Cowell Anthony Forbes v Miller's Liquor Store (Dist) Ltd

• Jurisdiction: Jamaica
• Judge: Brooks JA,Sinclair-Haynes JA,P Williams JA
• Judgment Date: 11 January 2016
• Neutral Citation: JM 2016 CA 1
• Docket Number: APPLICATION NO 174/2015
• Court: Court of Appeal (Jamaica)
• Date: 11 January 2016

[2016] JMCA Civ 1

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Miss Justice P Williams JA (AG)

APPLICATION NO 174/2015

Between

Cowell Anthony Forbes (Representative of Estate of Wilfred Emmanuel Forbes, deceased)

1 ^st Appellant

and

Cowell Anthony Forbes

2 ^nd Appellant

and

Miller'S Liquor Store (Dist) Limited

Respondent

Ransford Braham QC and Christopher Dunkley instructed by Phillipson Partners for the appellants

Mrs Marvalyn Taylor-Wright instructed by Taylor-Wright & Company for the respondent

Brooks JA

1 The facts of the case with which this appeal is concerned have been set out in four previous written judgments in this jurisdiction. It will be sufficient at this stage to outline only the essential elements of those facts and expand on each below, as the context requires.

2 The essence of the case is that Miller's Liquor Store (Dist) Limited (Miller's) entered into an agreement with Messrs Cowell and Wilfred Forbes to sell premises, situated in Mandeville in the parish of Manchester, to them. The parties agreed that the Forbeses would pay a deposit and the unpaid balance of the purchase money over time in instalments. They agreed that interest would accrue on the unpaid balance. Miller's took a vendor's mortgage from the Forbeses as security for the debt. An instrument of transfer and a vendor's mortgage were prepared and executed but Miller's did not have them registered on the certificate of title for the premises.

3 Unfortunately, the Forbeses fell into arrears with the payments and Miller's demanded the full payment of the debt within 30 days, failing which it would sell the premises. The Forbeses did not meet the deadline and two months later Miller's entered into an agreement to sell the premises to Duncarl Limited (Duncarl). The day after the agreement with Duncarl was executed, the Forbeses tendered a cheque in the sum that Miller's had claimed in the demand notice. Miller's returned the cheque, insisting that it was too late.

4 The Forbeses contended that the sale to Duncarl was wrong for a number of reasons. The main elements of their complaint that are relevant to this appeal, were, firstly, that the sum that Miller's claimed was owed on the mortgage was incorrect, secondly, that Miller's wrongly returned the money that the Forbeses tendered to repay the mortgage debt, and thirdly, that Miller's purported sale of the property to Duncarl was done in bad faith. The Forbeses filed a claim against Miller's in the Supreme Court. They claimed that the sale to Duncarl should not be allowed to proceed, and that the title for the premises should, instead, be transferred to them.

The decision in the court below

5 The claim was tried in 2005. Five years later, the learned trial judge gave judgment for Miller's. An appeal has been filed from that decision. Mr Cowell Forbes filed in his own right. He was also allowed by an order of this court to represent the estate of Mr Wilfred Forbes, who had died before the judgment had been handed down in the court below. Mr Cowell Forbes and the estate of Mr Wilfred Forbes will continue to be referred to herein as the Forbeses.

6 The Forbeses asserted that the learned trial judge erred in her findings in respect of the issues that were before her. Her decision turned mainly on certain findings of fact in respect of each of the issues raised by the Forbeses. Those facts, and the findings in respect of each, will be set out during the analysis of each issue. Before turning to those issues, however, it is necessary to discuss an application that Miller's made for the appeal to be dismissed for want of prosecution.

The application to dismiss the appeal for want of prosecution

7 Miller's contended that the appeal should be dismissed for want of prosecution for three main reasons. The first was that the Forbeses had seriously delayed the appeal and had ignored filing deadlines laid down at the case management conference (the CMC). The second was that the record of appeal, which was filed after the time stipulated at the CMC, was in disarray, and deficient in a number of respects. The third, Miller's said, was that there was no proper appeal before the court, as the order allowing Mr Cowell Forbes to represent his brother's estate was improper. These complaints will be addressed individually.

The delay in filing the record of appeal

8 Mrs Taylor-Wright, on behalf of Miller's, submitted that the late filing by the Forbeses, of the record of appeal and their written submissions, had not been explained. She argued that there was not even an indication that they intended to apply for the late filing to be regularised. That application, she pointed out, was made by their counsel, Mr Braham QC, without any documentation, and only at the invitation of this court. Mrs Taylor-Wright submitted that the authorities made it clear that where there is no reason given for a breach, no indulgence should be granted.

9 Mrs Taylor-Wright's submission is not without merit. The record and the submissions were, indeed, filed late, and there were defects in the record that was eventually filed. There was, however, an explanation tendered by Mr Cowell Forbes, who had retained different attorneys-at-law, for the appeal, from those who appeared for the Forbeses at the trial.

10 The explanation was that the new attorneys had difficulty putting together the record of appeal. Although Mrs Taylor-Wright dismissed this explanation as untenable, it is not implausible as it was, unusually, after the CMC, rather than before, that the record was put together. Even then, Peter Haddad v Donald Silvera SCCA No 31/2003 (delivered 31 July 2007) indicates that although a proffered reason is not a good reason, the court may still grant the indulgence requested, in an application to correct a breach of its requirements. Smith JA at page 12 of Haddad said in this regard:

‘…the absence of a good reason for delay is not itself sufficient to justify the court in refusing to exercise its discretion to grant an extension [of time]. But some reason must be proffered.’ (Underlining as in original)

Mangatal JA (Ag) (as she then was) pointed out in Sylvester Dennis v Lana Dennis [2014] JMCA App 11, that where there is merit in the appeal, the court will grant an indulgence despite the fact that the explanation for the delay, in conforming to the court's rules, was not a good one. She said at paragraph [52] of the judgement:

‘Notwithstanding the absence of a good reason for delay, in my view the proposed appeal has merit….’

The other members of the court agreed with her assessment.

11 The fact that the explanation by the Forbeses was contained in an affidavit seeking to resist the application to dismiss the appeal for want of prosecution did not render that explanation unavailable to them.

The defects in the record of appeal

12 Insofar as there were defects in the record that was filed, the court was only slightly inconvenienced, as Mrs Taylor-Wright had, very helpfully, put together a comprehensive bundle to which the court could refer.

The status of the appeal

13 The final aspect of Miller's application was untenable. Mrs Taylor-Wright sought to submit that the order allowing Mr Cowell Forbes' representation of his brother's estate, was mistaken, having been made without considering a principle set out in a previously decided case. We refused to allow her to continue with that proposition. We took the view that, the order, being a decision of the court, and not a single judge of the court, could only be set aside upon a formal application, or alternatively, on an appeal made to Her Majesty in Council.

14 For those reasons, Miller's application to dismiss the appeal for want of prosecution should fail. The application was, however, not completely unreasonable. It had some merit in respect of the filing of the record, and was itself filed on the same day that the record of appeal was filed. In fact, the application was filed some days earlier than the Forbeses' written submissions were filed. Miller's should, therefore, have the costs of the application and the costs thrown away in that regard, including the costs of the preparation of the bundle that it sought to have used as a substitute record of appeal. The substantive issues raised by the appeal shall be addressed hereafter.

The grounds of appeal

15 The Forbeses filed 12 grounds of appeal. They are:

• ‘1. The Learned Trial Judge erred in failing to have any sufficient regard or at all to the Respondent's obligations under the Agreement(s) for Sale, transfer and mortgage to stamp and register same in the face of the Appellants' financial discharge of their duties under all three, at the material time.

• 2. The Appellants were entitled to mesne profits from the Respondent, the sale of the property at issue having been completed and their becoming obligated to pay mortgage installments [sic].

• 3. The Appellants were entitled to set off those mesne profits against the balance mortgage owed to the Respondent as at August 31, 2001.

• 4. The learned trial judge erred in failing to find that the Respondent's Agreement for Sale with a third party purportedly entered the day before the day designated by the parties for the Appellants to settle their outstanding mortgage sum, was no basis to conclude that the Respondent had acted in bad faith.

• 5. The learned trial judge erred in finding that the Appellants' equity right [sic] of redemption was extinguished in those circumstances.

• 6. Having found that the Respondent's agreement with the third party Duncarl Limited entered into on August 30th 2011 was at an undervalue, the learned trial judge erred in failing to make the consequential finding that the third party was not in all the...