Liz Zhou v Yvonne Spencer

• Jurisdiction: Jamaica
• Judge: Master C. Thomas
• Judgment Date: 30 September 2022
• Year: 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2012HCV04499

Between

Liz Zhou

1 ^st Claimant

and

Bo Xang Liang

2 ^nd Claimant

and

Yvonne Spencer

(As administrator ad litem of the estate of Barsey Spencer, deceased)

Defendant

[2022] JMSC Civ 171

CLAIM NO. 2012HCV04499

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Civil Procedure — Application to amend statement of case to add new causes of action, defendants and reliefs; Whether limitation period has expired; whether new allegations amount to new causes of action — whether defendants should be added after expiry of limitation period. Civil Procedure — Application for summary judgement — whether the claimants have a real prospect of succeeding in the claim.

Ms Tavia Dunn and Ms Alexandria Fennell instructed by Nunes, Scholefield, Deleon & Company for the claimants.

Mr Garth Taylor for the defendant.

Master C. Thomas (AG.)

Introduction

1 The two applications before this court concern land described as “all that parcel of land part of number 61 Red Hills Road known as State Gardens in the parish of St Andrew being lot numbered fifty-five on the plan of No 61 Red Hills Road” 1 previously registered at Volume 950 Folio 117 and now registered at Volume 1456 Folio 106 of the Register Book of Titles.

2 By way of an amended notice of application for court orders filed on 17 June 2022, the claimants are seeking to amend the claim to add causes of actions, additional reliefs and three defendants; and the defendant, by way of notice of application filed on 15 October 2019, is seeking to obtain summary judgment against the claimants.

The claim and procedural history

3 On 10 August 2012, a fixed date claim form and particulars of claim were filed on behalf of the claimants seeking specific performance of a “written and duly executed agreement for sale dated 17 February 2012 between the claimants and Barsey Spencer whereby Barsey Spencer agreed to sell and the claimants agreed to purchase the land registered at Volume 950 Folio 117” in the Register Book of Titles at a price of Five Million Dollars (J $5,000,000.00).

4 At paragraphs 4 and 5 of the particulars of claim, the claimants allege that they dutifully performed their side of the agreement and paid the sum of One Million Five Hundred Thousand Jamaican Dollars (J $1,500,000.00) and Forty Thousand Six Hundred Fifty United States Dollars (USD $40,650.00) representing full and final payment and Barsey Spencer wrongfully refused and/or neglected to complete the sale in spite of the claimants being always ready, willing and able to complete the sale.

5 On 26 July 2013, the claimants were permitted by the court to file an affidavit in support of their fixed date claim form. This they did on 13 November 2013. In that affidavit, they deponed that they are businesswoman and businessman respectively, residing at 36 Hugh Miller Drive, Kingston 20 in the parish of Saint Andrew and that Barsey Spencer is a retiree of England. The evidence contained

in the affidavit was similar to the pleadings in the particulars of claim as to the existence of the agreement for sale between them and Barsey Spencer and that they dutifully performed their side of the agreement for sale and made “full and final payment for the said property”. They deponed that in attempting to have the property transferred into their names, they became aware that the property had instead been transferred by way of gift from Barsey Spencer to himself, Yvonne Spencer, Rudolph Spencer and Adam Spencer (hereinafter referred to as Barsey Spencer's children”) as joint tenants by way of a transfer registered on 25 January 2012 and a new certificate of title was issued on 21 February 2012. They also stated that on 5 September 2013, they were served with a Notice to Quit

6 The claimants exhibited to their affidavit the following documents: copies of Barsey Spencer's Taxpayer Registration Number, National Insurance Scheme card and United Kingdom passport; an agreement for sale which was purportedly signed by Barsey Spencer and both claimants and witnessed by a justice of the peace and which save for the year 2011, was undated; receipts dated 17 February 2011 and 25 March 2011 in the sum of J$1,500,000.00 and US$40,650.00 respectively; copies of certificates of title for the property registered at Volume 950 Folio 117, which was cancelled, and Volume 1456 Folio 106; and notice to quit dated 2 August 2012.

7 On 7 April 2015, the defendant filed three documents: a defence, a counterclaim and witness statement of Yvonne Spencer. In the defence, among other things, it was denied that Barsey Spencer entered into any agreement to sell the property or received any deposit for any property from anyone, specifically from the claimants. 2 It was stated that no documents were signed by Barsey Spencer and that the purported transaction the claimants sought to rely on “is bogus and known to be bogus”. 3 In addition, Barsey Spencer never had any intention to sell the property as it is family land and that the signature on the agreement for sale was

not that of the deceased. 4 It was also stated that considering the location of the property and its size, the sum of $5,000,000.00 is ridiculous on the face of it and “no person obtaining competent legal advice would attempt to purchase anything so obviously undervalued”. The defence also responded to the claimant's affidavit in support of the fixed date claim form. In essence, save for admitting the transfer of the property to Barsey Spencer and his children and service of the notice to quit, the claim was denied

8 The counterclaim asserted that Barsey Spencer did not know the claimants and had no idea how they came to be on his property and that he had served on them a notice to quit. 5 Further, that Barsey Spencer had no knowledge of the agreement for sale and his signature was forged for the purpose of fraudulently transferring the property. In addition, Barsey Spencer did not receive any money from the claimants and was unaware whether they had paid the sums to anyone. The claimants were squatters as Barsey Spencer did not give them permission to reside on the property nor had they paid Barsey Spencer any rental. As the witness statement does not constitute pleadings and cannot be regarded as evidence before the court until it is so admitted as the witness' evidence in chief at the trial, it is unnecessary for me to refer to its contents. By way of the order of the court made on 14 October 2019, the defence and counterclaim were ordered to stand.

9 On 9 April 2015, the court ordered that the claim was to proceed as if begun by claim form. Mediation was ordered, case management orders were made including the trial of the claim on 9 and 10 November 2015. Since then, the matter has had several pre-trial review and trial dates.

10 On 2 October 2017, the court was informed that Barsey Spencer had died and an order was made for an application to be made for the appointment of a personal representative for the deceased's estate. The application to appoint Yvonne Spencer as administrator ad litem was filed and was set for hearing on 30 July

2019 but the court file does not indicate whether the application was in fact heard on that day or whether any order was eventually made on the application and neither counsel who appeared before me was able to provide any further information on the disposal of the application. Nonetheless, the parties have been proceeding on the basis that the order was made. For the avoidance of doubt, therefore, I will make an order appointing her as personal representative of Barsey Spencer's estate

The claimants' applications to amend

11 The claimants have filed several applications seeking primarily, to amend their statement of case, among orders. The first such application was filed on 16 June 2016 seeking to amend the claim to add Yvonne Spencer and Rudolph Spencer as defendants; for the statement of case to be amended to include a cause of action; and for Beverley East to be appointed as an expert witness at the hearing of the matter. None of the applications appears to have been heard and thus the culmination of these applications is the amended notice of application filed on 17 June 2022. The amended application seeks orders for Yvonne Spencer, Rudolph Spencer and Adam Spencer to be added as defendants to the claim; for the claim form and particulars of claim to be amended in accordance with a proposed amended claim form and amended particulars of claim; for leave to be granted to serve the amended claim form and particulars of claim outside the jurisdiction by registered mail; and for consequential orders in respect of the filing of acknowledgments of service and defence. The defendant's application for summary judgment was filed on 15 October 2019.

12 On 16 October 2019, Master Hart Hines (as she was then) set the matter for trial on 6–8 May 2024 and made other consequential orders as well as an order that the defendant's application for summary judgment is to be determined after the claimants' application.

13 In accordance with the orders of the court, I will therefore proceed to consider the application to amend first. Let me state at the outset, that all the affidavits filed in support of the application and in opposition to the application were considered; however, I will only refer to those aspects of the evidence that I regard to be most material.

14 The claimants' application was supported by various affidavits filed by Dennis Richards, an attorney from the firm that previously represented the claimants. The two which appear to include the principal facts on which the claimants are relying were filed on 16 October and 3 December 2019; the latter of these two appears to replicate the former and therefore it is unnecessary to refer to both. It is also impracticable to rehearse the contents. I will, however say that an important part of Mr Richards' evidence was that...