Topaz Jewellers and Raju Khemlani v National Commercial Bank Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: PANTON P
• Judgment Date: 30 June 2011
• Neutral Citation: JM 2011 CA 66
• Docket Number: SUPREME COURT CIVIL APPEAL NO 127/2010
• Court: Court of Appeal (Jamaica)
• Date: 30 June 2011

[2011] JMCA Civ 20

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE PANTON P

THE HON MRS JUSTICE McINTOSH JA

THE HON MR JUSTICE HIBBERT JA (AG)

SUPREME COURT CIVIL APPEAL NO 127/2010

BETWEEN

TOPAZ JEWELLERS

RAJU KHEMLANI

APPELLANTS

AND

NATIONAL COMMERCIAL BANK

JAMAICA LIMITED

RESPONDENT

Bert Samuels and Mrs Roxann Mars instructed by Knight Junor and Samuels for the appellants

Mrs Sandra Minott-Phillips and Mrs Alexis Robinson instructed by Myers Fletcher and Gordon for the respondent

CONTRACT - Loans - Outstanding loans - Whether claim is statute-barred - Limitation of Actions Act

PANTON P

1 [1] The documents filed in this appeal do not include the claim which is before the Supreme Court. However, from the defence that has been filed, and the amendment which is the subject of this appeal, it is apparent that a ‘lending contract’ is at the root of the suit.

2 [2] The trial of the claim was about to commence on 1 November 2010, when the respondent applied for an amendment to the final paragraph, number 25, of the defence. King J granted the application. The paragraph, with the proposed amendment underlined, reads:

‘The Defendant denies that the Claimants are entitled to any of the reliefs claimed or to any relief at all and further contends that the claims on the contract and on the case, and the claimed reliefs derived therefrom, are brought outside of the limitation period and are statute barred under the Limitation Act, 1623 and the Limitation of Actions Act 1881.’

3 [3] The appellants, feeling aggrieved by what they regard as a late and prejudicial move by the respondent, filed seven grounds of appeal against the decision of the learned judge. Although the respondent has stated in its written submissions that the learned judge had indicated that in the event of an appeal his reasons would have been made available, we were not fortunate to have received same up to the time of delivering our judgment on 19 May 2011. The formal order of the learned judge had been made on 2 November 2010.

4 [4] Having heard the arguments of counsel on 12 May, we reserved our decision until 19 May 2011 when we ordered as follows:

‘Appeal dismissed. Amendment granted by King, J is to stand. Costs of the appeal to the respondent to be agreed or taxed.’

5 We promised then to put our reasons in writing. This we now do.

6 Grounds of appeal

7 [5] The grounds of appeal were as follows:

‘a. The learned trial judge, Justice King, did not give any reasons for the exercise of his discretion pursuant to the Supreme Court Civil Procedure Rules (‘the CPR’) 20.4(2) in deciding to allow the amendment.

b. The learned trial judge failed to properly consider all the circumstances of the case when he allowed the amendment.

c. That the discretion should have been exercised in accordance with the overriding objective in part 1 of the CPR which requires matters to be dealt with justly and within this context, the matter could only be dealt with justly by hearing the merits of the case.

d. That in allowing an amendment at the stage in these peculiar circumstances would in effect be a conclusion of the matter to the prejudice of the claimant.

e. That the claimant in all the circumstances had a legitimate expectation that on the day of trial his case would be heard and that the defendant would not be allowed to plead by amendment, a new defence i.e. the defence of limitation.

f. That the defendant in these circumstances is guilty of laches . Delay is a material consideration in exercising the discretion.

• i. The claimant had reason to believe that the defendant did not have the benefit of a limitation defence and if it did that it waived this right since after having gone to pretrial review two times and case management conference two times, that the defendant did not plead this and the defendant had some four and a half years to plead this defence.

• ii. The claimant is of the opinion that the cause of action in this matter arose upon the defendant company sending a notice of demand to the Claimants culmination (sic) in the sale of the 1 ^st Claimant's property at 81 B King Street.

g. The defendant failed to give any arguable factual basis for not pleading the defence of limitation. The defendant's application stated that one of its grounds for amendment is that “the amendment is necessary to decide the real issues in controversy between the parties and that the parties will not be prejudiced”. The defendant is quite aware that the effect of a grant of its application is that the defence of limitation is an absolute defence and therefore the claimants would without a doubt be prejudiced. Further, this amendment would not allow the real issues of controversy to be dealt with, but rather prevent the real issues from being addressed at all. That from the defendant's pre trial memorandum there are at least 15 real issues of controversy which it outlined to be determined at trial.’

8 [6] Notwithstanding their opposition to the granting of the amendment, the appellants have submitted that in any event the limitation period has not expired. They...