Hargitay (Peter) v Joel Magazine
| Jurisdiction | Jamaica |
| Judge | FORTE, P. , HARRISON, J.A. , SMITH. J.A. (AG.) |
| Judgment Date | 17 July 2001 |
| Neutral Citation | JM 2001 CA 32 |
| Judgment citation (vLex) | [2001] 7 JJC 1705 |
| Court | Court of Appeal (Jamaica) |
| Date | 17 July 2001 |
LOANS - Promissory note charged on appellant's property - Loan not repaid - Caveat lodged by respondent - Summons for order for sale of property - Whether case brought in right jurisdiction - Whether removal of caveat proper - Whether caveat ought to be extended if expired
I have read the draft judgment of Smith, JA (Ag.) and I agree with the reasons and conclusion as well as the order proposed.
I agree entirely. I have nothing to add.
This is an appeal against the Order of Edwards, J., refusing the appellant's summons to dismiss the respondent's Action and for Removal of Caveat.
These are taken from the affidavits of the respondent/plaintiff sworn to on the 13 th June 1994, of the appellant/defendant sworn to on the 5 th August 1994, and of Mr. Patrick Bailey, attorney-at-law, sworn to on the 21 st June 1994. The respondent/plaintiff Mr. Joel Magazine, is an American attorney-at-law. He is a practising member of the Florida Bar and served as the appellant's attorney-at-law in respect of various business transactions. The appellant/defendant, Mr. Peter Hargitay, is a Hungarian businessman who was a resident of Switzerland between the years 1957 and 1992. It is in dispute whether or not the appellant resided in this country for sometime. However in 1990, he purchased property situate at White River Road, Prospect, in the parish of St. Mary, comprised in Certificate of Title registered at Volume 1053 Folio 157 of the Register Book of Titles (the "property"). According to the appellant this property was to be used for vacation purposes.
On the 21 st of August 1992, the respondent loaned to the appellant the sum of United States $800,000.00. This loan was secured by a Promissory Note executed by the appellant and was charged on the latter's property. The loan was to be repaid on or before August 20 1993, with interest thereon at the rate of 10% per annum. The loan or any part thereof was not repaid.
On the 26 th October 1993, the respondent lodged caveat No. 787079 against the property to protect his interest. A Writ of Summons was filed on the 24 th November 1993, by which the plaintiff/respondent sought the recovery of the money loaned or alternatively the realization of the security described in the Promissory Note. Proceedings on this Writ of Summons were discontinued on the 9 th June 1994.
On the 28 th of January 1994, an Originating Summons for an Order for the sale of the property and affidavit in support were filed on behalf of the respondent - Suit No. E 64 of 1994. On the 3 rd of May 1994, leave was granted by the Master to issue and serve Notice of Originating Summons and affidavit in support out of the jurisdiction. On the 15 th June 1994, Mrs Harris J. on an ex parte Summons for interim injunction ordered that caveat numbered 787079 (the "caveat") remain in force until the 22 nd day of June 1994.
On the 22 nd day of June 1994, Chester Orr, J., granted an Order for substituted service of the Originating Summons on the appellant and ordered that the caveat remain in force indefinitely. A conditional appearance was entered on the 22 nd July 1994. On the 5 th September 1994, the attorney-at-law for the appellant filed a Summons to Dismiss Action and for Removal of Caveat. This Summons was dismissed by Edwards, J. on the 6 th March 1997. An appeal against this order is the matter now before this Court.
Three original grounds of appeal were filed. At the hearing counsel for the appellant sought and obtained leave to argue ten supplementary grounds of appeal. The main issues raised on appeal are:
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(1) Whether the respondent/plaintiff's case was brought in the right jurisdiction.
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(2) Whether the respondent/plaintiff's case was properly brought by Originating Summons.
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(3) Whether the learned judge erred in law in failing to discharge the order of Chester Orr, J. made on the 22 nd June 1994.
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(4)
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(i) Whether a caveat is analogous to injunction and if so, whether or not the judge erred in refusing to remove the caveat.
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(ii) Whether a court could extend the expired caveat.
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(5) Whether judicial cognizance should be taken of the Promissory Note which was:
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(i) not mentioned in the originating summons.
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(ii) unstamped pursuant to the Stamp Duty Act.
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The submissions of Mr. Wilkinson, attorney-at-law for the appellant may be summarized as follows:
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(1) The proper jurisdiction is the lex loci contractus which is Switzerland where the contract i.e. the Promissory Note, was made - See Arnott v Redfern (1825) 2C and p. 88 172 E.R. 40; Keiner v Keiner (1952) 1 ALL E.R. 643 at 644 H. and 645 J. Jacob et al v Credit Tyonnais (1884) 12 Q.B. D. 589 ; Dicey and Morris on Conflict of Laws 11 th Edition Vol. 2 p. 1162.
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(2) The mere assertion of the respondent in his affidavit evidence that the parties had orally agreed that "Jamaica would have jurisdiction" is not enough in light of the fact that the Promissory Note is silent as to an agreed jurisdiction.
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(3) The fact that the Promissory Note referred to land situate in Jamaica is irrelevant in this case because the land is not the subject matter of the contract -it is the loan that is at the heart of the contract and the land is just one means of securing the loan.
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(4) The appellant had not submitted to the jurisdiction. See Halsbury's Laws of England 4 th Edition Re-issue Vol. 8 (1) para. 630.
Ms Carol Davis' submissions on behalf of the respondent, may be summarized as follows:
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(1) The matter relates to land within Jamaica and/or a charge and/or equitable mortgage over land in Jamaica. A mortgage over land is an immovable. Generally where the matter relates to immovable property the Courts of the country in which the land is situate have exclusive jurisdiction. See Dicey and Morris on Conflict of Laws 12 th Edition Vol. 2 pp. 113, 941 and 960-1 and th Re Hayles (1911) 1 Ch. 179.
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(2) A court has jurisdiction where the defendant submits to the jurisdiction. The appellant/defendant submitted to the jurisdiction by virtue of the following:
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(a) he made an application for security for costs;
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(b) he filed affidavits on the merits of the case -See Dicey and Morris on Conflict of Laws Vol. 1 Rule 25 Boyle v Sacker (1888) 39 Ch. 249. Lloneux Limon and Co. v Hong Kong and Shaugai Banking Corp. (1886) 33 Ch. 446.
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(3) Forum Non Conveniens - The defendant must show that there is another more "appropriate" forum. See Spiliada Maritime Corporation v Consulex Ltd. (1987) 1 AC 460.
In determining the question of whether or not the Supreme Court has jurisdiction to entertain this matter, a good starting point is to set out the contents of the Promissory Note upon which the matter is based:
"United States $800,000.00 Zolikon, August 21, 1992.
Address: 9190 SW 92 Avenue Miami, Florida.
Mr. Joel R. Magazine
In CONSIDERATION of the sum of U.S. $800,000.00 (eight hundred thousand) this day lent and advanced to me by you, I promise to repay said sum on/by August 20 1993, with interest at the rate of 10% (ten percent) per annum, and I hereby give you a charge over my property with building thereon and chattels therein located in the Part of Prospect Parish of Saint Mary, Lot numbered 8 on Plan DP 1564 registered at Volume 1053 Folio 157 of the Register Book of Titles by a deposit with you of a copy of the said Certificate of Title and UNDERTAKE to execute a MORTGAGE over said premises whenever called upon so to do by you.
Signed by: Peter Hargitay In the presence of Helmith Beb".
The respondent asserted that a letter dated the 21 st day of August 1992, was sent to him at his Miami Florida address by the appellant. It acknowledged the appellant's indebtedness and was signed by him. The Promissory Note was delivered by cover of the said letter. See affidavit of Joel Magazine sworn to on the 13 th day of June 1994. In the same affidavit at paragraph 10, Mr. Magazine stated:
"The Defendant and I specifically agreed that Jamaica would have jurisdiction over our transaction herein particularly having regard to the fact that the land charged under the Promissory Note aforesaid was the only real security given by the Defendant to me and further that the said land was situate in Jamaica that should it become necessary to enforce the security Jamaica Law and jurisdiction would prevail."
The appellant/defendant has denied any such agreement. Clearly, the mere allegation of an oral agreement as to jurisdiction cannot give the court jurisdiction. In any event, at common law, the mere agreement of the parties that a court shall have jurisdiction to determine disputes arising out of a contract between them is insufficient by itself to give the court jurisdiction. See Dicey and Morris on Conflict of Laws Vol. 1 pp. 312–313.
However, the question arises as to whether or not the appellant by the contents of his affidavit, has submitted to the local jurisdiction. His affidavit sworn to on the 5 th August 1994, bears the following caption:
"Affidavit of Peter J. Hargitay in Reply to Affidavit in Support of Originating Summons AND IN SUPPORT OF SUMMONS TO DISMISS ACTION AND FOR REMOVAL OF CAVEAT".
The caption of the other affidavit dated the 2 nd September 1994, is similar to the one above save that it starts with the word "Further". In paragraphs 13 and 15 of the first...
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