Jorril Financial Inc. v Bardi Ltd et Al
| Jurisdiction | Jamaica |
| Judge | N. E. McINTOSH, J. |
| Judgment Date | 15 May 2003 |
| Judgment citation (vLex) | [2003] 1 JJC 1601 |
| Court | Supreme Court (Jamaica) |
| Docket Number | SUIT NO. C.L. 1999/ J 103 |
| Date | 15 May 2003 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
INJUNCTIONS - Mareva injunction - Summons to vary injunction - Summary judgment application - Promissory notes - Whether there was a common intention to create legal relations
Paul Hargreaves Geddes, who died on June 9, 1999, is described, simply, in his last will and testament, as a Company Director. However, in his business lifetime, Mr. Geddes would perhaps have been better described as a Giant in the Jamaican business sector. He had the controlling interests in several companies and, until his later years, when he divested himself of a substantial portion of his shareholdings, was a major shareholder in the local company, then named Desnoes and Geddes Limited. He and his wife, Margie Geddes were also the only shareholders in the Defendant Company, Bardi Limited, each holding 50% of that Company's shares.
On his death, Mrs. Geddes became the sole beneficiary of his estate. However, as part of his estate planning, Mr. Geddes had established a trust in the British Virgin Islands, to benefit his children and grandchildren. He had had a series of promissory notes prepared in June and August of 1994 and had endorsed and transferred the notes to Securities Trust and Management Services Limited, to be held in that trust. The notes, which, by my reckoning, numbered twenty-four (24), were payable, on demand and were subsequently endorsed by Securities Trust and Management Services Limited to the Plaintiff
In effect then, Mrs. Geddes' inheritance was subject to the demand on the promissory notes and this demand was made by letter addressed to Bardi Limited, on August 9, 1999, by the Plaintiff's Attorneys-at Law.
The only response received from the Defendant, Bardi Limited, was a letter stating, inter alia, that the company was having "our legal counsel review the documents that were sent" and asking that it be noted that "the assets of the Jorril Trust are part of a legal suit being heard in the Privy Council at the end of this year."
The plaintiff therefore sought the assistance of the court in having these demands met and, to this end, filed Suits numbered C.L. 1999/J103 and C.L. 1999/J104, on November 8, 1999, together with applications for Mareva injunctions to restrain the defendants Bardi Ltd. And Jorril Financial Ltd:
"until the determination of this action or further order whether by themselves or by their servants, agents or otherwise howsoever, from removing from the jurisdiction any of their assets within the jurisdiction."
and also to restrain the said defendants:
"until the determination of this action or further order whether by themselves or by their servants, agents or otherwise howsoever, from disposing, mortgaging, pledging, transferring, assigning, charging or otherwise dealing with any of their assets whether real or personal, wherever situated and whether within the jurisdiction or outside of the jurisdiction
Provided that this Order is declared to be of no effect against and is not intended to bind any third party outside of the jurisdiction of this Court unless and until this Order shall be declared enforceable or recognized and enforced by any Court of the jurisdiction in which the Defendant's assets are situated."
The injunctions were granted as prayed and when each Defendant failed to file a defence to the actions the Plaintiff filed summonses dated November 1, 2000, seeking summary judgment in each Suit, as well as a continuation of the Mareva injunctions, until execution of the judgments. These summonses were later amended and the amended summonses filed on December 12, 2001.
On November 16, 2001, the Defendant had filed a summons seeking a variation of the injunction, in relation to Suit number C.L. 1999/ J103 only and when this hearing commenced on February 20, 2002, the Court was concerned with the applications in that Suit. The parties were then Jorril Financial Inc. as Plaintiff and Bardi Ltd. as Defendant. However, that position changed when the hearing resumed on the 8 th of April, 2002, on an application by Bastion Holdings Ltd. to be joined as a party, in relation to the applications concerning the Mareva injunction, so that on the grant of said application, Bastion Holdings Ltd. became the second Defendant in that Suit.
Arising from this joinder, the Plaintiff sought and was granted leave to further amend its application for summary judgment in Suit number C.L. 1999/ J103 and a further amended summons dated the 19 day of April, 2002, was filed naming Bastion Holdings Limited as 2 nd Defendant and including Bastion Holdings Ltd in the relief sought.
Then, on the 15 th of May, 2002, with the consent of the parties, the aforementioned Suit was consolidated with Suit No. C. L. 1999/ J104 and the matter continued as a hearing of the Plaintiff's application for summary judgment in each case and the first Defendant's application, in relation to Suit No. C.L. 1999/ J103 only, to vary the terms of the Mareva injunction.
APPLICATIONS FOR SUMMARY JUDGMENT SUIT NO. C. L. 1999/J103.
In this application the Plaintiff first seeks an order that:
"1. Final Judgment be entered in favour of the Plaintiff against the Defendant, pursuant to Section 79 of the Judicature Civil Procedure Code Law, for the sum of United States Seven Million Two Hundred and Eighty Thousand Nine Hundred and Eighty-Seven Dollars and Two Cents (US $7, 280, 987. 02) together with interest on the sum of United States Four Million Four Hundred and Seventy-Four Thousand Three Hundred and Twenty-six Dollars (US $4, 474, 326.00) at a rate of 12% per annum from the 2 nd November, 1999 to the date of payment as claimed in the Statement of Claim, on the ground that there is no Defence to the Claim."
The Statement of Claim pleads a debt on eighteen (18) promissory notes, all endorsed by Paul Geddes to the order of Securities Trust and Management Services Ltd. and, thereafter, by the said Securities Trust and Management Services Ltd to the Plaintiff.
SUIT NO. C.L. 1999/J104
In this application, the Plaintiff seeks the following order:
"1. Final Judgment be entered in favour of the Plaintiff against the Defendant pursuant to Section 79 of the Judicature (Civil Procedure Code) Law, for the sum of United States One Hundred and Ninety-Seven Thousand, Seven Hundred and Sixty-Six Dollars and Eighty-Six Cents (US $197, 766. 86), together with interest on the sum of United States One Hundred and Twenty Thousand Dollars (US $120, 000.00) at the rate of 12 % per annum from the 2 nd November, 1999 to the date of payment as claimed in the Statement of Claim, on the ground that there is no Defence to the Claim."
The Statement of Claim, in this Suit, pleads a debt on six (6) promissory notes. These too were endorsed by Mr. Geddes to the order of Securities Trust and Management Services Ltd. and by the latter, to the Plaintiff.
It was always the Plaintiff's understanding that the debt was admitted and that the only issue was the Defendant's ability to pay and the quantum of a possible settlement. The supporting affidavits of Lance Hylton, Director of Coverdale Trust Services Limited which wholly owns the Plaintiff company, clearly attest to this, particularly his affidavit sworn to on the 18 th of January, 2002, where, in paragraph 8.1, he deposed as follows:
"Demand for payment of the Promissory Notes was first made on the Defendant by the Plaintiff through our Attorneys, in August, 1999 and at no point has the Defendant ever denied the validity of the Promissory Notes.............In fact, the debt has been admitted and the only issue has been about the defendant's ability to pay and the quantum of a possible settlement"
However, in response to the Plaintiff' s application, the Defendant sought, for the first time, to challenge the validity of the promissory notes. In her affidavit on behalf of the Defendant Bardi Limited, Miss Paula Jackson, who described herself as "the personal assistant of Paul Geddes from February, 1997 until his death in 1999," challenged the genuineness of the signature of Paul Geddes, appearing on the promissory notes and hence the validity of the notes.
The plaintiff met this challenge with an affidavit from Miss Monica Ladd who had prepared the notes on the instructions of Mr. Geddes and had witnessed their execution. She had become familiar with his signature over a period of several years and was able to speak to its deterioration in the latter years of his life.
Clearly, Miss Ladd was better able to attest to the genuineness of Mr. Geddes' signature and to the validity of the promissory notes. Furthermore, Mrs. Geddes, Director of the Defendant company, gave evidence that, after receiving the demand for payment on the notes, the Defendant had taken legal advice and, being of the view that the debt had to be paid, had taken steps in an effort to raise the necessary funds to meet the demand. So the challenge was not pursued and, in closing addresses, learned Queen's Counsel for the first Defendant, Mr. Dennis Morrison, admitted that, as far as the applications for summary judgment were concerned, the first defendant could not contend that "on the material before the Court it is not open to the Court to make the Orders", as prayed.
He submitted that Miss Jackson's affidavit does raise some questions as to the authenticity of the promissory notes but went on to say that the primary contention of the First Defendant, as it relates to the steps taken to raise the necessary funds, was in fact an acknowledgment of the genuineness of the debt.
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