 27; it was intituled ‘Affidavit of Service on Counsel’, Ms Hamilton, attorney-at-law for China Sinopharm was the affiant. She stated, among other things, that she spoke with counsel, Mr Abraham Dabdoub, and she was advised that Mr Gardner and Ms Scott had informed Mr Dabdoub that they had been served with subpoenas.
On January 28, 2021, an urgent without notice application for provisional charging order was filed on behalf of China Sinopharm. Ms Hamilton filed an affidavit of urgency which was stated to be in support of the without notice application for the provisional charging order. In her affidavit, Ms Hamilton stated, in part, that:
“5…the Defendant, Rivi Gardner & Associates Limited, is the judgment debtor. That to the best of my knowledge, information and belief, the judgment debtor's registered address is 7 Belmont Road, Kingston 5 in the parish of St. Andrew and its principal place of business [is located at] 18 South Avenue, Kingston 10 in the parish of St. Andrew.
6…on 21 May 2020, default judgment was entered herein against the judgment debtor in the sum of Forty-One Million Two Hundred & Forty-Five Thousand Eight Hundred & Ninety Dollars & Twenty Cents ($41,245,890.20) inclusive of interests and costs. That the default judgment was served on the judgment debtor on July 28, 2020, but it has failed and/or refused to settle the judgment sum. That the Claimant now wishes to enforce this judgment…
8…I hereby certify that the amount of…($41, 245,890.20), which has been attracting interest at a daily rate of Six Thousand Seven Hundred & Eight (sic) Dollars & Fifteen cents ($6,780.15) since 22 May 2020, remains owing by the judgment debtor. That the Claimant is entitled to post-judgment interest on the judgment sum at a rate of 6% per annum starting 22 May 2020 and as at this date, this interest amounts to $1,708,597.80.
11..acting on a tip, I did some investigations and after carrying out a search at the National Land Agency, I was able to identify two properties as belonging to the Defendant and which are unencumbered. These are ALL THAT parcel of land part of NO.5 LADY MUSGRAVE ROAD, PART OF KENSINGTON in the parish of SAINT ANDREW being STRATA LOT 2 together with one undivided 34/250 th share in the common property and being all the land comprised in Certificate of Title registered at Volume 1528 Folio 242 and ALL THAT parcel of land part of NO 5. LADY MUSGRAVE ROAD, PART OF KENSINGTON in the parish of SAINT ANDREW being STRATA LOT 14 together with one undivided 26/250 th share in the common property and being all the land comprised in Certificate of Title registered at Volume 1528 Folio 254…
13…I was quite surprised when I made this discovery as only days ago, I was having a telephone conversation with Mr Abraham Dabdoub of counsel, who has advised that he acts for the Defendant, when he told me that the Defendant has nothing; that is, it had no assets to meet the liabilities herein. That if the Defendant could mislead its attorneys-at-law as to its true financial position then I have cause to be concerned about the continued availability of these assets, as a means against which the judgment sums herein may be liquidated, especially since the oral examination is not scheduled for hearing until almost three months from now.”
On February 3, 2021, the provisional charging order was granted. It was further ordered that the “[h]earing of the application for final charging order is set for 3 rd of June 2021 at 10 am for 1 hour.” The hearing was adjourned to July 28, 2021. It was then adjourned to July 30, 2021. On July 30, 2021, the hearing was reslated to be heard on November 25, 2021.
In support of the application for a final charging order, Cui Jiao deposed to an affidavit that was filed on September 15, 2021.
Mr Jiao deposed that he is the Deputy General Manager for China Sinopharm. He stated, among other things that, on or about June 9, 2021 he was informed by Ms Hamilton that she discovered that after the provisional charging order was registered (a) Alberson Riley and Camille Wellington caused a caveat to be registered against all that parcel of land part of No 5 Lady Musgrave Road, part of Kensington in the parish of Saint Andrew being strata lot 2 together with one undivided 34/250 th share in the common property and being all the land comprised in the Certificate of Title registered at Volume 1528 Folio 242 4; the registration of the caveat was based on a provisional charging order which they (Mr Riley and Ms Wellington) obtained on February 4, 2021. To date, Mr Riley and Ms Wellington have not registered this provisional charging order and (b) GK Investments, on May 21 2021, caused a mortgage to be registered over all that parcel of land part of No 5 Lady Musgrave Road, part of Kensington in the parish of Saint Andrew being strata lot 14, together with one undivided 26/250 th share in the common property. The mortgage was registered to secure the sum of $65,000,000. Mr Jiao...
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