Sonic Ltd v Earnest Norris
| Jurisdiction | Jamaica |
| Judge | T. Hutchinson, J (AG.) |
| Judgment Date | 12 July 2019 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2015 HCV 05173 |
| Date | 12 July 2019 |
[2019] JMSC Civ 140
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2015 HCV 05173
Stephanie Weir instructed by Shelards for the Claimant/Respondent
Mikhail Williams instructed by Taylor, Deacon and James for the Defendant/Applicant
This is an application by the Defendant to persuade the Court to exercise its Case Management Powers under Rule 26.1 and to extend the time within which he can file his defence. The Defendant initially made this application on the 16th of February 2017 but it did not proceed at that time. In the interim, the Claimant renewed its application for Judgment to be entered in its favour in default of a defence being filed on the 20th of July 2017, the original application having been denied on the 16th of February 2017.
The application before the Court was re-listed for hearing on the 7th of March 2019 and an updated affidavit in support, as well as a draft defence which outlines a defence under the provisions of the Limitations of Actions Act was filed on the 18th of February 2019.
The Application is opposed by the Claimant on the basis that they have done all that they need to do to obtain judgment in this matter. They have asked the Court to deny the application as to do otherwise would be to reward the Defendant for flouting established timelines.
The Claimant in the instant case is a limited liability company incorporated in the Cayman Islands where it also has its registered offices. It is also the owner of land registered at Volume 1379 Folio 401 located in Golden Vale, Portland which it had purchased from Lascelles Panton.
Prior to the sale to the Claimant, Panton had leased the property to the Government of Jamaica (hereafter referred to as GOJ), who the Claimant states, had sublet portions to numerous tenants under the Land Lease Programme. Under this programme a number of individuals were permitted to enter the property to carry out faming activities, the Defendant being one such individual according to the Claim.
It is the Claimant's position that the lease was subsequently surrendered by the GOJ and his predecessor in title took back the property with the sub-tenancies created by the GOJ. It is also the Claimant's position that after the GOJ surrendered its lease, the Defendant remained as a tenant-at-will when the property was transferred to the new owners on the 30th of January 2012.
On the 20th of June 2012, the Defendant was served with a Notice to Quit and Deliver up possession of the land which he failed to comply with. On the 4th of November 2015, the Claimant filed suit to recover possession of the property.
An application was made for default judgment on the 20th day of July 2017 which was adjourned pending the hearing of the Defendant's application of an extension of time within which to file his defence.
In the submissions made on behalf of the Defendant/Applicant, while conceding that the Claimant has done enough to obtain Judgment in Default, Counsel has asked the Court to bear in mind the principles enunciated in the Court of Appeal decision of Tanya Ewers v Melrose Barton-Thelwell [2017] JMCA Civ 26 where the criteria required for the extension of time was considered at paragraph 29 of that judgment as follows;
This court has accepted that for applications for extension of time, within which to file a defence, a broad approach should be used. That approach should take in the circumstances of the particular case. In Fiesta Jamaica Limited v National Water Commission, [2010] JMCA Civ 4, Harris JA, with whom the rest of the court agreed, said at paragraph [15] of her judgment:
“The first issue to be addressed is whether the appellant ought to have been granted an extension of time to file the proposed defence. The principle governing the court's approach in determining whether leave ought to be granted on an application for extension of time was summarized by Lightman J., in a application for extension of time to appeal in the case of Commissioner of Customs and Excise v Eastwood Care Homes (Ilkeston) Ltd and Ors. [(2000) Times, 7 March; All England Official Transcripts (1997–2008) (delivered 18 January 2000)].”
In his judgment, Lightman J said, in part, at paragraph 8:
“It seems to me that it is no longer sufficient to apply some rigid formula in deciding whether an extension is to be granted. The position today is that each application must be viewed by reference to the criterion of justice and in applying that criterion there are a number of other factors (some specified in the rules and some not) which must be taken into account. In particular, regard must be given, firstly, to the length of the delay; secondly, the explanation for the delay; thirdly, the prejudice occasioned by the delay to the other party; fourthly, the merits of the appeal; fifthly, the effect of the delay on public administration; sixthly, the importance of compliance with time limits, bearing in mind that they are there to be observed; seventhly, (in particular when prejudice is alleged) the resources of the parties.”
In respect of the first criterion being the length of the delay, the Court has noted that the Claim herein was filed on the 4th of November 2015 and received by the Defendant/Applicant on the 6 th of November 2015, after which an acknowledgment of service was filed on the 20th of November 2015. There was no defence filed by the Applicant and accordingly on the 6th of May 2016 the Claimant applied for Default Judgment. On the 16th of February 2017, this was refused based on their non-compliance with an order of the Court and a subsequent application for default judgment was filed on the 20th of July 2017. The Application herein was filed on the 16th of February 2017 and then re-listed on the 7th of March 2019. There is no question then that there has been delay on the part of the Defendant/Applicant.
In respect of the chronology outlined above, Counsel for the Defendant/Applicant takes no issue with the fact that there has been delay in making this application on the part of his client. What he has sought to do is to provide an explanation in respect of that delay in his submissions. It was submitted by Counsel that at the time that the Defendant filed the acknowledgment of service he was unrepresented and it was only on being served with the application for default judgment that he approached the Chambers of Taylor, Deacon and James. It was as a result of this consultation that the initial application for an extension of time to file a defence was filed on the 16th of February 2017 with an affidavit in support.
It was within this same period that the Claimant had the hearing of their initial application for default judgment. Counsel has pointed out that the Claimant did not succeed on that day, not because of the late filing by the Defendant/Applicant, but because they themselves had failed to comply with a Court order and he has asked the Court to take note of this when considering the period of delay.
Counsel has been candid in his acceptance of the fact that the Defendant's application having been made, his Chambers had filed an application on the 14 th of December 2017 to come off the record as a result of communication issues with the Defendant and this application was granted on the 14th of June 2018. He has pointed out however that any delays that this would have occasioned were addressed within a short period of time as the firm was back on record on the 13th of December 2018 and as such the Claimant would only have been inconvenienced on one occasion when the matter came up on the 26th of October 2018 when the Defendant was absent and unrepresented. The matter having been set for the 17th of December 2018, when they were newly back on record, the Defendant had to accept a cost order being made against him for this adjournment.
On the 20th of February 2019, when the matter was next before the Court, they had filed an updated affidavit in support of the application to extend time and this application was in fact re-listed on the 7th of March 2019. On that occasion another cost order was made against them as a sanction for the further delay and inconvenience to the Claimant.
As such, it is Counsel's submission that while there has been delay, it has not been a case of deliberate malingering on the part of the Defendant and once Counsel was back in the matter they sought to act as expeditiously as possible. Additionally, he submits, the Court has sought to do justice to the Claimant at every juncture in these proceedings in an effort to balance the scales by the making of costs orders as well as an unless order.
Although Counsel has not sought to go through both affidavits in detail, I note that in the original affidavit which was filed on the 16th of February 2017 the Defendant/Applicant made reference to the reason for the delay. At paragraph 4 he stated that having filed the acknowledgement of service where he indicated that he was defending the claim he thought that he had done enough to defend himself as he received no further documents. In assessing this explanation, I bear in mind the fact that he was unrepresented.
In the same affidavit he stated that an action had also been brought against his father by the same Claimant and he had formed the belief that his matter would have been bound up in that of his father as the claim was in relation to the same plot of land. As such, he had formed the view that there was no need for him to do anything further unless contacted by the Court. These explanations were again advanced and expanded on in paragraphs 3, 5, 6 and 8 of the updated Affidavit of the 18th of February 2019.
At paragraph 13 of the first...
To continue reading
Request your trial