Devon Mark Davis v Karen Marajah

• Jurisdiction: Jamaica
• Judge: Rattray, J.
• Judgment Date: 11 January 2019
• Neutral Citation: [2019] JMSC Civ 7
• Docket Number: CLAIM NO. 2017 HCV 02464
• Court: Supreme Court (Jamaica)
• Date: 11 January 2019

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2017 HCV 02464

BETWEEN:

Devon Mark Davis

Claimant

and

Karen Marajah

Defendant

IN CHAMBERS

Mrs. Trudy-Ann Dixon-Frith instructed by DunnCox for the Claimant

Ms. Moneaque McLeod instructed by Rogers and Associates for the Defendant

Civil Practice and Procedure - Notice of Application to file Defence and Counterclaim out of time — Rules 10.3 (1), 10.3 (9), and 26.1 (2) (c) of the Civil Procedure Rules — Factors to be considered by the Court in deciding whether to grant an extension of timexs

Cor: Rattray, J.

1 Devon Mark Davis, the Claimant and his wife, Jennifer Davis were married on the 11 ^th August, 2001 in Birmingham, England. To date they remain married. Sometime in 2005, the Claimant purchased property located at 4 Church Grove, Balvenie Heights, Mandeville, in the parish of Manchester (“the property”), being the land comprised in Certificate of Title registered at Volume 1113 Folio 272 of the Register Book of Titles, which was registered solely in his name. It is contended by the Claimant that the purchase of the said property was fully funded by himself and his wife.

2 In or around June, 2005, the Claimant met Karen Marajah, the Defendant and thereafter commenced a relationship with her. Subsequently, sometime in January, 2006, the Claimant began constructing a house on the property. In January, 2007, the Defendant began residing with him in the unfinished house, which was eventually completed in or about 2012.

3 The relationship between the two has since ended, and the Claimant has sought to have the Defendant vacate or otherwise deliver up possession of his property. Up to the date of this action being instituted, the Defendant has not given up possession of the property. Consequently, the Claimant commenced this action on the 3 ^rd August, 2017, against the Defendant by way of Claim Form, seeking the following reliefs from the Court: -

• a) Recovery of possession of the property known as ALL THAT PARCEL of land being part of DUNROBIN in the parish of Manchester containing by survey Nine Thousand Eight Hundred and Forty-Seven Square Feet and Five Tenths of a Square Foot of the shape and dimensions and butting as appears by the plan annexed to Certificate of Title and being part of land formerly registered at Volume 1000 Folio 398 and being the land comprised in Certificate of Title registered at Volume 1113 Folio 272 of the Register Book of Titles, bearing civic address known as 4 Church Grove, Balvenie Heights, Mandeville, in the parish of Manchester;

• b) An injunction restraining the Defendant whether by herself or by her servants and or agents or howsoever from entering or using property known as ALL THAT PARCEL of land being part of DUNROBIN in the parish of Manchester containing by survey Nine Thousand Eight Hundred and Forty-Seven Square Feet and Five Tenths of a Square Foot of the shape and dimensions and butting as appears by the plan annexed to Certificate of Title and being part of land formerly registered at Volume 1000 Folio 398 and being the land comprised in Certificate of Title registered at Volume 1113 Folio 272 of the Register Book of Titles, bearing civic address known as 4 Church Grove, Balvenie Heights, Mandeville, in the parish of Manchester;

• c) Costs and Attorney's costs; and

• d) Such and further relief as this Honourable Court deems fit.

4 The Claim Form and Particulars of Claim were served on the Defendant, who acting on her own behalf filed her Acknowledgement of Service on the 13 ^th September, 2017, indicating, inter alia, that she was served with the said documents on the 30 ^th August, 2017. Subsequently, she retained the firm of Messrs. Rogers and Associates, as her legal representatives in this matter. On the 19 ^th October, 2017, her Attorneys-at—Law, placed themselves on the record by filing a Notice of Appointment of Legal Representation.

5 No Defence was filed on behalf of the Defendant within the forty-two day period after service of the Claim Form, as stipulated by Rule 10.3 of the Civil Procedure Rules (CPR). As a result, the Claimant's Attorneys-at-Law filed an Ex-Parte Notice of Application for Court Orders on the 12 ^th March, 2018, seeking Judgment in Default of Defence to be entered in favour of the Claimant pursuant to Rule 12.5 of the CPR for her failure to file a Defence in this matter. That Application was set for hearing on the 11 ^th May, 2018.

6 Subsequently, on the 7 ^th May, 2018, the Defendant's Attorneys-at-Law filed her Defence and Counterclaim out of time, without the consent of the Claimant or the permission of the Court. In addition, two (2) days later the Defendant's Attorneys-at—Law on the 9 ^th May, 2018, also filed a Notice of Application to file Reply to Defence and Defence to Counterclaim Out of Time. Clearly, the heading of that Application was incorrect, as the Defendant would not be applying to file a Reply to her own Defence. The relief sought by the Defendant in the said Application was for an Order that she be granted permission for her Defence and Counterclaim filed on the 7 ^th May, 2018, to stand as at the date of filing.

7 By Order of the Court made on the 11 ^th May, 2018, both Applications were adjourned to the 27 ^th July, 2018, to be heard together. Costs were also awarded to the Claimant to be agreed or taxed.

8 When these Applications were before this Court on the 27 ^th July, 2018, the Court thought it prudent to first hear the Defendant's Application to file Defence and Counterclaim out of time, before that of the Claimant for Default Judgment. It is the Defendant's Application that is therefore before the Court for its consideration.

9 The grounds relied on to support the Application are as follows: -

• a) Time has expired for the Defendant to file a Defence;

• b) The Defendant has a good explanation for her failure to file a Defence;

• c) The Defendant has a good Defence to the claim as is set out in her Counterclaim;

• d) The Claimant will not be prejudiced if the Orders sought herein are granted;

• e) The Defendant will be severely prejudiced if the Court denies the Orders sought herein;

• f) This Honourable Court is empowered to grant the Orders herein;

• g) It is in the interest of justice that the Orders sought herein are granted;

• h) Granting the Orders herein would be in accordance with the overriding objectives of the Court.

10 The instant Application was supported solely by an Affidavit sworn to by Counsel Mr. Pierre Rogers filed on the 9 ^th May, 2018. In opposition to the Application, the Claimant relied on his Affidavit in Support of Ex-Parte Notice of Application for Court Orders, filed on the 12 ^th March, 2018.

11 Part 10 of the CPR outlines the relevant provisions that apply to the filing of a Defence. Rule 10.2(1) provides that a Defendant who wishes to defend a claim or part of a claim must file a Defence. The time period for filing such a Defence is stipulated by Rule 10.3 (1) which states that: -

“The general rule is that the period for filing a defence is the period of 42 days after the date of service of the claim form.”

12 However, a Defendant may seek an extension of time to file a Defence pursuant to Rule 10.3 (9) of the CPR, which reads: -

“The defendant may apply for an order extending the time for filing a defence.”

13 Additionally, Rule 26.1 (2) (c) of the CPR also provides that: -

“Except where these Rules provide otherwise, the court may -

(c) extend or shorten the time for compliance with any rule, practice direction, order or direction of the court even if the application for an extension is made after the time for compliance has passed…”

14 The Court enjoys wide discretionary powers to grant an extension of time. It however, will only exercise such powers, if sufficient material has been placed before the Court, which would enable it to properly exercise its discretion. It is noted that Rules 10.3 (1) and 26.1 (2) (c) of the CPR, do not speak to the relevant factors that the Court should take into account when considering whether or not an extension of time should be granted. Guidance must therefore be sought from case law.

15 In the case of Paulette Richards v Orville Appleby [2016] JMCA App 20, F. Williams JA reaffirmed that the guiding principles for the Court's consideration, in the exercise of its discretion on an Application for an extension of time are those outlined by Panton JA (as he then was) in Strachan v The Gleaner Company Limited and Dudley Stokes, Motion No. 12/1999, a judgment delivered on the 6 ^th December, 1999. In that case the learned Judge of Appeal enunciated at page 20 that: -

• “(1) Rules of court providing a time-table for the conduct of litigation, must, prima facie, be obeyed.

• (2) Where there has been a non-compliance with a time table, the Court has a discretion to extend time.

• (3) In exercising its discretion, the Court will consider-

  • (i) the length of the delay;

  • (ii) the reasons for the delay;

  • (iii) whether there is an arguable case for an appeal and;

  • (iv) the degree of prejudice to the other parties if time is extended.

• (4) Notwithstanding the absence of a good reason for delay, the Court is not bound to reject an application for an extension of time, as the overriding principle is that justice has to be done.”

16 It is in the application of these principles that the various submissions and the evidence ought to be considered by the Court.

The length of the delay

17 The length of the delay is a very important factor to be considered by the Court. Mr. Rogers in his Affidavit deponed that: -

• “3. On the 3rd August 2017, the Claimant initiated Claim Form and Particulars of Claim in the Supreme Court of Judicature, which were served on the Defendant on the 30th day of August 2017.

• 4. The Defendant acting on her own behalf filed an Acknowledgement of Service on the 13th...