Phipps (Frank) and Pearl Phipps v Harold Morrison

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: PANTON, P. , HARRIS, J.A , DUKHARAN, J.A.
• Judgment Date: 03 June 2010
• Neutral Citation: JM 2010 CA 9
• Judgment citation (vLex): [2010] 1 JJC 2902
• Date: 03 June 2010

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, P THE HON. MRS. JUSTICE HARRIS, J.A THE HON. MR. JUSTICE DUKHARAN, J.A

BETWEEN

FRANK PHIPPS PEARL PHIPPS

APPELLANTS

AND

HAROLD MORRISON

RESPONDENT

R.N.A. Henriques, Q.C., & Kathryn Phipps for the appellants.

Vincent Nelson, Q.C., Ms. Maliaca Wong & Ms. Lisa Russell, instructed by Myers, Fletcher & Gordon for the respondent.

CIVIL PROCEDURE - Consent Order - Whether consent order to be set aside - Ostensibly authority of agent - Discharge of consent order - Discharge of injunction

PANTON, P.

1 1. My learned sister Harris, J.A. has stated the relevant facts and events in this matter, in her reasons for Judgment. I agree with her reasoning; hence my concurrence with the decision dismissing this appeal. However, I wish to add a few words.

2 2. The complaint by the appellants is that Beswick, J. should have set aside the consent order made by Anderson, J. at the behest of the parties, through their attorneys-at-law. There is no dispute that this order was drawn up and filed by Clough, Long & Co., the appellants' attorneys-at-law. As Mr. Nelson, Q.C. has pointed out, Messrs. Clough, Long & Co., were the attorneys-at-law on the record for the appellants at all relevant times in the proceedings.

3 3. It is well settled law that the court will not interfere with an order made by consent at a time after the order had been perfected: Marsden v Marsden [1972] 3 WLR 136 at 141C. This order had long been made, signed and filed before the appellants approached the court to set it aside. This was so in a situation where what Clough, Long & Co. did, was well within the sphere of authority that attorneys-at-law have.

4 4. Finality in litigation is very important. It is not an exaggeration to say that if every litigant, disgruntled with the exercise of ostensible authority by his attorney, were to turn around and challenge such exercise, chaos would reign in the administration of justice. Furthermore, a challenge to a consent order that comes more than four years after the litigant is aware of the order, is not worthy of the Court's aid.

HARRIS, J.A

5 In this appeal the appellants seek to set aside an order of Beswick, J, made on June 11, 2008, dismissing an application by the appellants to discharge a consent order made on January 7, 2003, and to discharge an injunction granted on December 7, 2007, and extended on December 21, 2007. On September 25, 2009, we dismissed the appeal and promised to put our reasons in writing. This we now do.

6 The appellants were the registered proprietors of lands comprised in Certificates of Title registered at Volume 1026 Folio 164 and at Volume 1020 Folio 618. In 1992, a part of the land comprised in Certificate of Title registered at Volume 1020 Folio 618 was sold by them to the respondent. Following the sale, a subdivision was obtained and a new Certificate of Title registered at Volume 1246 Folio 932 was secured by the appellants for that part of the land which they retained.

7 Several restrictive covenants were endorsed on both Certificates of Title. The following encumbrances were endorsed on Certificate of Title registered at Volume 1026 Folio 164:

"Incumberances above referred to:-

• 1. No bath water or water used for domestic purposes in respect of the land above-described (hereinafter called "the said land") or any part thereof or any water except storm water shall be permitted or allowed to flow from the said land or any part thereof on the remaining portion of the said land or any road street or lane adjacent thereto.

• 2. The registered proprietor or proprietors of the land comprised in this subdivision shall not in any manner restrict or interfere with the discharge of storm water flowing off the roads onto the said land and the Road Authority shall not under any circumstances be liable to the registered proprietor or occupier of the land for any damage occasioned by storm water flowing off the roads.

• 3. The drains shall not be blocked or obstructed in any way.

• 4. No building shall be erected within 100 feet of the centre line of the gully course.

Dep. Registrar of Titles."

8 The encumbrances on the Certificate of Title registered at Volume 1246 Folio 932 are as follows:

"Incumbrances above referred to:

The restrictive covenants set out hereunder shall run with the land above-described (hereinafter called "the said land") and shall bind as well the registered proprietors their heirs personal representatives and transferees as the registered proprietor and shall enure to the benefit of and be enforceable by the registered proprietors for the time being of the land or any portion thereof now or formerly comprised in Certificate of Title registered at Volume 1020 Folio 618.

1. There shall be no sub-division of the said land. 2. No building of any kind other than a private dwelling house with appropriate outbuildings appurtenant thereto and to be occupied therewith shall be erected on the said land and the value of such private dwelling house and outbuildings shall in the aggregate not be less than Five Thousand Pounds. 3. All gates and doors in or upon any fence or opening upon any road shall open inwards and all outbuildings shall be erected to the rear of the main building. 4. No building erected on the said land shall be used for the purposes of a shop, school, chapel church or nursing home or for racing stables and no trade or business whatsoever shall be carried on upon the said land or any part thereof. 5. No bath water or water used for domestic purposes in respect of the said land or any part thereof or any water except storm water shall be permitted or allowed to flow from the said land or any part thereof on the remaining portion of the said land or any road street or lane adjacent thereto. 6. The registered proprietor or proprietors of the said land or any part thereof shall not in any manner restrict or interfere with the discharge of storm water off the roadways on to the said land and the Road Authority shall not under any circumstances be liable to the registered proprietor or occupier of the said land for any damage occasioned by storm water flowing off the roadways. 7. The drains shall not be blocked or obstructed in any way. 8. The gullies shall not be blocked or obstructed in any way. 9. Natural drainage onto the said land shall be unimpeded. 10. No building or any other permanent structure shall be erected within Forty Feet of the centre line of Durie Drive or within Twelve Feet of the paved drain. 11. The said land shall be held with adjoining land registered at Volume 1026 Folio 164 and held therewith as one holding.

The land comprised in this Certificate (section B) shall be attached to the land comprised in Certificate of Title registered at Volume 1026 Folio 164 and held therewith as one holding.

Dep. Registrar of Titles."

9 On January 29, 2002, by an originating summons, an application was made by the appellants, through their attorneys-at-law Messrs. Clough, Long & Co., for an order for the modification of certain covenants endorsed on the titles. The order sought reads:

"1. There shall be no subdivision of the said land

2. No building of any kind other than a private dwelling house with appropriate outbuildings appurtenant thereto and to be occupied therewith shall be erected on the said land and the value of such private dwelling house and such outbuildings shall be in the aggregate not less than FIVE THOUSAND POUNDS ( £5,000.00)"

Affecting the said land BE MODIFIED so that it shall read:

1. There shall be no subdivision of the said land save and except as shall be approved by the appropriate relevant authorities.

2. No building or any kind other than private dwelling houses with appropriate outbuildings appurtenant thereto and to be occupied therewith shall be erected on the said land value of such private dwelling houses and such outbuildings shall be in the aggregate not less than FIVE THOUSAND POUNDS £5,000.00)."

10 On March 11, 2002, the respondent filed an objection to the appellant's application to modify or discharge the restrictive covenants. The application was listed for hearing on several occasions and on January 7, 2003 a consent order was entered in the following terms:

"BY AND WITH THE CONSENT of the Applicants and the Objector in this suit, IT IS HEREBY AGREED as follows:

• 1. To amend the one holding covenant on the Certificate of Title registered at Volume 1026 Folio 164 to read:

  "The land comprised in this Certificate shall be attached to the land comprised in Certificate of Title registered at Volume 1246 Folio 932 and held therewith as one holding. The registered proprietors of the land comprised in this Certificate and the land comprised in Certificate of Title registered at Volume 1246 Folio 932 shall be entitled to erect on each of the said lots of land a single family private dwelling house with appropriate outbuildings appurtenant thereto and to be occupied therewith and the value of each of the said private dwelling houses and such outbuildings shall be in the aggregate not less than SIX MILLION DOLLARS ($6,000,000.00)".

• 2. To amend the first restrictive covenant on the Certificate of Title registered at Volume 1246 Folio 932 to read:

  "Subject to the registered proprietor's entitlement referred to in Restrictive Covenant No. 2 endorsed hereon and in the amended notation of the one holding covenant endorsed hereon, to erect a single family private dwelling house on the land comprised in this Certificate and the land comprised in Volume 1026 Folio 164, there shall be no sub-division of the said land."

• 3. To amend the second restrictive covenant on the Certificate of Title registered at Volume 1246 Folio 932 to read:

  "No buildings of any kind other than a single family private dwelling house with appropriate...