Julie Riettie Atherton v Gregory Mayne

JurisdictionJamaica
JudgeStraw JA,Simmons JA,V Harris JA
Judgment Date04 February 2022
Neutral CitationJM 2022 CA 13
Docket NumberSUPREME COURT CIVIL APPEAL NO COA2019CV00126
CourtCourt of Appeal (Jamaica)

[2021] JMCA Civ 6

IN THE COURT OF APPEAL

Before:

THE HON Miss Justice Straw JA

THE HON Miss Justice Simmons JA

THE HON Mrs Justice V Harris JA

SUPREME COURT CIVIL APPEAL NO COA2019CV00126

Between
Julie Riettie Atherton
Appellant
and
Gregory Mayne
Respondent

Written submissions filed by Nigel Jones & Company for the appellant

Written submissions filed by John G Graham & Co for the respondent

PROCEDURAL APPEAL

(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)

Straw JA
Introduction
1

This appeal is concerned with whether Henry-McKenzie J (Ag), as she then was, (‘the learned judge’) was correct in refusing Mrs Julie Riettie Atherton's (‘the appellant’) application to set aside a default judgment entered against her on 17 June 2011 for failure to file an acknowledgment of service.

2

It is necessary to set out a brief history of the proceedings, which are somewhat unusual. At its core, however, this matter simply stems from a loan made by one neighbour to another and brings to mind the famous Shakespearean quote: “neither a borrower nor a lender be, for loan oft loses both itself and friend, and borrowing dulls the edge of husbandry”.

History of the proceedings
3

Mr Gregory Mayne (‘the respondent’) filed a claim form and particulars of claim on 16 February 2011. The claim was for the recovery of US$130,000.00 (plus interest), which was a loan made by the respondent to the appellant on 21 August 2009. According to the affidavit of service, filed 3 June 2011, the appellant was personally served at her home on 23 March 2011 by a process server, Mr Kenton Aiken (‘Mr Aiken’). In his supplemental affidavit of service, filed on 22 November 2012, Mr Aiken stated that he knew the appellant's husband (‘Mr Atherton’) personally for two years prior to this date. He expounded in his viva voce evidence that he knew Mr Atherton because he had served him in another matter prior to this date. He saw Mr Atherton and told him that he had documents to serve on the appellant. Mr Aiken's evidence was that Mr Atherton called the appellant and she identified herself as Julie Riettie Atherton; and that he then served the documents on her.

4

On 17 June 2011, the respondent filed a request for default judgment. This was on the basis that the appellant had not filed an acknowledgment of service. It is noted that the default judgment was signed by the deputy registrar of the Supreme Court on 23 November 2012.

5

In February 2012, the appellant was contacted by a debt collection agency that was employed by the respondent and, in April 2012, an agreement was reached between the appellant and the said agency.

6

On 23 January 2013, the respondent filed an ex-parte application for a provisional charging order. The order was made on 1 February 2013. This document was not exhibited before this court, but this information was contained in the written submissions of counsel for the respondent and was not challenged by the appellant. An application for the final charging order was heard by George J on 15 July 2014. It is noted that the appellant was present at that hearing and was unrepresented. By consent, a final charging order over the appellant's property was made on that date. What followed was an amended application for sale of land filed 10 October 2014, and a judgment summons filed 14 April 2016.

7

On 15 June 2016, an acknowledgment of service was filed on behalf of the appellant by counsel, Mrs Pauline Brown-Rose (‘Mrs Brown-Rose’). In this acknowledgment of service, it was stated that the appellant received the claim form and that it was received on “28/2/11”, that is, 28 February 2011. It will be recalled that Mr Aiken stated that he served the appellant on 23 March 2011. Curiously, the appellant indicated that she intended to defend the claim and admitted no part of the claim.

8

The application for the sale of land and judgment summons was heard by Tie J (Ag), as she then was, on 11 and 18 July, and 12 August 2016. A written judgment was delivered on 24 November 2016 ( [2016] JMSC Civ 132). It is critical to point out that in the hearing before Tie J (Ag), the appellant was represented by counsel, Mrs Brown-Rose. In addition, the appellant's husband was listed as an intervener and was represented by counsel, Mrs Kerry-Ann Sewell. There is no indication that the orders of Tie J (Ag), which are based on the default judgment obtained by the respondent, are being appealed. Ultimately, the application for sale of land was refused, but the application for judgment summons was granted.

9

For clarity and ease of understanding, it is useful to extract portions of the judgment of Tie J (Ag):

“The background

  • [1] Gregory Mayne obtained judgment against the [appellant] on June 17, 2011 in the sum of US$178,904.09 and J$24,000 arising from her failure to repay a loan. Payments have been made but the parties are disagreed as to the amount now outstanding. The claimant asserts that the sum of $211,503.70 remains owing with interest whilst the defendant insists that she is currently indebted in the sum of US$194,354.06.

  • [2] The claimant has made two applications in a bid to satisfy this judgment. The first is for sale of property … which is owned jointly by the defendant and her husband.

  • [3] In the event that the application for sale is unsuccessful, an application for judgment summons was also filed.”

“[10] The [appellant] asserts that her failure to satisfy the judgment has not been intentional but instead was due to a number of personal and economic challenges. She is however willing to make monthly payments to settle the debt.”

“[56] I was also mindful that the applicant had been deprived of the fruits of his judgment and has experienced hardship as a result …”

“[65] The judgment debtor proposes a monthly payment of US$5000 between August 2016 until January 2017 and thereafter US$10,000 per month until the debt is settled.”

“[67] Her evidence as regards her past business ventures was unreliable…She came across as less than forthright and at time disingenuous…”

“[69] The judgment in issue was entered on June 17, 2011.

The judgment debtor asserts that she has paid a total of US$36,113.29 since the judgment. She indicates that the judgment creditor is her neighbour and she would often deliver cheques to his home. There has been no evidence to support this bald assertion, which is denied by the judgment creditor…”

  • “[71] She admitted under cross examination that she had promised to satisfy the judgment by September 30, 2014, even though, according to her, she did not know the outstanding amount. This suggests either dishonestly or confidence that she had access to funds sufficient to cover the debt. A letter dated October 24, 2014, over the hand of her then attorney advised Mr. Mayne that she would discharge her obligations in full within six months.

  • [72] Her evidence did not impress the court as true. It is evident that she either has or has had means by which to satisfy the debt. Her very contention that she earns no income but proposes to pay the sum of US$5,000 per month for the period August 2016 to January 2017 and thereafter the monthly sum of US$10,000, suggests that she has not been candid to the court.” (Emphasis added)

10

Following the order of Tie J (Ag) that the appellant pays US$100,000.00 by 28 February 2017, with the balance to be paid on or before 31 July 2017, the appellant's next step appeared to be to retain new counsel, Messrs Nigel Jones & Company. This took place in January 2018, and swiftly thereafter, the notice of application to set aside the default judgment was filed on 18 January 2018. The grounds on which this application was sought are as follows:

  • “a. The [appellant] was not served with the commencement documents being the Claim Form, Notice to Defendant, Acknowledgment of Service Claim Form, Prescribed Notes for Defendant, Defence, Counterclaim, Application to pay by instalments and Particulars of Claim as alleged by the Claimant;

  • b. Alternatively and in any event, the [appellant] has a real prospect of successfully defending the claim as the Promissory Note on which the [respondent] relies is unenforceable and the [appellant] says there is no agreement between her and the [respondent];

  • c. The [appellant] has applied to the court as soon as is reasonably practicable after finding out that Judgment has been entered; and

  • d. The [appellant] has a good explanation for not having filed an Acknowledgment of Service/Appearance.”

11

As stated earlier, it was the learned judge's refusal of this application that forms the basis of the present appeal. This court has the benefit of the learned judge's reasons for judgment delivered on 19 December 2019 ( [2019] JMSC Civ 266), as well as the notes of evidence.

The findings of the learned judge
12

The learned judge distilled the issues before her into two general issues: (1) whether the default judgment against the defendant (now appellant) was to be set aside as of right; and (2) whether she had a reasonable prospect of successfully defending the claim (see paragraph [23]).

13

Ultimately, the learned judge found that the appellant was properly served with the originating documents and that, in any event, she did not have a reasonable prospect of successfully defending the claim.

14

The learned judge remarked that she had the opportunity of hearing from Mr Aiken and the appellant herself and that she was more impressed with the demeanour of Mr Aiken. She found that the appellant was less than forthright and her evidence was not compelling. The learned judge was unconvinced that the appellant's previous attorney-at-law went on a frolic of her own and, without instructions, filed the acknowledgment of service (see paragraphs [31] and [33]).

15

On the second issue, the learned judge found that while the promissory note was flawed, it was not fatal...

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