New Falmouth Resorts Ltd v James N. Phelan

• Jurisdiction: Jamaica
• Judge: DOWNER, J.A. , PANTON, J.A. , SMITH, J.A.
• Judgment Date: 18 March 2005
• Neutral Citation: JM 2005 CA 16
• Judgment citation (vLex): [2005] 3 JJC 1804
• Date: 18 March 2005
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE SMITH, J.A

BETWEEN:

NEW FALMOUTH RESORTS LIMITED

APPELLANT

AND:

JAMES N. PHELAN

RESPONDENT

Carol Davis for the Appellant

Garth McBean and Tricia McNeil instructed by Dunn Cox for the Respondent

CIVIL PROCEDURE - Default judgment

DOWNER, J.A.

1 Introduction

2 In this important procedural appeal New Falmouth Resorts Ltd. ("the Company") sought to set aside the order of D.O. McIntosh, J. who dismissed the summons of the Company to set aside a default judgment in favour of James N. Phelan the respondent. The Company also challenged the learned judge's discretion exercised in favour of the respondent James Phelan to proceed to execute the said default judgment.

3 The basis of the default judgment

4 It is helpful to set out the default judgment to appreciate the significance of the proceedings in the Court below. The amended final judgment reads at

5 page 8 of the record:

"The Defendant [the Company] not having filed a Defence to the Writ of Summons herein and Affidavit of Search and in proof of debt having been filed it is this day adjudged that the Plaintiff recover against the Defendant the sum of US$240,623.00 with interest thereon in the sum of US$133,520.04 from September 20, 1976 to April 18, 1984. "

DATED the 27 ^th day of April 1989."

6 It appears from the record that there was no entry of appearance by the Company and there was no defence filed with respect to the statement of claim endorsed on the writ. The statement of claim reads as follows:

• "1. On the 20 ^th day of September, 1976, the Plaintiff's action against the Defendant was heard before the Presiding Judge His Honour James Meyer, of the District Court of Travis County, Texas 126 ^th Judicial District in the United States of America.

• 2. The said Court was duly constituted and held in accordance with the laws of the said County, and State of the United States of America that had jurisdiction in that behalf.

• 3. On the said 20 ^th day of September, 1976 the said Court gave judgment in the said action in favour of the Plaintiff, and ordered the Defendant to pay the Plaintiff the sum of $240,623.00 (United States Dollars) and interest on the said sum at the rate of 6% per annum from the said date of judgment until payment.

  And the Plaintiff Claims:

  • (i) $890,305.10 (Jamaican) which is the equivalent of $240,623.00 (United States) at the rate of $3.70 (Jamaican) to United States Dollar at the date hereof.

  • (ii) Interest.

Dated the 17 ^th day of April 1984

DUNN, COX & ORRETT

Attorneys-at-law for the Plaintiff."

7 The judgment of the District Court in Texas was exhibited at page 17 of the Record and reads as follows:

"No. 222,728

JAMES N. PHELAN

V.

NEW FALMOUTH RESORTS, LTD. 126 ^th JUDICIAL DISTRICT ET AL

IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS

The above entitled cause came before this Court on 20 ^th of September, 1976, plaintiff James Phelan, appearing by his attorney, and defendant New Falmouth Resorts, Ltd. having filed a Confession of Judgment executed by its director David N. Phelan.

It appears from plaintiff's petition that the alleged cause of action is just, and that the defendant has confessed judgment thereto.

It is therefore adjudged:

• 1. That plaintiff James N. Phelan recover from defendant New Falmouth Resorts, Ltd. the sum of $218,749.00 plus attorney's fees of $21,874.00 for a total of $240,623.00 with interest at the legal rate of 6% per annum from date of judgment until paid.

• 2. That costs of this suit be taxed against defendant.

Signed on September 20 ^th 1976

James Meyers

Judge Presiding."

8 As regards the status of this judgment at common law in our courts

9 it is best to cite in full the case of Malony v. Gibbons 2 Camp 502 and 170 English Reports at page 1232:

"First Sittings after Term at Westminster Thursday Nov. 29, 1810 Malony, Esquire v. Gibbons

(An action may be maintained upon a foreign judgment obtained by default, which states that the defendant appeared by attorney - without proving that the attorney mentioned had authority to appear, or that the defendant was living within the jurisdiction of the foreign Court.)

[Referred to, Obicini v. Bligh , 1832, 8 Bing. 335; Guiard v. DeClermont , [1914] 3 K.B. 145 ] Action on a judgment of the Supreme Court of the island of Jamaica.

In the judgment, after the declaration, which was in assumpsit, there was the following entry:

'And the said J. Gibbons, by J. Ferrier, his attorney, comes and defends the wrong and injury when, &c, and says nothing in bar or preclusion of the said action of the said J. Molony: Wherefore," &c (in the common form).

Garrow for the defendant insisted, as this was a judgment by default, that the plaintiff was bound to prove, that Ferrier was properly constituted the defendant's attorney, or at any rate that the defendant himself, pending the original action, was living within the jurisdiction of the Supreme Court; and he referred to Buchanan v. Rucker , 1 Campb. 63

Lord Ellenborough - I will look to these foreign judgments with great jealousy; but I must give them credit for the facts which they specially allege; and I must presume in the present case, that the Court saw Ferrier properly constituted attorney for the defendant. Verdict for the plaintiff Park and Reader for the plaintiff Garrow for the defendant."

10 There is of course no subsidiary legislation in this jurisdiction for the registration and enforcement of judgments of Texas or the United States of America.

11 The Company retained an attorney G. Irvin Terell who challenged the jurisdiction of the Texas Court and these were the three issues set down for hearing exhibited at page 123 of the Record thus:

"No. 222,728

JAMES N. PHELAN

V.

NEW FALMOUTH RESORTS, LTD., ET AL

IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS 126 ^th JUDICIAL DISTRICT

Upon Motion of the Plaintiff, the following are ordered set for hearing before this Court on the 24 ^th day of Oct. 1974, at 9.00 a.m.:

• 1. Special Appearance of Defendant New Falmouth Resorts, Ltd under Rule 120A

• 2. Plea of Privilege of Defendant New Falmouth Resorts, Ltd.

• 3. Plea of Privilege of Defendant David Phelan."

Presiding Judge 126 ^th District Court."

12 There were three Orders by the Texas Court exhibited at pages 134, 135 and 136 of the Record. It is appropriate to cite one of these Orders at this stage to demonstrate that the Company submitted to the jurisdiction of the Court. At page 134 the following Order appears:

"No. 222,728

JAMES N. PHELAN

V.

NEW FALMOUTH RESORTS, LTD. 126 ^th JUDICIAL DISTRICT ET AL

IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS

ORDER OVERRULING DEFENDANT'S MOTION OBJECTING TO PERSONAL JURISDICTION

On November 20, 1974 came on to be heard the defendant New Falmouth Resorts, Ltd's Special Appearance to Present Motion Objecting to Personal Jurisdiction. Both Parties appeared by their attorneys of record and announced ready.

The Court, having considered the pleadings, evidence introduced in support of the pleadings, and argument of counsel, is of the opinion that defendant's said motion should be overruled.

It is therefore ORDERED that the defendant New Falmouth Resorts, Ltd's Motion Objecting to Personal Jurisdiction is hereby overruled.

Signed on February 6, 1974

James R. Myers Presiding Judge 126 ^th Judicial District

APPROVED AS TO FORM:

James A. Burroughs 1305 San Antonio St. Austin, Texas 78701 ATTORNEY FOR PLAINTIFF

G. Irvin Terrell 3000 One Shell Plaza Houston, Texas 77002 ATTORNEY FOR DEFENDANT NEW FALMOUTH RESORTS, LTD"

13 Section 269 of the Judicature (Civil Procedure Code) Law reads:

"269. Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court or a Judge, on motion or summons, without an appeal."

14 The Company gave its consent to the amendment to the Default Judgment pursuant to section 269 of the Code. To demonstrate this it is imperative to advert to the Order of the Master on 7 ^th June 1995 at page 19 of the Record:

"UPON THIS SUMMONS TO AMEND Judgment Pursuant to S 269 of the Judicature (Civil Procedure Code) Law dated the 16 ^th day of March, 1995 coming on for hearing this day and upon hearing MR. LANCELOT A. COWAN , Attorney-at-law instructed by MESSRS DUNN, COX, ORRETT & ASHENHEIM Attorneys-at-Law for the Plaintiff and MS. MICHELLE KIRTON , Attorney-at-law instructed by MESSRS. CLINTON, HART & COMPANY , Attorneys-at-Law for the Defendant;

IT IS THIS DAY HEREBY ORDERED as follows:

(i) that the Final Judgment entered herein on the 27 ^th day of April, 1989 in the sum of US$240,623.00 with interest thereon from the 18 ^th day of April, 1984 until Judgment, be amended or corrected to read:

The Defendant not having filed a Defence to the Writ of Summons herein and Affidavit of Search and in proof of debt having been filed it is this day adjudged that the Plaintiff recover against the Defendant the sum of US$240,623.00 with interest thereon in the sum of US$133,520.04 from September 20, 1976 to April 18, 1984."

15 Section 258 of the Judicature (Civil Procedure Code) Law is applicable and

16 reads:

"258. Any judgment by default, whether under this Title or under any other provisions of this Law, may be set aside by the Court or a Judge upon such terms as to costs or otherwise as such Court or Judge may think fit."

17 It is necessary to point out that the Record in this case was somewhat inadequate in certain respects. The Articles of Association of the Company have not been exhibited. In addition the affidavit of search and proof of debt was not incorporated in the Record.

18 There are...