Dino Michelle Ltd and Others v National Commercial Bank Ltd and Others
| Jurisdiction | Jamaica |
| Judge | Morrison JA |
| Judgment Date | 20 December 2012 |
| Neutral Citation | JM 2012 CA 114 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 140/2012 APPLICATION NO 237/12 |
| Court | Court of Appeal (Jamaica) |
| Date | 20 December 2012 |
[2012] JMCA App 38
JAMAICA
IN THE COURT OF APPEAL
SUPREME COURT CIVIL APPEAL NO 140/2012
APPLICATION NO 237/12
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Abraham Dabdoub and Miss Jacqueline Cummings for the applicants
Miss Natasha Richards instructed by Myers , Fletcher & Gordon for the 1 st respondent
Mrs Daniella Gentles-Silvera instructed by Livingston, Alexander & Levy for the 2 nd respondent
Mrs Sandra Minott-Phillips QC and Mrs Alexis Robinson instructed by Myers, Fletcher & Gordon for the 3 rd respondent
INJUNCTION - Order to restrain sale or transfer powers of sale over properties - Whether injunction should be refused - Whether damages should be awarded in lieu of injunction
By notice of application for court orders filed on 14 November 2012, the applicants seek an injunction pending an appeal to this court from the judgment of King J given in the Supreme Court on 11 May 2012, some six years after he had completed the hearing of the evidence and reserved his judgment. The order sought is to restrain the 3 rd respondent (“JRF”) from auctioning, selling, transferring or exercising its powers of sale over or in any way dealing with the following properties held by it by way of security, until the determination of this appeal:
‘i) ALL THAT parcel of land situate at No. 17 Glenalmond Drive, Kingston 6 in the parish of Saint Andrew comprised in Volume 1061 Folio 64 of the Register Book of Titles
ii) ALL THAT parcel of land situate at Lot no. 103 1/4 Luke Lane in the parish of Kingston and comprised in Volume 244 Folio 100 of the Registrar [sic] Book of Titles
iii) ALL THAT parcel of land situate at Newport West and formerly comprised in Volume 1029 Folio 71 and now Volume 1327 Folio 875 of the Register Book of Titles
iv) ALL THAT parcel of land situate at Newport West and formerly comprised in Volume 1029 Folio 72 and volume 1327 Folio 876 of the Register Book of Titles’
The 1 st applicant (“the company”) is a limited liability company engaged in the business of garment manufacturing for the local and export markets. The 2 nd applicant (“Mr Zaidie”) and the 3 rd applicant (“Mrs Zaidie”) are directors, shareholders and guarantors of the indebtedness of the company. The 4 th applicant is also a limited liability company, the shares of which are owned by Mr and Mrs Zaidie, which has also guaranteed the indebtedness of the company.
The 1 st respondent (“NCB”) is a commercial bank, of which the company has been a customer for a number of years, and the 2 nd respondent (“NDB”) is a development bank. The 3 rd respondent is NCB's successor in title to certain mortgages taken by NCB as security for moneys advanced to the company.
The application is supported by first and supplemental affidavits of Mr Zaidie, sworn to on 14 November 2012 and 17 December 2012 respectively, and it is opposed by an affidavit sworn to on 12 December 2012 by Ms Merline Patterson, a loans recovery manager employed to JRF. At paragraph 11 of her affidavit, Ms Patterson avers that the properties comprised in Certificates of Title registered at Volume 1327 Folio 875 and Volume 1327 Folio 876 of the Register Book of Titles are already the subject of signed agreements for sale with third parties, pursuant to powers of sale contained in the mortgages registered on those titles in favour of JRF. At paragraph 5 of his supplemental affidavit, Mr Zaidie does not dispute this assertion, and Miss Cummings for the applicants confirmed to me at the outset of the hearing that the intention was that the application for an order preventing a sale of the mortgaged properties should proceed in respect of the properties registered at Volume 1061 Folio 611 and Volume 244 Folio 100 only. However, Miss Cummings submitted, it nevertheless remained open to the court to make an order that the proceeds of the sale of those properties should not be disbursed or dissipated and should be held in an interest bearing account pending the determination of the appeal.
At the conclusion of the hearing of the application on 17 December 2012, Miss Cummings applied to amend the notice of application for court orders to add a third property registered at Volume 1144 Folio 947, on the basis that it was a part of the applicants” claim in the court below and had in fact been specifically referred to in the statement of claim (at paragraph 30). Mrs Robinson for JRF told me that she was taken by surprise and would need to take instructions as to the status of this property. It was therefore agreed at the end of the hearing that she would communicate her client's position on Miss Cummings” application to me by electronic mail (“email”) as soon as she was able to do so. In an email sent to me (and copied to all other parties) on 18 December 2012, Mrs Robinson advised that this property, although available for sale, was not yet subject to an agreement. However, Mrs Robinson went on to point out that this property had in fact been mortgaged to NCB before the transaction which is the subject matter of the dispute in the instant case and that there was therefore no basis for including it in the current application. Accordingly, in the absence of any further input from Miss Cummings on this, I propose to proceed on the basis that the application to amend the notice to include this property has not been made out.
The application for an injunction pending appeal is made on the following grounds:
‘1. The 3 rd Respondent/Defendant is the registered mortgagee of the 4 th and 5 th Appellant/Claimants' properties aforementioned and the 2 nd and 3 rd Appellants/Claimants are the sole owners of the 4 th and 5 th Appellant/Claimants.
2. That the matter herein was tried in the Supreme Court before His Lordship Mr. Justice King from the 3 rd to the 6 th day of April 2006 and submissions were submitted in July 2006.
3. That His Lordship Mr. Justice King gave his judgement approximately 6 years later on the 11 th day of May 2012.
4. That the findings of His Lordship Mr. Justice King herein were ambiguous and inconsistent with the evidence adduced at the hearing and resultantly the Appellants filed its Notice and Grounds of Appeal in this Honourable Court.
5. That the legitimacy of the 3 rd Respondent/Defendant's claim as mortgagees of the abovementioned properties, inter alia, forms the gravamen of appeal herein.
6. That following the judgment of His Lordship Mr. Justice King, the 3 rd Respondent/Defendant sold by way of private treaty/or auction the property located at 71 Luke Lane in the parish of Kingston and comprised formally in Volume 1327 Folio 873 of the Registrar [sic] Book of Titles advertised for sale by public auction and has taken positive efforts to sell the other four premises hereinbefore mentioned which the 4 th and 5 th Claimant currently hold as registered proprietors.
7. That in addition to the 4 th and 5 th Appellant/Claimant [sic] being the registered owners of the properties, the 2 nd and 3 rd Appellant/Claimants have equitable interests in each and every property as listed, in particular the property as itemized in no. 1 (i) herein as it is the matrimonial home of the 2 nd and 3 rd Appellants/Claimants herein.
8. That as a result of the sale of the property stated in paragraph 6 herein by the 3 rd Respondent/Defendant, the 2 nd and [sic] Appellant/Claimant were forced to close their family business which is their sole means of livelihood and are now before the Resident Magistrate's Court for manse profits by the registered owner thereof.
9. That no justice is foreseeable to the detriment of the 3 rd Respondent/Defendant if the injunction is granted. Conversely, any resulting damage to be incurred by the 3 rd Defendant may be properly remedied by monetary damages.
10. Should an injunction be refused and the 3 rd Respondent/Defendant proceed with the auction sale of any of the properties named herein, the resulting damages to the Claimants would be such that monetary damages or otherwise would not be an adequate remedy for the Applicants should judgment be handed down in their favour.
11. There are serious issued to be determined in the appeal herein.
12. The balance of convenience favours the Appellants/Claimants.’
In his first affidavit in support of the application, Mr Zaidie speaks to the history of the company and its dealings with NCB and NDB, as well as the nature and progress of the litigation from which the appeal arises. He identifies the property registered at Volume 1061 Folio 611 of the Register Book of Titles as the matrimonial home of himself and Mrs Zaidie. He points out that King J heard the matter on 3-6 April 2006, that closing arguments were submitted by the parties in or about July 2006 and that the learned judge's judgment was not given until 11 May 2012. Since delivery of the judgment, active steps have been taken by JRF to sell the company's property under the powers of sale in the mortgages and the justice of the case supports the grant of an injunction pending the hearing of the appeal.
In her affidavit, Ms Patterson confirms that the company's debt to NCB, now held by JRF, is still outstanding and that, as at 24 September 2000, the amount due from the company to NCB under the debt was $67,781,125.05.
The applicants' claim in the court below was to the following general effect. NCB had been the company's banker for a number of years and had at all...
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