Al-Tec Inc. Ltd v James Hogan

• Jurisdiction: Jamaica
• Judge: Edwards JA,P Williams JA,Brooks JA
• Judgment Date: 12 April 2019
• Neutral Citation: JM 2019 CA 22
• Date: 12 April 2019
• Year: 2019
• Court: Court of Appeal (Jamaica)

Between

Al-Tec Inc Limited

Appellant

and

James Hogan

1 ^st Respondent

Renee Lattibudaire

2 ^nd Respondent

and

The Attorney general of Jamaica

Interested Party

[2019] JMCA Civ 9

Before:

The Hon Mr Justice Brooks JA

The Hon Miss Justice P Williams JA (AG)

The Hon Miss Justice Edwards JA (AG)

SUPREME COURT CIVIL APPEAL NO 67/2015

Civil practice and procedure - Service — whether judge erred in finding that appellant was properly served — Default judgment — Whether judge was wrong in refusing to set aside judgment entered in default of acknowledgement of service — Whether judge failed to have regard to fact that no notice of hearing was served on appellant — Evidence — Fresh evidence application — Whether judge erred in finding that fresh evidence application was not made in prescribed time.

Mrs Georgia Gibson-Henlin QC and Miss Kristen Fletcher instructed by Henlin Gibson Henlin for the appellant

Nigel Jones and Miss Kashina Moore instructed by Nigel Jones & Co for the respondents

Miss Carla Thomas and Miss Tamara Dickens instructed by the Director of State Proceedings for the interested party

Brooks JA

1 I have read, in draft, the judgment of my learned sister Edwards JA, who was acting as a judge of appeal when this matter was heard, but is now a welcome permanent member of the court. Apart from a small deviation in respect of the issue that she has identified, in her judgment, as issue 1, I agree with her reasoning and conclusion.

2 Issue 1 concerns the handling, by the learned judge in the court below, of the matter of service of court documents by the respondents, Mr James Hogan and Ms Renee Lattibudaire, on the appellant Al-Tec Inc Limited. The respondents had sued Al-Tec for damages for breach of contract. The learned judge refused to set aside a default interlocutory judgment and a final judgment that had been entered against Al-Tec. AlTec has appealed from his decision. I agree with the learned judge that the default interlocutory judgment ought not to have been set aside.

3 My learned sister has carefully set out the facts of the case and it is unnecessary for me to do so in full in this short opinion. The relevant facts for the context of this discussion are that when the respondents served the claim form and particulars of claim, they did so by registered post. Those documents were sent to Al-Tec's registered office. Al-Tec failed to file an acknowledgment of service and the respondents requested that judgment be entered against Al-Tec in default of acknowledgment of service, with damages to be assessed. It was entered on 23 July 2008.

4 The respondents eventually had the damages assessed, entered a final judgment and proceeded to execution. The difficulty arose because all of its posting of court documents, after the claim form and particulars of claim, and up to the securing of a provisional charging order, were to the wrong address. It was only in March 2013, that a posting was made to Al-Tec's correct address. The documents then posted concerned an application for a final charging order for the sale of Al-Tec's property in order to satisfy the judgment debt.

5 On 30 June 2014, Al-Tec applied to set aside the judgments and the consequential process. It challenged the validity of the service of the court documents. As far as the service of the claim form and particulars of claim are concerned, Al-Tec contended that it did not receive the claim form and particulars of claim and that, in any event, the service of those documents was improper service because:

• a. the affidavit of service that was used to ground the application for the default judgment did not speak to the service of certain documents (the accompanying documents) that should have accompanied the claim form (the requirement of rule 8.16(1) of the Civil Procedure Rules (the CPR)); and

• b. the affidavit of service did not exhibit a copy of the claim form (a requirement of rule 5.11(2) of the CPR).

6 Al-Tec correctly complained that those failures constituted breaches of the CPR and, along with the other complaints to which Edwards JA has alluded, warranted the setting aside of the default judgment, which was entered against it.

7 The respondents, in addressing these complaints, filed, on 11 July 2014, a supplemental affidavit of service by the process server, Mr Brenton Brown. In that affidavit, Mr Brown deposed that the accompanying documents had been served with the claim form. He still did not, however, comply with the requirement that a copy of the claim form should be exhibited.

8 It was in those circumstances that the learned judge made his decision on this issue.

9 Al-Tec has complained that the learned judge erred in allowing the default judgment to stand. It contends, among other complaints, that the learned judge improperly failed to apply the decision in Dorothy Vendryes v Dr Richard Keane & Another [2011] JMCA Civ 15, which states that a failure to serve the accompanying documents, rendered the judgment liable to be set aside as of right.

10 According to Mrs Gibson-Henlin QC, on behalf of Al-Tec, the learned judge was wrong to apply instead, the decision in Coates v XXtra Lee Supermarket Limited (unreported), Supreme Court, Jamaica, Claim No 2003/HCV0390, judgment delivered 3 March 2004. In the latter case, the court found, in circumstances where the breach of the rules is not non-service of the accompanying documents but instead a failure to specify, in the affidavit of service, that the documents were in fact served, that it was open to the court to:

• a. refuse to set aside the service of the claim form; and,

• b. allow the claimant to cure the defect in the affidavit of service.

11 It is my view that that is the issue that the learned judge faced in respect of the service of the claim form. I take the view that there was no real dispute as to service of the claim form and the particulars of claim. Service was deemed effected for the various reasons that my learned sister has outlined. In that context, the learned judge had evidence before him, by virtue of the supplemental affidavit, which, if he accepted, cured the procedural defect concerning the non-service of the accompanying documents.

12 There was, in my view, no obligation on the learned judge to have conducted an oral hearing concerning service of the claim form and particulars of claim. Al-Tec could not reasonably expect to challenge the registered slip from the post office certifying postage to Al-Tec's registered office. It therefore could not challenge the service of those documents mentioned in the original affidavit of service. Al-Tec also had nothing to contradict the evidence in the supplemental affidavit. It was in no position to do so. It had said that it had received nothing at all.

13 It is apparent that the learned judge accepted, as true, the contents of the supplemental affidavit. In that case, it is my view that it necessarily follows that the principle emanating from Dorothy Vendryes v Dr Richard Keane & Another would not apply. The learned judge was entitled to say that Al-Tec was not entitled, as of right, to have the default judgment set aside. He was entitled to say, in my view, that the defect in respect of the recording of the service of the accompanying documents, had been cured. He was also entitled to stipulate steps by which the defect, concerning the attachment of the claim form to the affidavit of service, should be cured. He having failed to do so, it is open for this court to do so in order to regularise matters (see rule 26.9(3) of the CPR and rule 2.15(b)(b) of the Court of Appeal Rules).

14 It is for those reasons that I hold a nuanced view to the issue set out and explained by my learned sister Edwards JA, to whom the court must be grateful for her sterling effort.

P Williams JA

15 I have read both the judgments of Brooks JA and Edwards JA. While I generally agree with the commendably comprehensive judgment of my sister, I am in agreement with my brother as it relates to issue 1.

Edwards JA

Background facts

16 On 30 June 2014, Al-Tec Inc Limited (the appellant), filed a notice of application for court orders seeking to set aside both interlocutory and final judgments that were entered against it. They alleged irregularity of service of the claim form, particulars of claim, default judgment and final judgment following assessment of damages. That application was heard and determined by B Morrison J (the judge) who ruled against the appellant. The appellant appealed to this court against the decision of the judge, contained in his order dated 22 May 2015.

17 The facts giving rise to that application may be stated shortly. By an agreement for sale dated 4 May 2007, the appellant entered into a contract with James Hogan and Renee Lattibudaire (the 1 ^st and 2 ^nd respondents), for the sale of a parcel of land, registered at volume 1190 folio 426 and volume 1195 folio 223, of the Register Book of Titles, referred to as South Sea Park in the parish of Westmoreland. The purchase price was listed as US$580,000.00, which at the time was equivalent to J$38,280,000.00. The terms of the contract dictated that an initial payment of US$87,000.00, that is, J$5,742,000.00, would be made upon the signing of the agreement. It further dictated that completion should take place on payment, in full, of the balance of the purchase price and costs of transfer, and such other payments payable, in exchange for the duplicate certificate of title registered in the name of the purchaser, on or before 45 days of the date of the signing of the agreement.

18 It was also a term of the contract that the purchaser shall satisfy himself of the boundaries within 28 days of the signing of the contract, “after which the purchaser is taken to have accepted the boundaries of the land as is, if the vendor was not put on notice to make any rectification required”. The...