Darnel Fritz v John Collins
| Jurisdiction | Jamaica |
| Judge | Brooks JA,Sinclair-Haynes JA,McDonald-Bishop JA |
| Judgment Date | 15 January 2021 |
| Neutral Citation | JM 2021 CA 3 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 100/2016 |
| Court | Court of Appeal (Jamaica) |
[2021] JMCA Civ 3
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks JA
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mrs Justice Sinclair-Haynes JA
SUPREME COURT CIVIL APPEAL NO 100/2016
Captain Paul Beswick and Angel Beswick-Reid instructed by Ballantyne Beswick and Co for the appellant
B St Michael Hylton QC and Shanique Scott instructed by Hylton Powell for the respondent
On 30 September 2016, Batts J dismissed Ms Darnel Fritz's claim against Mr John Collins for fraud, misrepresentation and/or undue influence, and an alternative claim for breach of contract. Batts J also found in favour of Mr Collins, on Mr Collins' counterclaim for the sum of US$159,805.00 plus interest thereon. Ms Fritz has appealed from that decision. The source of the dispute between them is the validity and enforceability of two mortgages registered in favour of Mr Collins on Ms Fritz's title for her house.
Ms Fritz is a business woman and owner of Darnel Fritz Enterprise, an entity that buys goods from various international vendors and sells them in Jamaica. Mr Collins is a freight forwarder who operates International Freight Consolidators (Ja) Ltd (IFC). Ms Fritz used IFC's services for sending her goods from Miami to Jamaica. As their business relationship developed, Ms Fritz eventually started purchasing goods through Mr Collins, instead of directly from some of the international vendors.
Mr Collins asserts that in or about 2003, he granted Ms Fritz a credit facility for US$40,000.00. He did so, he says, through IFC. He says that Ms Fritz and her mother, Ms Celeste Brown, who were joint proprietors of premises located at 4 Meadowland Drive, Kingston 19, in the parish of Saint Andrew (the property), provided security for the facility by granting a mortgage of the property. This mortgage, he asserts, was registered on the certificate of title for the property. He further asserts that between 2008 and 2010, he and Ms Fritz agreed that he would order goods from Proveedora Jiron Inc (Proveedora Jiron), an international supplier, on her behalf. Goods were supplied by this method, Mr Collins says, but Ms Fritz has not paid for all of the goods.
By October 2010, he asserts, Ms Fritz owed him the original sum of US$40,000.00 and interest thereon as well as monies for goods supplied through their arrangement concerning Proveedora Jiron. He contends that in that month Ms Fritz had ordered two more shipments from Proveedora Jiron, for which, she wished him to pay. They agreed, he said, that the amount that she owed him, including the amount for the two shipments, would be US$128,000.00. He said, that she agreed to grant him a second mortgage in the sum of US$88,000.00, which together with the first mortgage of US$40,000.00 would secure the debt. By this time, he asserts, Ms Fritz's mother had died and in due time the death had been noted on the title for the property. In pursuance of their agreement and after correspondence between his, then, attorney-at-law, Mr Raymond Clough, and Ms Fritz, the second mortgage was registered on the certificate of title for the property.
There is no dispute that the second mortgage included security for the two shipments in October 2010. The parties, however, dispute the value of the shipments and whether the sums had been repaid. Mr Collins insists that these shipments had a total value of US$54,504.59, which allowed him to calculate the amount to be used for the second mortgage.
Ms Fritz contends that the mortgages were in respect of two separate credit facilities. She accepts that security was required under both these credit facilities, but alleges that, in each case, she only signed a document entitled ‘a schedule’, in order to obtain the credit. She contends that she was not aware that mortgages were registered on her title until one of her then attorneys-at-law checked the records at the National Land Agency. This check revealed two mortgages on the certificate of title: mortgage no 1226300 for US$40,000.00 registered 20 March 2003 and mortgage no 1700296 for US$88,000.00 registered 12 April 2011, both in favour of Mr Collins. Both mortgages refer to the statutory power of sale given to a mortgagee by the Registration of Titles Act (ROTA), as being exercisable by Mr Collins.
She asserts that she was told by Mr Clough that in order to receive the second credit facility she needed to note her mother's death on the certificate of title for the property. Having had the death noted she said, she received both shipments mentioned above. She said that they cost less than the figures that Mr Collins asserts that he used to calculate the amount for the second mortgage. She is adamant that she fully repaid Mr Collins for all the goods that she bought through the credit facility. She denies having received the full credit line of US$88,000.00 and she denies owing Mr Collins anything.
Ms Fritz, in her witness statement, stated that her mother did not sign any document, as is alleged by Mr Collins, as, at the time of the alleged signing, her mother was bedridden and suffering from Alzheimer's disease.
The parties were unable to resolve their dispute. Mr Collins threatened to sell the property and, on 15 January 2016, Ms Fritz filed a claim in the Supreme Court seeking:
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i. An injunction to prevent Mr Collins from dealing with, or disposing of, the property;
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ii. A declaration that Mr Collins has no mortgage over the property;
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iii. An order that Mr Collins provides an account of the monies paid under both mortgages;
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iv. An order that Mr Collins executes a discharge of mortgage for both mortgages;
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v. An order that Mr Collins surrenders and delivers to Ms Fritz the duplicate certificate of title for the property; and
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vi. An order that the Registrar of the Supreme Court be empowered to sign any relevant documents that Mr Collins refuses to sign.
Mr Collins filed a defence and counterclaim on 4 April 2016. He disputed Ms Fritz's claim, and by way of the counterclaim, sought relief, including the payment of the sum of US$159,805.00 plus interest, late fees and costs.
It was against that background, and on those issues, that Batts J ruled in favour of Mr Collins.
Ms Fritz's further amended grounds of appeal state:
“i. The Learned Judge erred in his interpretation of the facts and as such arrived at the wrong conclusions of both fact and law;
ii. The Learned Judge erred in law in that he failed to appreciate that mortgage No. 1226300 is unenforceable as he erred in his interpretation of the provisions of Sections 30 and 33 of the Limitation of Actions Act and its resultant finding that the statutory powers of sale was not a proceeding within the confines of the act, and this led to the Learned Judge disallowing [Ms Fritz] from amending her Particulars of Claim to include the limitation defence as the learned judge summarily concluded that there was no defence available pursuant to sections 30 and 33 of the Limitation of Actions Act;
iii. That the learned judge erred in law as he misinterpreted the facts and failed to take into consideration the true value of the mortgaged [sic] amounts and the fact that [Ms Fritz] had paid over US$42,345.00 since November 30, 2010 and had fully or substantially paid for the goods received plus interest by 2014;
iv. Having accepted the evidence of Hazel Edwards Senior Director of Legal Affairs at Jamaica Customs Agency, that the duties and values for the containers were assessed and the custom entries and invoices presented accepted by Customs, that it was not open to the learned judge to ascribe any other value for the goods, especially in light of the fact that the invoices accepted by the learned judge, were prepared by [Proveedora Jiron] and no evidence was brought to authenticate the validity and further to invalidate the invoices presented by [Ms Fritz].
v. The Learned Judge failed to recognize that the issue of the authenticity of the Customs Invoices should have been squarely placed before the Witness from Jamaica Customs and direct evidence should have been brought to substantiate the allegations as he failed to recognize that the agreed documents allegedly created by Proveedora Jiron are hearsay as no supporting evidence has been produced to substantiate their authenticity. Additionally the invoices all indicate full payment and no balance owing to [Mr Collins].
vi. That the Learned judge failed to recognise that the documents related to the claim not being made available to [Ms Fritz] by [Mr Collins] and Proveedora Jiron raises questions of credibility and good faith.
vii. The Learned Judge failed to recognize that the various attorneys on record for [Ms Fritz] were not her agents and could not have acknowledged the debt but merely responded to the allegations against [Ms Fritz] based on their instructions.”
The following issues arise from these further amended grounds of appeal:
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a. the enforceability of the first mortgage;
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b. the learned trial judge's choice of invoice value;
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c. the true value of the mortgage debts;
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d. the authenticity of invoices and the repayment of the debt;
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e. the inaccessibility of Proveedora Jiron's invoices and questions of credibility and good faith; and
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f. the acknowledgment of the debt.
This issue has two distinct aspects, namely:
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i. the effect, if any, of the Limitation of Actions Act (LAA) on the first mortgage; and
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ii. the validity of the execution by Ms Fritz's mother.
This first aspect arose when Captain Beswick, appearing at the trial on behalf of Ms Fritz, before his closing submissions, applied to amend her statement of case to include a claim that the first mortgage...
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