National Commercial Bank Ltd v Garth Scott, Sonia Scott, Jamcon Industries Ltd and Intek Steel Ltd

• Jurisdiction: Jamaica
• Judge: CORAM : WOLFE C.J.
• Judgment Date: 21 November 2000
• Judgment citation (vLex): [2000] 11 JJC 2101
• Docket Number: SUIT NO. CL 2000/N-152
• Court: Supreme Court (Jamaica)
• Date: 21 November 2000

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. CL 2000/N-152

BETWEEN

NATIONAL COMMERCIAL BANK JAMAICA LIMITED

PLAINTIFF

AND

GARTH SCOTT

1 ^st DEFENDANT

AND

SONIA SCOTT

2 ^nd DEFENDANT

AND

JAMCON INDUSTRIES LIMITED

3 ^rd DEFENDANT

AND

INTEK STEEL LIMITED

4 ^th DEFENDANT

SUMMONS TO SET ASIDE EXPARTE MAKEVA INJUNCTION ORDER

^{nd th}

^{st rd}

INJUNCTIONS - Mareva injunction Order - Summons to set aside - Application to vary injunction - Whether risk of dissipation - Whether injunction should properly have been granted

CORAM : WOLFE C.J.

1 On the 10 ^th day of July, 2000, Hibbert J (Acting) on an exparte summons ordered as follows:

2 That-

• 1. An injunction restraining the Defendants and each of them, whether by themselves or their servants or otherwise, howsoever, from disposing of and/or dealing with their assets wheresoever situate and from withdrawing or transferring any funds from their accounts wheresoever held until judgment or further order herein.

• 2. An Order that the Defendants and each of them do forthwith disclose with full particularity the nature of all such assets and their whereabouts and whether the same be held in their own name or by nominees or otherwise on their behalf and the sums standing in any accounts, such disclosures to be verified by Affidavits to be made by the said Defendants and served on the Plaintiff's Attorneys-at-Law within 14 days of this Order or Notice thereof being given.

• 3. That there be liberty to the Defendants and any third party affected by the order to apply on one clear day's notice to the Plaintiff's Attorneys-at-Law to set aside or vary this order.

3 PROVIDED THAT:

4 This order is declared to be of no effect against and is not intended to bind any third party outside of the jurisdiction of this Court, directly or indirectly affected by the terms of this order, unless and until this order shall be declared enforceable or recognized or is endorsed by any Court of the jurisdiction in which the Defendants' assets are situated.

5 By Summons dated August 8, 2000, the Defendants sought the following orders:

• A. To set aside the order made on the Exparte Summons for Mareva Injunction dated the 10 ^th day of July, 2000 by the Honourable Mr. Justice Hibhert

• B Alternatively, an order that-

  The order made on the 10 ^th day of July, 2000 by the Honourable Mr. Justice Hibbert on the Exparte Summons for Mareva Injunction be varied.

6 During the course of the arguments Mrs. Champagnie advised that the plaintiff was no longer pursuing the Mareva Injunction ordered against the second defendant, Sonia Scott The order made against the defendant by Hibbert J on the 10 ^th day of July, 2000 was accordingly discharged.

7 On August 18, 2000, the Attorneys-at-Law appearing for the plaintiff and defendants invited the Court to amend the order made by Hibbert J (Acting) to the following effect:

"By consent it is hereby ordered that the parties be at liberty to vary the Exparte order made by Hibbert J on such terms as may be agreed in writing between the Attorneys-at-Law for the Applicants and the Respondents herein and that the Court be notified in writing of any such variation."

8 It is settled law that to obtain a Mareva Injunction the plaintiff must demonstrate that -

• (i) in so far as the merits of his proposed action are concerned he has a 'good arguable case'. See the Ninemia Case 1983 /WLR per Kerr LI at p. 1422 ;

• (ii) the defendant has assets within the jurisdiction and that there is a real risk that if not restrained, he will remove his assets from the jurisdiction or dissipate them within it

9 In addition, the Court will consider the broad justice of the case and, in particular, the prejudice which the grant of the Mareva Injunction may cause to the defendant and third parties.

10 Having granted the injunctions the Court will discharge the order if it finds that there was a failure to give full and frank disclosure of material facts.

11 In seeking to discharge the order made by Hibbert J (Acting) the defendants contend that the plaintiff has failed to demonstrate that it has a good and arguable case and further that the plaintiff failed to make full and frank disclosure of material facts.

12 I shall now proceed to examine the bases of the defendants' application.

13 1. GOOD AND ARGUABLE CASE

14 The plaintiff's claim against the first and third defendants is to recover money from them jointly and severally, as guarantors of debts outstanding from Intek Jamaica to the plaintiff.

15 The total indebtedness of the defendants amounts to J$156,987,438.20 with interest accruing at 29% per annum from June 13, 2000 and US$651,693.01 with interest accruing at 14.5% per annum from June 13, 2000.

16 The claim against the fourth defendant is for monies had and...