Warwick v Lightbourne

• Jurisdiction: Jamaica
• Judgment Date: 22 July 2011
• Docket Number: Civil Jurisdiction 2009 No. 337
• Date: 22 July 2011
• Court: Supreme Court (Jamaica)

In The Supreme Court of Bermuda

Civil Jurisdiction 2009 No. 337

BETWEEN:

John Warwick

Plaintiff

and

Michael Lightbourne

Defendant

Mr C Rothwell for the Plaintiff

Mr E Johnston for the Defendant

The following case was referred to in the judgment:

Mullen (trading as Kensington Road Services) v Conoco Ltd [1997] EWCA Civ 1495

Abstract:

Breach of contract for sale of boat- -Whether partial judgment should be set aside

JUDGMENT of Kawaley, J

Background

1. On October 6, 2009, the Plaintiff, a retired architect, issued a Specially Endorsed Writ of Summons claiming $60,000 for breach of contract. This sum was said to represent the price for which the Defendant, a businessman, purchased his Grady White boat ("the Boat"). The Defendant was personally served on October 10, 2009 and, no appearance having been entered, Judgment in Default was entered against the Defendant on November 13, 2009.

2. On January 29, 2010, the Defendant applied by Summons to set aside the Default Judgment and for leave to file a Defence which was prospectively filed on the same date. This application was effectively heard on March 16, 2010 when Justice Simmons, inter alia:

(1) varied the Judgment in Default for $60,000 by substituting the amount of $24,000 based on admissions contained in the proposed Defence;

(2) gave the Defendant leave to defend the balance of the Plaintiff's claim (implicitly) on the condition that the Defendant paid $12,000 into Court within 29 days.

3. The Defendant's Defence had two incarnations. Firstly, as filed by his previous attorneys, deposed to himself and relied upon at the application to set aside the Default Judgment, the Defendant admitted that he (a) purchased the Boat from the Plaintiff in consideration for the Plaintiff residing on the Defendant's boat 'Brightside' for $3000 per month, and (b) traded the Boat for three jet skis for the price of $60,000.

4. The Plaintiff on July 27, 2010 obtained an oral examination order, and was eventually ordered to pay $2000 per month towards the Judgment debt by the Chief Justice on October 28, 2010. On the same date the Chief Justice granted an "unless" order compelling the Defendant to file Witness Statements pursuant to the directions previously ordered by the Court. On June 15, 2011 the Defendant was personally served with a Notice of Hearing for the trial of this action on June 28, 2011. On June 27, 2011, the Defendant's new attorneys came on the record, and the following day obtained an adjournment of the trial until July 11, 2011 and leave to file an Amended Defence. This pleading was filed on June 28, 2011.

5. The second incarnation of the Defence was radically different in its crucial averments. While the purchase of the Boat was admitted, it was now denied that (a) any monetary value placed on the accommodation the Defendant provided to the Plaintiff, and (b) any connection between the accommodation value and the value of the Boat

existed. It was simply agreed that the Plaintiff could live on the Defendant's Boat "as long as he wished" (Amended Defence, paragraph 3). Accordingly, since the Plaintiff had voluntarily left the accommodation when he did (albeit following more than one burglary and at least one assault), the Defendant's obligations to him in relation to the purchase were fully discharged. This dramatic transformation in the Defendant's case was purportedly explained in paragraph 16 of the Defendant's Witness Statement dated six days before the effective commencement of the trial.

6. When the Plaintiff opened his case, Mr. Rothwell explained that the amount in dispute could be as little as roughly $17,000, if the Court rejected the Plaintiff's primary case and accepted the Defendant's original defence that he agreed to pay the $60,000 in the form of accommodation at the rate of $3000. Giving credit for the value accommodation received, the Defendant contended that the Plaintiff stayed on his boat for 12 months ($36,000) while the Plaintiff contended he stayed for 189 days or 6.3 months ($18,900), a difference of $17,100. However, in his closing submissions, Mr. Johnston surprisingly indicated for the first time that he was inviting the Court (without any formal application or prior notice to the Plaintiff's counsel) to set aside the Judgment in favour of the Plaintiff for $24,000 granted by Justice Charles-Etta Simmons on March 16, 2010, so that the real dispute was whether any monies at all were payable by the Defendant to the Plaintiff.

Scope of issues in dispute: may the court set aside the partial judgment in favour of the plaintiff dated march 16, 2010?

7. Mr. Rothwell submitted that the only way in which the March 16, 2010 judgment could be challenged was by way of appeal. Mr. Johnston in answer to the Court denied that the issue was res judicata, and relied upon the following final two sentences in paragraph...