Gloria Chung, Amanda Chung and Mark Chung v Michael Chung and Mikal Investments Ltd

• Jurisdiction: Jamaica
• Judge: Rattray, J.
• Judgment Date: 03 April 2018
• Neutral Citation: [2018] JMSC Civ 44
• Date: 03 April 2018
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2016HCV01895

[2018] JMSC Civ. 44

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Cor:

Rattray, J.

CLAIM NO. 2016HCV01895

Between

Gloria Chung

1 ^st Claimant

Amanda Chung

2 ^nd Claimant

and

Mark Chung

3 ^rd Claimant

and

Michael Chung

1 ^st Defendant

and

Mikol Investments Limited

2 ^nd Defendant

Mr. Stephen Shelton QC and Ms. Stephanie Ewbank instructed by Myers, Fletcher & Gordonfor the Claimants

Mrs. Georgia Gibson Henlin QC and Ms. Stephanie Williams instructed by Henlin Gibson Henlin for the Defendants

Civil Procedure - Defendants' Notice of Application to Vary/Set Aside Order or for an Extension of Time to Comply with Order — Rules 42.10(1), 26.1(7) and 28.7(1) (2)(a) and (b) of the Civil Procedure Rules — Claimants' Notice of Application to Strike out Defence — Rules 28.14 (2) and 26.3 (1)(a) of the Civil Procedure Rules.

IN CHAMBERS

1 Before this Court were two Applications, the first of which was filed on behalf of the Defendants seeking to vary/set aside or for an extension of time within which to comply with an Order for Specific Disclosure, and the other on behalf of the Claimants, seeking to strike out the Defendants' Defence. However, before the Court embarks on a consideration of the respective Applications, it is important to give a brief chronology of the events leading up to the Applications being filed.

2 The Fixed Date Claim Form filed herein on the 9 ^th May, 2016, originally came before the Court for Case Management Conference (CMC), on the 28 ^th July, 2016, before Tie J(Ag) (as she then was). On that occasion, both sides had retained legal representations, the Claimants by Messrs. Myers, Fletcher & Gordon and the Defendants by Messrs. Clayton Morgan & Company.

3 The learned Judge at the CMC made Orders requiring, inter alia, the 1 ^st Defendant to file and serve Affidavit in Response to the 1 ^st Claimant's Affidavit on or before the 19 ^th September, 2016, the Claimants to file and serve Affidavit in Response on or before the 21 ^st October, 2016, and any further Affidavits by either side to be filed and served on or before the 30 ^th November, 2016. In addition, the learned Judge also adjourned the CMC to the 24 ^th March, 2017.

4 Subsequently, on the 6 ^th March, 2017, the Claimants filed a Notice of Application for Specific Disclosure, which was scheduled to be heard at the adjourned CMC, on the 24 ^th March, 2017.

5 When the adjourned CMC came before this Court on the 24 ^th March, 2017, on the application of the Defendants' then Attorneys-at-Law, Messrs. Clayton Morgan & Company, the CMC was further adjourned, as well as Claimants' Notice of Application for Specific Disclosure, to the 25 ^th July, 2017. The Court also on the 24 ^th March, 2017, extended the time for the 1 ^st Defendant, to file and serve an Affidavit in Response to the Claimants' Notice of Application for Specific Disclosure, to the 27 ^th March, 2017 by 4pm. In addition, permission was granted to the Claimants to file and serve Affidavit in Reply, if necessary, on or before the 11 ^th April, 2017.

6 On the 21 ^st June, 2017, the Claimants filed another Notice of Application, this time seeking to have a chartered accountant appointed to audit the financial documents of the 2 ^nd Defendant for the years 2003 to 2016 inclusive. This was scheduled to be heard at the further adjourned CMC on the 25 ^th July, 2017.

7 Subsequently, a Notice of Change of Attorneys-at-Law was filed on the 21 ^st July, 2017 on behalf of the Defendants, placing their new Attorneys-at-Law, Messrs. Henlin Gibson Henlin on the record.

8 On the 25 ^th July, 2017, the further adjourned CMC, the Claimants' Notice of Application for Specific Disclosure, and the Claimants' Notice of Application seeking to appoint a chartered accountant to audit the financial documents of the 2 ^nd Defendant, came on for hearing before this Court.

9 On that occasion, the Defendants were represented by Counsel Ms. Williams instructed by Henlin Gibson Henlin, who requested an adjournment, as Counsel indicated that her firm was recently retained in the matter, and needed time to take instructions from their clients. She further indicated that it was only the day before, that she was made aware of the Claimants' Notice of Application for Specific Disclosure, and had not had sight of the said Application.

10 Mr. Shelton QC in his reply, advised the Court that he had instructions from his clients, not to oppose an adjournment of the CMC, nor the Notice of Application seeking to appoint a chartered accountant to audit the financial documents of the 2 ^nd Defendant. He however, objected to the Notice of Application for Specific Disclosure being adjourned, as he argued that on the last occasion, the Application was adjourned at the request of Messrs. Clayton Morgan & Company, on behalf of the Defendants.

11 In deciding whether or not to proceed with the Notice of Application for Specific Disclosure, the Court had to bear in mind that the Application was filed from the 6 ^th March, 2017, to be heard on the 24 ^th March, 2017. On that date, at the request of the Defendants' Attorneys-at-Law, the Application was adjourned to the 25 ^th July, 2017. The 1 ^st Defendant then would have personally known about the Application from the 24 ^th March, 2017, as he was present and legally represented when it was adjourned. That Defendant had also been present on all occasions that the matter had been before the Court. As such, he could have and should have properly advised his new Attorneys-at-Law of the Application. In addition, a perusal of the Court file revealed that the 1 ^st Defendant had filed an Affidavit opposing the Notice of Application for Specific Disclosure, and so it would appear that he was well aware of, and knew about the Application.

12 The Court therefore having considered learned Queen's Counsel's position, and that of Counsel for the Defendants, Ms. Williams, granted the Order for Specific Disclosure of the documents as set out hereunder, such disclosure to take place on or before the 22 ^nd September, 2017 by 3pm:

• “1. Copies of Annual Returns for the years 1999–2016 in relation to the 2 ^nd Defendant;

• 2. Copies of audited Financial Statements and/or management accounts for the period 1999–2008 and the years 2011 and 2016 in relation to the 2 ^nd Defendant;

• 3. Copies of all banking records including all bank loans, overdraft facilities and bank statements and mortgages for the period 1999–2016 in relation to the 2 ^nd Defendant;

• 4. Details and copies of all statements in relation to the Director's Urban Renewal Bond Loan account for the period 2004–2016 in relation to the 2 ^nd Defendant;

• 5. Copies of all Leases and Rental Agreements between the tenants and the 2 ^nd Defendant at Centre Point Plaza for the period 2000–2016;

• 6. Copies of all Leases and Rental Agreements between the tenants and the 2 ^nd Defendant at Seaview Plaza for the period 2011–2016;

• 7. All Income Tax Returns and Assessments and General Consumption Tax Returns and Assessments in relation to the 2 ^nd Defendant for the period 2000–2016;

• 8. The 2 ^nd Defendant's General Ledger for the period 1999–2016;

• 9. Minutes of all Shareholders' meetings and Directors' meetings for the period 1999–2016 in relation to the 2 ^nd Defendant;

• 10. All bank statements from the Bank of NT Butterfield & Sons Limited in Bermuda from May 2010 to December 2010;

• 11. Copies of all contracts of service between the 2 ^nd Defendant and its employees, auditors, lawyers and consultants;

• 12. Specific details of all insurance claims and settlements in relation to and on behalf of the 2 ^nd Defendant between 2000–2016.”

13 In addition, the CMC and the Claimants' Notice of Application seeking to appoint a chartered accountant to audit the financial documents of the 2 ^nd Defendant, were adjourned for a date to be fixed by the Registrar.

14 Subsequently, on the 21 ^st September, 2017, the Defendants filed a Notice of Application seeking to vary and/or set aside or for an extension of time to comply with the Order for Specific Disclosure made by the Court on the 25 ^th July, 2017. The Application was scheduled by the Registrar to be heard on the 18 ^th December, 2017. The Claimants then filed a Notice of Application on the 13 ^th November, 2017, seeking to strike out the Defendants' Defence, which was also set to be heard on the 18 ^th December, 2017.

15 On the 11 ^th December, 2017, the Defendants filed an Amended Notice of Application seeking to vary and/or set aside or for an extension of time to comply with the Order for Specific Disclosure made by the Court on the 25 ^th July, 2017.

16 Both Applications, the Defendants' Amended Notice of Application seeking to vary and/or set aside or for an extension of time to comply with the Order for Specific Disclosure, and the Claimants' Notice of Application to strike out the Defendants' Defence, came before Shelly-Williams J, on the 18 ^th December, 2017, who adjourned same to the 19 ^th January, 2018 to be heard by this Court.

17 The Defendants filed a Further Amended Notice of Application seeking to vary and/or set aside or for an extension of time to comply with the Order for Specific Disclosure made on the 25 ^th July, 2017. On the 19 ^th January, 2018, both Applications came before this Court. However, on that occasion, the Court file could not be located, and none of the Bundles that were said to have been filed by the respective parties could be located. In those circumstances the Applications had to be adjourned.

18 The parties then met with the Registrar, and the Applications were both adjourned to the 6 ^th February, 2018, to be heard by this Court. These are the Applications now to be considered.

THE APPLICATIONS

19 The Defendants' Further Amended Notice of Application filed on the 22 ^nd December, 2017, sought the following reliefs:

1

The Formal Order of the...