Tryall Club, Inc. v Jacques Graham

• Jurisdiction: Jamaica
• Judge: C. Barnaby, J
• Judgment Date: 28 April 2023
• Docket Number: CLAIM NO. SU2022CD00481
• Court: Supreme Court (Jamaica)

Between

Tryall Club, Inc.

1 ^st Claimant

Tryall Golf & Beach Club Limited

2 ^nd Claimant

and

Jacques Graham

1 ^st Defendant

and

Advanced International Investment Incorporated

2 ^nd Defendant

[2023] JMCC Comm 13

C. Barnaby, J

CLAIM NO. SU2022CD00481

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE COMMERCIAL DIVISION

Civil Procedure — Whether debt claim can be dealt with summarily at first hearing of fixed date claim form pursuant to rule 27.2(8) of the CPR — Whether land valuation required in accordance with CPR rule 55.2(2)(c) where contract provides for the sale of land to discharge contractual debt.

Amanda Montague and Immanuel Williams instructed by Myers, Fletcher & Gordon for the Claimants.

Courtney M. Williams of Counsel for the Defendants.

C. Barnaby, J

INTRODUCTION AND ORDER

1 The Claimants are affiliated companies which own and operate the Tryall Club (hereinafter called “the Club”), a private, exclusive members-only club located in Hanover. The Club contains luxury villas which are usually rented to overseas guest. It is a rule of membership that property in the Club is to be held in the name of a corporation, LLC, Trust or other form of corporate ownership; with one member of the corporate entity designated as Proprietary Member and others joining as Non-Proprietary members. The 2 ^nd Defendant is a company incorporated under the laws of Delaware in the United States of America and is the registered proprietor of property registered at Volume 1303 Folio 127 of the Register Book of Titles (hereinafter called “the Villa”). The 1 ^st Defendant, a restauranteur, was accepted as a Proprietary Member of the Club and acted as the agent for the 2 ^nd Defendant.

2 By Fixed Date Claim Form filed 2 ^nd November 2022 and supported by the Affidavit of Aram Zerunian sworn and filed on the said date, the Claimants seek to recover a contractual debt alleged to be owed by the Defendants; and to enforce a contractual and proprietary lien against the Villa on the basis that the Defendants have failed and/or refused to pay sums allegedly owed. The Claimants pray for the following relief.

• i. The sum of US$215,811.16 (converted as at November 2, 2022) to J$33,252,183.53 using the exchange rate of US$1 to J$154.08 and continuing, together with interest which continues to accrue at the rate of 18% per annum, before and after judgment.

• ii. An order and declaration that the Claimants are entitled to immediately proceed to sell the Property registered at Volume 1303 Folio 127 of the Register Book of Titles at auction and the Claimants shall recover from the proceeds of sale the sums at (i) above, as well as:

  • a. All fees, assessments, special assessments and expenses due pursuant to the By-laws;

  • b. The costs and expenses of all legal proceedings and the sale, including reasonable attorney's fees; and

  • c. Interest on the sums at a. and b. at the rate of 18% per annum.

• iii. J$68,000.00 representing Court Fees of J$20,000.00 and Attorneys Fixed Costs of J$48,000.00;

• iv. Such further and other relief as this Honourable Court may deem fit.

3 The initiating documents were served on the Defendants on 18 ^th November 2022 and an Acknowledgement of Service filed on 12 ^th December 2022. The Affidavit of Jacques Graham in Response to the Affidavit of Aram Zerunian in Support of Fixed Date Claim Form was sworn, filed and served on the 24 ^th and 26 ^th January 2023 respectively. On the oral application of Mr. Williams, counsel for the Defendants, the affidavit was permitted to stand as duly filed and served. It is the evidence of Mr. Graham at paragraph 3 of his affidavit that it is “directly in response [to the Affidavit of Aram Zerunian filed in support of the Fixed Date Claim Form] on behalf of the Defendants.”

4 In consequence of the Defendants being permitted to rely on the belated affidavit of Mr. Graham, the Claimants were also permitted, without objection, to rely on the Affidavit of Aram Zerunian in Response to the Affidavit of Jacques Graham, a copy of which had been previously exhibited to affidavit evidence served on the Defendants ahead of the hearing. The Defendants were thereby advised that the Claimants would request that the claim be dealt with summarily at the first hearing, pursuant to rule 27.2(8) of the CPR. The said affidavit in response was sworn on 30 ^th January 2023 and filed on 1 ^st February 2023 as undertaken by counsel for the Claimants.

5 The application to determine the claim summarily was duly advanced by Ms. Montague at the first hearing of the fixed date claim form on 30 ^th January 2023. After hearing the submissions of the parties in those regards, a decision on the Claimants' application was reserved to 27 ^th March 2023. Subsequent to the delivery of the promised decision on 27 ^th March 2023, the judgment of Dunbar-Green J (as she then was) in Shernett Manning v Twin Acres Development Company Limited and others [2017] JMSC Civ 54 — which concerned the applicability of Part 55 of the CPR (which deals with the sale of land by order of the court) to the sale of land in mortgage claims to which Part 66 applies — was brought to the attention of the court by the Claimants and considered on 28 ^th April 2023.

6 For reasons set out subsequently, I find that the claim is appropriately dealt with summarily and make the following orders.

• 1. Judgment for the Claimants against the Defendants in the sum of US$273,748.08 being the amount owed including interest as at 31 ^st December 2022 and continuing.

• 2. The Claimants are entitled to interest at 18% per annum as prescribed in article VI section 11 of the Bylaws.

• 3. There being no dispute that the power reserved to the Claimants to sell the Villa for delinquency has crystalized, it is declared that the Claimants have the power under the Bylaws to sell the Villa to recover the sums owed to them by the Defendants, pursuant to the Bylaws.

• 4. The Claimants are to file and serve a current valuation of the Villa to enable the court to give directions for sale, specifically the fixing of a reserved price ahead of the sale.

• 5. Upon the filing and service of the valuation aforesaid, the parties are to jointly approach the Registrar for a date to be fixed for the giving of directions for sale. 1

• 6. Costs to the Claimants in the sum of J$68,000.00 representing Court Fees of J$20,000.00, and Attorneys Fixed Costs of J$48,000.00.

• 7. The Claimants Attorneys-at-Law are to prepare, file and serve this order.

REASONS

7 Pursuant to CPR rule 27.2(8), the court at the first hearing of a fixed date claim form is empowered to treat the first hearing as the trial of the claim where it is undefended or where it considers that the claim is one which can be dealt with summarily. Although no authorities were cited by the parties, I find guidance in in the dictum of F. Williams JA in Dale Austin v the Public Service Commission and the Attorney General [2016] JMCA Civ 46 at paragraph [68], that whether or not a matter is to be treated with summarily is based on the exercise of the discretion of the court; and the following dictum of Laing J in

Hasheba Development Company Limited v Petroleum Corporation of Jamaica Limited and others [2020] JMCC Comm 17, paragraph [23]:

… dealing with a claim summarily does not mean entering judgment. The claimant still has to prove that he is entitled to the relief sought and the court must conduct a trial albeit in a summary way…

8 It is to this assessment that I now turn.

9 No issue has been joined on the identity and status of the parties to the claim which appear in the affidavit evidence filed on behalf of the Claimants, which matters were earlier reproduced in the introductory paragraphs to this judgment.

10 It is also the undisputed evidence of the Claimants that by signing and submitting his application to the Club, the 1 ^st Defendant agreed to be bound to the provisions of the Bylaws, article VI of which provides, among other things, the following.

Section 2. MEMBER ACCEPTANCE OF ALL FEES: By accepting membership in the Club and by accepting the deed of ownership (whether or not it shall be so expressed in any such deed or other conveyance) with respect to a villa, each Proprietary Member for each villa agrees to pay the Club, for himself and any Non-Propriety Member co-owners of such villa, any and all (a) bi-annual, annual or monthly fees and assessments, (b) special assessments, and (c) expenses, in each case, such fees and assessments, special assessments and expenses to be fixed, established and collected from time to time as hereinafter provided. Such bi-annual, annual or monthly fees and assessments and special assessments, and any expenses paid by the Club on behalf of the owner or owners of a villa, in each case together with such interest thereon, costs of collection thereof, and reasonable attorneys' fees in connection therewith, shall be (1) a charge on the land and a continuing lien upon the property of such Proprietary Member and (2) the personal obligation of the Proprietary member and Non-Proprietary Member co-owners, if any, of such villa at the time when the applicable fee, assessment or expense fell due.

…

Section 11. DELINQUENCY: Any fees or assessments that are not paid when due and payable shall be delinquent. If the same are not paid within ninety (90) days after the due date, they shall bear interest from the date of delinquency at the rate of eighteen percent (18%) per annum, unless a different rate is established by the Board, and the Club may either bring an action at law against the person obligated to pay the same or foreclose on the lien against the villa and sell the same at auction or to another Member or both. Interest, costs, and reasonable attorneys' fees of any such action or foreclosure and sale proceedings shall be added to the amount of such fee or assessment owed to the Club....