National Commercial Bank Jamaica Ltd v Garey Whittaker

• Jurisdiction: Jamaica
• Judge: Panton P
• Judgment Date: 16 October 2013
• Neutral Citation: JM 2013 CA 112
• Docket Number: APPLICATION NO 64/2013
• Court: Court of Appeal (Jamaica)
• Date: 16 October 2013

[2013] JMCA App 30

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Mrs Justice McIntosh JA

The Hon Mr Justice Brooks JA

APPLICATION NO 64/2013

Between

National Commercial Bank Jamaica Limited

Applicant

and

Garey Whittaker

Respondent

Kevin Powell instructed by Michael Hylton & Associates for the applicant

Miss Nicole Allen instructed by Gifford , Thompson & Bright for the respondent

CIVIL PROCEDURE - Summary judgment - Order refusing application for summary judgment - Damages for breach of contract - Whether respondent has real prospect of success

Panton P

1 On 11 June 2013, Simmons J refused an application by National Commercial Bank Jamaica Limited (NCB) for summary judgment against the respondent herein, and ordered that the matter should proceed to mediation. She refused leave to appeal and so NCB has applied to this court for permission to appeal.

2 The learned judge heard the application on 18 March 2013 and 11 June 2013. However, we have not had the benefit of the reasons she may have given for her decision.

3 The respondent, a businessman of Sandy Bay, Hanover, claims that at all material times he was the registered legal owner of a 2008 Honda Ridgeline motor vehicle. A certificate of title for the vehicle was issued in his name on 14 December 2009, he having purchased the vehicle from one Joshua Thomas on or about 8 August 2009. The purchase price was $4,000,000.00 There was nothing on the title to indicate that it was encumbered. However, on or about 18 May 2011, agents or servants of NCB seized the said motor vehicle from the respondent's premises.

4 The filing of this suit resulted. The respondent is seeking, against Joshua Thomas and NCB, ‘damages in breach of contract, negligence, breach of common law, breach of statutory duty and in the alternative the return of the motor vehicle …’

5 On 31 October 2012, NCB filed a notice of application to dispense with mediation and for summary judgment. According to NCB, the respondent has no real prospect of succeeding on his claim against it. The application was supported by an affidavit of Ilyn Thompson, manager of the Oxford Place branch of NCB. The affidavit speaks of the granting of a loan of $4,500,000 in February 2008 by NCB to one Devon Evans for the purchase of the motor vehicle mentioned above. On 18 February 2008, NCB registered a lien against the motor vehicle with the Inland Revenue Department. A bill of sale was executed on 29 February 2008 by Mr Evans in favour of NCB. A certificate of title for the vehicle, issued on 26 May 2008 reflected that Mr Evans was the registered owner of the vehicle and that NCB held a lien in respect of it in the sum of $4,500,000.00.

6 Mr Evans fell into arrears with the repayment to NCB. There is no indication of the sum that Mr Evans has outstanding for NCB. Acting in keeping with the terms of the bill of sale, NCB authorized the seizure of the vehicle.

7 The respondent filed an affidavit in response to NCB's application. In the affidavit, he stated that the vehicle was advertised for sale in the Sunday Gleaner in or about August 2009. He said that he travelled to Kingston to view and test drive the motor vehicle. He was shown the vehicle and documents by Joshua Thomas' son, named Nicholas Manley. The documents shown to him were:

• (i) original motor vehicle certificate of title;

• (ii) a valuation report on the motor vehicle;

• (iii) the motor vehicle registration document; and

• (iv) the certificate of fitness for the motor vehicle.

Having found the documents to be in good order, and being satisfied with the performance of the vehicle on the test run, the respondent returned...