Urban Development Corporation v Jacitar (ja) Ltd

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Morrison, J.A.
• Judgment Date: 06 July 2011
• Neutral Citation: JM 2011 CA 67
• Docket Number: Civil Appeal No. 10 of 2011; Application No. 18 of 2011
• Date: 06 July 2011

Court of Appeal

Morrison, J.A.

Civil Appeal No. 10 of 2011; Application No. 18 of 2011

Urban Development Corporation

and

Jacitar (ja) Limited

Appearances:

John Givans instructed by Vaccianna & Whittingham for the applicant.

Dr. Randolph Williams for the respondent.

Civil practice and procedure - Judgment — Stay of execution ending appeal — Approach to grant of stays of execution — Applicant to pay part of damages awarded into an escrow account pending hearing of appeal.

Morrison, J.A.

1 On 17 December 2010, Campbell J gave judgment in favour of the respondent against the applicant in the sum of $1,772,098.89, with interest at 6% per annum from 18 May 1994 to 16 December 2010 and costs to be agreed or taxed.

2 On 31 January 2011, the applicant filed notice of appeal against this judgment and, by notice of application for court orders filed on 1 February 2011, sought a stay of execution of the judgment pending the hearing of the appeal. The application, which was opposed by the respondent, was heard by me in chambers on 5 July 2011, when I made the following order:

• (i) Stay of execution of the judgment of Campbell, J. dated 17 December 2010 granted pending the hearing of the appeal herein, on condition that the applicant pay into a joint interest bearing account in the names of the attorneys-at-law for the applicant and the respondent the sum of $1,772,098.89, within 30 days of the date of this order.

• (ii) Liberty to apply generally to either party.

• (iii) Costs to be costs in the appeal.”

These are my reasons for making this order.

3 The respondent's claim against the applicant in this matter was for damages for breach of a lease agreement, in respect of premises leased by the applicant to the respondent, for a period of five years from 1 January 1990. Pursuant to this' agreement, the respondent paid to the applicant a monthly maintenance charge for, among other services, “safe, efficient and orderly use, maintenance and upkeep of all parts of the building including the provision of twenty-four hour security at the building”.

4 The respondent claimed that on 23 May 1993, the leased premises were broken into by persons unknown, as a result of which, it suffered the loss of goods in the amount of $1,722,930.00, and that these losses were occasioned by the applicant's breach of the terms of the agreement with regard to the provision of security at the leased premises. The applicant denied that it was negligent and/or in breach of the lease and also maintained that it had contracted out the provision of security to an independent contractor and had by that means fulfilled its obligation to the respondent under the agreement. Campbell, J. rejected this defence, holding that the applicant, as primary obligor, did not discharge its obligation to the respondent by delegating responsibility for the provision of security to a third party, and entered judgment for the respondent in the amount claimed accordingly.

5 The application for a stay of execution pending appeal was made on the grounds that (a) the appeal has a good prospect of success; (b) if a stay is not granted the appeal will be rendered futile; and (c) if a stay is not granted and damages are paid by the applicant, “there is no reasonable likelihood of getting them back from the Respondent which is no longer trading and whose former Directors are retired and pensioners”. The application was supported by affidavits sworn to by Mr. John Givans, attorney-at-law of the firm of Vaccianna & Whittingham, attorneys-at-law on the record for the applicant and Miss Yvette Sibble, also an attorney-at-law and the deputy general manager of the legal services department of the applicant. In her affidavit (at para. 4) Miss Sibble described the applicant as “a well established government Corporation”, as a result of which “there is no risk of the Respondent's being unable to enforce or to recover the fruits of the Judgment” in the event that the appeal is unsuccessful.

6 Before the hearing of the application for a stay, the applicant's attorneys-at-law also wrote to the Registrar of this court to advise that the respondent had taken steps to tax its bill of costs in the court below by filing notice taxation on 26 May 2011,...