National Commercial Bank of Jamaica Ltd v Lamech M E Gooden
| Jurisdiction | Jamaica |
| Judge | Sinclair-Haynes JA,Straw JA,Harris JA |
| Judgment Date | 05 March 2021 |
| Neutral Citation | JM 2021 CA 25 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 36/2018 |
[2021] JMCA Civ 11
IN THE COURT OF APPEAL
THE HON Mrs Justice Sinclair-Haynes JA
THE HON Miss Justice Straw JA
THE HON Mrs Justice Harris JA
SUPREME COURT CIVIL APPEAL NO 36/2018
Written submissions filed by Myers, Fletcher & Gordon for the appellant
Written submissions filed by Shelards for the respondent
(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)
I have read in draft the judgment of my learned sister, Straw JA and agree with the reasoning and conclusion.
This appeal is concerned with a single issue, namely whether the learned judge properly exercised his discretion when he ordered the appellant (“NCB”) to pay the costs on an application made by the respondent (“Mr Gooden”).
Sometime in 2015, Mr Gooden commenced a claim in the Supreme Court against Desseta Marsie-Hazen (“the executrix”), in her capacity as the executrix of the estate of Barbara Elaine De Castro (“Mrs De Castro”). This claim (assigned claim number 2015HCV05727) concerned Mr Gooden's interest in real property (registered at volume 1180 folio 297 of the Register Book of Titles) which he owned jointly with Mrs De Castro as tenants in common.
On 5 March 1987, the same day that Mr Gooden and Mrs De Castro were registered on the title, a mortgage was registered in favour of the National Commercial Mortgage and Trust Limited. Based on a letter Mr Gooden received from National Commercial Mortgage and Trust Limited, dated 1 September 1997, it appears this entity was informed of Mrs De Castro's death, as there was a notation “(DEC'D)” beside Mrs De Castro's name in the heading. This mortgage was subsequently vested to NCB, which is how NCB came to be in possession of the duplicate certificate of title (“the title”). For completeness, it should be noted the mortgage was discharged on 19 August 2003.
In respect of claim number 2015HCV05727, Mr Gooden obtained orders against the executrix who had failed to reseal the grant of probate obtained in Mrs De Castro's estate in the British Virgin Islands. Included in these orders granted by Daye J on 9 February 2017, were those permitting Mr Gooden to sell the property and directing how the proceeds of sale should be applied. It is also noted that, in the event that the executrix refused, the Registrar of the Supreme Court was also empowered to sign all necessary documents to effect the sale of the property.
The executrix filed a notice of appeal against these orders but her appeal was subsequently struck out and her attorneys-at-law removed their names from the record in respect of the appellate proceedings.
In an effort to obtain the fruit of his judgment, Mr Gooden sought to recover the title from NCB. To this end, his attorneys-at-law wrote to NCB in May 2020. In order to facilitate this request, NCB requested an authorisation letter from Mr Gooden and his instructions to release any information or documentation to his attorneys-at-law. What followed was further correspondence between Mr Gooden's attorneys-at-law and NCB, in particular, a request from NCB for documentation in regards to Mrs De Castro. Up to July 2020, Mr Gooden was not able to satisfy NCB's request nor did he provide alternative documentation in order to recover the title.
NCB had never been made a party to claim number 2015HCV05727, but was brought into the matter by virtue of an application for court orders filed 14 August 2020. This application sought two orders which were granted in practically identical terms by Daye J (“the judge”) on 30 November 2020:
“1) The National Commercial Bank Jamaica Limited is hereby ordered to release the Duplicate Certificate of Title registered at Volume 1180 Folio 297 of the Registrar [sic] Book of Titles for the property located at Catherine Mount Estate, Lot 461, Westgate Hills, Montego Bay, St. James forthwith to Shelards, Attorneys-at-Law, for and on behalf of Lamech M.E. Gooden, registered proprietor.
2) Costs of the Application to the Applicant to be agreed or taxed…”
NCB is aggrieved by the second order which requires it to pay the costs of Mr Gooden's application (hereinafter referred to as “the costs order”). This forms the subject of the appeal at bar. On 10 December 2020, the judge granted leave to appeal to NCB.
By way of notice of appeal filed 22 December 2020, NCB is seeking to set aside the costs order and is seeking costs on its appeal as well as costs on Mr Gooden's application. The precise orders sought are as follows:
“(1) The appeal is allowed.
(2) Numbered paragraph 2 of the Order of the Hon. Mr Justice C. Daye made on 30 November 2020 is set aside.
(3) Costs of the appeal and of the Respondent's application in the Court below are awarded to the Appellant and are to be taxed, if not agreed.
(4) Such further and other relief as may be just.”
NCB's ground of appeal is as follows:
“1. The learned judge failed to properly direct himself on the applicable principles in the exercise of his discretion in awarding costs, in that he:
a. erred in not awarding the costs of Mr Gooden's application to NCB having regard to the rule that it is the party to the proceedings who must pay the costs of the non-party where the party seeks an order from the court requiring the non-party to perform some act;
b. erred in failing to appreciate that these were not circumstances in which NCB, being a non-party, should have been ordered to pay the costs of Mr Gooden's application as there was no wrong-doing by NCB necessitating his application to the court; and
c. failed to consider factors militating against a costs award in Mr Gooden's favor, including his conduct before and during the hearing of his application, which conduct included several material non-disclosures.”
Counsel for NCB submitted that the essential question on this appeal is whether the judge exercised his discretion judicially, having regard to all the circumstances, when he awarded costs to Mr Gooden. Reference was made to the principles recited in Ivor Walker v Ramsay Hanson [2018] JMCA Civ 19, and the Attorney General of Jamaica v John Mackay [2012] JMCA App 1.
It was submitted that the judge did not properly exercise his discretion having regard to the following: (i) the exceptional nature of making cost orders against non-parties, such as NCB, (ii) there was no wrongdoing by NCB, and (iii) the conduct of Mr Gooden.
While part 64.9 of the Civil Procedure Rules, 2002 (“CPR”) permits the making of costs orders against non-parties, it was submitted that such orders are quite exceptional. The fact that NCB has never been a party to claim number 2015HCV05727, meant that the request for an award of costs against it should have been considered exceptional based on the relevant principles and ought not to have been made. Rather, the appropriate costs order would have been an award to NCB for having to appear in relation to Mr Gooden's application, in circumstances where the application was unnecessary and trespassed on the court's ability to allocate time and resources to other matters.
It was submitted that the judge should have applied the principle, that where a non-party has been ordered by the court to perform some act at the instance of a party to proceedings, the non-party should be awarded its costs. Reliance was placed on the dictum of Morrison JA (as he then was) at paragraphs [21] and [23] of Winston Finzi v Mahoe Bay Company Limited and anor [2015] JMCA App 39A, where reference was made to an excerpt from Zuckerman on Civil Procedure, Principles of Practice. Counsel stated that the learned authors (in that excerpt), discussed circumstances where a party may be ordered to pay the costs of a non-party and gave as an example, that if a claimant required a bank to comply with a freezing order and provide information about a defendant's account or to freeze an account, the bank, being a non-party, will normally be entitled to look to the claimant for its costs.
Following this example, it was submitted that, since Mr Gooden's request was for NCB to release the title to him in circumstances where the bank was already assisting him by requesting the documents necessary to action his request, it is he who should have been ordered to pay NCB's costs.
Counsel stated that Mr Gooden's application was based on the unsubstantiated allegation that NCB refused to release the title to him. On the contrary, it was submitted that NCB was assisting Mr Gooden, who was one of two joint proprietors to the property. NCB's records reflected that Mrs De Castro was still registered as a joint proprietor and there was nothing on the title which noted her death. NCB's position is that there was nothing improper about its request to Mr Gooden's attorneys-at-law to provide a letter of authorisation indicating that they acted for both proprietors, namely Mr Gooden and Mrs De Castro; that this was particularly so in circumstances where Mr Gooden's interest in the property was as a tenant in common with Mrs De Castro, which entitled him to a quantified proportion of the beneficial interest and made it impermissible for him to assert an interest to the whole.
It was contended that it was this very principle, which informed the judge's finding (made orally on Mr Gooden's application) that NCB would not be exposed to liability, if it complied with the court's order to release the title to Mr Gooden after the court was satisfied that the executrix was served with the court orders and refused to comply. Counsel submitted that the supplemental affidavit of Christina Thompson filed on 27 November 2020, after the...
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