Godfrey McAllister v Christopher Webb
| Jurisdiction | Jamaica |
| Judge | O. Smith, J |
| Judgment Date | 29 July 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2016HCV00600 |
[2022] JMSC Civ 135
CLAIM NO. 2016HCV00600
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Civil procedure: Application to strike out Claim on the basis of res judicata, cause of action estoppel and issue estoppel — Abuse of process — Application for Summary Judgement — Limitation on Simple Contracts — Acknowledgement-Security for Costs
Ms. Claudia Forsythe and Mr. Nelton Forsythe instructed by Forsythe and Forsythe for the Claimant.
Mr. Abe Dabdoub instructed by Dabdoub and Dabdoub for the Defendant.
O. Smith, J (Ag)
In this matter two applications were filed, one by each party. The first application was filed on behalf of the Claimant, Godfrey McAllister on the October 5, 2021. It is a Notice of Application for Court Orders for Entry of Summary Judgment, in short summary judgment. An Amended Notice of Application for Court Orders for Entry of Summary Judgment was filed on behalf of the Claimant on February 3, 2021. The second application was filed on behalf of the Defendant, Christopher Webb, and is a Notice of Application for Court Orders for Declaration and to Strike out Claim, in short strike out. This second application was filed on March 4, 2022.
I intend to start with the Application to strike out filed on behalf of the Defendant. As such I will refer to Mr. Christopher Webb as the Applicant and Mr. Godfrey McAllister as the Respondent. Submissions were however, first heard on behalf of the Respondent in support of his application and in response to the Application to Strike Out. Counsel representing the Applicant, Mr. Dabdoub, made submissions in response to the Respondent's application for Summary Judgment and in support of his Application to Strike Out.
The Respondent is a Justice of the Peace and Mediator whose stated addresses are Apartment 4400, 1830 SW 81 st Avenue, North Lauderdale, Florida 33068 in the United States of America and 24 Bygrave Avenue, Kingston 20 in the parish of St. Andrew. The Applicant is a businessman of 6 Montgomery Road, Kingston 8. In order to understand the two applications before me I believe it is necessary to go to the root of the matter. That lies in the Claim Form and Particulars of Claim filed by the Applicant on the February 16, 2016.
By virtue of the Claim Form and Particulars of Claim, Mr. McAllister is alleging that he advanced the sum of US$ 287,077.26 to Mr. Webb as a loan for him to develop premises registered at Volume 429 Folio 18 of the Register Book of Titles. Based on the agreement, after a year, the defendant would repay to him the sum of JA$39M Jamaican Dollars or in the alternative the Defendant would transfer into his name one of the dwelling houses of equal value being constructed on the said land. This agreement was evidenced in a written document dated April 27, 2007.
The Particulars of Claim set out in detail the effort made by Mr. McAllister to recover the money. It states inter alia, that after December 2009 Mr. McAllister attempted to recover the JA$39,000,000.00 to no avail. This attempt continued up to 2013. Mr. McAllister eventually lodged a caveat against the property registered at Volume 429, Folio18 at which time he discovered that Scotia Jamaica Building Society (SJBS) and the National Housing Trust (NHT) were joint mortgagees ahead of him on the title.
On February 12, 2016, SJBS informed him that the property was sold and that the proceeds had been lodged with SJBS. SJBS also gave notice of its intention to pay over all the proceeds to Mr. Webb unless he authorized payment to Mr. McAllister. Thereafter, Mr. Webb acknowledged the debt of $39,000,000.00 owed to Mr. McAllister and agreed that he would pay the plaintiff from the proceeds of the sale after SJBS and NHT were paid. However, it would be a reduced figure. This did not materialize and as such he is claiming the sum of JA$39,000,000.00 from the proceeds of the sale plus interest of 6% pa from January 2010 to January 2016.
The entirety of the agreement is outlined below:
“Additional terms of agreement between Chris Webb and Godfrey McAllister re part funding for advancement of Irish Town Bellencita Ministry Resort Venture. Without prejudice to any and all other terms of agreement already decided on, except where the terms and conditions herein contradict and override previous agreements, the parties to this agreement hereby contract as follows with the understanding that when the final contract is signed, having reflected all terms and agreements contained herein, this contract shall expire.
In exchange for US$287,077.26 Chris Webb guarantees that Godfrey McAllister will in 14 months from today's date receive real estate the value of Thirty-nine Million Jamaican dollars ($39,000,00.00) arrived at by the average of two independent valuators selected by both parties to this contract.
In the event that the aforementioned value is not achieved at the time of the handing over of the keys to the house, this contract shall not be deemed to be breached if valuators project that the desired value will be achieved on completion of the project within 32 months of today's date.
Christopher Webb contracts with Godfrey McAllister that at the option of Godfrey McAllister, and within three months of such request, Godfrey McAllister's interest in the project will be encashed for an amount equal to the JA$39M.
Signed at Kingston this 27 th day of April, 2007 in the presence of each other and in the presence of witness, Patricia McAllister.”
The agreement has three signatures affixed.
In his Defence filed on April 15, 2016 Mr. Webb asserts that the claim is an abuse of process as the Claimant had filed a previous claim in 2013 claiming, in essence, the very same thing as the 2016 claim. In the circumstances, the 2016 claim was “frivolous and vexatious on the basis of cause of action estoppel, issue estoppel and abuse of process”. The Defence further indicated, that an Application for Default Judgment was before the Registrar in the 2013 claim. That the Registrar had made a requisition that the Affidavit of Service was defective and had directed the Claimant to rectify it. As such a final judgment was available to the claimant as at the date of the withdrawal of the 2013 claim on the 15 th of March 2016.
In addition, no application was made to the court to refile in circumstances where res judicata was applicable. The defendant also indicated in his Defence that section 46 of the Limitation of Actions Act, ( LAA) applied as the current claim was filed on the 16 th of February 2016 by Claimant in circumstances where the agreement between them is dated April 27, 2007. A such the claim is statute barred.
He also asserted that he is entitled to summary Judgment as the Claimant has no real prospect of succeeding. He reasons are similar to ones outlined above in support of abuse of process and res judicata.
It was made clear at the commencement of this hearing that both applications, for summary judgment and for strike out were being heard together. As a consequence, submissions were made on behalf of each party in support of and in response to the respective applications.
The Amended Notice of Application for Court Orders filed on behalf of the Mr. McAllister is seeking the following orders:
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1. That pursuant to Rule 15.2 of the Civil Procedure Rules, 2002, there be Summary Judgement for the Defendant.
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2. That damages be assessed in the sum of JA$39M together with interest at 6% from June 28, 2008 to May 19, 2016, being 2883 days at a daily rate of JA$6,410 being a total of JAD$81,482,797.68.
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3. An order that Scotia Bank from the proceeds of sale of property registered at Volume 429 Folio 18 of the Register Book of Titles pay to the Claimant's Attorneys-at-law, Messrs. Forsythe and Forsythe, the sum of JAD$19,501,930.00 being the sum of funds frozen on account by His Lordship, the Honourable Mr. Justice Sykes by way of Order entered in this Honorable Court on the 25 th day of October 2016 in partial satisfaction of a defendant's indebtedness to the Claimant…”
In his affidavit in support of summary judgment filed on February 3, 2022, Mr. McAllister among other things stated that Mr. Webb is a Canadian citizen who has continuously resided in Canada for the last six years and who has vehemently refused to disclose his address and hides behind the address of his attorneys at law. He indicated that the Mr. Webb was served with the Claim Form, Particulars of Claim, Prescribed Notes and other documents on the 19 th of February, 2016. That on the 15 th of March 2016 the Mr. Webb filed an Acknowledgment of Service followed by his Defence which was filed on April 15, 2016. In his affidavit Mr. McAllister reiterated the indebtedness of Mr. Webb in the sum of $39,000,000.00 the details of which have been outlined above.
He also asserted that Mr. Webb, having filed his Defence, failed to deny the several allegations that he laid out in his Particulars of Claim. In fact, he went on to say that Mr. Webb has failed to put forward anything regarding his nonfulfillment of the sums. Mr. McAllister averred that Mr. Webb did not in any particular way deny his claims but instead admitted his indebtedness to him.
The Notice of Application for Court Orders filed on behalf of Mr. Webb on March 4, 2022 was a response to the Application for Summary Judgment. It seeks the followings:
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1. That this Application be heard together with the Claimant's Amended Application for Summary Judgment fixed for the 16 th of May 2022.
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2. A declaration that the document dated April 27, 2007, is statute barred and therefore unenforceable.
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3. That unless the Claimant produces a Notice of Discontinuance dated prior to February 16,...
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