DYC Fishing Ltd v Perla del Caribe Inc.

• Jurisdiction: Jamaica
• Judge: Harris JA,Dukharan JA,Phillips JA
• Judgment Date: 13 August 2012
• Neutral Citation: JM 2012 CA 78
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 11/2012 APPLICATION NO 156/2012
• Date: 13 August 2012

Between

DYC Fishing Limited

Applicant

and

Perla Del Caribe Inc

Respondent

[2012] JMCA App 18

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

SUPREME COURT CIVIL APPEAL NO 11/2012

APPLICATION NO 156/2012

JAMAICA

IN THE COURT OF APPEAL

CIVIL PROCEDURE - Judgment - Application for stay of execution of judgment - Application for discharge of provisional charging and attachment orders - Application for security for costs

Ransford Braham QC and Christopher Dunkley instructed by Phillipson Partners for the applicant

Abraham Dabdoub and Miss Karen Dabdoub instructed by Dabdoub Dabdoub and Company for the respondent

Harris JA

1 I have read the judgment of my learned sister Phillips JA and I am fully in agreement with her reasons and conclusion.

Dukharan JA

2 I too have read the judgment of Phillips JA and agree with her reasons and conclusion.

Phillips JA

3 This is a fresh application filed on 19 July 2012, by the applicant, for a stay of execution of the judgment of R. Anderson J made on 17 December 2011. The applicant sought the following orders:

‘1. This Honourable Court do hear and grant a stay of execution until the final determination of this matter or further order of this Honourable Court of Appeal.

2. That this Honourable Court of Appeal do discharge the Provisional Charging and Attachment Orders and Injunction made by the Honourable Mr. Justice K Anderson on the 16 ^th July 2012.

3. Further and or in the alternative the Provisional, Charging and Attachment orders and Injunctions made by the Honourable Mr. Justice Evan Brown on 13 ^th February 20120 ought to be varied as follows:—

a) The Appellant be permitted to carry on its normal business operations, including:-

i) receiving payments into its bank accounts by cheque, wire transfers, cash or in any other form;

ii) making payments in relation to:-

• - Plant processing inputs

• - Utilities

• - Suppliers of processing related goods and services;

• - Plant operations and maintenance;

• - Trucking;

• - Payroll;

• - Attorney's fees;

• - Government taxes, fees, permits and levies;

• - The harvesting, storage, processing, sale of conch and other fishery products.

b) The hearing to make final the Provisional Charging, Attachment orders and Injunctions made by Honourable Mr. Justice Evan Brown be postponed until the final determination of the Appeal or further order of this Honourable court of Appeal.’

4 It is perhaps best to set out the history of the matter which has resulted in this new application being filed so that it can be put within its proper context.

5 Subsequent to the judgment of R. Anderson J on 17 December 2011, the applicant filed an amended notice and grounds of appeal on 27 January 2012 seeking, inter alia, to set aside the said judgment. On 13 February 2012 E. Brown J made provisional charging and attachment orders and granted an injunction. The applicant thereafter filed an application for a stay of execution of the judgment of R. Anderson J which came before me and was heard and determined on 17 May 2012. I made the following orders:-

‘(i) There shall be a stay of execution of the judgment of Anderson J dated 17 December 2011, until the determination of the appeal, or until further order of this court on the condition that the appellant provide security satisfactory to the respondent in the amount of 15% of the judgment sum, on or before 30 June 2012.

(ii) There shall be liberty to apply, with regard to the security to be provided, within 10 days of the date hereof, if the security to be provided has not been satisfactorily agreed between the parties.

(iii) There shall be no order as to security for costs, and no costs are awarded on the application.

(iv) Costs of the application on the stay of execution of the judgment shall be the respondent's to be taxed if not agreed.’

6 Pursuant to the liberty to apply provision in paragraph (ii) of the above order the applicant made an application for clarification of the order relative to the security to be provided, as a condition of the order for the stay. On 5 June 2012, I provided that clarification by directing that the properties which are the subject of the provisional charging order may be utilized to comply with the order in respect of the said security required as a condition of the stay.

7 Subsequent to the above order and clarification, the respondent filed Application No 127/2012 for the full court to vary and/or discharge the order, and the applicant filed Application No 128/2012 asking the full court to discharge the provisional charging order, attachment of debt order and the injunction.

8 On 6 July 2012, the full court ordered as follows:

‘1. The order for the Stay of execution of the judgment is varied by ordering that the judgment sum is to be paid into an interest bearing account in the joint names of the attorneys-at-law.

ALTERNATIVELY

The Appellant to provide a letter of commitment from a reputable financial institution for the payment of the Judgment sum on or before the 13 ^th July 2012.

2. On condition that the Applicant complies with the above, the provisional charging orders, the provisional attachment orders and the injunctions are hereby discharged.

3. There shall be no order as to costs.’

9 The applicant failed to comply with the order above in that the sum was not paid nor was a letter of commitment obtained from a financial institution in respect of the judgment sum.

10 The appeal came up for hearing before the court on 16 July 2012, but was adjourned to commence on the following day, and the situation with regard to the applicant's failure to comply with the orders made by the court on 6 July 2012 was brought to the attention of the court. The applicant indicated that it had experienced difficulties whilst attempting to comply with the order and indicated that an application would be filed requesting certain further orders from the court. We commenced hearing the appeal on 17 July 2012. On 18 July 2012, the applicant informed the court that the respondent had obtained further provisional charging orders, attachment of debt orders and injunctions from K. Anderson J in respect of the same judgment debt and relating to the same assets the subject of the former orders made by E. Brown J on 13 February 2012.

11 It appears that neither counsel representing the parties appreciated the portent and content of the order made by the full court, to the effect that the discharge of the provisional charging order, attachment of debt order and injunction was conditional on the applicant complying with the order to pay the judgment sum or to obtain a letter of commitment from a financial institution in that amount. The conditions having not been met, the orders made by E. Brown J remained in place and therefore the order made by K. Anderson J could have no effect. Additionally, the conditions not having been met, the order for the stay of execution which was made on that basis lapsed.

12 The application filed on 19 July 2012 and amended on 31 July 2012 was therefore an attempt to give the applicant some protection in respect of its assets, as the former stay granted by me was no longer extant, and the respondent had advised that the application to make the provisional orders final was set for hearing on 14 August 2012. On the other hand, the respondent was endeavouring to ensure that should the appeal be unsuccessful, there would be assets to secure the judgment, as the applicant had failed to secure the same by payment of the judgment debt or by way of a letter of commitment from a financial institution as ordered by the court.

13 In respect of this fresh application for stay of the judgment of R. Anderson J, the applicant relied on an affidavit of Frank Cox, its managing director sworn to on 19 July 2012, wherein he stated that he was duly authorized to swear to the same on its behalf. It was the affiant's contention that when the full court was making its order, initially, the only direction was for the applicant to pay the full judgment debt into an interest bearing account in the joint names of the attorneys-at-law, within seven days, as a condition of the stay, and this order was based on the court's understanding that he had stated in an affidavit, which was before the court, that the applicant could afford to pay the judgment debt as a condition of the stay. However, when his attorneys informed the court of ‘that misconstruction’ of his affidavits, the court immediately made the alternative order that it obtain the letter of commitment.

14 He further testified that having discussed the matter with the applicant's bankers he had been informed that it was not possible, obviously for them to issue a letter of commitment in seven days, as they were not aware of any other institution in Jamaica which would be prepared to process mortgage financing for the amount of US$2,000,000.00 in under 120 days. He was further informed that the properties would have to be valued by a member of the bank's panel of approved valuators. Additionally, if there were any breaches discovered on the certificates of title for the respective properties those would have to be rectified before the registration of any mortgage could occur, which could result in delays. What was important however, he deposed, was that the process for the issuance of a letter of commitment was the same, as for a loan, as the bank's obligation to honour its commitment remained the same. This was the explanation given by the applicant for its failure to comply with the conditions, as varied and imposed by the full court.

15 It was Mr Cox's further averment that the applicant was currently engaged in the conch 2012 fishing season and the provisional charging order, attachment of debt order and...