RBTT Bank Jamaica Ltd v Lakeland Farms Ltd

• Jurisdiction: Jamaica
• Judge: Anderson J.
• Judgment Date: 01 July 2009
• Judgment citation (vLex): [2009] 7 JJC 0101
• Court: Supreme Court (Jamaica)
• Date: 01 July 2009

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2007 HCV 02993

BETWEEN

RBTT BANK JAMAICA LIMITED

CLAIMANT

AND

LAKELAND FARMS LIMITED

DEFENDANT

Inter Partes hearing of Application for Freezing Order: Need for evidence of a "real risk of dissipation; what amounts to such evidence; whether refraining from doing something which the defendant is not obliged to do can amount to provision of such evidence.

FREEZING ORDERS - Application - Inter parties hearing - Need for evidence of a "real risk of dissipation" - What amounts to such evidence - Whether refraining from doing something which the defendant is not obliged to do can amount to provision of such evidence

Anderson J

1 This is the inter paries hearing of an application for a Freezing Order in relation to assets owned by the defendant. The Claimant had previously secured a default judgment against the defendant and had also secured an ex parte Freezing Order. These had arisen in circumstances where the Claimant is alleging that it provided money to the defendant through the defendant's agent by agreeing to encash a cheque, drawn on an account held with another bank. It is the Claimant's position that the cheque was returned "Refer to Drawer". The cheque was purportedly replaced by another cheque which was similarly dishonoured. The Claimant claimed against the defendant who has failed to repay the monies in question and denies that it is liable to do so. The default judgment was subsequently sel aside as was the Freezing Order which had been obtained ex parte .

2 Freezing Orders (formerly known as a "Mareva" injunctions), represent a fundamentally draconian procedure, which restrains a party from dealing with his assets as he would wish. They are frequently used in cases to safeguard the assets which may be needed to satisfy a judgment from being dissipated before the successful claimant is able to get his hands on them to satisfy a judgment. In Jamaica Citizens Bank Limited v Dalton Yap, (1994) 31 J.L.R. 42 the Jamaican Court of Appeal affirmed its previous decision of Watkis v Simmons ami others, (1988) 25 J.L.R. 282 where il was held that the Supreme Court had the power to grant Mareva Injunctions. That conclusion is now reflected and codified in Part 17 of the Civil Procedure Rules 2002 dealing with Interim Remedies.

3 In the Dalton Yap case (supra) Forte JA (as then was then) articulated the two part test as to whether a Mareva injunction should lie, in the following terms:

4 Before a Mareva Injunction can be granted therefore, two things must be established:

• (1) that the plaintiff has a good arguable case the standard of which is evidence which is more than barely capable of serious argument, but not necessarily having a 50% chance of success, and

• (2) 'Solid evidence' that there is a real risk that the assets will be dissipated, either by removal or in some other way and that consequently a judgment or award is favour of the plaintiff would remain unsatisfied .

5 The first part is a "minimum requirement" which must be satisfied before any consideration need be made of the former. Downer JA, in the same case, also stated the two preconditions that must be met before a Mareva Injunction is granted. He said that the authorities suggest that there must be (a) a good arguable case and (b) the risk of removal of property so as to avoid payment . Based upon a reading of all the authorities, this is not...