Sylvester Dennis v Lana Dennis

• Jurisdiction: Jamaica
• Judge: Phillips JA,McIntosh JA,Mangatal JA (Ag)
• Judgment Date: 02 May 2014
• Neutral Citation: JM 2014 CA 50
• Court: Court of Appeal (Jamaica)
• Docket Number: APPLICATION NO 133 /2013
• Date: 02 May 2014

[2014] JMCA App 11

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Miss Justice Phillips JA

The Hon Mrs Justice McIntosh JA

The Hon Miss Justice Mangatal JA (Ag)

APPLICATION NO 133 /2013

Between

Sylvester Dennis

Applicant

and

Lana Dennis

Respondent

John Clarke for the applicant

Miss Tavia Dunn instructed by Nunes Scholefield DeLeon & Co for the respondent

CIVIL PROCEDURE - Appeal - Extension of time to file notice and grounds of appeal - Whether there was an arguable case for appeal from summary judgment - Civil Procedure Rules 2002, Rule 15 - Overriding objective of the court

Phillips JA

1 I have read in draft the judgment of Mangatal JA (Ag). I agree with her reasoning and conclusion and have nothing to add.

McIntosh JA

2 I concur.

Mangatal JA (Ag)

3 The application before us is an amended notice of application filed by Mr Sylvester Dennis (‘the applicant’) on 28 January 2014. The applicant seeks an extension of time for filing notice and grounds of appeal in relation to an order for summary judgment granted by R. Anderson J in favour of Mrs Lana Dennis (‘the respondent’) on 15 July 2011. We heard the application on 3 February and 6 March 2014 and on the latter date, we reserved our decision.

4 The original notice of application was filed on 25 October 2013. Initially, the amended notice of application had also sought an extension of time within which to file notice and grounds of appeal in relation to an order for sale of land. That order was made on 11 June 2013, by K. Anderson J, and the amended application had also sought a stay of that order for sale pending the appeal. However, at the hearing, Mr Clarke, who appeared for the applicant indicated that he would not be pursuing the extension of time or stay in relation to the order for sale of land. This was as a result of the view which he took as to the current effect and status of that order. Nevertheless, Mr Clarke indicated that the grounds set out in the original application, as well as the grounds in relation to the order for sale of land would continue to be relied upon by the applicant. This was so because counsel submitted that they were still relevant to the question of delay in filing the notice and grounds of appeal in relation to the order for summary judgment.

Background to the order for summary judgment

5 The applicant and the respondent were married on 19 October 1974, in Toronto, Ontario, Canada. By judgment dated 28 January 2000, the Superior Court of Justice, Toronto, Ontario adjudged that the parties would be divorced effective 28 February 2000. There were a number of court proceedings between the parties in the Canadian courts, both before and after the divorce judgment and on 2 November 2009, the respondent filed a claim in the Supreme Court of Judicature of Jamaica (‘the Supreme Court’).

6 In the particulars of claim filed within the claim form, the respondent set out her claim, and amongst other matters, sought relief as follows:

‘….

4. The matrimonial proceedings between the parties in the Canadian courts included proceedings for the equalization of property, including property in Jamaica known as part of Unity District, Langton Hill in the Parish of St. Andrew and being the land comprised in Certificate of Title registered at Volume 953 Folio 409 of the Register Book of Titles (hereafter called ‘the Property’) owned jointly by the parties.

5. By Order dated November 4, 2008 and issued out of the Superior Court of Justice, Ontario, Canada (hereafter called ‘the Order’) the claims and cross-claims by the parties in those Courts were dismissed and the terms agreed to in the global settlement arrived at by the parties were reflected in the Order.

6. Pursuant to the Order, the Defendant was required to pay to the Claimant the amounts of:

a) CAN$200,000.00 in 2 equal installments on April 14 and October 14, 2009;

b) CAN$10,000.00 as a penalty should he default on payment of the first installment; and

c) CAN$20,000.00 as a penalty should he default on payment of the second installment. (sic) upon which the Claimant would release her one-half interest in the Property to the Defendant.

7. It was also a term of the Order that it bears interest at 5% per annum on any payment or payments in respect of which there is a default from the date of default.

8. The Defendant has failed to pay any of the installments and penalties as agreed and ordered or at all, and is indebted to the Claimant in the sum of CAN$233,356.17 as at November 2, 2009…..

9. Interest continues to accrue on the said sums from (sic) at the rates of CAN $15.07 and CAN$16.44 respectively, from November 3, 2009.

10. As a result of the Defendant's failure to pay these sums, the Claimant has not transferred her one-half interest in the Property to him and the parties therefore remain the joint owners…

….’

7 The applicant filed his defence in person on 1 March 2010. Amongst the many matters pleaded in the defence are the following:

• ‘….

• 5. That further in respect of paragraph 4 of the Claimant's Particulars of Claim the Defendant annexes hereto marked ‘SD1’ for identification the Affidavit sworn to by the Claimant on the 9 ^th day of November 1999 in support of her motion for divorce from the defendant and in that Affidavit at paragraph 11 she stated that the parties had ‘divided the matrimonial property to my satisfaction and I am satisfied with that arrangement’. The Defendant also states that from as far back as 1978 the Claimant has had no interest in the property situate at Unity, Langton Hill in the parish of Saint Andrew … and she has neither visited nor contributed to its upkeep or improvement over the years and all costs relating thereto have been borne by the Defendant save and except for $3,000.00 Canadian dollars contributed to help with repairs needed to be made after Hurricane Gilbert caused damage to the property.

• 6. Save that it is admitted that documents purporting to reduce discussions held by the parties at mediation have been served on the Defendant purporting to be an Order of the Canadian Courts, paragraph 5 of the Claimant's Particulars of Claim is denied. In respect of paragraph 5, the Defendant further states that he was not served with any Court process leading to the granting of the settlement purported to have been arrived at by the parties and further states that the tribunal acted ultra vires in making an Order without reference to the Defendant and in doing so at mediation without the benefit of a Trial. The Defendant therefore denies the truth and veracity of any such document brought before this Honourable Court.

• …

• 8. That paragraph 7 of the Claimant's Particulars of Claim is denied and the Claimant will be put to the strictest proof of same at the trial of this matter and the Defendant states further that the purported ‘Order’ obtained by the Claimant which even were it believed to have legal effect in Canada which the Defendant states it does not, cannot take legal effect in Jamaica without more and does not bind the Courts of Jamaica.

• 9. That paragraph 8 of the Claimant's Particulars of Claim is denied and in further response to that paragraph the Defendant states that there was no agreement between the parties and that the purported ‘Order’ sought without reference to the Defendant to place sanctions on him which he had neither agreed nor been given the opportunity to defend.

• …

• 11. That by reason of the matters aforesaid paragraph 10 of the Claimant's Particulars of Claim is neither admitted nor denied and that under Canadian law the Claimant has not settled with the Defendant as she should and outstanding to the Defendant is Spousal Support in the amount of CDN$800.00 per month from March1, 2000 to the present plus CDN $20,000.00 representing half of joint loans taken by the parties and repaid by the Defendant and the cost of furniture removed unlawfully by the Claimant from the Defendant's home.’

8 The applicant also filed a counterclaim seeking certain declarations and orders.

9 On or about 13 April 2010, the respondent filed an application for, amongst other relief, the following:

‘1. That the Claimant be granted summary judgment on the Claim in the sum of CAN$233,356.17 with interest at 5% per annum:

i. On the sum of CAN$110,000.00; and

ii On the sum of CAN$120,000.00

from November 3, 2009 to date of judgment. …

3. An order that the Counterclaim be struck out. …’

10 The stated grounds of the application were as follows:

‘ As to proposed order 1:

1

The Defendant has no real prospect of successfully defending the claim. The Claimant relies on CPR 15.2(b) which provides that the court give summary judgment on the claim if it considers that the defendant has no real prospect of successfully defending the claim. 2. The Claimant abandons her claim for the partition and/or sale of ALL THAT parcel of land part of UNITY situate at LANGTON HILL in the parish of ST. ANDREW and being the land comprised in Certificate of Title registered at Volume 953 Folio 409 of the Register Book of Titles owned jointly by the Claimant and the Defendant. … 7. The Claimants [sic] propose that the Court deal with the following issues at the hearing: i. Whether the defendant is indebted to the Claimant in the sums claimed pursuant to a ‘global settlement agreement’ reflected in order dated November 4, 2008 and issued by the Superior Court of Justice, Ontario, Canada (‘the November 4, 2008 Order’). ii. Whether, in circumstances where the Defendant has consented to and not appealed from the November 4, 2008 Order, he can properly deny liability for the sums due pursuant to the global settlement agreement.’

11 The respondent's application for summary judgment was supported by the affidavit of Lana Dennis filed 13 April 2010. At paragraph 4 of that affidavit, the respondent stated:

‘4...