Peter Hargitay v Ricco Gartmann
| Jurisdiction | Jamaica |
| Judge | Brooks JA |
| Judgment Date | 18 December 2012 |
| Neutral Citation | JM 2012 CA 110 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 138/2012 APPLICATION NOS 233 & 246/2012 |
| Date | 18 December 2012 |
[2012] JMCA App 34
JAMAICA
IN THE COURT OF APPEAL
SUPREME COURT CIVIL APPEAL NO 138/2012
APPLICATION NOS 233 & 246/2012
Ransford Braham QC and Ian Wilkinson instructed by Wilkinson and Company for the applicant
Stephen Shelton and Ms Maliaca Wong instructed by Myers Fletcher and Gordon for the respondent
CIVIL PROCEDURE - Default judgment - Judgment in default of defence - Whether judgment entered in breach of Civil Procedure Rules 2002, Rule 12.5 on the ground that the applicant had pending an application for extension of time to file defence out of time - Application to set aside default judgment
On 23 June 2008, the Supreme Court of Judicature of Jamaica entered judgment in favour of Mr Ricco Gartmann against Mr Peter Hargitay. The judgment was in default of defence and was in the total sum of 3,066,487.23 Swiss Francs. Court costs and interest were also awarded to Mr Gartmann.
Neither man resided in Jamaica when the claim was filed on 31 January 2002. They are, apparently, both Swiss nationals. Mr Hargitay complains, in that context, that there was no basis for filing the claim in this jurisdiction as the contract which gave rise to the alleged debt was made outside of Jamaica. Mr Hargitay also contends that the judgment was entered in breach of rule 12.5(e) of the Civil Procedure Rules (CPR), because at that time, he had pending, an application for extension of time to file his defence out of time. Like other aspects of the instant case, however, the status of the application was not without complication and some uncertainty.
Mr Hargitay applied to have the default judgement set aside. His application was heard by Daye J who, on 26 October 2012, refused the application to set aside the judgment, but ordered that it should be varied. The variation allowed for the principal sum of the judgment to be varied and for the interest thereon to be assessed by the court. There is, as yet, no formal order in respect of Daye J's decision, but Mr Hargitay has appealed against it. Before me, he has applied for a stay of execution pending appeal. He has filed two separate notices seeking the same relief. He asserts that he has an arguable appeal and that in the interests of justice a stay should be granted.
Mr Gartmann strenuously resists the application. He asserts that Daye J correctly refused Mr Hargitay's application. This is because Mr Hargitay's proposed defence has no real prospect of success. On the question of the application for the extension of time, Mr Shelton, on behalf of Mr Gartmann submitted that that application had been dismissed in the Supreme Court and had not been revived or renewed. In the circumstances, the judgment had been properly entered and Mr Hargitay's contention to the contrary is flawed.
The issue of the existence of an application for extension of time is one of the major issues that will be assessed on appeal. The other main issue is the substance of the defence, being that the debt, on which Mr Gartmann had based his claim, was barred by the operation of the Limitation of Actions Act. I am cognizant that this is not the appeal and that I need only take an overview of the arguments on either side in the context of the principles governing an application for a stay of execution.
Rule 2.11(1)(b) authorises a single judge of this court to make orders for the stay of execution, pending appeal, of any judgment which is the subject of an appeal. The grant of a stay of execution is, however, a discretionary order. Guidance as to the exercise of that discretion has shifted over the years. It has moved from the strict position adumbrated in Atkins v Great Western Railway (1886) 2 TLR 400 through the modifed position set out in Linotype-Hell Finance v Baker [1992] 4 All ER 887, to the current position advocated for in the unreported decisions of Combi (Singapore) PTE Limited v Ramnath Sriram (delivered 23 July 1997) and Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065.
The principle stated in Combi (Singapore) PTE Limited v Ramnath Sriram and Hammond Suddard speaks to the justice of the case after examining all the circumstances. In Combi (Singapore) PTE Limited v Ramnath Sriram, Phillips LJ stressed the aspect of irremediable harm. He stated at page 5 of his judgment:
‘ In my judgment the proper approach must be to make that order which best accords with the interest of justice . If there is a risk that irremediable harm may be caused to the plaintiff if a stay is ordered but no similar detriment to the defendant if it is not, then a stay should not normally be ordered. Equally, if there is a risk that irremediable harm may be caused to the defendant if a stay is not ordered but no similar detriment to the plaintiff if a stay is ordered, then a stay should normally be ordered.
This assumes of course that the court concludes that there may be some merit in the appeal. If it does not then no stay of execution should be ordered. But where there is a risk of harm to one party or another, whichever order is made, the court has to balance the alternatives in order to decide which of them is less likely to produce injustice. The starting point must be that the normal rule as indicated by Order 59, rule 13 is that there is no stay but, where the justice of that approach is in doubt, the answer may well depend upon the perceived strength of the appeal.’ (Emphasis supplied)
Clarke LJ in Hammond Suddard did not speak of the need to identify irremediable harm. The principle that he recommended is concisely set out at paragraph 22 of his judgment. There, the learned Law Lord stated:
‘Whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, but the essential question is whether there is a risk of injustice to one or other or both parties if it grants or refuses a stay . In particular, if a stay is refused what are the risks of the appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand, if a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being able to recover any monies paid from the respondent?’ (Emphasis supplied)
This court has approved the stance taken in the Hammond Suddard case (see Kingsley Thomas v Collin Innis SCCA No 99/2005, Application No 162/2005 (delivered 14 February 2006) and Cable and Wireless Jamaica Limited (T/A Lime) v Digicel (Jamaica) Limited SCCA No 148/2009 Application No 196/2009 (delivered 16 December 2009)). The starting point of analysis is still, however, whether there is some merit in the appeal or, put another way, whether the appeal has a real prospect of success.
Having stated those principles, the first issue to be considered is whether the appeal in the instant case has some merit. In this regard, I shall briefly consider the two issues identified above, namely, whether the judgment in default was properly entered and secondly, whether the limitation point has merit.
An outline of the background to the issue of the entry of the judgment in default of defence, starts with the claim, which was filed on 31 January 2002. In response to the claim, Mr Hargitay filed a number of applications for court orders. Only one is relevant for the present purposes. It is an amended application for court orders filed on 3 February 2005. It sought an order that the claim was statute barred. In the alternative, it sought an extension of time within which to file a statement of defence.
The application came on before Harris J (as she then was) and on 25 October 2005, the learned judge agreed that the claim was, indeed, statute-barred. She accordingly struck it out. Harris J also dismissed the application for extension of time to file the defence. Significantly, these orders were set out as discrete parts of the order culminating Harris J's written judgment on the application, and of the resultant formal order.
On an appeal from Mr Gartmann,...
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