Lyn's Funeral Home v Paul Fearon
| Jurisdiction | Jamaica |
| Judge | Anderson, K.J |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] JMSC Civ 133 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2014 HCV 03928 |
| Date | 31 July 2018 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2014 HCV 03928
Craig Carter, instructed by Althea McBean and company, for the Claimant
Everton Dewar, instructed by Everton Dewar and Company, for the Defendant
DEFENDANT'S APPLICATION TO SET ASIDE DEFAULT JUDGMENT — WHETHER OR NOT DEFAULT JUDGMENT WAS REGULARLY OBTAINED — WHETHER APPLICANT CAN PLEAD INCONSISTENT ALTERNATIVE GROUNDS IN SUPPORT OF APPLICATION — WHETHER THE FAILURE TO SERVE ACCOMPANYING DOCUMENTS ALONG WITH THE CLAIM FORM AND PARTICULARS OF CLAIM RENDERS THE CLAIMS A NULLITY — HOW TO PROPERLY DISPUTE THE COURT'S JURISDICTION TO TRY THE CLAIM
This is an application to set aside a default judgment. The claim arose out of an unpaid debt. On the 20th of January, 2007, the claimant entered into an agreement with the defendant for a loan of $1,500,000.00 mortgaged using a specified premises, as collateral for that loan. The claimant avers that the defendant agreed to pay a monthly sum of $150,000.00, for a period of 68 months at an interest rate of 20% per annum. It is alleged that the defendant had only made one payment of $100,000.00, up until the date when the defendant's application to set aside default judgment came on for hearing in this court, when that hearing was presided over, by me. The defendant has failed to make payments according to that agreement and the sum that has been claimed by the claimant is $8,739, 670. 53.
The claimant filed a claim form and particulars of claim on August 14, 2014. An affidavit of service, deponed to, by Junior Hollingsworth, was filed on August 27, 2015, outlining that the defendant was served with the claim form and particulars of claim. A default judgment was sought and obtained by the claimant on August 27, 2015, because the defendant failed to file an acknowledgement of service and/or a defence. The defendant filed a notice of application for court orders on March 15, 2018, seeking to set aside that default judgment.
The defendant/applicant asserts that he was never served with the requisite court documents and was only made aware of these court proceedings, pertaining to this claim against him, when he was served with the default judgment.
Upon being served with the default judgment, his attorney attended the Supreme Court Registry to obtain a copy of the court's file when, after having reviewed that file, it was discovered that Form 6, the application to pay by instalments, was not a part of the documents alleged to have been served. It is argued that the absence of Form 6 from the documents served, makes the default judgment irregularly obtained and the application to set aside default judgment, should be granted as a result.
It is contended that the applicant was not served in accordance with Civil Procedure Rules ( CPR) 8.16(1) and that said failure rendered service of the claim form irregular. Rule 8.16(1)(e) outlines that where the claim is for money, a claim form ‘ MUST’ (highlighted only for emphasis) be filed with a form of application to pay by instalments (Form 6). The applicant's counsel, has submitted that the word ‘must’ used in rule 8.16(1), makes the service of a form of application to pay by instalments, mandatory. The applicant's counsel relies on the authority of Dorothy Vendryes v Richard Keane and Karene Keane — [2010] JMCA App 12, to support his submissions.
In Vendryes a claim form was filed without the required forms under Rule 8.16(1). Harris, JA outlined that Rule 8.16(1) expressly specifies that, at the time of service the requisite forms must accompany the claim form. The language of the rule is plain and precise. Failure to comply with the rule as mandated, offends the rule and clearly amounts to an irregularity which demands that the default judgment must be set aside.
The applicant also seeks to rely on the authority of Claim No. 2011 HCV 05718 First Global Bank Limited v Garfield Dussard, [2015] JMSC Civ 19 (hereinafter referred to as ‘ First Global Bank Case’), delivered on February 19, 2015, where Mr. Justice Rattray, in this court, abided by the Court of Appeal's position, as had been expressed in the Vendryes judgment, when he stated in paragraph 23, that failure to comply with the provisions of Rule 8.16(1) may deprive a defendant of the opportunity to utilize those forms for his advantage. Rattray, J found that the claimant was in breach of Rule 8.16(1) and as a result, the default judgment obtained was irregular and must be set aside.
The applicant submits that the default judgment was irregular because of the non- compliance with Rule 12.4 of the CPR, regarding the requirement to prove service. Rule 12.4 outlines:
‘The registry at the request of the claimant must enter judgment against a defendant for failure to file an acknowledgement of service, if-
(a) The claimant proves service of the claim form and particulars of claim on that defendant.’
Although there is no express provision in that rule, which requires that the claim form must be served along with other documents, this provision cannot stand alone and must be read in conjunction with Rule 8.16(1), which clearly states that the documents must be served along with the claim form and particulars of claim.
Also, if default judgment is irregularly obtained, there is no need to consider the factors outlined in Rule 13.3 of the CPR. Once it is proven that the judgment was entered irregularly, it is a nullity and cannot be cured by this court and must be set aside as of right.
Finally, it is the applicant's counsel's contention, that the applicant/defendant, had not, in this matter, at any time, admitted the claim and acted in any manner, such as to grant the claimant a waiver in this matter.
The claimant/respondent submits several grounds as to why the application to set aside default judgment should be dismissed.
Firstly, it is contended that the court should not allow the applicant to plead obviously inconsistent alternative grounds. The case of Lavery Company ltd v Wong Lee Yuk Ping Agnes and Kelly Wong [2017] HKEC 55, HCA 393/2016, outlines that it must only be in exceptional cases, that a party should be entitled to plead inconsistent alternative arguments. In the present case the applicant contends that he was not served with the claim form and particulars of claim, along with accompanying documents and only came to know of the proceedings when the judgment in default was served on him.
According to the respondent's counsel, it is obviously inconsistent for the defendant to alternatively allege that he was served with the claim form and particulars of claim, yet not with Form 6. The defendant has given sworn testimony, by means of affidavit evidence, as to his not having received service of any documents and therefore, he should be barred from relying on a further alternative ground which is completely inconsistent and a mutually exclusive factual assertion, that he was served with originating documents pertaining to this claim, without form 6.
Secondly, the respondent contends that the applicant should not be permitted to posit an assertion, without substantiating evidence. This principle is highlighted in the case: Amy Bogle v The Transport Authority et al [2015] JMSC Civ 258, which also illustrates that where a litigant wishes to rely on another litigant's failure to comply with legal requirements as part and parcel of their defence, then evidence must be placed before the court to support the allegation. The respondent does not need to satisfy the court that all requirements were met.
The defendant/applicant avers that the default judgment should be set aside, because Form 6 was not attached to the court's copy of the claim form and particulars of claim. The Court of Appeal however, in B & J Equipment Rental Limited v Joseph Nanco [2013] JMCA Civ 2, outlined that it is not a nullity for a claim form to be served on a defendant without accompanying documents but rather, an irregularity of service.
The respondent asserts that the default judgment was properly obtained. Part 12.5 of the CPR outlines the conditions to be satisfied where a party fails to file a defence. The issue of service must be determined on a balance of probabilities. In determining this issue, the court must consider the affidavits of Junior Hollingsworth, the process server. Mr. Hollingsworth outlines the date and time that he personally served the documents on the defendant, and that he knew the defendant for over 30 years. The defendant is essentially asserting that Mr. Hollingsworth is dishonest. No request however, was made, to cross-examine Mr. Hollingsworth. The omission to summon Mr. Hollingsworth for cross—examination, puts the court in a precarious position, since it would be deprived of the ability to properly ascertain, who is a witness of truth, in this matter, with respect to an issue on which there exists conflicting evidence and the parties who have respectively provided to this court, that conflicting evidence, on affidavits were not tested/challenged on that evidence of theirs, by means of cross-examination.
The respondent/claimant also asserts that the defendant/applicant does not have a real prospect of successfully defending the claim. Rule 13.3 of the CPR outlines that the court may set aside/vary a judgment entered under Part 12 if, inter alia, the defendant has a real prospect of successfully defending the claim. The test for, ‘real prospect of success,' was set out in Swain v Hillman and another [2001] 1 All ER 91. Also, in Nanco v Lugg & B&J Equipment Rental Limited [2012] JMSC Civ 81, McDonald—Bishop, J (as she then was),...
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Anthony Wilson v Edward McCarthy
...a balance of probabilities that he was not served. 27 Counsel for the respondent/claimant relied on Lyn's Funeral Home v. Paul Fearon [2018] JMSC Civ 133, in which there was a claim for a specified sum of money. The claim form and particulars of claim were served on the defendant who failed......