Margie Geddes v McDonald Millingen

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: P Williams JA
• Judgment Date: 20 May 2016
• Neutral Citation: JM 2016 CA 49
• Docket Number: CIVIL APPEAL NO 8/2016 APPLICATION NO 18/2016
• Date: 20 May 2016

[2016] JMCA App 12

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Miss Justice Phillips JA

The Hon Miss Justice P Williams JA (AG)

The Hon Miss Justice Edwards JA (AG)

CIVIL APPEAL NO 8/2016

APPLICATION NO 18/2016

Between:

Margie Geddes

Applicant

and

McDonald Millingen

Respondent

Michael Hylton QC , Roderick Gordon and Miss Kereene Smith instructed by Gordon McGrath for the applicant

Vincent Chen , Miss Nicole-Ann Fullerton and Malcolm McDonald instructed by Chen Green & Co for the respondent

ORAL JUDGMENT

P Williams JA (AG)

1 On 9 March 2016 the applicant filed a relisted notice of application seeking several orders which could be viewed as consequential to the main order sought, which was permission to appeal the order made by Morrison J on 20 January 2016. The applicant had applied to have a provisional charging order varied, but Morrison J had refused that application stating that he had no jurisdiction to entertain such an application.

2 When this application came on for hearing, Mr Michael Hylton QC indicated that he would only be pursuing paragraphs 1 and 9 of the re-listed notice of application namely:

• ‘1. That this Honourable Court grant permission to Appeal the decision of the learned Mr. Justice B. Morrison in the Court below, issued 20 ^th January 2016.

• …

• 9. Costs of this Application to be costs in the Appeal.’

3 Mr Vincent Chen, counsel for the respondent, took a preliminary objection to this application being heard. It was noted that the applicant had filed notice and grounds of appeal on 21 January 2016. An ex parte application was placed before a single judge of this court on that date seeking permission to appeal, a stay of execution in respect of the respondent's default costs certificate obtained on 30 January 2012 pending the outcome of this appeal and in respect of the decision of King J on whether to grant the applicant's application to set aside the said default costs certificate. It also sought orders concerning the variation of the provisional charging order. It was ordered that the other side be served. On 9 February 2016, the matter was again brought before the single judge who ordered that:

‘Assuming that Permission to Appeal was refused by the court below, (rule 1.8(2) of the Court of Appeal Rules), the application may be set down for an inter-partes hearing before a single judge in respect of paragraphs 1 and 2 of the Notice of Application, with skeleton submissions filed beforehand.

If the parties (or either of them) would wish for the single judge to consider any of the other paragraphs, full submissions as to the single judge's jurisdiction to do so, would be required.’

4 On 22 February 2016, an ex parte application for leave to appeal against the order of Morrison J was heard and refused by Lindo J. Mr Chen complained that this ex parte application ought never to have been made as the respondent was improperly denied an opportunity to be heard.

5 On 23 February 2016, the matter was again placed before the single judge when on the application of the applicant's attorney-at-law the matter was adjourned. On 9 March 2016, as previously indicated, this relisted notice of application was filed. Mr Chen contended that the notice and grounds of appeal had been filed before leave to appeal was obtained thus the order in which things were done was plainly wrong. He further submitted that when the appeal was filed there was no leave to do so hence, the proceedings were a nullity and since this application now before the court arose out of this nullity, according to him, the applicant should not be allowed to proceed in this inappropriate way.

6 Mr Chen also complained that the re-listed notice of application now before this court differed from that which had been placed before the single judge. He contended that new material was being improperly placed before this court. Thus, he submitted, this application ought not to be entertained.

7 Mr Hylton conceded that the sequence had been wrong, but he pointed out that at this time there was in effect no appeal yet before this court. Mr Hylton submitted that this application for leave to appeal was properly before the court as leave to appeal had now been made and refused in the court below. The fact that it had been made ex parte , he submitted, did not matter. He accepted that there might have been differences between the notice of application filed before the single judge and what was presently before this court, but noted that it was only the permission for leave to appeal which was now being pursued.

8 This court decided that this preliminary objection must be refused as the application for permission to appeal was properly before us.

9 In deciding whether to grant permission to appeal it is necessary to provide some background information. This matter arose from a claim which was filed by the respondent against the applicant for work done between 1999 and 2008 on a quantum meruit basis. On 19 April 2011, the respondent filed a bill of costs in the court below and it is the respondent's contention that this said bill of costs had been served on the applicant. Having failed to file any points of dispute, on 25 January 2012, a default costs certificate was issued against the applicant in the sum of US$1,048,807.19. The respondent obtained a provisional charging order on 18 December 2012, in respect of shares owned by the applicant and shares held by Bardi Limited in the following terms:

‘1. A Charging Order is hereby granted in respect of the following:

(i) Two (2) ordinary shares (and dividends arising therefrom) held by Margie Geddes in Bardi Limited.

(ii) 84,000,000 ordinary shares (and dividends arising therefrom) in Desnoes and Geddes Limited issued to and registered in the name of Bardi limited.

2. The Defendant, Margie Geddes, is hereby restrained from selling or charging the shares held by her in Bardi Limited and the 84,000,000 shares held by Bardi Limited in Desnoes and Geddes Limited until the hearing of an Application for a final charging order.’

10 On 11 April 2013, the applicant applied to strike out the claim for costs or in the alternative to set aside the default costs certificate. On 21 March 2014, this application was heard by King J and judgment was reserved and is still being awaited at this time.

11 On 2 December 2015, attorneys-at-law for Heineken Sweden AB enquired of the applicant's attorneys-at-law whether the applicant would be willing to accept an offer to purchase shares held by Bardi Limited and under her control in Desnoes & Geddes Limited ‘D&G’. They indicated a willingness to come to a resolution which would permit the sale of the shares pending the outcome of the litigation in the matter with the encumbrance on the subject shares. Subsequently, the applicant was advised that Heineken Sweden AB would be seeking to acquire majority share ownership and had issued a mandatory offer to purchase the shares in D&G for US$0.259 per share. This was considered a ‘significant premium to the current trading price’ since the closing price trading at the time of the offer on the Jamaica Stock Exchange was Jamaican $7.00 or US$0.061 per share.

12 A notice of application was filed on 8 January 2016 wherein the applicant sought...