Jade Hollis v Gregory Duncan and Global Designs & Builders Ltd
| Jurisdiction | Jamaica |
| Judge | Brooks JA,F Williams JA,P Williams JA |
| Judgment Date | 20 December 2018 |
| Neutral Citation | JM 2018 CA 47 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 61/2016 |
| Date | 20 December 2018 |
[2018] JMCA Civ 32
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks JA
THE HON Mr Justice F Williams JA
THE HON Miss Justice P Williams JA
SUPREME COURT CIVIL APPEAL NO 61/2016
and
Mrs Denise Kitson QC, Miss Regina Wong, Miss Anna-Kay Brown instructed by Grant, Stewart, Phillips & Co for the appellant
Leonard Green instructed by Chen, Green & Co for the respondents
Civil practice and procedure - Order — Interpretation of judicial order — Consideration of the intention of the court in making the order.
I have had the privilege of reading, in draft, the reasons for judgment prepared by my learned sister, P Williams JA, in respect of allowing the appeal. Those reasons accord with mine. I have nothing to add.
I too have read the draft reasons for judgment of my sister P Williams JA and agree with her reasoning and conclusion.
This is an appeal brought by Jade Hollis, the appellant, from an order of Sykes J, as he then was, which was made in the Commercial Division of the Supreme Court on 31 May 2016. By that order, Sykes J had dismissed an application brought by the appellant for directions to be given to the Registrar of Titles, relating to properties owned by her. The properties had been made the subject of an injunction, which had been granted on an application by Gregory Duncan and Global Designs and Builders Limited, the first and second respondents, respectively.
On 26 September 2018, having heard and considered the submissions made by both counsel, we allowed the appeal. We amended the terms of the directions sought and granted the order, awarding costs here and in the court below to the appellant, to be agreed or taxed. The order made was as follows:
“The application for an order directing the Registrar of Titles to note on the Certificate of Titles for property registered at Volume 1461 Folio 813 of the Registrar Book of Titles (The Belmont Property), property registered at Volume 1028 Folio 500 of the Register Book of Titles (the 23 Caribbean Close Property) and property registered at Volume 1318 Folio 158 of the Register Book of Titles (The Windsor Avenue Property) that the injunction granted on 24 March 2015 and extended on 15 April 2015 to 2nd June 2015 has been discharged, is granted, and the Registrar of Titles is so ordered.”
At the time we announced our decision, we promised to put our reasons into writing. These are my reasons for concurring with the decision.
The appellant is a businesswoman and attorney-at-law. The first respondent is a businessman and a land developer who carries out his development activity through the second respondent. He is also the managing director and sole shareholder of the second respondent.
In 2012, the first respondent engaged the services of the appellant as an attorney-at-law for the purposes of handling real estate transactions involving the second respondent. Among the several documents exhibited by the parties is a letter of engagement that was signed by them and dated 8 June 2012. It provides some information as to when the attorney/client relationship between the parties commenced.
This attorney/client relationship developed into a business relationship and the appellant became more involved in the business of the respondents. The appellant said that she began to advance sums of money to acquire property for development and to finance the property developments undertaken, whenever it was required.
The relationship began to unravel by 2013. The first respondent alleged that the appellant was failing to hand over monies she had collected on behalf of the business from the sale of some of the developments. The appellant alleged that the first respondent failed to honour his promises to repay her sums she had advanced for his business.
On 7 March 2014, the appellant commenced proceedings in the Supreme Court to recover sums she said were advanced to the respondents. At the same time, she filed an application for an ex parte interim injunction prohibiting and/or restraining the respondents, until the determination of the claim, from transferring or otherwise dealing with four properties belonging to them, namely: property located at Rose Garden situated at 1 Hillside Drive, Belvedere in the parish of Saint Andrew; property being 121 and 122 Barbican Road in the parish of Saint Andrew; property being that parcel of land located at Sandhurst in the parish of Saint Andrew being the lot numbered 9 Block B situated at Sandhurst Place; and property located at 62 Grants Pen Road in the parish of Saint Andrew.
In her application for the injunction, the appellant gave her undertaking as to damages. In her affidavit in support of her application she sought to prove her ability to honour any orders made in relation to damages by pointing to her ownership of three properties that together valued over $100,000,000.00.
She secured an interim injunction on 11 March 2014. On 26 March 2014 after an inter partes hearing, Edwards J discharged the interim injunction. An order was made for an interlocutory injunction prohibiting or restraining the respondents from transferring or otherwise dealing with two properties until the determination of this claim or further order.
On 28 March 2014, after further consideration of the matter, the order was varied and all the caveats imposed on all the respondents' several properties were discharged, with the exception of the property at Rose Garden and at 62 Grants Pen Road. These properties are still the subject of the injunction.
The orders did not make mention of the appellant giving the usual undertaking as to damages. However, it was this undertaking she had expressed a willingness to abide by, if so ordered, that is the genesis of this matter.
On 20 March 2015, the respondents filed an ex parte notice of application for court orders for injunctive relief seeking to restrain the appellant from disposing of the properties she had referred to when indicating her willingness and ability to abide by any order made in relation to damages.
Among the grounds the respondents gave for seeking the order were the following:–
“3. In the Claimant's ‘Affidavit of Jade Hollis in Support of Application or [sic] Interim Injunctions and Affidavit of Urgency’ filed on March 7, 2014 in support of the Claimant's Application for the above interim injunction, the Claimant undertook to abide by any Order for damages caused by the granting of the interim injunction and submitted properties located at; (a) Lot No 39 Belmont & Haining Road, (b) 23 Caribbean Close, Trafalgar Park, Kingston 10 where she resides and, (c) property located at 8 Windsor Avenue, in support of this undertaking.
4. Subsequent to filing the above Affidavit and the granting of the Order for Interlocutory Injunction against transferring the said properties the Defendant has taken steps to dispose of property located Lot No 39, Belmont in the parish of Saint Andrew.
5. The potential injustice if this Application is denied is significant, as the Claimant has left the jurisdiction and to date has not returned. Further there is a real and imminent damage that if the Defendants obtain a judgment in their favour, it may be rendered nugatory if the Injunction is not granted.”
This application was set for hearing on 23 March 2015 at 2:00 pm. There were two applications, one for the appellant and the other for the respondents, previously set for that date. However, when all the applications came on for hearing, Edwards J before whom they were fixed to be heard, was not able to hear the matters. The parties were invited to canvass a date during the remainder of that week for Edwards J to hear the applications.
The respondents, through their attorneys-at-law at the time, Mr Zavia Mayne and Mrs Sherene Golding Campbell, still however, proceeded to have the application for the injunction heard ex parte by Laing J on 24 March 2015. The learned judge granted this order:–
“1 An Interim Injunction is granted prohibiting and/or restraining the claimant until the 15 th day of April 2015 at 10:00 a.m., whether by the Claimants, the Claimant's nominee(s), appointee(s), agent(s), assignee (s) or otherwise, from transferring or in any way disposing of or otherwise dealing with or causing or permitted to be transferred, dealt with or disposed of the following properties:
a. Property located at Lot No 39 part of Belmont in the parish of Saint Andrew comprised in Certificate of Title registered at Volume 1461 Folio 813 of the Registrar Book of Titles also referred to as the Haining Road Property,
b. Property located 23 Caribbean Close, Trafalgar Par, Kingston 10 in the parish of St. Andrew comprised in the certificate of title registered at Volume 1038 Folio 500 if the Register Book of titles and,
c. Property located at 8 Windsor Avenue, in the parish of Saint Andrew comprised in the Certificate of Title Registered at Volume 1318 Folio 158 of the Register Book of Titles.”
The inter partes hearing was fixed for 15 April 2015 at 10:00 am. The interim order was served on the appellant's attorneys-at-law on 25 March 2015. By the next day, 26 March, the appellant filed and served a notice of application to set aside the interim injunction. Her main contention for making this application was that there was material non-disclosure of pertinent facts by the respondents.
On 15 April 2015, the matter came on for hearing before Batts J. He adjourned the matter to 2 June 2015 and extended the interim injunction granted on 25 March 2015 to 2 June 2015.
On 2 June 2015, after hearing the parties, Laing J made the following order:
“The injunction granted by Laing J, on Wednesday the 25 th day of...
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