Christopher Cargill v James Godfrey; Maurice Gabay v MJC Masterbuilders Ltd
| Jurisdiction | Jamaica |
| Judge | Palmer Hamilton, J |
| Judgment Date | 31 March 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2017 CD 00451 |
and
[2022] JMCC COMM 6
CLAIM NO. 2017 CD 00451
CLAIM NO. 2018 CD 00274
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE COMMERCIAL DIVISION
Civil Practice and Procedure - Striking Out Statement of Case — Rule 26.3 (1) (a), 26.3 (1) (b) and Rule 26.3 (1) (c) of the CPR — Application for Summary Judgment on Defendant's Counterclaim — Rule 15.2 of the CPR
The Claimant is unrepresented
Ms. Nerine Small Attorney-at-Law for the 1 st and 2 nd Defendant
Mr. Christopher Dunkley and Mrs. Kayola Muirhead instructed by Phillipson Partners Attorneys-at-Law for the 3 rd Defendant
This is an application made by the 3 rd Defendant, MJC Masterbuilders Limited (hereinafter referred to as ‘MJC Limited’), for court orders and an application made by the 1 st and 2 nd Defendants, Mr. Christopher Cargill and Mr. James Godfrey, to Strike Out Claim. The Defendants all filed written submissions regarding their applications while the Claimant did not appear or participate in these applications. Before examining these applications in greater detail, I should set out some of the factual background.
The Claimant, Mr. Maurice Gabay, commenced proceedings by way of a Fixed Date Claim Form and Affidavit in Support both dated the 1 st day of September, 2017 and filed in this Honourable Court on the 4 th day of September, 2017 against all the Defendants, Mr. Cargill, Mr. Godfrey, and MJC Limited.
Mr. Gabay averred that he along with Mr. Cargill and Mr. Godfrey were shareholders and directors of MJC Limited and Mr. Gabay acted as Managing Director pursuant to a Memorandum of Understanding dated the 20 th day of July, 2007 and signed by all three directors. Mr. Gabay, was appointed as Project Manager for a project that MJC Limited was working. He stated that it appeared towards to the end of 2016 that the said project was not going to be profitable, but rather break-even. He informed Mr. Cargill and Mr. Godfrey of this. He states that after informing Mr. Cargill and Mr. Godfrey, they both acted in a manner which appeared to be a scarcely disguised attempt to deprive him of the right to protect his interests in MJC Limited as they launched spurious allegations against him, refused to pay him his salary, and purported to remove him as Managing Director of MJC Limited.
Mr. Gabay claimed, inter alia, the following:
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i. an order reinstating him as Managing Director of the 3 rd Defendant;
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ii. compensation with respect to unpaid salary; and
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iii. costs.
On the 5 th day of September, 2017 an Affidavit sworn to by Mr. Cargill was filed in this Honourable Court. Mr. Cargill averred that Mr. Gabay was required to provide regular monthly reports in relation to the abovementioned project that MJC Limited was working on and that he failed to provide said reports to satisfy the obligations of MJC Limited. In or about 2015, Mr. Cargill reviewed MJC Limited's accounts and that review highlighted several issues. One such issue being that a signature purporting to be his was being used to conduct online banking transactions. Both Mr. Cargill and Mr. Godfrey in their capacity as directors of MJC Limited wrote to Mr. Gabay formally seeking answers regarding the several issues that were highlighted from the review. Mr. Cargill further averred that it was due to Mr. Gabay's delay and/or reluctance to provide a response which resulted in a decision being made by the Board to reassign the functions of the Managing Director from Mr. Gabay for a period of six (6) weeks pending an investigation into the issues that were discovered. Mr. Gabay's salary remained unchanged during this period and he was to continue his role as Project Manager. Mr. Cargill further averred that Mr. Gabay was not dismissed nor was he prevented from attending work and it was in fact Mr. Gabay who abandoned his job by failing and/or refusing to attend work.
The following events then took place:
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(i) Mr. Gabay filed in this Honourable Court on the 12 th day of September, 2017 an Affidavit in Response to the Affidavit of Christopher Cargill. Mr. Gabay denies the allegations and averred, inter alia, that he was not separately engaged as Project Manager and there has only ever been the role of Managing Director.
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(ii) On the 21 st day of September, 2017 Mr. Cargill filed a Second Affidavit;
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(iii) Affidavit of Christopher Cargill filed the 13 th day of October, 2017; and
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(iv) Third Affidavit of Christopher Cargill filed the 17 th day of October, 2017.
On the 13 th day of October, 2017, MJC Limited filed a Counterclaim. An Amended Counterclaim was filed on the 19 th day of October, 2017. The Amended Counterclaim claimed against Mr. Gabay for breach of his contract of employment and for breach of his fiduciary duty and duty of care as director of MJC Limited causing MJC Limited to suffer loss and damage, and incur expenses. MJC Limited claimed the following:
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(i) an order for an investigation under section 213A of the Companies Act;
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(ii) damages;
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(iii) interest at 12% per annum on damages or at such commercial rate of interest as this Honourable Court deems just; and
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(iv) costs.
On the 13 th day of April, 2018 Mr. Gabay filed a Claim Form and Particulars of Claim in this Honourable Court and claimed against the Defendant, MJC Limited, the following:
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(i) a declaration that he is still the Managing Director of the Company;
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(ii) damages for unpaid salary at a rate of $58,333.33 per day from 31 st July 2017 and continuing;
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(iii) interest; and
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(iv) costs.
MJC Limited in response filed a Defence and Counterclaim on the 12 th day of June, 2018. On the 18 th day of June, 2018 Mr. Gabay filed a Defence to MJC Limited's Counterclaim and claimed that he intends to apply to have the counterclaim struck out on the basis that it amounts to an abuse of the process of the court as it is by and large a replication of the counterclaim they filed in Claim No. 2017 CD00451. Mr. Gabay's Defence to Amended Counterclaim of MJC Limited was filed on the 18 th day of July, 2018.
In 2020 Claim Nos. 2017 CD 00451 and 2018 CD 00274 were consolidated. On the 4 th day of May, 2021, the Attorneys-at-Law on record for the Claimant were removed. The Claimant has been unrepresented since then.
On the 30 th day of June, 2021 MJC Limited filed a Notice of Application for Court Orders seeking, inter alia, the following orders:
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(i) The Claimant shall pay in full to Phillipson Partners his outstanding one-third share of the total attorney's fee plus general consumption tax … within fourteen (14) days of the date of the service of this Order;
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(ii) Service of this Application and any subsequent order made upon hearing this Application shall be to the Claimant's last known address and by two (2) publications with a seven (7) day interval in the daily Classifieds of the Jamaica Gleaner;
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(iii) Unless the Claimant complies with Order 1 his Statement of Case, including the Claimant's Defence to Counterclaim, shall be struck out for failure to comply with the order of the Court;
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(iv) Summary judgment shall be granted in the counterclaim to the 3 rd Defendant;
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(v) Duplicate Certificates of Titles to lands including Volume 980 Folio 544, Volume 1406 Folio 24, Volume 1440 Folio 68 and Volume 1269 Folio 264, belonging to the 3 rd Defendant and in the Claimant's possession shall be surrendered to the offices of 3 rd Defendant's Attorneys-at-Law, within fourteen days of the date of the service of this Order;
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(vi) Certificates of Titles to motor vehicles including 2006 Nissan Atlas Truck, 1998 Isuzu Truck 1997 Isuzu Truck, 2007 White Toyota Tundra, an Isuzu Trooper and a Land Rover belonging to the 3 rd Defendant and in the Claimant's possession shall be surrendered to the offices of 3 rd Defendant's Attorneys-at-Law, within fourteen days of the date of the service of this Order;
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(vii) Motor Vehicles purchased in the name of the Claimant with the 3 rd Defendant's company-funds shall be transferred by the Claimant into the name of the 3 rd Defendant, within fourteen days of the date of service of this Order, failing which an authorized and designated agent of the Commissioner General of Tax Administration Jamaica shall execute the transfer into the name of the 3 rd Defendant;
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(viii) The time for service of this Application be abridged to the time of service in compliance with Order 2;
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(ix) Costs of this Application to be awarded to the Defendant;
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(x) Damages in respect of the consolidated Claim and the Counterclaim are to be assessed;
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(xi) Costs and Attorneys costs of the consolidated Claim and Counterclaim to the 3 rd Defendant; and
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(xii) There be such further and other relief as the court may deem just.
On the 10 th day of September, 2021 Mr. Cargill and Mr. Godfrey filed a Notice of Application for Court Orders to Strike Out Claim. They sought the following orders:
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(i) That the Claim Form and Particulars of Claim dated September 4, 2017 in respect of Claim No. 2017CD00451, be struck out for want of prosecution as against the First and Second Defendants;
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(ii) Further and/or in the alternative, that the Claim Form and Particulars of Claim dated September 4, 2017 in respect of Claim No. 2017CD00451, be struck out as an abuse of process of the Court;
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(iii) Further and/or in the alternative, that the Claim Form and Particulars of Claim dated September 4, 2017 in respect of Claim No. 2017CD00451, be struck out as disclosing no cause of action as against the 1 st and 2 nd Defendants;
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(iv) Costs to the First and Second Defendants, to be taxed if not agreed; and
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(v) Such...
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