Stervin Stone v Ronald Parker v Treavis St. Clare Reid

 
FREE EXCERPT

[2019] JMSC Civ 56

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Barnes, J. (Ag.)

CLAIM NO. 2013 HCV 00465

Between:
Stervin Stone
Claimant
and
Ronald Parker
1 st Defendant
Treavis St. Clare Reid
2 nd Defendant
IN CHAMBERS

Mr. Vernon Daley, Attorney-at-Law for Applicant (1 st Defendant)

Mr. Richard Reitzin, Attorney-at-Law of Reitzin & Hernandez for Respondent

Application to Set Aside Default Judgement — Service of Documents — Defence

S. Barnes, J (AG.)

1

On March 27, 2017, the First Defendant filed an application to set aside the Default Judgement against him entered on February 19, 2013 and assessed on November 12, 2015. His application came some days after the Bailiff for St. Catherine seized his Honda motor car to satisfy the judgement debt.

2

This claim, commenced by Claim Form with Particulars of Claim, was filed January 28, 2013 arising from an accident of November 23, 2012. The 2 nd Defendant was the driver of the motor car owned by the 1 st Defendant.

3

The basis of Mr Parker's application as outlined in his Affidavit in support of the Application, is that he was not served with a Claim Form and accompanying documents on February 2, 2013 as claimed by the process server Mr Carlynton Davies, neither did he receive those served on the 2 nd Defendant by Mr Hubert Jones on October 28, 2015.

4

Under Cross Examination in this hearing by Mr Reitzin, Mr Ronald Parker admitted to living at Lot 217, Eltham Acres, Spanish Town, St. Catherine from February 2013 to present. His affidavits did not mention him being overseas or in another parish on the date of service of the documents.

5

He said his mail is not delivered at home (through the postal service), except for the bills from Jamaica Public Service and National Water Commission — which he later said under Re-Examination were left in his gate/grille.

6

The 2 nd Defendant he described as his daughter's “baby father” who lived at his house “not permanently … occasionally” in 2013, 2014 and 2015.

7

Mr. Parker is approximately 60 years old, is a tour supervisor at Island Car Rentals, has had a Driver's Licence from 1977, owned various vehicles, had them insured and has had no accidents. He said an investigator did see and speak with him after the accident as the car was insured in his name, but is adamant that he received no Claim Form or Particulars of Claim.

8

Under Re-Examination he said his mails go to Spanish Town Post Office but he does not go there to collect them as he has no time.

9

Treavis St. Clare Reid, the 2 nd defendant, is 31 years old. He said he has never lived at Lot 217, Eltham Acres, “not even occasionally” and if anyone said so, that would be false. That would be so even for June 2014 and October 2015. He has known Mr. Parker's daughter since 2009, their child was born September 2014 and it was she who would normally come to his house.

10

He reported this accident to the police, but has not seen the Police Report and would be surprised to learn that said report blamed him for the accident.

11

He would not be sure Mr. Parker was living at Lot 217, Eltham Acres as he only knew his daughter. He also said he's aware of the five million dollar ($5,000,000.00) judgement against Mr Parker and that the insurance company paid out some three million ($3,000,000.00).

12

Between late 2013 and 2015 his “baby mother” was living at Mr. Parker's address — still does. He's not a member of the family, he's simply with the daughter. He too is adamant that he has never received any documents in relation to this matter.

13

Mr Vernon Daley then Cross-Examined the process servers. First was Mr Carlynton Davies who said he served the First Defendant/Applicant on February 2, 2013 at his address, Lot 217, Eltham Acres, Spanish Town, St. Catherine. He identified himself, asked the man his name, he confirmed and then he handed him the documents.

14

His exact words: ‘I'm Carlynton Davies, I'm a representative of Reitzin and Associates, are you Mr Parker? He said yes and I handed him the documents.” He recalled that Mr. Parker came out in shorts, and that's the same person now seated in this court.

15

He said it was not usual to describe a person in an affidavit, but he made notes. And although it was his first encounter with the Defendant he remembers him. He said he asked him his name, he answered, he handed him the documents and left.

He has seen the defendant since then on the last court date.

16

Under Re-Examination he said there was no gate (perimeter) at the premises and that Reitzen and Co never asked for a description of the person.

17

HUBERT JONES was the other process server called. In answer to questions from Mr. Daley, he said he went to the premises (Lot 217, Eltham Acres) on 28 th October 2015 between 6 and 7 a.m., NOT p.m. as stated on the affidavit. He saw and spoke to Treavis St. Clare Reid, who he did not know before. He too did not give a description of the person in his affidavit, and that evidence of said nature has never been challenged in court.

18

Service was effected through a metal louvre window and he could not know the height of the person in those circumstances.

19

Under Re-Examination he explained that he did see the error (am/pm) prior to signing the affidavit, but the Attorney instructed him to sign and that she would have the page with the typographical error corrected. This error, he says, does not affect the date, place or person served.

20

As already stated, this matter commenced by Claim Form filed January 28, 2013. Thereafter the series of events were that:

  • 1. Carlynton Davies personally served the documents on the first defendant on February 2, 2013 at Lot 217, Eltham Acres.

  • 2. On February 19, 2013 an application for default judgement was filed, there being no acknowledgement of service or defence filed by the Defendant.

  • 3. On June 26, 2014 and November 24, 2014, Mellecia Brooks mailed by regular pre-paid post several documents in this matter to the Defendant's address at Lot 217, Eltham Acres, Spanish Town, St. Catherine.

  • 4. On October 28, 2015 Hubert Jones, Bailiff, personally served on the 2 nd defendant several documents pertaining to the Assessment of Damages.

  • 5. Damages were assessed on November 12, 2015 by The Honourable Mr. Justice Chester Stamp as follows

    • (a) Special Damages assessed at $1,230,579.21 inclusive of $1,100,000.00 for loss of earnings with interest at 3% per annum from 23 rd November 2012 to 12 th November 2015.

    • (b) General Damages assessed at $3,800,000.00 with interest at 3% per annum from 2 nd February 2013 to 12 th November 2015.

    • (c) Costs to the Claimant to be taxed if not agreed.

  • 6. On December 23, 2015 the defendant's insurers, Advantage General, paid out $2,999,790.00 in partial satisfaction of the court's ruling.

  • 7. An Order for Seizure and Sale of Goods was filed December 13, 2016.

21

The application to set aside the Default Judgement came some days after the Bailiff for St. Catherine...

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