Michelle Brady v Patrick Donovan Brady
| Jurisdiction | Jamaica |
| Judge | Master C. Thomas |
| Judgment Date | 30 September 2022 |
| Year | 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU 2019 CV 03228 |
(Alternate Executor of the Estate of Winston Edward Brady, deceased)
[2022] JMSC Civ 168
CLAIM NO. SU 2019 CV 03228
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
Civil Procedure — Rule 26.8 of the Civil Procedure Rules — application for relief from sanctions — whether the defendant's application for relief from sanctions ought to be granted — whether the application was made promptly
Ms. Sherry Ann McGregor instructed by Nunes, Scholefield, DeLeon & Co. for the claimant
Ms Carleen McFarlane and Mr. Christopher O. Honeywell instructed by Christopher Honeywell & Co. for the defendant
Master C. Thomas (AG)
Before the court is an application for relief from sanctions made by the defendant. By way of a Notice of Application for Court Orders for Relief from Sanctions accompanied by an affidavit in support, both filed on 11 th March 2022, the defendant seeks orders that there be relief from sanctions and alternatively, that the standard disclosure filed on 14 th December 2021 stands as being filed in time. The grounds of the application are as follows:
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1. That the Defendant has a good explanation for his failure to comply with the Court's deadline;
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2. That the failure to comply was not intentional;
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3. That the Defendant has filed the requisite discovery documents but only missed the filing of standard disclosure documents by twelve (12) days due to intervening illness;
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4. That the Defendant has complied with all other relevant rules, practice directions, orders and directions;
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5. That the Defendant had to change his legal counsel due to the fact that his previous counsel was dilatory and not sufficiently responsive and the Defendant was fearful that based on the rate at which the matter was being handled he would miss the Court's deadline;
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6. That the Defendant's new attorneys came on record at the last minute and therefore had very limited time to comply with the case management orders;
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7. That compliance with the relevant case management orders required a detailed historical audit of records over several years and the recovery of many cheques and other documents which [were] in the possession of the Defendant's bank and elsewhere and these documents were difficult to generate and collate;
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8. That the delay in filing the Standard Disclosure was due also to multiple health challenges which made it difficult for the Defendant to retrieve and put together records, dating as far back as 2013, during this period;
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9. That the Defendant succeeded in filing the account ordered by the court in time but fell ill during that said period and was therefore not able to complete the discovery of documents until the 14 th day of December 2021;
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10. That the accounting which has been filed and served in time by the Defendant demonstrates that the Defendant has legitimately expended the queried proceeds of sale (being the subject of the sale) on or on behalf of his deceased father, and based on said deceased's instructions and that therefore on the merits of the case he owes nothing to the deceased's estate;
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11. That in light of the above upon a proper consideration of the overriding objective of the court, the justice of the case supports the favourable consideration of this application;
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12. That the granting of these Orders will not adversely affect the Trial date or prejudice the Claimant.
The claimant, Michelle Brady, is the alternate executor of the estate of Mr Winston Edward Brady, who was her late father (‘the deceased’). By way of this claim, the claimant is seeking to recover from her brother, the defendant, Patrick Brady, the sum of Two Hundred and Fifty-Nine Thousand Four Hundred and Fifty United States Dollars and Eighteen cents (USD$259,450.18). She alleges that this sum represents a portion of the net proceeds of sale of the interest of the deceased in property situated at 90 Hope Road in the parish of St. Andrew and registered at Volume 1464 Folio 474 (formerly Volume 580 Folio 11) of the Register Book of Titles (“the subject property”).
The claimant asserts that the defendant was appointed as donee by their father under a Power of Attorney dated the 9 th of July 2009. Further, the claimant alleges that under this Power of Attorney, the defendant was subject to directions to pursue a transaction for the sale of the deceased's interest in the subject property. She avers that during the course of the transaction for sale of the subject property, the defendant was directed by the deceased to deposit his portion of the net proceeds of the sale into an account held at the National Commercial Bank Jamaica Limited (“NCB”) in the joint names of Michelle and Michael Brady, two of the defendant's siblings, who are also the deceased's children.
The claimant alleges that upon the completion of the transaction of the sale of the subject property, the defendant had acknowledged receipt of the sum of Three Hundred and Fifty-Seven Thousand Seven Hundred and Eighty-Three Dollars and Nineteen Cents (USD $357,783.19) from Chapman Law, who were the attorneys-at-law for the vendors.
The claimant maintains that the defendant in his statement, had set out various amounts that were deducted from the net proceeds of sale, including rent and taxes, in the sum of Thirty-Three Thousand and Ten Dollars and Six Cents (USD $33,010.06), which leaves a balance of Two Hundred and Fifty United States Dollars and Eighteen Cents (USD $259,450.18).
The claimant contends that the defendant, failed, neglected and/or refused to follow their father's directives and instead deposited Two Hundred and Fifty Thousand United States Dollars (USD$250,000.00) from the proceeds of sale of the subject property into an account at NCB Capital Markets Limited held in his own name, on or about September 26, 2013. There had been repeated demands for the defendant to call in the investment and pay the principal and all accrued interest in the sums invested with NCB Capital Markets Limited to the claimant. However, he had failed, neglected and/or refused to do so. Consequently, the instant claim was commenced.
The claimant asserts that she is entitled to recover from the defendant the balance of the net proceeds of sale, being $259,450.18, inclusive of the sum of $250,000.00 which was invested at NCB Capital Markets Limited, for the benefit of the deceased's estate. She maintains that the deceased's portion of the net proceeds of sale of the subject property was intended to be invested.
In his defence filed on 28 October 2019, the defendant avers that he and the claimant are children of the deceased. By the deceased's last will dated 28 th February 2013, the deceased named his wife (and mother of the claimant and the defendant) Joan Helen Segree as his liquidator. The subject property was owned by the deceased and two other parties as tenants in common. The parties decided to sell the property and the deceased was entitled to one third of the proceeds of sale less expenses and costs. The defendant averred that sometime after the completion of the transaction in or around August 2013, he received the proceeds of sale in keeping with an amended statement of account.
As paragraphs 12, 16 and 19 of the defence are integral to this application, I have set them out in their entirety below:
12. Pursuant to the deceased's directives as well as agreement between them, the defendant from the date of the receipt of the sale proceeds began settling a number of bills for the deceased as well as to pay his and Joan Helen Segree's monthly living expenses in Canada.
16. During the deceased's lifetime he instructed the defendant to withdraw CAD$50,000.00 from the sale proceeds which was paid to Michael Brady who was responsible for renovation work being done to the deceased's house in Montreal, Canada. During the period of renovation, the deceased and Ms. Segree resided in a rented apartment. The defendant was also instructed by the deceased to pay the rental money from the sale proceeds which he did.
19. Further, in about early 2015, the claimant placed their mother in a home for the aged in Quebec. The defendant transfers approximately CAD$2,500.00 to a joint account held with his brother Michael Brady which is used to pay Ms. Segree's monthly expenses. This money is withdrawn from the said sales proceeds.
The case management conference came before Master Orr (Ag) (as she then was) on the 14 th of April 2021. The claimant and the defendant as well as their respective counsel were present. On that occasion, the Master made a number of orders, the ones relevant to this application being:-
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(1) Standard Disclosure is to take place on or before June 30, 2021.
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(2) Inspection of Documents is to take place on or before July 16, 2021.
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(3) The Defendant is to provide an accounting of US$259, 450.18 received on behalf of Winston Brady, deceased, in light of his admission at paragraphs 12, 16 and 19 of the Defence filed on October 28, 2019, and this accounting is to be filed and served by July 16, 2021.
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(4) This Case Management Conference is adjourned to September 27, 2021 at 11:00a.m. for 1 hour.
On the 27 th of September, 2021, the adjourned case management conference came before Rattray J, who made the following orders with respect to orders 1, 2 and 3 above:
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( 1) Time for the parties to comply with Orders 1, 2 and 3 made at the Case Management Conference on April 14, 2021 is extended to December 2, 2021 by 4:00p.m., failing which the Statement of Case of the party or parties in default to stand struck out.
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(2) Case Management Conference is adjourned to March 28, 2022 at 2:00p.m. for two (2) hours.
On 7 th October 2021, the claimant filed her list of documents. The defendant, on 1 st December 2021, filed an affidavit...
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