Everoy Chin v Silver Star Motors Ltd
| Jurisdiction | Jamaica |
| Judge | Palmer Hamilton, J |
| Judgment Date | 20 May 2021 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU2020CD00242 |
[2021] JMCC COMM. 31
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. SU2020CD00242
Lord Anthony Gifford QC instructed by Gifford, Thompson & Shields for the Claimant
Mr. Christopher Dunkley and Ms. Kayola Muirhead instructed by Phillipson Partners for the Defendant
Civil practice and procedure-Application for summary judgment-Whether defendant has any real prospect of successfully defending the claim-Civil Procedure Rules, 2002 as amended, rule 26.3-Application to strike out claim-Whether claimant's statement of case is an abuse of process or discloses no reasonable grounds for bringing the claim-Civil Procedure Rules, 2002 as amended, rule 15.2
In this matter, the court heard two competing applications. On the one hand, the claimant filed a notice of application for summary judgment seeking that summary judgment be entered for the claimant on the claim. On the other hand, the defendant countered with a notice of application seeking, inter alia, that the claimant's statements of case and claim as a whole be struck out.
These applications emanate from a dispute that arose between the claimant and the defendant concerning a Black 2012 Mercedes Benz S350 motor vehicle bearing VIN: WDDNG2CBCA436916 (the motor vehicle). The claimant is a businessman and the defendant is the authorized dealer of Mercedes Benz in Jamaica. The claimant purchased the motor vehicle from the defendant in 2012. The dispute concerned the replacement of an engine by the defendant in the motor vehicle which culminated in the institution of claim no. 2015CD00125. That claim was settled on terms endorsed on counsel's brief (settlement agreement). The terms were as follows: -
“1. There is to be a valuation of 2012 Mercedes Benz S350 motor vehicle bearing VIN: WDDNG2CB6CA436916, to be carried out by Advanced Insurance Adjusters Limited of 18 South Avenue, Kingston 6 and by MSC McKay Jamaica Limited of 27 Lady Musgrave Road, Kingston 5.
2. If the average of the market value and forced sale valuations made by these two valuators is at least $4.5 Million, the Defendant will purchase the car for the price established by the average of the two (2) valuations.
3. If the value established by the formula at paragraph 2 above is less than $4.5 Million, the Claimant is at liberty to retain the vehicle and in such an event, the Defendant will facilitate the stencilling of a visible engine number, if no number is already visible.
4. If the Claimant so requests, the Defendant will service the Mercedes Benz motor vehicle purchased and imported by the Claimant, provided that Karl Salmon and Peta-Kaye Chin are to be the sole designated customers of the Defendant during the first six (6) months from the first service.
5. If the Defendant purchases the 2012 Mercedes Benz S350 motor vehicle bearing VIN: WDDNG2CB6CA436916, payment of the purchase price and collection of the motor vehicle shall be done by the Defendant within ten (10) days from the date of the last completed valuation.”
The claimant caused two (2) valuations to be done by the valuators stipulated in the settlement agreement which he averred to be consistent with the settlement agreement. The defendant company opposed these valuations on the following grounds: -
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1. A diagnostic test was necessary in order to arrive at a true valuation;
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2. The claimant engaged the agreed valuators thereby denying the defendant of a valuation on which it could rely;
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3. The valuation prepared by MSC McKay contained a disclaimer that it was not the Engineer's Report;
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4. The valuators were not aware that the valuation was pursuant to a court order.
The defendant subsequently withdrew their offer to repurchase the claimant's vehicle and this led the claimant to institute a second claim against the defendant for damages for breach of contract and settlement agreement order. The defence to this claim declared the defendant's oppositions mentioned above and it particularized the claimant's lack of bona fides.
The claimant is seeking that summary judgment be entered on the claim on the following grounds: -
“1. That pursuant to CPR 15.2 the Court may grant summary judgment to the Claimant if it considers that the Defendant has no real prospect of defending the claim or issue;
2. That the claimant is seeking to enforce the terms of a consent order made in this Honourable Court;
3. That the Defendant seeks to be excused from its obligations in the Consent order on the basis of terms it wishes to imply in the Settlement Agreement;
4. That the Claimant states that the terms which the Defendant seeks to imply into the agreement are not necessary to give business efficacy to the Settlement Agreement;
5. On a true construction of the Settlement Agreement, the parties both agreed to two valuations being done and they were done.
The defendant in addition to seeking that the claimant's claim be struck, seeks in the alternative, that the claim be stayed unless and until the claimant's motor vehicle is made available for diagnostic testing by a certified automotive mechanic/technician commissioned by both parties to complete the valuation per the settlement terms endorsed on counsel's brief within such a time as this honourable court shall deem appropriate. The defendant predicated this application on twenty-one (21) grounds. I find that the bulk of these grounds are a repetition of the circumstances surrounding the institution of the claim and I do not intend to reproduce them in their entirety. Without any intended disrespect to the defendant, the following are what I discern to be the core grounds of the application: -
“1. Pursuant to Civil Procedure Rule 26.3(1)(b), the Court may strike out a statement if it appears to the Court that the statement of case is an abuse of the process of the Court, or is likely to obstruct the just disposal of the proceedings.
2. Pursuant to Civil Procedure Rule 26.3(1)(c), the Court may strike out a statement of case if it appears to the Court that the statement of case discloses no reasonable grounds for bringing the claim.
11. By independently instructing both name valuators, the Claimant thereby and deliberately denied the Defendant the opportunity to participate in their commissioning, and to fully inform them of the parties' need to ascertain the true condition and so purchase value of the vehicle (Particular 1 of Refusal).
18. The Claimant's naked resistance to full information about the vehicle undermined the bona fides underpinning the parties' intention to create legal relations, the lack of which was a fundamental breach, which went to the substratum of the settlement agreement, and the Claimant's subsequent rejection of all efforts to mitigate amounted to a frustration of the Agreement.
19. The Claimant deliberately and unilaterally engaged valuators without joint or full instructions and having refused to submit the vehicle to diagnostic testing, has since urged this Honourable Court to accept valuations based solely on visual inspections over diagnostic tests and actual mechanical assessments necessary to ascertain the vehicle's true state, and so value.
20. The prejudice of forcing the Defendant to complete the purchase of a vehicle that was parked for several years, having been deprived of full information, must outweigh the Claimant's own stated reasons for completion.
21. This Claim and the Claimant's recent application for summary judgment are both attempts to use the Court's process to sanction unreasonable conduct and to seek a result which would be both unjust and unfair because it is this Claim which has no real prospect of success.”
The seminal issue to be determined by this court is whether the parties are entitled to the reliefs sought, in particular, is it appropriate for summary judgment to be entered on behalf of the claimant and whether his statement of case should be struck out for abuse of process.
I also want to thank counsel for their succinct submissions which guided the court in its deliberation of the issues emerging on each application.
The claimant's application is supported by his affidavit. His core contention is there is no substantive dispute about the express terms of the agreement between the parties and that the defendant is seeking to enforce new terms to the settlement agreement.
The claimant maintains that an Engineer's Report is an entirely different report from a valuation report and is not necessary to give the settlement agreement business efficacy. Further, the defendant was represented by competent attorneys-at-law who were free to ask for any terms they wished when they drafted the settlement agreement and as a dealer in motor vehicles and the entity which serviced the motor vehicle, the defendant would be in a good position to know what it wanted in the settlement agreement.
The claimant proffered that he did not consider that by unilaterally engaging the valuators that he had affected the value, voided the settlement agreement or acted in bad faith as both valuators are reputable and were agreed by the parties. The claimant further added that the defendant does not say how the value of a motor vehicle is affected by the fact that it was requested in the context of court proceedings.
Learned Queen's Counsel, Lord Gifford, on the claimant's behalf commenced his submissions by outlining the grounds for summary judgment to be granted. Lord Gifford submitted that it is not sufficient for the defendant to state that as an authorized dealer of motor vehicles they had certain expectations of the valuation. They must go onto state that the reasonable person having all background information must also come to the same...
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