Ilene Williams v Wesley Williams

• Jurisdiction: Jamaica
• Judge: Phillips JA
• Judgment Date: 17 December 2015
• Neutral Citation: JM 2015 CA 128
• Docket Number: APPLICATION NO 140/2015
• Court: Court of Appeal (Jamaica)
• Date: 17 December 2015

[2015] JMCA App 48

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Mr Justice F Williams JA (AG)

APPLICATION NO 140/2015

Bewteen

Ilene Williams

Applicant

and

Wesley Williams

Respondent

Michael Thomas for the applicant

Ms Cheryl Richards instructed by Murray and Tucker for the respondent

CIVIL PROCEDURE - Costs - Application for stay of execution of taxation hearing pending of appeal - Whether award of costs to successful party is mandatory -Civil Procedure Rules 2002, Part 64.6(1)

ORAL JUDGMENT

Phillips JA

1 Before the court is an amended notice of application for court orders dated 23 September 2015 and filed 25 September 2015. The applicant sought permission to appeal against the order made by Lindo J (Ag) (as she then was) on 15 July 2015. She made an order that costs of the adjourned hearing of 28 April 2015 in respect of the application for inter alia a new valuation to be conducted on the dwelling house at Thatchfield, Philadelphia in the parish of Saint Ann by a valuator to be appointed by the court, were awarded to the respondent/defendant to be agreed or taxed.

2 The details of Lindo J's order made on 15 July 2015 are as follows:

• ‘1. A Valuator to be appointed by the Registrar of the Supreme Court to carry out a value of the house situated at Thatchfield District in the parish of Saint Ann.

• 2. Costs of such valuation to be borne by the Claimant

• 3. Cost of the adjourned hearing on 28 ^th April, 2015 is awarded to the Defendant to be agreed or taxed.

  Leave to appeal the order relating to costs is refused.

• 4. Claimant's Attorney to prepare, file and serve Formal Order.’

3 The proposed grounds of appeal as summarized were stated thus:

• a) Having regard to:

  • (i) the finding of the learned judge (made orally) that the first valuation carried out by Rodgers' Real Estate Limited was not proper; and

  • (ii) the ruling granting the claimant's application (which application was opposed by the respondent) that ‘a Valuator to be appointed by the Registrar of the Supreme Court to carry out a value of the house situated at Thatchfield District in the parish of Saint Ann’;

  the learned judge erred in failing to observe and follow the general rule that the unsuccessful party should pay the costs, to be found at Part 64.6 (1) of the Civil Procedure Rules (CPR).

• (b) The learned judge failed to give reasons for her decision thereby paying little or no regard to part 64.6(3) and (4) (b) (d) (ii) and (e) (iii).

• (c) In granting costs as she did the learned judge erred in principle and in so doing ‘got it blatantly wrong’. (Counsel relied on the principle enunciated on Dufour and Others v Helenair Corporation Ltd and Others (1996) 52 WIR 188, a court of appeal judgment of the Eastern Caribbean States.)

4 The applicant also sought a stay of execution of the taxation hearing pending the hearing of the appeal.

5 No affidavits were filed in support of and/or in opposition to the application, so we are constrained to rely on the recitation of the background facts relevant to the application set out in the chronology stated in the written submissions of the applicant's counsel. In any event, in the main, counsel for the respondent had no objection to the same.

Background

6 An amended fixed date claim form was filed on 30 May 2013 by the applicant against the respondent under the Property Rights of Spouses Act (PROSA). The applicant claimed, inter alia, a declaration that she was entitled to one-half interest in the matrimonial home at Thatchfield, Philadelphia in the parish of Saint Ann. On 8 January 2014, Cole-Smith J ordered, inter alia, that she was entitled to 40% of the value of the dwelling house on the property.

7 The applicant and the respondent agreed that a valuation was to be conducted by Arthur Rodgers of Rodgers Realty, in Discovery Bay, Saint Ann. The valuation was carried out and the report made available to the applicant and her attorney. The applicant however rejected the report on the grounds that the reported value of $12,383,000.74 was inordinately low having regard to the size and quality of the house. The applicant requested details from the valuator in respect of the market value and evidence of the data which had been utilised in effecting the valuation. The valuator provided the same by letter dated 18 March 2014. The applicant found the valuator's response to be entirely unsatisfactory and consequently filed a notice of application for court orders seeking inter alia an order that a new valuation be carried out in respect of the dwelling house and that a new valuator be appointed by the court.

8 On 28 April 2015, Lindo J after hearing submissions from counsel representing each party, ordered inter alia that the matter ‘be part-heard to July 15, 2015 and that the issue of costs for today's adjournment reserved ’.

9 On 15 July 2015, the court heard further submissions by both counsel, with the respondent maintaining his opposition to the application. The learned judge granted the order and also ordered that ‘cost of the adjourned hearing on 28 ^th April, 2015 is awarded to the Defendant to be agreed or taxed’.

10 Counsel submitted that the judge had reasoned:

‘that the Court was not satisfied that Mr. Rodgers (Valuator) has provided a proper valuation. The only way justice can be served is for a new valuation to be done.’

11 As indicated, the applicant's application for leave to appeal the costs order was refused and it was therefore renewed before this court.

Applicant's submissions

12 Counsel for the applicant submitted that the learned judge had erred by exercising her discretion to award costs without reference to the rules of court as required by section 28E of the Judicature Supreme Court Act (the Act). Counsel further submitted that the judge erred, as in making the award for cost on the procedural application, she failed to observe or to be guided by the general rule stated in part 65.8(2) of the CPR namely that the court must order the unsuccessful party to pay the costs of the successful party. Counsel also argued that the learned judge in acting as she did failed to appreciate that the discretion she exercised was conferred on her by the Act itself and so should be exercised judicially. Additionally, counsel stated that the learned judge failed to mention any circumstance which could have justified her departing from the general rule.

13 Costs, the applicant's counsel submitted, were reserved on 28 April 2015 when the matter was adjourned but were awarded to the respondent on 15 July 2015 when the matter was completed, without any explanation from the learned judge. No award was made on the application itself as no request had been made for costs in relation thereto. The application was granted in favour of the applicant on the basis that the judge found the valuation conducted by Rodgers Realty to be improper. Counsel submitted that although there are exceptions to the general rule that costs should be awarded to the successful party, there were no exceptions in this case and counsel argued further, there was no indication that the learned judge had found any of the exceptions to be applicable. In the circumstances, counsel submitted, the applicant was the successful party in the application for a new valuation, and therefore, Lindo J's decision on the application, to award costs to the unsuccessful party in respect of the adjourned hearing, without any explanation, was palpably wrong. Counsel thus urged this court to intervene on the basis that the applicant's appeal would have a real chance of success.

14 Mr Thomas contended that when challenging the exercise of a judge's discretion, the...