Hugh Bennett and Another v Michael Williams

• Jurisdiction: Jamaica
• Judge: Anderson, K., J.
• Judgment Date: 22 November 2013
• Neutral Citation: [2013] JMSC Civ 194
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2013 HCV 00752
• Date: 22 November 2013

[2013] JMSC Civ 194

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Anderson, K., J.

IN CHAMBERS

CLAIM NO. 2013 HCV 00752

Between

Hugh Bennett & Jacqueline Bennett

Claimants

and

Michael Williams

Defendant

Leone Hines-Smith , holding brief for Debayo Adidepe, for the Claimants/Applicants

Marcelle Donaldson , instructed by Shellards, for the Defendant

APPLICATION FOR EXTENSION OF TIME TO FILE DEFENCE — NEED TO ALSO OBTAIN EXTENSION OF TIME TO FILE ACKNOWLEDGEMENT OF SERVICE — NEGLECT OF ATTORNEY IN FAILING TO FILE DEFENCE IN TIME — FAILURE OF APPLICANT TO OFFER ANY EXPLANATION FOR FAILURE TO FILE ACKNOWLEDGEMENT OF SERVICE — FILING OF COUNTERCLAIM AND ANCILLARY CLAIM —‘ANCILLARY CLAIM’ DEFINED IN RULES OF COURT AS INCLUDING ‘COUNTERCLAIM’— FACTORS TO BE CONSIDERED BY COURT IN DECIDING WHETHER TO GRANT AN EXTENSION OF TIME FOR FILING OF DEFENCE — LENGTH OF DELAY — REASONS FOR DELAY — PREJUDICE TO CLAIMANT — WHETHER PROPOSED DEFENCE HAS A REALISTIC PROSPECT OF SUCCESS — FORFEITURE OF PURCHASE PRICE DEPOSIT PURSUANT TO LAND SALE AGREEMENT — WHETHER DEFENDANT ENTITLED TO FORFEIT DEPOSIT

1 In respect of this matter, the respective claim form and particulars of claim, were filed on February 8, 2013, claiming damages of $600,000.00 which represents the deposit paid for the purchase of property located at 1740 North Carlisle Place, Cumberland, in the parish of St. Catherine and registered at volume 1248, folio 345.

2 The defence and counterclaim were filed on March 14, 2013. In the counterclaim, the total sum claimed for is $579,799.00. By that counterclaim, the defendant is contending that the claimants’ deposit was forfeited, as a consequence of the agreement for sale having been cancelled ‘by no fault of the purchasers.’ See in that regard, special conditions Nos. 6 and 7 of the agreement for sale. In addition, the defendant is, in that counterclaim, contending that by virtue of the claimants’ failure to complete the agreement for sale, the defendant was unable to liquidate the mortgages which he had previously secured on the property, with Victoria Mutual Building Society (V.M.B.S). As a result, the defendant alleges that he had to continue making those mortgage payments, in the sum of $34,070.00 per month from May, 2012 to March, 2013, making a total of $374,770.00. In addition, the defendant has counterclaimed for interest and penalties on the said mortgage payments, in the sum of $205,029.00. Thus, total loss counterclaimed for, by the defendant, is: ($374,770.00 ¹/₂ $205,029.00) –$579,779.00.

3 Surprisingly, the defendant thought it necessary to file an ancillary claim form and particulars of ancillary claim, on March 14, 2013. Having filed the same simultaneously with the defence, no permission of the court was either required by law, or sought by the defendant, to file same. See rule 18.5(1) and (2) of the Civil Procedures Rules (hereinafter referred to as ‘the CPR’).

4 The particulars of that ancillary claim, mirror the particulars of the counterclaim and the reliefs being sought by means of that ancillary claim, are in large measure, the same as were being sought by means of the counterclaim. The only difference between the reliefs sought, is that in the particulars of the ancillary claim, the defendant has claimed for ‘damages for breach of contract’ and ‘costs.’ In the counterclaim, the defendant has only claimed for special damages, to the extent as set out above.

5 The term ‘ancillary claim’ is defined in rule 18.1(2) of the CPR , as being:

‘ …any claim other than by a claimant against a defendant or a claim for a set off contained in a defence and includes: (a) a counterclaim by a defendant against the claimant or against the claimant and some other person…’

6 As such, the ‘ancillary claim’ and its ‘particulars’, are superfluous documents. This court should and will therefore in managing this case, strike out the ancillary claim.

7 The claimants did not, in response to either the defendant's counterclaim or ancillary claim, file a defence to either of same, within the required 42 day period. In addition, the claimant did not file any acknowledgement of service of counterclaim or ancillary claim within the required 14 day period, or at all.

8 On April 12, 2013, the defendant filed a request for default judgment, seeking judgment in default of filing acknowledgement of service in response to the defendant's ancillary claim. In that request for default judgment, the defendant claims for the sum of $579,799.00, plus interest, court fees and costs.

9 The defendant has not yet obtained default judgment, as requested. The claimant has, as of July 15, 2013, filed a defence to counterclaim and in a separate document, filed a defence to ancillary claim. As of yet though, the claimants have filed no acknowledgment of service, either as regards the defendant's counterclaim, or as regards the defendant's ancillary claim. The claimants' defence to ancillary claim and defence to counterclaim, are not surprisingly, identical in all respects.

10 On July 19, 2013, the claimants filed an application for time to be enlarged for the filing of a defence to the counterclaim and the ancillary claim and for the respective defences to counterclaim and ancillary claim, to stand as filed. The claimants have also, in that application, sought relief from sanctions and such further or other relief as may be just.

11 No sanction has been imposed on the claimants and thus, no relief from sanctions can properly be granted. Sanctions as referred to in our rules of court, refer to a situation in which a party's statement of case has been struck out under Part 26, arising from that party's failure to comply with a rule, order or direction of the court. See rule 26.3(1)(a), read along with rule 26.4 and rule 26.8 of the CPR in that regard. In respect of the matter at hand, whilst the claimants are certainly out of time insofar as the filing of an acknowledgement of service and defence to counterclaim are concerned, no sanction has been imposed upon them arising from their failure to comply with rules of court in that regard. Even if a default judgment were to be granted against them in respect of the defendant's ancillary claim/counterclaim, this would not be equivalent to, nor should it be equated with the imposition of a sanction. A sanction on a party can only properly be imposed by a Judge of this court, either arising from an order made on an application under rule 26.3(1) of the CPR, or from the failure of a party to comply with an unless order.

12 At this juncture, it must be made known to the parties, that as regards the application now under consideration, there are two affidavits which this court has given consideration to, along with all other court documentation which has been duly filed, in respect of the claim, counterclaim and ancillary claim. Those two affidavits are as follows: (i) Affidavit of Hugh and Jacqueline Bennett, as filed on July 19, 2013; (ii) Affidavit of U. Tamara James, as filed on September 25, 2013 and those two affidavits, were filed in support of the application and have been jointly deposed to, by the applicants/claimants. The second of those two affidavits, was filed in response to the application, in the sense that it is being relied upon by the defendant and has been attached to Ms. James' affidavit as an exhibit. This is an affidavit which was deposed to by the defendant, who seeks to rely on same, in response to the application. This court though, will not act on any of the contents of the defendant's said affidavit evidence. It will not act on same, because same was purportedly sworn to in Baltimore, Maryland, United States of America, on September 16, 2013. This court does not know whether that affidavit was sworn to, in accordance with the law in Baltimore, Maryland, United States of America, as applicable to the swearing by a deponent, to affidavit evidence. Furthermore, that affidavit does not purport to have been sworn in accordance with the law and procedure of Baltimore, Maryland, United States of America. In the circumstances, this court does not accept, as there is no basis for it to properly do so, that the said affidavit has been made outside of Jamaica, in accordance with the provisions of rule 30.4(5) and (6) of the CPR. Furthermore, this court has noticed that there are several documents attached to that affidavit, which have been referred to therein, as exhibits. Those documents have not been duly endorsed, by the purported deponent to that affidavit, this being the defendant, nor is there alternatively, a proper certificate attached to any of those documents, in accordance with rule 30.5(4) of the As such, those documents as attached to that affidavit, have not been considered by this court, nor has the main body of that affidavit, for the purposes of this court's ruling on the applicants'/claimants' application for extensions of time. This court holds the view that otherwise inadmissible affidavit evidence cannot be admitted into evidence and taken into account by this court, merely by means of the attachment of that inadmissible affidavit evidence to a lawfully prepared and filed affidavit. If it were otherwise, it would make a mockery of Jamaica's rules of court which prescribe the circumstances in which affidavit evidence purportededly deponed to outside of Jamaica and in which documentary exhibits attached to any affidavit, may properly be considered by a court as constituting evidence.

13 In addressing the pertinent application, it must firstly be stated, that this court cannot enlarge the time for the filing of the claimant's defence to counterclaim, without also enlarging the time for the filing of the claimant's acknowledgement of service of the defendant's counterclaim/ancillary claim. The claimants though, have, only as of today (November 22, 2013) applied for...