Elm Hardware Distributors Ltd v Elsie Taylor, Unice Snape and CSR Properties Ltd

• Jurisdiction: Jamaica
• Judge: SYKES J.
• Judgment Date: 18 May 2007
• Judgment citation (vLex): [2007] 5 JJC 1801
• Date: 18 May 2007
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2006 HCV 02057

BETWEEN

ELM HARDWARE DISTRIBUTORS LTD

CLAIMANT

AND

ELSIE TAYLOR

FIRST DEFENDANT

AND

UNICE SNAPE

SECOND DEFENDANT

AND

CSR PROPERTIES LTD

THIRD DEFENDANT

IN CHAMBERS

Mr. Anthony Pearson for the claimant

Miss Carol Vassal instructed by C. M. Vassal and Company for the first and second defendants

Mr. David Batts and Miss Daniella Gentles instructed by Livingston, Alexander and Levy for third defendant

INJUNCTIONS - Res judicata - Application to strike out injunction

REAL PROPERTY - Injunction - Application to strike out - Res judicata

1 INJUNCTION, APPLICATION TO STRIKE OUT, RES JUDICATA, ABUSE OF PROCESS, PRIORITY OF EQUITABLE INTERESTS AND LOSS OF PRIORITY

SYKES J

2 1. Ms Elsie Taylor and Ms Unice Snape were appointed executrices under the will of Muriel Maud Oddman to pay debts and dispose of property according to the terms of the will. The two ladies, in seeking to dispose of the testator's estate, contracted to sell land located on Constant Spring Road. On June 13, 2000, they signed a contract with E.L.M. Hardware Distributor Limited ("E.L.M."). Problems arose and eventually E.L.M. sued the ladies. E.L.M. filed a claim seeking specific claiming specific performance; further or in the alternative, damages for breach of contract and loss of bargain; refund of moneys paid and interest at a commercial rate on all moneys paid. The first claim was not served on the defendants while the second was struck out on November 29, 2005. Seven months after the second claim was struck out, the ladies signed a sale agreement with C.S.R. Properties Limited ("C.S.R."). E.LM. filed a third claim after the ladies and C.S.R. signed the sale agreement. The ladies submit that this claim (the third claim) should also be struck out. Are they correct? C.S.R. has intervened and asks that the injunction restraining the Registrar of Title from dealing with the land to be discharged on the ground that it has done all that a prudent purchaser could have done in the circumstances. Am I able to grant the remedy C.S.R. wishes?

3 The details of the application

4 2. By notice of application for court orders dated November 15, 2006, the executrices of the Estate of Muriel Maud Oddman have applied to strike out the present claim. It is a preliminary objection which was raised when the injunction granted to E.L.M. came back for review. The executrices say that the current claim was wrongly brought and should be struck out either on the basis that (i) the matter is res judicata or (ii) the current claim is an abuse of the process of the court.

5 3. On October 30, 2006, the claimant E.L.M. applied, without notice, for an injunction restraining the Registrar of Titles from any dealing in land registered at volume 570 folio 21 of the Register Book of Title ("the disputed land"). King J. granted the injunction. His Lordship set the matter for further consideration on November 16, 2007. Let me give some further context to the dispute.

6 4. There are two sale agreements. The first is between E.L.M. and the executrices. The second is between C.S.R. and the executrices. Both agreements are in respect of the disputed property. How did this come about?

7 The E.L.M. sale agreement (the first sale agreement)

8 5. The sale agreement between E.L.M. and the executrices is dated June 13, 2000. The purchase price was $6,000,000.00. E.L.M. paid a deposit of $900,000.00 when the agreement was signed and paid a further $721,543.84. According to the contract, the date for completion was ninety days from the date all the parties signed the contract. The balance of the purchase price was not paid. E.L.M. has said that it did not pay the balance because the executrices were not able to transfer the property by the date of completion because they were not the registered proprietors and so were not able to deliver a registrable transfer. There was even a dispute as to whether E.L.M. was given possession. There was a flurry of correspondence between the parties but the issues were not resolved. This led E.L.M. to issue a writ of summons (the first claim Suit No. C.L. 2001/E 021) claiming specific performance; further or in the alternative, damages for breach of contract and loss of bargain; and refund of moneys paid and interest at a commercial rate on all moneys paid. This first writ was never served. Although the agreement is dated June 13, 2000, the writ alleged that the agreement was made on or about June 4, 2000.

9 The C.S.R. sale agreement (the second sale agreement)

10 6. The second sale agreement was signed on May 3, 2006. C.S.R. paid part of the purchase price and has entered into possession. There is no suggestion that C.S.R. acted fraudulently or improperly in contracting to purchase the disputed land. The third claim (the current claim) was filed and served after this contract was signed by the parties.

11 No. C.L. 2002/E019 (the struck out claim)

12 7. The second suit, Suit No. C.L. 2002/E 019, was taken out on April 22, 2002. It was served on the executrices. As it was known then, an appearance was entered for both executrices on October 24, 2002. No statement of claim was filed with this second claim and until it was struck out on November 29, 2005, by Norma McIntosh J., no statement of claim was filed. As noted earlier, the endorsement on this writ of summons was identical to the first writ which was not served, that is to say, it was claiming specific performance; further or in the alternative, damages for breach of contract and loss of bargain; refund of moneys paid and interest at a commercial rate on all moneys paid.

13 8. Not only did the executrices enter an appearance in response to Claim No. C.L. 2002/E 019 but they also filed a summons seeking an order striking out the writ of summons on the basis that it disclosed no cause of action at law or in equity. The summons also asked that the matter be struck out because the writ was frivolous and vexatious. The executrices filed an affidavit, also on October 24, 2002, setting out the evidence in support of their application. The claimant responded by filing its affidavit on November 25, 2002. The stage was now set for the hearing of the executrices' application.

14 9. From the record of the court, it appears that the first hearing date for the striking out application was November 28, 2002. On that date, the matter was adjourned sine. The minute of order does not disclose the reason although both sides were represented by counsel. The executrices took advantage of the adjournment by filing another affidavit on August 13, 2003, in response to E.L.M.'s November 25, 2002, affidavit.

15 10. The application to strike out was next for September 27, 2004. On that date, counsel for E.L.M. was absent and the matter was adjourned to January 17, 2005. Despite the date that was set the matter came back before the court on November 9, 2004, when it was adjourned to December 6, 2004. The minute of order suggests that the claimant was not notified of the November 9, 2004, date. On December 6, 2004, at the request of the court, the matter was adjourned to January 18, 2005. Both parties were to see if the matter could be settled. The additional note on the minute of order records that both sides agreed that the property should be revalued. On January 18, 2005, the minute of order states that the matter was adjourned to a date to be fixed by the Registrar. I take this, at the very least, to be an indication that the matter was not settled and that the executrices would be pursuing their application to strike out the claim.

16 11. The next date is March 21, 2005. The minute of order says that the matter was adjourned to July 14, 2005 "pending the outcome of talks continuing between parties with a view to settlement". When July 14, 2005, the minute of order shows that counsel for the executrices was absent because she was delayed on her way from Ocho Rios. Counsel for the claimant was present. The matter was adjourned to a date to be fixed by the Registrar. Again, there is no indication that the executrices were about to abandon their application.

17 12. The executrices' application was reissued on July 26, 2005, for hearing on August 8, 2005. It is not clear what happened but a note written in red on the reissued application has the date November 29, 2005, as the hearing date. On November 29, 2005, Norma McIntosh J. struck out the matter. The note on the minute of order records some reasons for striking out the matter. The note reads: (a) writ of summons filed 22/4/02; (b) no statement of claim filed; (c) pleadings not closed and (d) no application for orders under new rules by claimant. On November 29, 2005, counsel for the claimant was absent.

18 13. From this history, prior to November 29, 2005, counsel for the claimant and the defendant were absent on at least one occasion which necessitated an adjournment. It is true that the statement of claim was not filed but from December 6, 2004, to July 14, 2005, the parties, whether at the suggestion of the court or otherwise, were engaged in settlement discussions, if the minutes of order are accurate. This is a factor to be taken into account. It must be noted and repeated that the executrices did not abandon their application.

19 14. When the application came before Norma McIntosh J. on November 29, 2005, a bundle was placed before her Ladyship that contained all the affidavits filed in the application to strike out the matter. The bundle also had two affidavits of urgency, dated July 26, 2005 and October 13, 2005, sworn to by Miss Carol Vassal, counsel for the executrices. The note on the bundle made by the learned Judge shows that attempts were made, without success, to locate the claimant's counsel. Claimant's counsel was actually...