National Commercial Bank Jamaica Ltd and Another v Toushane Green

• Jurisdiction: Jamaica
• Judge: Phillips JA,Brooks JA,Lawrence-Beswick JA (Ag)
• Judgment Date: 30 May 2014
• Neutral Citation: [2014] JMCA Civ 19
• Court: Court of Appeal (Jamaica)
• Docket Number: CIVIL APPEAL NO 29/2013
• Date: 30 May 2014

[2014] JMCA Civ 19

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

Before:

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

The Hon Ms Justice Lawrence-Beswick JA (Ag)

CIVIL APPEAL NO 29/2013

Between

National Commercial Bank Jamaica Ltd

1st Appellant

and

Owen Campbell

2nd Appellant

and

Toushane Green

Respondent

CIVIL PROCEDURE - Summary judgment - Application for mediation to be dispensed with - Whether appellants had real prospect of success - Bill of sale - Sale of Goods Act, s. 2 - Whether there were triable issues

Phillips JA

1 In this appeal, the appellants challenge the decision of Straw J made on 21 March 2013 in which the learned judge refused to grant their application for summary judgment and for mediation to be dispensed with. This application arose out of a claim brought by the respondent against the appellants for recovery of possession of a white 2007 BMW motor car with registration no 2609FY; damages for unlawful detention of property; damages for trespass to goods; and special damages for loss of use of the said BMW, insurance and registration fees.

2 The application for summary judgment was supported by the affidavit of Lenroy Lewis, acting manager of the 1 ^st appellant's Hagley Park branch, sworn to on 29 October 2012. Mr Lewis deponed that on 21 June 2007, Mr Shawn Scott, a customer of the 1 ^st appellant was indebted to it for the sum of $5,000,000.00 and on 21 June 2007, he had granted to the 1 ^st appellant a bill of sale over his 2007 BMW 328i motor vehicle bearing chassis number WBAWB33587PV70971 as security for his indebtedness. He deponed further that the bill of sale was recorded at the Island Records Office on 25 July 2007 and the 1 ^st appellant had also registered a lien against the BMW at the Inland Revenue Department. Mr Scott, it was deponed, had fallen into arrears and on 20 July 2009, the 1 ^st appellant had authorized the 2 ^nd appellant to recover possession of the said motor car. On 9 December 2011, acting on the 1 ^st appellant's instructions, the 2 ^nd appellant had recovered possession from the respondent. Exhibited to Mr Lewis' affidavit were copies of the bill of sale granted over a 2007 BMW 328i motor vehicle with chassis number WBAWB33587PV7091, stamped by the Taxpayer Audit and Assessment Department as a duplicate; an executed notice of lien dated 8 June 2007 for a 2007 BMW motor car with chassis number WBAWB335870V70971 indicating that Shawn Scott was the registered owner and bearing the stamp of the Collector of Taxes dated 12 June 2007; and a report from an investigator whose services had been engaged by the 1 ^st appellant to locate the 2007 BMW motor car.

3 No affidavit in response was filed by the respondent, but for a better appreciation of the background, reference will be made to his particulars of claim filed on 15 May 2012 in so far as necessary. The particulars of claim aver that on or about25 October 2011, the respondent, who was a businessman at the material time, had seen a 2007 BMW motor car on sale at a car mart and having attended upon the premises and engaged in negotiations for a purchase price, his offer of $3,200,000.00 was accepted. He was shown the title for the motor car in the name of Beverly Belnavis; it had a signature at the back which appeared to be that of Miss Belnavis. The title had already been stamped at the tax office with a stamp dated 26 July 2011. No lien or mortgage had been noted on the title and on 28 October 2011, the car together with the relevant documents was delivered to him and he registered and insured it in his name. On or about 14 December 2011, the vehicle was removed from his residence by the 2 ^nd appellant acting for and on behalf of the 1 ^st appellant and despite a letter demanding return of the vehicle being sent to the 1 ^st appellant, it was not returned. Attached to the particulars was a copy of a motor vehicle certificate of title for a 2007 BMW motor car with chassis number WBAWB33587PV70971 in the name of Beverly Belnavis bearing a date of acquisition of 6 April 2011. There was no notation in the section marked ‘Particulars of Lien’. Also attached were copies of a motor vehicle registration certificate in the name of Toushane Maurice Green for a 2007 BMW motor car bearing chassis number WBAWB33587PV709…, certificate of fitness for the said motor vehicle and an insurance certificate in the name of Toushane Maurice Green.

4 In determining the application, the learned judge adopted the approach of the court inGordon Stewart v Merrick Samuels SCCA No 2/2005, delivered 18 November 2005 that the focus would be directed to the ‘ultimate result of the action as distinct from the initial contention of the parties’. She then found that the 1 ^st appellant had been assigned ownership of the motor vehicle and was entitled to possession as Mr Scott had breached the terms of the agreement in relation to repayment of the loan and a forbearance to not sell or dispose of the motor car. She then examined whether sections 22, 23 or 25 of the Sale of Goods Act were applicable, as had been submitted by counsel for the respondent. These sections provide:

‘22. (1) Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell.

…

23. When the seller of goods has a voidable title thereto but this title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller's defect of title.

25. (1) Where a person having sold goods continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by his duly appointed agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same.

(2) Where a person having bought or agreed to buy goods obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person, or by his duly appointed agentacting for him, of the goods or documents of title, under any sale, pledge, or other disposition thereof, to any person receiving the same, in good faith, and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were the duly appointed agent of the owner in possession of the goods or documents of title with his consent.

…’

5 The learned judge concluded that in relation to section 22, a material issue for determination was whether the omission of the 1 ^st appellant to have the lien registered on the title was more than carelessness and therefore sufficient to preclude it from asserting its title. She found that it was a live issue that could not be resolved on the application as the respondent's attorney had stated that it was intended that at trial evidence would be adduced to show the effect of a lack of registration from the appropriate authority. She found that section 23 was inapplicable as it was hardly feasible that Mr Scott could be described as having a voidable title. Despite this, she considered that Robin and Rambler Coaches Ltd v Turner [1947] 2 All ER 284 [1947] 2 All ER 284 (in which a motor car was obtained by hire purchase and sold to another before the completion of payments) appears to have left open the possibility that the section could apply. She compared that decision to Lydon Allen v Olds Discount of Ja Ltd and Others (1966) 9 WIR 452 (1966) 9 WIR 452 stating that the remarks in both cases were contradictory although both cases related to hire purchase agreements. She commented that although Graham-Perkins JA (Ag), as he then was, in the Lydon case had stated that section 23 was irrelevant, nonetheless, the court would have to look at the implications of both decisions since the distinction between both decisions could arise as the Lydoncase included an option to purchase where title does not pass. In dealing with the applicability of section 25, she referred to the definition of a ‘contract of sale’ as contained in the Act and stated that it could be argued that Mr Scott sold the car to the 1 ^st appellant and continued in possession of it and if the section applied to Mr Scott, the respondent would be protected under that section.

6 Five grounds of appeal were filed, namely:

‘(a) The Learned Judge erred in finding that a bill of sale is a contract of sale of goods within the meaning of section 2 of the Sale of Goods Act.

(b) The Learned Judge erred in finding that there were triable issues based on sections 22, 23( 1) and 25 of the Sale of Goods Act.

(c) The Learned Judge erred in finding that a triable issue arose by reason of the non-registration of the 1 ^st Appellant's lien on the certificate of title to the car in issue.

(d) The Learned Judge erred in finding that the decision inRobin and Rambler Coaches Ltd v Turner gave rise to a triable issue on whether the grantee under the bill of sale had a voidable title to the car in issue.

(e) The Learned Judge erred in comparing a bill of sale to a hire purchase agreement.

(f) The Learned Judge erred in finding that the Respondent has a real prospect of succeeding on the claim.’

7 In his written submissions, Mr Powell submitted that these grounds raise the following issues:

‘(a) whether the effect of the...