Robert Lloyd Yee and Others v Sonia Stanigar-Reid

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Panton P,Phillips JA,McIntosh JA
• Judgment Date: 27 June 2014
• Neutral Citation: JM 2014 CA 67
• Docket Number: CIVIL APPEAL NO 2/2014 APPLICATION NOS 38 & 39/2014
• Date: 27 June 2014

Between

Robert Lloyd Yee

1st Applicant

and

Gary Lloyd Yee

2nd Applicant

and

Crystal Bakery Ltd

3rd Applicant

Gary Lloyd Yee T/A Crystal Hardware

4th Applicant

and

Sonia Stanigar-Reid

Respondent

[2014] JMCA App 18

Before:

The Hon Mr Justice Panton P

The Hon Miss Justice Phillips JA

The Hon Mrs Justice McIntosh JA

CIVIL APPEAL NO 2/2014

APPLICATION NOS 38 & 39/2014

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

INJUNCTION - Order refusing injunction - Application to strike out appeal - Non-compliance with Court of Appeal Rules 2002, Rule 2.4(1) - Application to file cross appeal

Nieoker Junor instructed by Knight Junor and Samuels for the 1 ^st and 3 ^rd applicants

Abraham Dabdoub and Mrs Laurel Gregg Levy instructed by Hugh Abel Levy and Company for the 2 ^nd and 4 ^th applicants

Norman Hill QC and Raymond Samuels instructed by Samuels Samuels for the respondent

Panton P

1 On 10 January 2014, Morrison J on an application for an injunction, refused to grant same, but ordered the applicants herein to give certain undertakings within a specified time frame. The applicants have complied with the order of the learned judge, who also gave leave to appeal.

2 Morrison J's order emanated from a suit filed by the respondent in which she is claiming an entitlement to beneficial interests in certain properties and businesses. Being dissatisfied with the judge's order, she has appealed.

3 The 2 ^nd and 4 ^th applicants have applied to strike out the appeal on the basis that the Court of Appeal Rules, particularly rule 2.4 (1), have not been complied with. Alternatively, the applicants seek leave to file a cross appeal and submissions. At the commencement of the hearing before us, the 1 ^st and 3 ^rd applicants withdrew their application to strike out the appeal but pursued their alternative application to be allowed to file a cross appeal and submissions in support.

4 The basis for the applicants' application to strike out is that the appeal is a procedural appeal which requires the filing and serving of written submissions along with the notice of appeal, within seven days of the making of the order being appealed.

5 The first question to be decided is whether this is a procedural appeal. That form of appeal is defined by rule 1.1(8) as one that is ‘from a decision of the court below which does not directly decide the substantive issues in a claim but excludes –

• (a) any such decision made during the course of the trial or final hearing of the proceedings;

• (b) an order granting any relief made on an application for judicial review (including an application for leave to make the application) or under the Constitution;

• (c) the following orders under CPR Part 17 –

  • (i) an interim injunction or declaration;

  • (ii) a freezing order as there defined;

  • (iii) a search order as there defined;

  • (iv) an order to deliver up goods; and

  • (v) any order made before proceedings are commenced or against a non-party;

• (d) an order granting or refusing an application for the appointment of a receiver; and

• (e) an order for committal or confiscation of assets under CPR Part 53;’

6 There is no doubt that the decision of Morrison J has not decided the substantive issues. So, on the face of it, this would normally be a procedural appeal, unless one of the exclusions applies to the situation. Mr Dabdoub for the applicants contended that rule 1.1(8)(c) does not apply. He submitted that ‘the Rules intended that procedural appeal applies where there has been a refusal of an injunction’. I cannot agree with Mr Dabdoub as I see no basis for the construction that he wishes the court to put on the words of the provision. There is no good reason to say that the provision applies in respect of a refusal, but not the granting, of an injunction. I agree with Mr Norman Hill, QC that Mr Dabdoub's construction is flawed. In my judgment, a proper construction of 1.1(8)(c) results in the exclusion of any order made on an application for an interim injunction from the definition of ‘procedural appeal’. The construction that has been urged by Mr Dabdoub is, with respect, illogical and not in keeping with the plain language of the rule.

7 In the circumstances, I would refuse the application to strike out the notice and amended notice of appeal. As an alternative, the applicants have sought leave to file a cross-appeal and submissions. The necessary formalities for the making of such an application have not been complied with. It seems to me that the applicants are simply saying that if the notice of appeal is allowed to stand then they would like to appeal also. This is unacceptable. It amounts to a tit-for-tat, and should be discouraged. The courts are being unnecessarily burdened with matters of this nature. It is as if some parties do not wish for their matters to be tried speedily. The learned judge ordered a speedy trial. It is important that the valid appeal be heard and disposed of quickly, so that the trial may be proceeded with in keeping with the judge's order. Accordingly, I would also refuse this application.

8 I have read the draft judgment of my learned sister Phillips JA, who has given full details surrounding the claim in this matter. I agree with her that the applications should be refused.

Phillips JA

9 The applications before the court, numbered 39 and 38/2014 were filed on 7 and 6 March 2014 on behalf of the 1 ^st and 3 ^rd , and 2 ^nd and 4 ^th applicants, respectively and sought the following orders:

In respect of the 1 ^st and 3 ^rd applicants: that the notice of appeal dated 31 January 2014 served on them on even date and the amended notice of appeal dated 5 ^th February 2014 and served on them on 6 February be struck out for non compliance with the Court of Appeal Rules 2002 (“CAR”). Alternatively, these applicants asked that they be permitted to file a cross appeal and skeleton submissions in opposition and in support of the cross appeal within seven days of the date of the order of the court.

In respect of the 2 ^nd and 4 ^th applicants, the notice of appeal and the amended notice of appeal had been served on them on 6 February 2014. These applicants also asked for the notice of appeal to be struck out and, in the alternative that permission be granted for them to file and serve a cross appeal and submissions in support and in opposition of the cross appeal within seven days of the date of the order of the court.

10 The grounds on which the applications were made were similar and are set out below:

• (i) That the notice of appeal filed on 31 January 2014 failed to comply with rule 2.4(1) of the CAR.

• (ii) That the notice of appeal dated 31 January 2014 was served on the 1 ^st and 3 ^rd applicants on 6 February 2014.

• (iii) That the amended notice of appeal filed on 5 February 2014 also failed to comply with rule 2.4(1) of CAR as the original notice of appeal filed on 31 January 2014 was null and void. As a result of which, there was no notice of appeal properly before the court which could be amended.

• (iv) That there were no written submissions in support of the appeal filed with the notice of appeal and such written submissions as were filed on 25 February 2014 were served on the applicants on 26 February 2014.

• (v) That as a result of the failure to file and serve the notice of appeal within seven days of the date of the decision appealed against, in accordance with rule 1.11(1)(a) of the CAR and to comply with rule 2.4(1) to serve written submissions in support of and with the notice of appeal, there was no proper appeal before the court.

11 The applications were supported by affidavits of Michael G Howell and Hugh Abel Levy, attorneys-at-law for the 1 ^st and 3 ^rd and 2 ^nd and 4 ^th applicants respectively, which stated that on 10 January 2014, on the hearing of an application for interim injunction and for an interim payment, B Morrison J had ordered that instead of an injunction, an undertaking in damages ought to be given by the applicants. Other than that statement, the information in the affidavit merely mirrored the grounds of the application, stating that the notice of appeal was not in compliance with the rules of the CAR and ought to be struck out.

The proceedings in the court below

The order of B Morrison J

12 The order of B Morrison J made on 10 January 2014 indicated that, having read the claim form and particulars of claim and the further amended notice for court orders of application and affidavits in support with the exhibits attached thereto, and the defence of the 1 ^st and 3 ^rd applicants, damages were an adequate remedy. The learned judge ordered further that the 1 ^st , 2 ^nd and 3 ^rd applicants give an undertaking in damages which was to be filed within seven days of the date of the order, with the 1 ^st and 3 ^rd applicants doing the same, but being permitted to file the undertaking three days later, on 20 January 2014 by 1:00 pm failing which injunctive relief would be granted against the applicants as follows: The 1 ^st and 2 ^nd applicants would be restrained from transferring or otherwise dealing with certain properties namely 62 Main Street and 57 Main Street without the leave of the court, and the 1 ^st , 2 ^nd and 3 ^rd applicants are restrained from transferring or dealing with the shares of Crystal Bakery Limited, and or from transferring the ownership of the business of Crystal Hardware until the trial. The applicants would be ordered to pay the sum claimed by way of an interim payment, and would also be ordered to produce financial statements of Crystal Bakery and Crystal Hardware to provide a list of assets in the jurisdiction and elsewhere within 14 days of the order. The applicants, their servants or agents, family members, relatives or friends would additionally be...