L-3 Communications Corporation v Go Tel Communications Ltd

• Jurisdiction: Jamaica
• Judge: Rattray, J.
• Judgment Date: 16 May 2019
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2005 CD 00001
• Date: 16 May 2019

[2019] JMCC Comm 7

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2005 CD 00001

CLAIM NO. 2005 HCV 01070

Between

L-3 Communications Corporation (trading as Prime Wave Communications)

Claimant

and

Go Tel Communications Limited

1 ^st Defendant

and

Enos George Neil

2 ^nd Defendant

Mr. Dave Garcia and Ms. Ky-Ann Lee instructed by Myers, Fletcher & Gordon for the Claimant

Mrs. Pamela Benka-Coker QC and Ms. Gillian Mullings instructed by Patrick Bailey & Company for the Defendants

Civil Practice and Procedure — Notice of Application for Summary Judgment — Rule 15.2 (b) of the Civil Procedure Rules — Whether Defence has a realistic prospect of success — Whether the Claimant should be permitted to rectify documents to insert its name as the contracting party.

IN CHAMBERS

Cor: Rattray, J.

THE BACKGROUND

1 The Claimant by way of Claim No. 2005 CD 00001 filed on the 28 ^th January, 2005, sought to recover from the Defendants, the sum of Four Million Ninety-Five Thousand Nine Hundred United States Dollars (US$4,095,900.00), inclusive of interest. The Claimant contended that this sum represented the sale price of telecommunication equipment it supplied to the 1 ^st Defendant on credit, which amount is still outstanding.

2 The Defendants filed their Defence and Counterclaim of the First Defendant on the 13 ^th April, 2005. In their Defence, they denied owing the sum claimed by the Claimant. They also stated inter alia, that the telecommunication equipment supplied by the Claimant was defective, unreliable and failed repeatedly and was unfit for use for the purpose of the 1 ^st Defendant. As a consequence, the Defendants rejected the said equipment.

3 In its Counterclaim, the 1 ^st Defendant sought to recover from the Claimant, damages for breach of warranty and/or misrepresentation. The 1 ^st Defendant contended that the equipment supplied was not fit for the purpose of the Defendants' telecommunications business, and that the Claimant knew this but did not disclose that the said equipment was defective.

4 Subsequently, on the 19 ^th April, 2005, the Claimant filed an Application for Summary Judgment against the Defendants, which came on for hearing on the 21 ^st November, 2005, before this Court. On that date, the Application was adjourned part-heard for a date to be fixed by the Registrar.

5 In respect of Claim No. 2005 HCV 01070, which was filed on the 15 ^th April, 2005, the Claimant sought to rectify the Debenture, Mortgage, Guarantee and Supply Agreement, signed between Prime Wave Communications (hereinafter referred to as “PWC”) and the Defendants, by deleting the reference to PWC, and substituting therefor the Claimant's name, L-3 Communications Corporation (trading as Prime Wave Communications).

6 In addition, the Claimant also filed an Application for Summary Judgment against the Defendants on the 12 ^th September, 2006, which was scheduled to be heard on the 2 ^nd October, 2006. However, on that date the Application was adjourned to the 23 ^rd November, 2006, due to conflicts in the schedule of Counsel for the Defendants.

7 The part-heard Summary Judgment Application in respect of Claim No. 2005 CD 00001, was scheduled to be heard with the Summary Judgment Application in Claim No. 2005 HCV 01070, on the 23 ^rd November, 2006. However, on that date Counsel for the Claimant, Mr. Garcia, indicated to the Court that his client no longer wished to pursue the Summary Judgment Application in respect of Claim No. 2005 CD 00001. Furthermore, it was also agreed with the consent of the parties, that both claims should be consolidated. Accordingly, the Summary Judgment Application before the Court in this consolidated claim is solely with respect to the issue of rectification.

THE NOTICE OF APPLICATION

8 On the 12 ^th September, 2006, the Claimant filed a Notice of Application for Court Orders seeking the following reliefs: -

• 1. That there be judgment for the Claimant against the Defendants pursuant to Part 15 of the Civil Procedure Rules (CPR), and that the Court make the following Orders:

  • a) That the Debenture, Mortgage, Guarantee and Supply Agreement, be rectified by deleting the references to PWC of 7670 Woodway Drive, Ste 300 Houston Texas, 77063 in the United States of America and substituting therefor L-3 Communications Corporation of 19810 North 7 ^th Avenue, Phoenix, Arizona, 85027–4400 in the United States of America;

  • b) That the endorsement of the Mortgage on the Certificate of Title registered at Volume 1227 Folio 491 of the Register Book of Titles be rectified by deleting the references to PWC of 7670 Woodway Drive, Ste 300 Houston Texas, 77063 in the United States of America and substituting therefor L-3 Communications Corporation of 19810 North 7 ^th Avenue, Phoenix, Arizona, 85027–4400 in the United States of America;

  • c) That the Registrar of Titles be directed to take such steps as are necessary to give effect to paragraphs (a) and (b) above;

  • d) Costs to the Claimant to be agreed or taxed.

• 2. Alternatively, that this claim be consolidated (or alternatively tried together) with Claim No. 2005 CD 00001 and that costs of the Application be costs in the claim;

• 3. In the further alternative, that this claim be transferred to the Commercial Division of the Supreme Court, and that costs of the Application be costs in the claim.

9 The grounds relied on by the Claimant were as follows: -

• 1. In respect of the Application for Summary Judgment, the issue to be determined is whether the Defendants have any real prospect of successfully defending the claim for rectification of the documents as set out in the Claimant's Statement of Case. The Defendants have no real prospect of successfully defending the claim as the documents mistakenly named PWC instead of the Claimant as party thereto, and it was the common intention of the parties that the documents be valid and enforceable by and against the Claimant. The Claimant relies on Part 15 of the Civil Procedure Rules.

• 2. In respect of the Application for consolidation, this claim together with Claim No. 2005 CD 0001 arise out of the same transaction, will involve consideration of similar documents and are likely to involve similar evidence and witnesses, with the consequence that time and costs would be saved and it would be just and convenient to have the claims tried together. The Claimant relies on Parts 1 and 26 (in particular 26.1(2) (b)) of the Civil Procedure Rules.

• 3. In respect ofthe Application for transfer of this claim to the Commercial Division of the Supreme Court, the claim concerns the construction and performance of business documents (in particular the contracts between the parties and the security provided by the Defendants) and is particularly suitable for decision by a judge ofthe Commercial Division. The Claimant relies on Part 71 (in particular 71.3(k) and (n)) ofthe Civil Procedure Rules.

10 As indicated earlier, the matter was consolidated on the 23 ^rd November, 2006, and so there is no need to consider that relief, as set out in the above mentioned Notice of Application for Court Orders.

THE CLAIM FORM AND PARTICULARS OF CLAIM (filed in respect of Claim No. 2005 HCV 01070)

11 By way of Amended Claim Form filed on the 19 ^th September, 2006, the Claimant sought to have the Debenture, Mortgage, Guarantee and Supply Agreement rectified, by deleting the references to PWC, and substituting therefor L-3 Communications Corporation. It also sought to have the endorsement of the Mortgage on the Certificate of Title registered at Volume 1227 Folio 491 of the Register Book of Titles, rectified by deleting the references to PWC, and substituting therefor L-3 Communications Corporation.

12 In its Amended Particulars of Claim also filed on the 19 ^fh September, 2006, the Claimant contended that by way of Supply Agreement dated the 22 ^nd April, 2002, it supplied to and installed and commissioned, specific equipment to the 1 ^st Defendant. The 1 ^st Defendant it asserted, has failed and/or refused to pay the amount due under the Supply Agreement.

13 The Supply Agreement was executed in the names of PWC and the 1 ^st Defendant. It was also contended that at all material times PWC was one of the trading names used by the Claimant. Further, it was alleged that PWC was a division of the Claimant, and not a separate legal entity, and the Defendants were aware of the true legal nature of PWC.

14 Under the Supply Agreement, the Claimant has an executed Debenture from the 1 ^sf Defendant, intended to secure the debt of the 1 ^st Defendant. The Claimant also has a Guarantee from the 2 ^nd Defendant for the debt of the 1 ^si Defendant, which was secured in part, by a mortgage issued by the 2 ^nd Defendant over property situated at 5 Norbury Villas, Kingston 8, registered at Volume 1227 Folio 491 in the parish of St. Andrew. All these documents the Claimant insisted, were wrongly executed in the name of PWC, and not in the name of the Claimant.

15 Furthermore, the Claimant alleged that it was the intention of the parties, up to and after the execution of all the documents mentioned above, that it was to be a party to each of the said documents, so that they would be valid and enforceable at the instance of and against the Claimant. In light of that position, the Clamant has asserted that the documents ought properly to be rectified to substitute, in place of PWC, the Claimant's name, L-3 Communications Corporation (trading as Prime Wave Communications), a duly incorporated corporation of legal existence.

THE DEFENCE (filed in respect of Claim No. 2005 HCV 01070)

16 The Defendants in their Defence filed on the 22 ^nd November, 2006 contended that in about 2002, they contacted PWC to purchase telecommunication equipment, and at that time they knew that PWC was associated with the Claimant. Furthermore, they contended that at no time during negotiations with PWC were they...