James Hogan and Another v Al-Tec Inc. Ltd

• Jurisdiction: Jamaica
• Judge: Morrison, J.
• Judgment Date: 22 May 2015
• Neutral Citation: [2015] JMSC Civ 85
• Docket Number: CLAIM NO. 2007 HCV 03924
• Court: Supreme Court (Jamaica)
• Date: 22 May 2015

[2015] JMSC Civ. 85

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Coram: Morrison, J.

CLAIM NO. 2007 HCV 03924

Between

James Hogan

1st Claimant

and

Renee Lattibudaire

2nd Claimant

and

Al-Tec Inc Limited

Defendant

Mr Nigel Jones and Ms Kashina Moore instructed by Nigel Jones & Co., for the Claimants/Respondents.

Mrs G. Gibson-Henlin and Ms K. Ruddock instructed by Henlin, Gibson-Henlin for the Defendant/Applicant.

Claimant's application for sale of land – Defendants application for judgment to be set aside – Whether judgment irregularly entered – Service of documents – Civil Procedure Rules – Rules 5.11(2), 8.16(1), 12.4, 13.3, 39.6 – Whether different order would have been made had Defendant attended assessment hearing

1 Long ago, Jenkins, L.J., in Grimshaw v Dunbar (1953) 1 ALL E.R. 350 at page 355, had this to say in respect of any verdict or judgment that was obtained against a party who did not appear at the trial and who is seeking to have the judgment or order set aside: ‘A party to an action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent's case and cross examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. If by some mischance or accident a party is shut out from that right and an order is made in his absence, common justice demands, so far as it can be given effect to, without injustice to other parties, that the litigant who is accidentally absent should be allowed to come to court and present his case, no doubt on suitable terms as to cost’.

2 In the local decision of our own Court of Appeal, in David Watson v Adolphus Roper S.C.C.A. No. 42 of 2006, judgment delivered on November 18, 2005, The Honourable Mr Justice K. Harrison, in considering an application to set aside under Rule 36.9 of the Civil Procedure Rules (C.P.R.) determined that, “The predominant consideration therefore for the court, … after a trial in the absence of the applicant, is not whether there is a defence on the merits but the reason why the applicant absented himself from the trial. If the absence was deliberate and not due to accident or mistake, the court will be unlikely to allow a re-hearing. Other relevant considerations include the prospects of success of the applicant in a retrial; the delay in applying to set aside; the conduct of the applicant; whether the successful party would be prejudiced by the judgment being set aside; and the public interest in there being an end to litigation”.

The above quotes reflect on the principle of law to be applied provided it is related to the the crux of the matter before the court. If it is not, then it is not applicable.

3 By way of background, the parties to the claim at bar had entered into an Agreement for the Sale of Land which is referred to as South Sea Park, Westmoreland. It was a cash sale. It was a term of the contract that the Claimants would take the deposits as is set out therein in exchange for the full purchase price and the Duplicate Certificate of Title registered in the name of the purchaser. Further, it was an express term of the contract that the purchaser shall satisfy himself of the boundaries of the said land within twenty eight (28) days of the signing of the contract after which the Purchaser is taken to have accepted the boundaries as if the Vendor was not put on notice to make any rectification required.

4 The Claimants having obtained a Surveyor's ID report, through their Attorneys-at-Law, wrote to the Defendant's Attorneys-at-Law, indicating that they required that the Certificate of Title be perfected in all respects and asked to know how the Defendant proposed to do so within ten (10) days. Subsequently, the Claimant's Attorneys-at-Law advised their counterpart, through writing, that their clients were not prepared to accept the title with the defects.

5 One day after the contractual completion date the Claimants' Attorneys-at-Law communicated in writing to the Defendant by way of a Notice to Complete which said notice gave to the latter seven (7) days within which to do so.

6 In the end the Claimants' Attorneys-at-Law cancelled the Agreement for Sale having regard to the inability of the Defendant to give good title and generally to comply with a Notice making time of the essence. Consequently, the Defendant's Attorney-at-Law returned the deposit and the Claimant's half costs for preparing the Agreement for Sale.

7 On the 13 ^th July 2009, final judgement was entered at the Assessment of Damages hearing. It is of significance to note that neither the Defendant, through its representative, nor its Attorney-at-law were present. In the upshot the judgement of the Court as recorded reads: “Upon hearing Mr Nigel Jones, instructed by Nigel Jones & Company, Attorneys-at-laws, for and on behalf of the Claimants and with the Defendant not appearing or being represented:

IT IS HEREBY ORDERED AS FOLLOWS:

• 1. Special Damages in the sum of $1,987,470.00 at 3% per annum from June 29 ^th , 2007 – 13 ^th July 2009;

• 2. US $17,700 at 3% per annum from 29 ^th June 2007 – 13 ^th July 2009;

• 3. General Damages in the sum of $9,053,000.00 with interest at 3% from 13 ^th November 2007 to 13 ^th July 2009; and

• 4. Costs to the Claimants to be agreed or taxed”.

8 Next, I shall proceed to detail the chronology of events leading up to The Application for Court Orders for Sale of Land.

9 THE CHRONOLOGY OF EVENTS IN THE PROCEEDINGS

• 1. On October 2, 2007, the Claimants commenced this suit in which they claimed damages for breach of contract.

• 2. On November 13, 2007, the Claimants filed a Request for Default Judgment (“The Request”), against the Defendant in Default of Acknowledgement of Service. The evidence in proof of service of the relevant documents in support of The Request was provided by a Mr Brenton Brown, Process Server.

• 3. Interlocutory judgement was signed on July 23, 2008.

• 4. The Court issued its Notice of Assessment of Damages for hearing on January 28, 2009.

• 5. On The Assessment For Damages Hearing coming before the Honourable Ms Justice Beckford on April 27, 2009, it was adjourned to July 13, 2009.

• 6. On July 13, 2009, at The Assessment for Damages Hearing final judgment was entered.

• 7. On December 12, 2012, the Claimants filed their Bill of Costs.

• 8. On November 22, 2012, the Claimants obtained a Provisional Charging Order.

• 9. On May 6, 2013, the Provisional Charging Order was made final.

• 10. On October 17, 2013, the Claimants filed their Notice of Application for Sale of Land.

• 11. On June 30, 2014, the Defendant files its Notice of Application For Court Orders.

10 I shall here now go on to set out the Claim and the Particulars of Claim, if only to highlight the pleadings that the Defendant was expected to respond to upon their receipt.

11 At this juncture I think that it is expedient that I set out the contents of the Claim Form in full. In doing so I draw attention to the observation that the claim is filed pursuant to Part 8 of the CPR which falls under the rubric, ‘How to Start Proceedings’. It contains sub-head provisions such as, ‘Particulars of Claim to be issued and served with Claim Forms’ and, directives as to ‘Service of Claim Forms’. Be it also noted that the claim was filed on October 2, 2007 in accordance with Rule 8.1(3) of the CPR.

12 It reads: “The Claimants James Hogan and Renee Lattibudaire of 6 Dilsbury Avenue, Townhouse #3, Jacks Hill, Kingston 6 in the parish of Saint Andrew claim against the Defendant, Al-Tec Limited, 3 Washington Court, Kingston 8, Jamaica:

• 1. Damages in excess of JA$198,470.00 and US$17,700.00 (and continuing) being the fees and expenses incurred by the Claimants because of the Defendants breach of contract;

• 2. Damages amounting to JA$9,053,000.00 and continuing on account of the difference in value of the property at the time of judgment/award and the purchase price.

• 3. Interest at a commercial rate thereon;

• 4. Costs;

• 5. Such further and other relief as this Honourable Court may deem fit.”

13 There then follows an important aspect of the proceedings in the form of a “Notice to the Defendant”, which contains thoroughgoing instructions and legal advice for his benefit. It reads:

NOTICE TO THE DEFENDANT

This Claim Form must contain or have served with it either a Particulars of Claim or a copy of a court order entitling the Claimant to serve the Claim Form without a Particulars of Claim.

If you do not complete the form of Acknowledgment of Service served on you with this Claim Form and deliver or send it to the registry (address below) so that it is received within FOURTEEN days of service of the Claim Form on you, the Claimant will be entitled to apply to have judgment entered against you . See Rules 9.2(5) and 9.3(1).

The form of Acknowledgment of Service may be completed by you or an Attorney-at-Law acting for you.

You should consider obtaining legal advice with regard to this claim.

This Claim Form has no validity if it is not served within six months of the date below unless it is accompanied by an order extending the same. See Rule 8.14(1)”.

(Emphasis mine).

14 I have gone at length to reproduce the above so as to lay emphatic stress on the point that the Notice warns the Defendant of the consequences of his failure to file an Acknowledgment of Service.

15 Again, what follows, because of its significance, is also repeated without subtraction: “The Claimant's address for service is that of their Attorneys-at-Law Nigel Jones & Co. at Suite #10, Oxford Place, 22G Old Hope Road, Kingston with telephone number 960–6358 and facsimile number 926–2312”. Here, the Claimant is to give information or particulars about which he can avail himself if he intends to serve any...