Shoucair, Rudolph v Kevin Tucker-Brown et Al

• Jurisdiction: Jamaica
• Judge: SYKES J (Ag)
• Judgment Date: 04 May 2004
• Judgment citation (vLex): [2004] 5 JJC 0402
• Court: Supreme Court (Jamaica)
• Docket Number: HCV 01032/2004
• Date: 04 May 2004

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

HCV 01032/2004

BETWEEN

RUDOLPH SHOUCAIR

CLAIMANT

AND

KEVIN TUCKER-BROWN

1 ^ST DEF.

AND

CARMEN TUCKER-BROWN

2 ^ND DEF.

REAL PROPERTY - Sale agreement - Lost title - Frustrated contract - Freezing order sought - Ex parte application - Whether there is a real risk of dissipation or removal of assets from jurisdiction - Whether there is a good and arguable case

SYKES J (Ag)

1 EX PARTE APPLICATION FOR FREEZING ORDER

2 Mr. Kevin Tucker-Brown and Mrs. Carmen Tucker-Brown signed a sale agreement with the claimant. They were selling property known as 29 Courtleigh Towers, 3 Renfrew Road, Kingston 10 in the parish of St. Andrew to Dr. Shoucair. The agreement is dated May 7, 2003. The sale price was $3,000,000.00. The completion date was to be forty five days after both parties signed the sale agreement.

3 The claimant paid his deposit and was waiting expectantly for the sale to take its normal course. That was not to be. A seemingly soluble problem arose. The defendants could not produce the title. Correspondence from their attorney suggested that it was lost by the National Housing Trust Corporation. The proposed solution coming from the defendants' attorney was that a lost title application should be made to the Registrar of Titles. Though the correspondence does not say but it seems clear that if the new title were issued, it would have been in the name of the claimant.

4 The problem became worse. Up to now there is no clear evidence of what became of the title. However that problem need not be resolved because the National Housing Trust, who were mortgagees of the property in question, took steps to exercise their power of sale under a mortgage between themselves and the defendants. The property was sold under that power.

5 Not surprisingly the defendants wanted to back out of the sale agreement. They say that the contract was frustrated. Needless to say, the claimant's attorney rejected this.

6 The claimant responded with a claim form asking for specific performance of the contract and/or damages. It is doubtful whether specific performance is now possible since the property has now been sold and there is no challenge to that sale. The likely remedy is damages. He is seeking a freezing order against both defendants. He supports his claim by with an affidavit and a number of exhibits.

7 The claimant's affidavit narrates the history of the transaction up until the filing of the claim. The critical parts of the affidavit to ground the application for the freezing order state that

• a. he does not know where the defendants now live since they have removed from their last address;

• b. that the first defendant goes overseas from time to time;

• c. the defendants failed to complete the sale to him;

• d. the defendants' attorney successfully bid for the property at the public auction of property;

• e. the defendants' are indebted to several mortgagees.

8 THE FREEZING ORDER

9 Before the new rules the Mareva injunction was the main order freezing dealings in property. This expression, Mareva injunction, has not survived the introductions of the new Civil Procedure Rules (CPR) that came into force on January 1, 2003. Such orders are now known as freezing orders.

10 Part 17 of the CPR deals with what is called interim remedies.

11 Rule 17.1 (1) states

The court may grant interim remedies including-

(a)...

...

(f) an order (referred to as a " freezing order ")

• (i) restraining a party from removing from the jurisdiction assets located there; and/or

• (ii) restraining a party from dealing with any assets whether located within the jurisdiction or not;

12 The Rules Committee were leaving nothing to chance. Rule 17.1(3) states

The fact that a particular type of interim remedy is not listed in paragraph (1) does not affect any power that the court may have to grant that remedy.

13 The effect of these two paragraphs is that the power to grant freezing orders is either preserved in the case of Rule 17.1(3) or conferred by Rule 17.1(1)(f).

14 Rule 17.2(1) grants the power to make a freezing order before a claim has been made. Rule 17.2(2) controls the power to make freezing orders by stating that (a) the making of such an order before a claim is made is subject to any rule which states otherwise and (b) a court may grant an freezing order before a claim is made only if the matter is urgent or it is otherwise desirable to do so in the interests of justice. All this is quite similar to what the courts were already doing when granting a Mareva injunction.

15 What Rule 17 does not do is to indicate how the court should determine whether or not the freezing order should be granted. It does not lay down any test that must or should be met before the order is granted. This has been left to the courts to develop. The learning on the Mareva injunction is still of great value when deciding whether to grant a freezing order.

16 I should make it clear that the principles in the Mareva cases have been used by me in determining this application.

17 OBJECTIVE OR SUBJECTIVE TEST

18 One of the points made by Mr. Braham is that the court should apply the objective test laid down in cases subsequent to "early cases" in the development of the Mareva jurisdiction jurisprudence. These "early cases" had developed a subjective test.

19 Mr. Braham relied on extracts from Gee, Steven, Mareva Injunctions and Anton Piller Relief , 4 ^th Ed, Sweet and Maxwell, pages 189-199 . In those pages the author makes the point that when granting Mareva injunctions the criteria are (i) the claimant must have a good arguable case and (ii) there is a real risk that that a judgment or award may go unsatisfied. The author insists that the test of whether there is a real risk that a judgment or award may go unsatisfied is an objective one and does not depend upon the intention of the defendant. He says that, in respect of the second criterion, the early cases established that there had to be evidence that the defendant was removing or dissipating his assets with the intention or purpose of defeating any judgment the claimant may obtain. This, he says, is no longer the law. Now there is no need to prove the intention or the objective of the defendant. All that needs to be established, according to Mr. Gee, in respect of the second criterion is that there is a real risk that any judgment or award would not be satisfied.

20 Mr. Steven Gee has overstated the case as far as the "early authorities" are concerned. While there are dicta, in some cases, that suggest that the courts were focusing on the intention of the defendant, it is my view that this was not a settled position and in the majority of reported cases...