David Wong Ken v National Investment Bank of Jamaica Ltd and Others

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 21 June 2013
• Neutral Citation: JM 2013 CA 71
• Docket Number: APPLICATION NO 43/2013
• Court: Court of Appeal (Jamaica)
• Date: 21 June 2013

[2013] JMCA App 14

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Dukharan JA

The Hon Mr Justice Brooks JA

APPLICATION NO 43/2013

Between

David Wong Ken

Applicant

and

and

National Investment Bank of Jamaica Limited

1st Respondent

and

Clarendon Lime Company Ltd

2nd Respondent

and

Limestone Corporation of Jamaica Ltd

3rd Respondent

and

Dr Vincent Lawrence

4th Respondent

and

Horace Clarke

5th Respondent

Lord Anthony Gifford QC and Miguel Willams instructed by Livingston Alexander and Levy for the applicant

Charles Piper and Miss Marsha Locke instructed by Charles E Piper and Associates for the 1 ^st respondent

Garth McBean and Miss Teri-Ann Lawson instructed by DunnCox for the 2 ^nd , 3 ^rd and 5 ^th respondents

Michael Hylton QC and Miss Melissa McLeod instructed by Michael Hylton and Associates for the 4 ^th respondent

CIVIL PROCEDURE - Extension of time to file notice and grounds of appeal - Whether appeal has good prospect of success - Whether the delay in making the application was inordinate and inexcusable

Brooks JA

1 In his application filed on 24 April 2013, the applicant Mr David Wong Ken sought an extension of time in which to file notice and grounds of appeal against a judgment that Sykes J handed down on 16 March 2012. We heard the application on 3 June 2013 and, at that time, made the following orders:

• a. Application for extension of time to file appeal refused;

• b. Costs to the respondents to be taxed if not agreed.

At that time, we promised to put our reasons in writing. We now fulfil that promise.

2 Before the learned judge were four claimants in the claim instituted against the five respondents. Of the four claimants, three were directors of Western Cement Company Limited (the company): Mr Wong Ken and two other individuals. The company was the fourth. During the trial, Mr Wong Ken had, along with the other individual claimants, decided not to pursue the claim, but to allow the company to be the sole pursuer.

3 There was also a counter-claim that arose from a loan that the 1 ^st respondent National Investment Bank of Jamaica (NIBJ), had made to the company. That loan was guaranteed by the applicant's directors, including Mr Wong Ken.

4 In his decision, Sykes J gave judgment for the respondents herein on the claim, and judgment to NIBJ on the counter-claim. The formal order of Sykes J's judgment states:

• ‘1. Judgment for the First, Second, Third, Fourth and Fifth Defendants on the claim;

• 2. Judgment for the First Defendant against the Claimants in the sums of US$7,918,489.12 and J$9,533,955.14 on the counterclaim with interest on the sum of US$582,398.69 at the rate of 13% per annum on the sum of US$3,258,722.37 at the rate of 14% per annum and on the sum of US$4,077,368.06 at the rate of 12% per annum from June 1, 2010 to the date of Judgment;

• 3. Stay of execution granted for six (6) weeks.’

Lord Gifford QC, who appeared for Mr Wong Ken, stated that the appeal, if Mr Wong Ken's application were to succeed, would be limited to the counter-claim.

5 Learned counsel submitted that the justice of the case required that the application should be granted. The main thrust of his submissions may be summarised as follows:

• (a) the company's appeal against the claim, has a good prospect of success;

• (b) if the company's appeal succeeds, not only will its claim succeed but the counter-claim will be extinguished;

• (c) if the judgment against the company on the counterclaim is overturned then there would be no basis for the judgment on the counter-claim against him, to stand; and

• (d) in order to protect his position, therefore, Mr Wong Ken ought to be an appellant himself.

6 Lord Gifford acknowledged that the application was, in fact, very late. He pointed to the reason given by Mr Wong Ken, in his affidavit in support of the application. In that affidavit, Mr Wong Ken stated that the failure to file a notice of appeal and the delay in making this application was due to the fact that he was concentrating on having the company file and pursue its appeal against Sykes J's judgment. It was that focus, he said, that caused him to lose sight of the fact that he should also have appealed. Lord Gifford expressed confidence in the merits of the appeal and submitted that, taking into account all the circumstances, including the fact that there was no prejudice to the NIBJ pending the hearing of the appeal, the application should be granted.

7 Mr Piper, on behalf of NIBJ, stoutly resisted the application. He argued that:

• (a) the delay in making the application was inordinate and inexcusable;

• (b) Mr Wong Ken's explanation...