Robert Dale Brodber v Ew Abrahams & Sons Ltd
| Jurisdiction | Jamaica |
| Judge | Straw JA,Foster-Pusey JA,F Williams JA |
| Judgment Date | 24 May 2019 |
| Neutral Citation | JM 2019 CA 34 |
| Date | 24 May 2019 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA Civ 17
SUPREME COURT CIVIL APPEAL NO 36/2018
The Hon Mr Justice F Williams JA
The Hon Miss Justice Straw JA
The Hon Mrs Justice Foster-Pusey JA
Written submissions filed by Caroline P Hay QC for the appellant
Written submissions filed by Chen, Green & Company for the respondents
PROCEDURAL APPEAL - (Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)
I have read in draft the judgment of my sister Straw JA. I agree with her reasoning and conclusion. There is nothing that I wish to add.
The appellant (“Mr Brodber”) filed an amended claim on 9 January 2017 against his former employer, the 1 st respondent company (“EW Abrahams”) and its agent, the 2 nd respondent (“Mr Ormsby”).
Mr Brodber is claiming damages against EW Abrahams for:
He is also claiming against EW Abrahams and Mr Ormsby, jointly and/or severally for:
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1. Breach of contract by the wrongful withholding of sums due upon the cessation of employment as at 29 May 2015; and
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2. Breach of contract for the sale of a 2002 Toyota Sprinter motor vehicle.
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3. Damages, aggravated and/or exemplary damages for trespass to his property at 3 McKenzie Close, Kingston 8 in the parish of Saint Andrew;
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4. Damages, aggravated and/or exemplary damages for detention and conversion of 2002 Toyota Sprinter;
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5. Damages and vindicatory damages for breach of his rights guaranteed by section 13(3)(j) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011;
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6. Interest pursuant to the provisions of the Law Reform ( Miscellaneous Provisions) Act; and
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7. Costs.
After instituting his claim, Mr Brodber filed an amended application for summary judgment on 21 March 2017 seeking that summary judgment be entered against EW Abrahams and Mr Ormsby (“the respondents”), pursuant to rule 15.6 of the Civil Procedure Rules 2002 (CPR), on the basis that there was no real prospect of successfully defending the claim. The effect of such an order, if granted, would have made Mr Brodber entitled to the relief sought in his claim without having a trial. In the alternative, Mr Brodber sought an order striking out the respondents' statement of case pursuant to rules 26.3(1)(b) and (c) of the CPR, on the basis that the defence was an abuse of the process of the court and it disclosed no reasonable grounds for defending the amended claim.
On 23 March 2018 Nembhard J (Ag), as she then was, refused Mr Brodber's application for summary judgment and awarded costs against him. This is an appeal from that decision. It is noted that no orders were made with regard to the alternative application for striking out and no appeal was pursued in this respect.
On 6 April 2018 notice and grounds of appeal were filed. Subsequently, an amended notice and grounds of appeal were filed on 26 April 2018. Both refer to the judgment being orally delivered. This court has, however, obtained a copy of a written judgment 1 from the library of the Supreme Court, which indicates that the delivery date was 23 March 2018. It is unclear whether the parties had the benefit of this written judgment as it was not included in the bundles filed, nor was it referred to by them. It is a known practice that from time to time judgments are delivered orally and later made available in writing. What would be unusual is for the judgment to be reduced to written form and the parties not be made aware. Notwithstanding this anomaly, since this court has obtained a copy of the written judgment, reference has been made to it.
Mr Brodber was employed as a sales representative to EW Abrahams for about 13 years. His employment commenced in or about March 2002 and ended some time in or about May 2015 when he resigned.
In January 2015, EW Abrahams offered to sell Mr Brodber one of its motor vehicles. The reason given was that the company was finding maintenance of its motor vehicles too burdensome. As such, Mr Brodber was asked if he wished to purchase a 2002 Toyota Sprinter motor vehicle, which had been previously assigned to him. The offer was to sell the said motor vehicle for $400,000.00, which according to EW Abrahams, was valued in excess of $590,000.00.
By way of letter dated 23 January 2015, EW Abrahams proposed that Mr Brodber could pay $3,000.00 weekly and that completion would take approximately three years.
Mr Brodber would also be required to pay approximately $30,000.00 yearly for the insurance starting in 2016, as EW Abrahams had already made arrangements for 2015. The letter also indicated that on the completion of transfer, EW Abrahams intended to pay Mr Brodber $6,000.00 weekly, for the use of the motor vehicleMr Brodber accepted the offer and, in a second letter dated 20 February 2015, EW Abrahams indicated that their arrangement would come into effect on 6 March 2015. It was indicated that the transfer of the motor vehicle could not be effected until January 2016 as the insurance had already been paid. It was noted that EW Abrahams considered itself to be in a “vulnerable position” as it would be responsible for any claim made by Mr Brodber as far as the insurance company was concerned. Nonetheless, EW Abrahams indicated to Mr Brodber that it would honour any claims as long as he was not at fault.
The agreement took effect on 6 March 2015 and EW Abrahams began deducting $3,000.00 weekly from Mr Brodber's salary.
According to Mr Brodber, sometime between April 2015 and May 2015 he gave EW Abrahams due notice (both orally and in writing) of his intention to resign. The alleged written notice was not included in the documentary evidence before the court. This allegation of due notice being given is disputed by EW Abrahams, whose contention is that Mr Brodber left its employment without due notice after giving the impression that he intended to remain for the period it would take him to complete payment for the motor vehicle. It appears that payment would have been completed sometime in 2018.
Much is in dispute between Mr Brodber and EW Abrahams. Mr Brodber contends that he had an unconditional agreement with EW Abrahams for the sale of the motor vehicle. In his view, this agreement was not contingent upon his employment and as such, he was entitled to remain in possession of the motor vehicle and make the weekly payments as agreed.
EW Abrahams takes a contrary view. It was asserted that the agreement was clearly conditional and that it was orally communicated to Mr Brodber that the sale of the motor vehicle was a part of his “contract of engagement”. In particular, “the terms of payment and the price for which the car was b[e]ing offered was a term of the contract of employment since the motor car was to be used as a tool for marketing and sales of [EW Abrahams'] products”.
As such EW Abrahams contended that as soon as it became aware of Mr Brodber's resignation, an immediate request was made for the return of its motor vehicle and that repeated requests were subsequently made. It would not sell the motor vehicle to Mr Brodber for his personal use and benefit as that was a privilege which was only for its employees. However, Mr Brodber was informed that he could keep the vehicle if he paid to EW Abrahams the sum of $80,000.00 for the five-month period following the return of the funds to pay off the balance of the purchase price. He failed to do so. Mr Brodber acknowledged that EW Abrahams refused to accept payments of $3,000.00 weekly after he separated from their employ.
The motor vehicle remained in Mr Brodber's possession and EW Abrahams assigned its agent, Mr Ormsby, the responsibility to recover the motor vehicle. On or about 2 July 2015, Mr Ormsby recovered the motor vehicle by going to Mr Brodber's home (for a second time) and gaining access with the use of force. Mr Brodber contended that the locks on his home were forcibly cut and removed. It appears that the motor vehicle was removed from Mr Brodber's garage and transported to EW Abrahams' premises with the use of a wrecker.
The amended notice and grounds of appeal sought the following orders:
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“1. The appeal be allowed and the order of the learned judge be set aside.
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2. That the Appellant's Amended Notice of Application for summary judgment on the claim be granted.
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3. Costs here and below be paid by the Respondents to the Appellant.
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4. Such further or other relief as this Honourable Court deems just.”
The grounds of appeal relied on are as follows:
“1. The learned judge fell into error when she found that the Appellant had not averred or proved the giving of due notice to sever the contract of employment to the 1 st Respondent in both his statement of case and his unchallenged Affidavit evidence. That averment was plain on the Appellant's statement of case and Affidavit evidence.
2. The learned judge fell into error and/or misdirected herself on the question of whether the notice given by the Appellant to the 1 st Respondent was ‘short notice’ in circumstances where there was ample evidence from the Appellant of the giving of due notice but no evidence from the 1 st Respondent to the effect.
3. The learned judge abandoned or abdicated her duty to assess whether in law and on the Appellant's detailed evidence, the 1 st Respondent complied with its statutory and internal policy obligations as an employer towards an employee separating from its employ.
4. The learned judge wholly failed to treat with the [Appellant's] claim that the 1 st Respondent's act of withholding and making deductions from monies lawfully attributed to the Appellant's pension for debt not identified or proved by the 1 st Respondent to be lawfully due to it from the Appellant, or for any...
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