William Tenn v Andrew Marriot

• Jurisdiction: Jamaica
• Judge: Wint-Blair J
• Judgment Date: 11 December 2023
• Court: Supreme Court (Jamaica)
• Year: 2023
• Docket Number: CLAIM NO. SU 2022 CD 00012

Between

William Tenn

Claimant

and

Andrew Marriot

Defendant

[2023] JMCC Comm. 52

Wint-Blair J

CLAIM NO. SU 2022 CD 00012

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

COMMERCIAL DIVISION

Default judgment — Whether default judgment was regularly obtained — Whether there is a real prospect of success — Recovery of rent and possession — Burden of Proof

Civil Procedure Rules 12. 4, 12. 5 & 13.3, 13.4

Miss Tamiko Smith instructed by Smith, Afflick, Robinson & Partners Attorney-at-Law for the claimant

Miss Kara Graham for the defendant

1 The claimant commenced a claim against the defendant on the 10 ^th of January 2022 for rent and recovery of possession of land situated at 94B Molynes Road Kingston 10, in the parish of St. Andrew. The defendant failed to file either an acknowledgment of service or a Defence and on or about May 3, 2022, judgment in default was entered against him by a judge.

The Application

2 On the 11 ^th of August 2022, the defendant filed a Notice of Application for Court Orders to have the default judgment entered against him set aside. The applicant is seeking the following orders:

• 1. “That Judgment entered against the Defendant be set aside in accordance [with] Part 12.10 (4) & 5 as the Defendant was not

• personally served with (sic) Claim Form and Particulars of Claim as per Section 5 (5.5) of the Civil Procedure Rules 2006, as amended;

• 2. That the terms of the orders granted on the 3 ^rd day of May 2022 and comprised in Formal Order filed on the 7 ^th day of June, 2022 be stayed;

• 3. That any application for warrant of possession filed on behalf of the Claimant be stayed;

• 4. That the Costs of these proceedings be borne by the Claimant and if not agreed be taxed;

• 5. Further and/or other relief as this Honourable Court deems fit.”

3 The grounds on which the aforesaid relief is being sought is set out hereunder:

• 1. “That the Claimant has failed to serve the Defendant with the Claim Form and Particulars and any such failure on the part of the Defendant to file an Acknowledgement of Service of Claim Form or Defence was not out [of] inadvertence;

• 2. That the Judgment obtained by the Claimant is improper and deemed to be set aside by this Honourable Court as[sic] pursuant to Part 13. 2, 13.3, 13.4 & 13.5 of the Civil Procedure Rules;

• 3. The Defendant is in possession of a Lease & Sale Agreement entered between himself and Alfred Tenn, deceased and has a reasonable prospect of successfully defending these proceedings;

• 4. That the proceedings are a nullity as the Claimant at the time of obtaining the court orders was not in receipt of a Grant of Probate in the Estate of Alfred Tenn;

• 5. It would be unjust not to grant the Orders herein.”

The Evidence

4 The application was supported by the Affidavit of Andrew Marriott 1 who deponed that himself and Mr. Alfred Tenn (“the deceased”) entered into a Lease and Sale Agreement in 2010 for a parcel of land at 94B Molynes Rd., registered at Volume 1540 Folio 446 of the Register Book of Titles (the leased premises). The monthly rental sum was Sixty Thousand dollars ($60,000.00) with a purchase price of Ten Million dollars. ($10,000,000.00). After executing the agreement, the affiant said he cleared the land, reinforced the back wall, increasing its height by 6 feet and erected a concrete fence all around the property with a sliding gate to the front.

5 He made a total payment of $2,120,000.00 as a deposit on the purchase price and paid one month's rent and security deposit respectively. On or about the 25 ^th of March 2010, he paid the sum of One Million Five Hundred Thousand Dollars ($1,500,000.00) and on the 30 ^th of April 2010, the sum of One Million Five Hundred Thousand Dollars ($1,500,000.00) on the balance purchase price of Five Million Dollars ($5,000,000.00). He then registered his company and began operating at the leased premises. Prior to Mr. Tenn's death, Mr. Marriott said that both had maintained a good relationship and that payments made under the lease to the deceased were on time, in person and in cash.

6 On or about the 1 ^st of October 2021, Mr. Marriott deposed that he received a letter from Ramsay Smith, attorneys-at-law enclosing a copy of a new lease agreement to be executed by him as tenant in respect of the estate of Alfred Tenn. He deposed that he explained to the claimant that he already had a lease and sale agreement with Alfred Tenn and had paid the sum of Five Million Dollars ($5,000,000.00) pursuant to the its terms. The claimant lodged a caveat on the 19 ^th of January 2022 which is exhibited.

7 Mr. Marriott's evidence is that he was not aware that a claim had been filed against him for recovery of possession of the property as he received neither the notice to quit said to have been served on him, nor the claim and particulars of claim inter alia as alleged in the affidavits of service filed by Ms Verona Wilson.

8 The applicant admitted in cross-examination that one notice to quit had been received by his employee Ms. Chelsi-Rae Cole on the 20 ^th of April 2021, it was exhibited, as was a copy of the Affidavit of Service filed on the 18 ^th of February 2022. The applicant said he was not in office for a month or two so he did not receive another notice to quit, nor did he respond to the one served on his employee.

9 Regarding the claim the applicant said that he was not working at the location on Molynes Rd. on January 28, 2022, at the date or time of service and so could not have been served as Ms. Wilson had said in her affidavits of service. He admitted to being served with a perfected formal order on July 5, 2022.

10 The applicant submits that the claimant has no standing as executor because no grant of probate had been obtained before the court made its order. The first time he saw a process server was on the 5 ^th of July 2022 when he was served with the formal order filed on the 7 ^th of June 2022. Mr. Marriott asserts that he will be prejudiced if the orders sought in the instant application are not granted.

11 Mr. William Tenn in his affidavit deposed that the application to enter default judgment was granted by a judge on May 3, 2022. The perfected formal order with penal notice was served on the applicant by Ms. Wilson on July 4, 2022. Up to July 28, 2022, there were no steps taken in the proceedings by the applicant. Enforcement actions were taken against the applicant with a writ of possession being filed on August 4, 2022. Thereafter the Bailiff's office was given into possession of the said writ. The affiant and the Bailiff went to the leased premises on August 30, 2022 to execute the writ, however more fees had to be paid to the Bailiff as a result of the Bailiff's assessment and they returned on September 1, 2022. A stay of proceedings was sought by the applicant. 2

12 Mr. Mervyn Hill gave an affidavit in support of Mr. Tenn. He deponed that the pair went to the leased premises looking for the applicant and were told he was to be found at a construction site in Pembroke Hall. They went there, Mr. Hill deposed that he was present for all visits to the applicant with Mr. Tenn and noted the disrespectful conduct of the applicant towards the respondent.

The Defendant/Applicant's Submissions

13 Ms. Graham submitted that Part 13.3 of the CPR gives the court the power to set aside or vary a default judgment that was entered under Part 12, if the defendant has a real prospect of successfully defending the claim. Counsel relied on Anwar Wright v Attorney General of Jamaica 3 in which the court found that the defendant had not provided a good explanation for its failure to file an acknowledgment of service within the time prescribed by the CPR. However, the court found that the failure was not fatal as the primary consideration was whether the defence had a real prospect of success.

14 Miss Graham relied on Deny Cummings v Heart Institute 4 to argue that where the defendant can prove that the claimant did not comply with rule 12.5 then the defendant can successfully have default judgment against him set aside. She cited the case of Frank I Lee Distributors Ltd v Mullings & Company (A firm) v Frank I Lee Distributors Ltd 5

in which the Court of Appeal ruled that where the applicant seeks to set aside default judgment on the basis that the claim was never brought to his attention then the court should in the interest of justice and in furtherance of the overriding objective of the CPR, set aside the default judgment

15 Counsel contended that in the case of Sheneka Kennedy v New World Realtors Limited 6 the paramount consideration for the court was whether the defendant has a real prospect of successfully defending the claim. In order to make such a determination the court had to consider the evidence. That case was also instructive on the point of delay. Even in cases where there is inordinate delay the court may still grant an application to set aside default judgment as the court is required to look at all the circumstances of the case.

16 It was submitted that based on the authorities and grounds, the applicant has a realistic prospect of success and a good reason for failing to file a defence. Further, the applicant applied to the court as soon as practicable after finding out that the default judgment was entered against him. Counsel submits that the principles of natural justice and the overriding objective are all in favour of the applicant and asks that the application be granted as prayed with an extension of time to file the defence.

The Claimant/Respondent's Submissions

17 Miss Smith for the respondent cited rule 13.4 of the CPR arguing that the application to set aside default judgment must fail as it is not in conformity with the rule. Pursuant to rule 13.4(2) the court does not have a discretion to set aside a default judgment where the affidavit of merit relied upon did not exhibit a...