Walters (Winston) T/A Lakeside Trucking & Construction v Jose Cartellone Construcciones Civiles S.A

• Jurisdiction: Jamaica
• Judge: SYKES J.
• Judgment Date: 20 February 2009
• Judgment citation (vLex): [2009] 2 JJC 2003
• Date: 20 February 2009
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2008 HCV 05596

BETWEEN

WINSTON WALTERS

T/A LAKESIDE TRUCKING & CONSTRUCTION

CLAIMANT

AND

JOSE CARTELLONE

CONSTRUCCIONES CIVILES S.A.

DEFENDANT

IN CHAMBERS

Denise Senior Smith instructed by Oswest Senior Smith and Company for the claimant

Barrington Frankson instructed by Barrington Frankson and Company for the defendant

FREEZING ORDER - DELAY IN COMMENCING CLAIM - WHETHER FATAL TO APPLICATION FOR FREEZING ORDER - FOREIGN DEFENDANT - RISK OF DISSIPATING ASSETS

FREEZING ORDERS - Claim - Delay in commencing claim - Whether fatal to application for Freezing Order - Foreign defendant - Risk of dissipating assets

SYKES J

• 1 . On November 26, 2008 Mr. Winston Walters applied, without notice, for a freezing order. Williams J. (Ag) granted the order on December 1, 2008 in the following terms:

  1 . That there be an injunction restraining the respondent/defendant Jose Cartellones (sic) Civiles S.A. from removing from the jurisdiction assets located here and in particular assets located at the National Commercial Bank Jamaica Ltd (NCB) and the Republic Bank of Trinidad and Tobago (RBTT) Bank Jamaica Ltd. amounting to three million nine hundred and thirty-five thousand five hundred and eighty four dollars and twenty five cents ($3,935,584.25) and restraining the respondent/defendant from dealing with any assets located within the jurisdiction amounting to three million nine hundred and thirty-five thousand five hundred and eighty four dollars and twenty five cents ($3,935,584.25) for a period of 14 days.

  2 . The claimant gives his usual undertaking as to damages.

  3 . The inter partes hearing is set for the 16 ^th day of December 2008 at 10:00am for one (1) hour.

  4 . Injunction to expire on the 16 ^th day of December 2008 unless further extended.

  5 . Costs to be costs in the claim.

2 . The order was for an initial period of 14 days with the contested hearing set for December 16, 2008. On December 16, the order was further extended to December 23. On December 23, by consent, the order was extended to January 19, 2009.

3 . On January 19, 2009, case management orders were made. Out of this case management two important dates were set: June 12, 2009 for the construction of the written contract which forms the basis of the dispute between the parties; and January 14 and 15, 2010, for the matter to be tried in the event that the construction point does not resolve the issues between the parties.

4 . The injunction was further extended to January 22, 2009, and from January 22 to January 27, then to February 3 and finally to February 9, when the inter partes hearing commenced. The injunction was extended over various days because another inter partes hearing concerning a freezing order secured by the claimant against the defendant in another claim, was being heard (see CLAIM NO. 2008 HCV 05597, Walters v Cartellone ).

5 . This is the inter partes hearing to determine whether the freezing order should be discharged or remain in place until trial.

The dispute

6 . The claimant alleges that he and the defendant entered into an oral agreement in June 2002 under which the claimant would transport material to be used by the defendant in the construction of what is now known as the North Coast Highway. It is common ground that there was a written agreement executed between the parties in October 2002. It is agreed that this written agreement superseded the oral agreement made in June 2002. Both sides have agreed that the agreement had schedules attached to it, which set out the applicable rate of payment for transporting different types of raw materials.

7 . According to Mr. Walters, he was underpaid in respect of materials transported between June 2002 and December 2003. Mr. Walters further alleges that when he brought to Cartellone's attention, that it had underpaid him, the company accepted his contention, and agreed to pay him the outstanding balance. This agreement to pay the balance...