Wheelabrator Air Pollution Control v Reynolds

• Jurisdiction: Jamaica
• Judge: Carey, J.A.,Gordon, J.A.,Patterson, J.A.
• Judgment Date: 13 March 1995
• Neutral Citation: JM 1995 CA 10
• Docket Number: No. 91 of 1994
• Court: Court of Appeal (Jamaica)
• Date: 13 March 1995

Court of Appeal

Carey, J.A.; Gordon, J.A.; Patterson, J.A. (Ag.)

No. 91 of 1994

Wheelabrator Air Pollution Control

and

Reynolds

Appearances:

R N A Henriques QC, Allan Wood & Ransford Braham for appellant

Miss Hillary Phillips & Miss Carol Davis for respondent

Injunction - Mareva injunction — Appellant was a company which specialized in the design, manufacture and installation of electrostatic precipitators and was engaged in installing a new dust collection system — Respondent was a contractor under contract to the appellant — Disagreement between the parties — Respondent ceased work — Trial judge granted a mareva injunction — Whether there was sufficient evidence to prove that there was a real risk of dissipation of the assets or a risk of the assets being removed — Finding that the trial judge exercised his discretion rightly — Appeal was dismissed.

Carey, J.A.

1 The appellant is a company with its principal offices in Pittsburgh, Pennsylvania, United States of America, which specializes in the design manufacture and installation (inter alia) of electrostatic precipitators and is engaged in installing a new dust collections system for Jamaica Aluminium Company (Jamalco). The respondent was a contractor under contract to the appellant and who agreed to install foundation and stack, modify an existing building, demolish existing structures and install three electrostatic precipitators. This work was to be done at the Jamalco property at Halse

2 Hall in Clarendon. As a result of a disagreement between the parties, the respondent ceased work, removed from the site and filed a writ for:

“… money due from the defendant to the plaintiff on a contract made on or about January 1993 for construction work on the Electrostatic Precipitator Project on the property of the Jamaica Aluminum Company in the parish of Clarendon and for interest thereon and/or alternatively for damages for breach of the said contract and interest thereon.”

3 Reid, J. by an order dated 17th August 1994 granted a Mareva injunction in the following terms:

“The defendant be restricted whether by themselves, their servants or agents or howsoever otherwise from removing from the jurisdiction, disposing of and/or dealing with their assets within the jurisdiction limited to US$1,440,000.00 being the proceeds of contract for the erection and installation of Electrostatic Precipitators in the Electrostatic Precipitators Replacement Project, between the defendant and Jamaica Aluminium Company (hereinafter call JAMALCO) of Clarendon, Jamaica, until judgment or further order.”

4 This appeal against that order requires a consideration of whether there was sufficient evidence to prove that there was a real risk of a dissipation of the assets or a risk of the assets being removed so that any judgment in the respondent's favour would remain unsatisfied. We are not concerned with whether or not the respondent had a good arguable case because that much was conceded by Mr Henriques QC for the appellant. Counsel in this case, both accept as settled that once the threshold of a good arguable case is passed, then the plaintiff must demonstrate the risk of dissipation of assets or removal of assets from within the jurisdiction by cogent evidence. See Watkis v Simmons (unreported) SCCA 48/87 delivered 18th July 1988 in which dicta from Third Chandris Shipping Corp v Unimarine [1979] 2 All E.R. 972 and Ninemia Corp v Trave Schiffahrts [1984] 1 All E.R. 398 were cited with approval. Mr Henriques QC contends that the evidence put forward by the respondent was wholly inadequate because it was clear that the respondent had made no effort to furnish the court with any information relating to the risk of dissipation. The appellant had supplied information which showed that company was a viable organization, and refuted any suggestion that any judgment could not be satisfied.

5 Miss Phillips maintained with her accustomed celerity, that the court was obliged to consider all the evidence placed before it in order to make a correct determination of the risk of dissipation or removal of assets. The appellant had put forward an unaudited balance sheet which showed among its assets a high level of receivables. If fifty percent of that amount remained uncollected, she said the account would be in deficit. The fact that the appellant was well connected, that is, the parent company had its stocks quoted on the Stock Exchange was irrelevant; there was no contract with the parent company. The picture presented was of words not of facts.

6 There was as well, she pointed out, an action filed in Pennsylvania by the appellant against the respondent which was proceeding by default. No reciprocal arrangements with the USA regarding judgments existed and, as a consequence, suit would have to be brought in that country. Granted a successful conclusion of that litigation in the respondent's favour, the judgment would have to be set off against the appellant's claim. But the present action in this country ought not to involve the respondent in protracted litigation in the USA. It was therefore the assets in this country which should be reachable. In regard to these, the appellant was conspicuously silent. It should be borne in mind that the appellant was a foreign corporation and apart from the contract with Jamalco has no other connection with this country.

7 With these arguments in mind, there is a need to examine the evidence which was put before Reid, J. The respondent filed an affidavit in support of his application. I think the relevant paragraphs should be quoted:

• “2. That to the best of my knowledge and belief, the defendant is a Company with offices in Pittsburgh in the United States of America and are specialists in the design, manufacture and installation of inter alia Electrostatic Precipitators.

• 3. That the defendant was contracted by the Jamaica Aluminium Company (hereinafter called JAMALCO) to construct inter alia, three (3) Electrostatic Precipitators, part of the Electrostatic Precipitators Replacement Project on the property of Jamalco, in the parish of Clarendon, Jamaica.

• 4. That pursuant to the said contract, the defendant has been conducting business in Jamaica and has offices on the worksite on Jamalco's property, in Halse Hall, in the parish of Clarendon.

• 28. At a further meeting held at the Pegasus Hotel in Kingston, Jamaica on 11th May, 1994 and attended, inter alia, by myself and my Attorneys-at-Law, and by Mr Rzoski, Mr Campbell, Mr Hunkele, Mr Ravellette and Mr Withers representing the defendant, the defendant through its said representatives, informed me, and did verily believe, that they did not intend to pay me for work done on outstanding invoices that they had...