Peter Hargitay v Ricco Gartman

• Jurisdiction: Jamaica
• Judge: Panton P,Phillips JA,Mangatal JA
• Judgment Date: 18 December 2015
• Neutral Citation: JM 2015 CA 134
• Docket Number: APPLICATION NOS 56 AND 57/2014
• Court: Court of Appeal (Jamaica)
• Date: 18 December 2015

[2015] JMCA App 44

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO 138/2012

Before:

The Hon Mr Justice Panton P

The Hon Miss Justice Phillips JA

The Hon Miss Justice Mangatal JA (AG)

APPLICATION NOS 56 AND 57/2014

Between

Peter Hargitay

Applicant

and

Ricco Gartmann

Respondent

Ian Wilkinson QC and Mrs Shawn Wilkinson instructed by Wilkinson & Co for the applicant

Stephen Shelton QC and Mrs Maliaca Wong instructed by Myers, Fletcher & Gordon for the respondent

CIVIL PROCEDURE - Court Orders - Application to discharge Order of lower court - Whether judgment was irregular and should be set aside ex debito justitiae - Whether cases statute-barred - Application for stay of execution - Whether there was sufficient basis to discharge Order by lower court - Whether there are triable issues - Application for extension of time - Principles governing application for stay of execution

Panton P

1 There are several apparently unresolved important issues of fact in this case. That situation accounted for our decision handed down on 19 December 2014. My learned sister, Phillips JA, has ably demonstrated these issues in her reasons for judgment. I am in agreement with her reasoning and have nothing to add.

Phillips JA

Introduction

2 Before the court were two notices of application for court orders both dated 3 January 2014 and filed on 4 April 2014. The first, application no 56/2014, was to discharge the orders of Brooks JA contained in a judgment delivered on 18 December 2012, in which he refused an application for stay of execution of the judgment or order of Daye J pending the hearing of the appeal. The second, application no 57/2014, is for a stay of execution of the orders of Daye J contained in his judgment delivered on 5 December 2013 in which he refused an application by the applicant to set aside a default judgment. He ordered as follows:

• �1. The Application of the Defendant for leave to file Defence out of time is refused;

• 2. The Application of the Defendant to Set Aside the Default Judgment is refused;

• 3. Judgment in Default of Defence is varied to reflect the principal sum of CHF 1,164,000.00 as at December 31, 1991 per Statement of Account dated November 7, 2001.

• 4. Interest to be assessed in accordance with the Statement of Account dated November 7, 2001.

• 5. Assessment of Interest set for June 5, 2014 at 10:00 am ;

• 6. Leave to appeal granted;

• 7. Fifty percent (50%) costs to the Claimant to be agreed or Taxed;

• 8. Application for stay of this Order refused.�

The orders sought in respect of Brooks JA's judgment are as follows:

• �1. That the Judgment and Orders made by Brooks, JA sitting as the single judge, on the 10 ^th and 18 ^th days of December, 2012 dismissing the Applicant's application for a stay of execution of the oral Judgment by Daye, J made on the 26 ^th October, 2012 be discharged or set aside.

• 2. That there be a stay of execution of the said Judgment and Orders made by Brooks, JA, sitting as the single judge, on the 10 ^th and 18 ^th days of December, 2012 pending an inter parties [sic] hearing of this application and pending the hearing of the instant appeal.

• 3. That, if necessary, the time for making this application be enlarged or extended.

• 4. That there be liberty to apply.

• 5. There be such further and other relief as may be just; and

• 6. Costs to be costs in the appeal.�

The applicant also sought the following orders against Daye J's judgment:

• �1. That there be a stay of execution of the Judgment in Default of the Judgment and Orders by Mr. Justice Daye dated the 5 ^th day of December, 2013 and the 6 ^th day of December, 2013, respectively, pending an inter partes hearing of this application and/or pending the hearing of the instant appeal to set aside the said Judgment or Orders.

• 2. That there be a stay of execution of the Judgment in Default of Defence � and the Judgment and Orders by Mr. Justice Daye dated the 5 ^th day of December, 2013, and the 6 ^th day of December, 2013, respectively, pending an inter partes hearing of this application and/or pending the hearing of the instant appeal to set aside the said Judgment or Orders.

• 3. Further, or alternatively, an Order restraining the Respondent directly and/or his servants or agents from registering, or taking any steps to have registered the Judgment in Default � and the Judgment and Orders by Mr. Justice Daye dated the 5 ^th day of December, 2013 and the 6 ^th day of December, 2013, respectively, pending an inter partes hearing of this application and/or pending the hearing of the instant appeal to set aside the said Judgment or Orders.

• 4. Further, or alternatively, an Order restraining the Respondent directly and/or his servants or agents from registering, or taking any steps to have registered, in any jurisdiction overseas, in particular the United Kingdom and Switzerland, the Judgment in Default of Defence�and the Judgment and Orders of Mr. Justice Daye � pending an inter partes hearing of this application and/or pending the hearing of the instant appeal to set aside the said Judgment or Orders.

• 5. That, if necessary, the time for making this application be enlarged or extended.

• 6. That there be liberty to apply.�

3 On 19 December 2014, we gave our decision in which we granted both applications and ordered as follows:

Application No 56/2014

• �1. Application granted.

• 2. The judgment and orders made by Brooks JA sitting as the single judge of appeal on 18 December 2012, dismissing the applicant's application for stay of execution of the oral judgment of Daye J made on 26 October 2012 is hereby discharged.

• 3. The appeal is to be listed as soon as possible.

• 4. Costs to be costs in the appeal.�

Application No 57/2014

• �1. Application granted.

• 2. That there be a stay of execution of the judgment in default of defence dated 17 November 2004, filed in the Supreme Court on 18 November 2004, perfected on 23 June 2008 and amended after being refiled in the Supreme Court on 10 November 2011 and the orders of Daye J dated 5 and 6 December 2013 refusing to set aside the default judgment pending the hearing of the appeal � SCCA No 138/2012.

• 3. That the respondent is restrained either directly or through his servants and or agents from registering or taking any steps to have the default judgment registered in any jurisdiction overseas, in particular the United Kingdom and Switzerland, pending the hearing of the appeal � SCCA No 138/2012 to set aside the orders of Daye J.

• 4. Costs to be costs in the appeal.�

We promised to provide our reasons for the decision and this is a fulfilment of that promise.

Background to the applications

4 Peter Hargitay (the applicant) and Ricco Gartmann (the respondent) are both Swiss citizens and former business associates. It appears that the parties communicated with each other in the German language. In or about 1990, they entered into a loan agreement in Switzerland whereby the respondent agreed to lend money to the applicant. Subsequently, the applicant had problems servicing the loan and consequently the relationship between the parties deteriorated.

5 The respondent sought to rely on letters dated 10 March 1992 and 10 June 1999, which were originally in the German language, as admission of the debt. The letters in their entirety read:

Letter dated 10 March 1992:

�Acknowledgement of Debt

Mr. Peter-J Hargitay, c/o Hargitay and Partners Ltd, Zollikerstrasse 58, 8702 Zollikon

Herewith acknowledges to owe to

Mr Rico Gartman, L�tzelseeh�h, 8634 Hombrechtikon the amount of

US$700'000.- (US Dollar seven houndred [sic] thousand)

This amount will be due on December 31, 1991. Furthermore, the profit sharing agreed upon as well as the interest payments of 10 percent as of December 31, 1991 will be added.

Zurich, March 10, 1992 signature:

[signature]

Peter-J Hargitay�

Letter dated 10 June 1999:

�Mr Ricco Gartmann Luetzelsee 12 8634 Hombrechtikon

Basel, June 10, 1999

Debts

Dear Ricco

As of 31.12.1991 there existed a debt in your favour in the amount of CHF 1'164'00.�-. This amount was then only used to buy back the shares in the Hargitay Group Holding AG, Zug, from the IPT AG, Baden, a subsidiary of BBC.

According to your accounting I paid back the amount of totally CHF 509'125'95 between 31.12.1991 and 21.7.1994. Thus, as of 21.7.1994 there would have been a capital balance of CHF 654'874.05 to be booked as remainder of debt.

During 31.12.1991 and 30.6.1999 interests in the total amount of CHF 1'540'693.80 were accumulated despite of my repayments mentioned above. This increases the balance calculated by your accounting to CHF 2'049'919.75 as of today.

In summary, this means that the actual capital debt amounts to totally CHF 654'874.05; the accumulated interest payments you charged me at a rate of 10 percent per annum amount to CHF 1'540'693.80.

With respect to the above period of 7.5 years these amounts tally with an accumulated interest growth of 235 percent, i.e. an average interest rate of 31.33 percent p.a.

Because of reasons which are known to you in detail I was not able to make further payments in the above mentioned matter between 1995 and 1999.

Since beginning of 1999 things are back to normal so that I will soon be able to dispose of liquid funds again.

I am pleased to confirm to you that I will start to make further repayments as soon as possible.

As far as the capital interests and the compound interests are concerned you have told me, that �a solution will be found�. I herewith formally ask you to

a) freeze the interest as of today's date (moratorium of interest); and

b) cancel the accumulated interests partially after I will have again started to pay back the capital in instalments, if this seems possible for you.

I...