Winston Roy Martin Claimant v Jamaica Redevelopment Foundation

• Jurisdiction: Jamaica
• Judge: C. Barnaby J
• Judgment Date: 11 May 2021
• Neutral Citation: [2021] JMSC Civ 85
• Docket Number: CLAIM NO. SU2021CV02217
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. SU2021CV02217

Between

Winston Roy Martin Claimant

Claimant

and

Jamaica Redevelopment Foundation

1 ^st Defendant

and

Dave Giardello Vaz

2 ^nd Defendant

IN CHAMBERS

Carol Davis, Attorney-at-Law for the Claimant.

Maurice Manning QC and Francois McKnight instructed by Nunes, Scholefield, DeLeon & Co for the 1 ^st Defendant.

Garfield Haisley instructed by Paige & Haisley for the 2 ^nd Defendant.

Injunctions — interlocutory — restraint on mortgagee's power of sale — whether there are serious questions to be tried — mortgagor denies executing restructured debt agreement — dispute as to applicable interest — concluded agreement for sale between mortgagee and third party — whether evidence capable of finding at trial of bad faith on part of mortgagee in entering into agreement — balance of convenience — Marbela principle exceptions.

C. Barnaby J

INTRODUCTION

1 Mr. Winston Martin is the proprietor of land in York, St. Thomas, registered at Volume 1120 Folio 839 of the Register Book of Titles (the York Property). He obtained mortgages numbered 780789 and 850304 which were registered to Mutual Security Bank Limited (MSB) on 18 ^th November 1994 and 6 ^th February 1995 respectively. Between 24 ^th June 1993 and 3 ^rd November 1995 he also received five (5) mortgages registered to the said MSB on property in Paddington, St. Andrew previously registered at Volume 1365 Folio 70 of the Register Book of Titles (the Paddington property). The debts of MSB were taken over by the National Commercial Bank (NCB), who assigned them to Recon Trust Limited, who assigned it to Refin Trust Limited, who then made an assignment to the Jamaica Redevelopment Foundation Inc. (JRF) by deed dated 30 ^th January 2002.

2 JRF in exercise of the power of sale under the various mortgages registered to it on the Paddington property sold that property in February 2014. Save that Mr. Martin says that he has never received an account of how monies from the sale were utilised in respect of the York and Paddington property mortgages, he does not now challenge this sale on account of his being advised that it is too late to do so.

3 JRF has proceeded to exercise its power of sale under the mortgages registered to it on the York property, and in that regard, executed an Agreement for Sale with Mr. Vaz on 21 ^st April 2021, which has been submitted to the Stamp Office for assessment. Mr. Vaz has paid the balance purchase price and outstanding costs in accordance with a Statement of Account to Close which was issued to him through his Attorney-at-Law. Consequently, JRF issued a receipt in these regards to Mr. Vaz on the 4 ^th May 2021. While the Instrument of Transfer has been executed, it has not yet been lodged for transfer.

4 By way of an Amended Notice of Application for Court Orders (The Application) filed 10 ^th May 2021, in which JRF and Mr. Vaz are joined as respondents, Mr. Martin seeks interlocutory injunctive relief against JRF to restrain it: (i) from exercising the power of sale in respect of the York property; and (ii) from disposing, transferring or dealing with the said property, whether by itself, its servants and/or agents or otherwise. The relief are requested until trial or other period the court thinks fit. The Application is supported by Mr. Martin's Affidavit filed on the said date. JRF, in an affidavit sworn to by its Legal Officer Naudia Sinclair and filed on 7 ^th May 2021, responds to the Application.

5 An Amended Claim Form was also filed by Mr. Martin on the day of the hearing of the Application. Mr. Vaz was added as a second defendant and a number of relief, which were not pursued previously, were also added to the claim. Counsel Ms. Davis confirmed with the court that the Particulars of Claim were not amended on account that there simply was not enough time to do so. No further affidavit evidence was filed by or on behalf of Mr. Martin in response to Ms. Sinclair's affidavit. This notwithstanding, there was no request for a further adjournment by Counsel who indicated that she brought what was necessary for the hearing of the Application. On that indication, Mr. Manning Q.C and Counsel Mr. Haisley indicated that they were prepared to proceed.

6 After hearing the competing submissions, a decision on the Application was reserved to 11 ^th May 2020. I determined and advised that there were serious questions to be tried but that the balance of convenience lay in refusing the injunctive reliefs sought by Mr. Martin. The reasons for that were delivered orally and I promised to make the written reasons, which were then in draft, available to the parties. I now do so.

ISSUES

7 Consistent with the guidance provided in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 and having regard to the evidence, I find that the Application is resolved on two issues.

• (1) Are there serious questions to be tried?

• (2) Does the balance of convenience lay in refusing or granting the interim injunction?

SERIOUS QUESTIONS TO BE TRIED

8 In addition to the declarations sought on the Claim Form, that the proposed exercise of the power of sale by JRF in respect of the York property is fraudulent or in the alternative, negligent; that the Agreement to Restructure Existing Debt was not signed by Mr. Martin and is fraudulent; that JRF's claim as reflected in “Restructure in Default” is excessive; Mr. Martin by his Amended Claim Form seeks orders that he is entitled to exercise his right of redemption in respect of the mortgages on the York property; that JRF produces and delivers up to him the original duplicate certificate of title, together with stamped registrable interest of discharge of the mortgages on that property; that if monies are due to him by JRF that he be paid; declarations that he is entitled to the legal and beneficial interest in the York property; and that the agreement for sale between JRF and Mr. Vaz is void and/or should be set aside as a result of JRF's breach of contract and/or bad faith with respect to him.

9 The Particulars of Claim not having been amended to account for the additional relief, and the claim for breach of contract not being particularised in the Amended Claim Form, I have not been placed in a position to assess whether there is a serious question to be tried in respect of that particular claim. That therefore leaves the allegations of fraud and negligence, and the entreaty from Mr. Martin that an order be made in the claim declaring the Agreement for Sale between JRF and Mr. Vaz void and/or that the said agreement be set aside on the basis of bad faith by JRF, on which many of the relief on the amended claim rely for their viability and need not be separately discussed,

Fraud

10 In respect of his allegation of fraud, Mr. Martin's main contention appears to be that the “Agreement to Restructure Existing Loan” on which he says JRF relies was not executed by him. He denies recognizing the writing on that document as his and states that the signature which JRF attributes to him does not in fact belong to him. In that regard he indicates an intention to engage a handwriting expert in proof of his contention.

11 The evidence of JRF is to the contrary. Ms. Sinclair avers that in 2005 she witnessed Mr. Martin sign the “Agreement to Restructure Existing Loan”. Exhibited to her affidavit are receipts issued by JRF with Mr. Martin as the payee, showing monthly payments from the “8/3/2005” to the “27/09/2005”. Most of these receipts were in the sum of US$1,609.00 which I note is just a few cents more than the US$1,608.37 that was due to be paid under the “Agreement to Restructure Existing Loan”, which Mr. Martin denies signing.

12 Although it was maintained that Mr. Martin did not sign the “Agreement to Restructure Existing Loan”, the documentary evidence form JRF appears to have prompted an admission from Ms. Davis in her written submissions that it is evident that there was some form of restructuring pursuant to which Mr. Martin paid US$1,609.00 per month for several months. The admission is particularly curious in light of the contents Mr. Martin's affidavit filed in support of the application.

13 In particular, Mr. Martin avers that he was dealing with NCB in respect of the mortgages from on or about 2002 where he made payments and was advised by an agent from NCB, who is unnamed, that he had completed payment on loans secured by the properties. There is no endorsement on title that any of the mortgages held by NCB were discharged. He also avers that consideration for the transfer to NCB appeared excessive based on the amounts he borrowed. NCB has not been made a party to the suit. Mr. Martin then goes on to say that unknown to him, the mortgages were transferred to Refin Limited and that he notes from the title, that it was transferred to JRF, which transfer was registered on 6 ^th June 2003. These averments notwithstanding, as is apparent on the face of the registered titles to both properties, Mr. Martin's mortgages to MSB were transferred to JRF.

14 There still remains a dispute however, as to the circumstances under which the debts so transferred came to be restructured. Consequently, I find that there is a serious question to be tried in respect of the claim for fraud.

Negligence

15 Mr. Martin's claim in negligence appears to be twofold. In the first instance, he says he never received a notice from JRF advising him of its intention to exercise the power of sale under the mortgage in respect of the York property or the Paddington property for that matter.

• (i) Service of Statutory Notice

16 It is Ms. Sinclair's evidence that the notices required to be served by statute were in fact served on Mr. Martin in respect of the properties by way of registered post. She exhibits two Registered Notices, both dated 8 ^th December 2009 in respect of each property. Both are addressed to Mr. Martin...