Dawkins Brown v Glen Brown
| Jurisdiction | Jamaica |
| Judge | Orr, J (AG) |
| Judgment Date | 22 September 2022 |
| Year | 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2007HCV01949 |
And
[2022] JMSC Civ. 175
CLAIM NO. 2007HCV01949
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
Liberty to apply — inherent in every order of the court whether or not it is included in the order — limits of the rule.
Kent Gammon instructed by Kent Gammon and Associates for the Applicant/Defendant
Craig Carter instructed by Althea McBean & Company for the Respondents/Claimants
Before me is an application by the Defendant for the following orders:
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1. That the Defendant/Applicant be permitted to recover rent outstanding for the period 01st October 2007 to 31st December 2007 from the account no. 001-101-034-6143 in the joint names of Althea McBean and or Lancelot Cowan, Attorneys-at-Law at the RBTT Bank or any such account (s) held in the names of Althea McBean and or A. McBean & Company pursuant to Order No. 1 of the Honourable Mr. Justice Pusey made on the 19th day of December 2007.
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2. That the Defendant/Applicant be permitted to recover rent outstanding for the period 1 st January 2008 to 1 st May 2020 and continuing from account no.001–101–034–6143 in the joint names of Althea McBean and or Lancelot Cowan, Attorneys-at-Law at the RBTT Bank or any such account (s) held in the names of Althea McBean and or A. McBean & Company pursuant to Order No. 1 of the Honourable Mr. Justice Pusey made on the 19th day of December 2007.
The application has come some seven years after the Court of Appeal upheld the decision of this court granting the claimants a proprietary interest in property owned by the former defendant, Annie Lopez now deceased. The application is to recover rent which the defendant says is due and owing by the claimants. This period encompasses a period after the claim had been filed but prior to the delivery of the court's judgment, and a further period after the delivery of the judgment to the present.
The account referenced by the defendant in her notice of application for court orders, account no.001-101-034-6143, was created pursuant to an interim order of Pusey, J which required the claimants to “ pay the sum of $58,000.00 per month on the 1st working day of each month with effect from the 1st day of January 2008, into an interest bearing account in a licensed financial institution to be held in the names of both attorneys-at-law.” In addition, he ordered, inter alia that these funds be held until the determination of this claim or further order.
This order was made on the defendant's application for the claimant's to pay her rent pending the determination of the claim by the court at trial. Pusey, J did not order that the claimants pay rent, rather that they pay a sum equal to the rent they were previously paying under a lease agreement with the defendant and before they claimed to have exercised the option to purchase.
This account subsequently became the subject of the final order of the court when the claim was determined at trial. Indeed, once the claim was determined at trial there was no need for the claimants to make any further payments into the account. The final order of the court would have therefore replaced the interim order of Pusey, J.
Mr. Gammon in his submissions has grounded his application under the principle of Liberty to Apply. He relies specifically on the decision of Morrison, JA (as he then was) in this claim ( Annie Lopez v Dawkins Brown & Anor) where at paragraph [7] he said that “ while Campbell, J did not expressly reserve liberty to apply to the parties, it is well established that all orders of the court carry with them inherent liberty to apply to the court for assistance in working out the rights declared by the court in its judgment”. He made reference to Halsbury's Laws of England, 5th edn, Vol 12, para 1165 and the cases there cited.
Counsel's submissions in summary were that because the Claimants failed to take the necessary steps to determine their lease, it therefore still subsists and the Claimants are liable to pay the defendant rental for the periods claimed.
Mr. Carter, in opposing the application, argued that the court having determined that the Claimants had a proprietary interest in the property, the Claimants were not liable for the payment of rent. He relied on Cockwell & Another v Romford Sanitary Steam Laundry Limited [1939] 4 All ER 370. He submitted that the Claimants' equitable interest in the property arose on July 3, 2006, and as at that date by operation of law, the relationship between the parties as landlord and tenant no longer existed, as they became purchaser and vendor. He said that based on Campbell, J's decision the Defendant was not entitled to any sum other than the purchase price of $10,000,000.00 ordered by the court less any rents paid up to that time.
The application is grounded under the principle of ‘liberty to apply’ which has been described as a judicial devise not dissimilar to the slip rule and is intended to supplement the main orders in form and convenience only so that the main orders may be carried out. Errors and omissions that do not affect the substance of the main orders may be corrected, but nothing must be done to vary or change the nature of the original order.
Smith, JA (as he then was) in Michael Causewell et al v Dwight Clacken et al SCCA 129/2002 (February 18, 2004) in considering the scope of the court's jurisdiction to vary a consent order had pointed out that where, in the case of a final judgment or order, the necessity for a subsequent order was foreseen, it was usual to insert in the judgment or order, words expressly reserving liberty to any party to apply to the court for further directions. He went on to say that:
“The insertion of ‘liberty to apply’ does not enable the court to deal with matters which do not arise in the course of working out the judgment, or to vary the terms of the order except possibly, on proof of change of circumstances.”
Later, in Jebmed SRL v Capitalese SPA Owners of M/V Trading Fabrizia [2017] JMCA Civ 45 the court adopted the reasoning of Somerville LJ, in Cristel v Cristel [1951] 2 All ER 574 where he said that:
“Prima facie, the words “liberty to apply” refer to working out the actual terms of the order”
Denning LJ, in the same case, stated in his judgement:
“when there is no change of circumstances, I do not think the court can alter or vary the agreement of the parties under “liberty to apply”. It can only do what is necessary to carry the agreement into effect.”
Philips, JA as she then was in Capital Solutions Limited v Terryon Walsh and Others [2010] JMCA App. 4 at Paragraph [65] suggested that in determining whether an application fell within the ambit of liberty to apply one should enquire:
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(i) Whether the order of the court required any working out
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(ii) If the answer to (i) is yes, did the working out of the order involve any matters on which it may have been necessary to obtain the decision of the court?
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(iii) Are the matters which have been set out in the affidavits and the submissions and which are the subject of the application for liberty to apply variations to the order?
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(iv) Are the said matters referred to above necessary to carry the order into effect?
In considering the defendant's application, the starting point must therefore be the trial judge's decision, which subsumed the interim order of Pusey, J, and the critical question is whether the defendant's notice of application seeks to work out this order or vary the order.
On May 22, 2009 Justice Lennox Campbell (as he then was) made the following orders:
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1. There be specific performance of the agreement to purchase property at Lot 2, 9 Panton Road, Stony Hill, St. Andrew between the Claimants and the Defendant for the sum of $10,000,000.00 less $540,000.00 allocated as rent towards the purchase price, such rent being for the period January to December 2004.
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2. The Claimants are declared to have an equitable interest in the property at Lot 2, 9 Panton Road, St. Andrew by virtue of proprietary estoppel.
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3. That if the parties fail or neglect to sign an agreement for sale and transfer then the Registrar of the Supreme Court shall be empowered to sign the agreement for sale, transfer and any document necessary to effect the sale of the property at Lot 2, 9 Panton Road, Stony Hill. St. Andrew.
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4. All sums in the account 001-101-034-6143 in the names of Althea McBean and or Lancelot Cowan at the RBTT Bank Jamaica Limited, Duke and Tower Streets to be paid forthwith to Robertson Smith Ledgister & Co. on behalf of Annie Lopez.
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5. Stay of execution granted for 21 days
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6. Costs to the Claimant to be agreed or taxed.
In doing so, he gave judgment for the Claimants on their claim wherein they sought “ a declaration as to their interest in premises situated at Lot 2 Panton Road, Stony Hill, specific performance, proprietary estoppel and an injunction restraining the Defendant from interfering with their occupation of the premises” until their claim was resolved by the court.
In their Particulars of Claim, the Claimants alleged that on or about January 1, 2004, they entered into a lease agreement with an option to purchase Lot 2 Panton Road, Stony Hill for $10,000,000.00 from the Defendant. In consideration of this agreement they paid the Defendant $540,000.00 during 2004, and $1,320,000.00 during 2005 and 2006 in monthly payments of $55,000.00.
The Defendant, in response to this claim, denied that the Claimants were entitled to an interest in her property. She also denied that there was any...
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