YP Seaton v Earthcrane Haulage Ltd, YP Seaton & Associates Ltd v Sagicor Bank Jamaica Ltd
| Jurisdiction | Jamaica |
| Judge | Mcdonald-Bishop JA,Sinclair-Haynes JA,F Williams JA |
| Judgment Date | 18 January 2019 |
| Neutral Citation | JM 2019 CA 3 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 33/2014 |
| Date | 18 January 2019 |
IN THE COURT OF APPEAL
THE HON Justice Mcdonald-Bishop JA
THE HON Justice Sinclair-Haynes JA
THE HON Mr Justice F Williams JA
SUPREME COURT CIVIL APPEAL NO 33/2014
APPLICATION NUMBER 207/2018
Written submissions filed by Hylton Powell for the appellant
Written submissions filed by Rattray Patterson Rattray for the respondent
The decision of the court is as reflected in the judgment of my brother F Williams JA.
I agree.
By an application filed on 20 September 2018, the applicants herein (who are the respondents in the substantive appeal) seek to have the court amend the written judgment in the appeal. That judgment is cited as [2018] JMCA Civ 23. It dealt with two judgments of a judge of the Supreme Court: one delivered on 17 March 2014 and reported at [2014] JMSC Civ 34, and the other delivered on 24 September 2014 and reported at [2014] JMSC Civ 139. In this application, the applicants seek to have several paragraphs and an order of the judgment deleted. Those portions of the judgment are concerned with the manner in which an accounting of the operation of several accounts held by the 1 st applicant, Mr Y P Seaton (“Mr Seaton”), with the respondent, Sagicor Bank Jamaica Limited (the appellant in the appeal: “the bank”) is to be conducted.
In the judgment reported at [2014] JMSC Civ 34, the judge had ordered, inter alia, as follows:
“(3) It is also ordered in respect of Claim No CL 1993/S252:
(a) The sum of JA$15,254,583.69 to be repaid to the claimant with interest from October 16, 1992 to date of repayment. Further submissions are to be made on whether the interest should be simple interest or compound interest;
(b) In respect of the accounts numbered
102900024
101900579
102900172
101900561
301900809 (certificate of deposit)
it is hereby ordered that:
(i) a mutual account of all dealings between the claimant and the defendant be taken by the Registrar in respect of each account starting with the balances as stated in 3 (b) (ii) (which were the sums pleaded) in order to determine:
a. whether interest was paid on each account and what that interest was and how the interest was arrived at and for what period of time;
b. whether the claimant received all the interest to which he was entitled between the time the account was frozen and the time he had access to it;
c. whether the claimant removed any of the monies standing in those accounts and if it did, when it did this and whether interest was paid on those accounts from which it removed the money from the time they were frozen up to the time the monies were removed.
(ii) the balances in respect of each account as of May 7, 1992 are:
102900024
US$39,608.24
101900579
US$2,831.17
102900172
US$24,550.59
101900561
US$361,892.23
301900809 (CD)
US$65,880.22
(iii) the claimant and the defendant are to produce before the Registrar all books, record of accounts, papers and writings in their custody or under their control including those books, records of accounts, papers and writings regarding the accounts listed at 3(b) and 3(b) (ii);
(iv) in respect of paragraph 3(b) (ii) the books, record of accounts, papers and writings referred to there may be in any form including but not limited to electronic form;
(v) in conducting this account the Registrar has the discretion to order the parties to produce any book, record of accounts, papers and writings as she sees fit in order to enable her to arrive at an accurate account;
(vi) the Registrar also has the discretion to order the parties to produce any other material that she in her discretion thinks may be of assistance in carrying out the taking of accounts;
(vii) the Registrar has the authority to make requests in writing to third parties who may have relevant books, records of accounts, papers and writings regarding the accounts listed at 3 (b) and 3(b)(ii);
(viii) the claimant and the defendant are at liberty to agree any sum for any purpose of this account including the final due to Mr. Seaton and where the parties agree any sum for any purpose their agreement is final and conclusive and the Registrar cannot enquire into the accuracy of the figure agreed;
(ix) any sum arrived at by the Registrar whether as a result of agreement under 3(b)(viii) or otherwise, shall be paid without any further order from the court.
(4) In respect of paragraph 3(a) the parties, if not agreed, are to make further submissions on the rate of interest and whether interest should be simple or compounded.”
The order that was made by this court, addressing that order, reads as follows:
“3) With the consent of the parties, paragraph 3(ix) of the order made on Mr Seaton's claim (claim no CL S252 of 1993) is set aside and substituted therefor is the following order:
The accounting exercise is to be conducted by an expert agreed by the parties within 60 days of the date of the order of this court. If the parties cannot agree such an expert, then the Registrar of the Supreme Court is empowered to appoint such a person from an agreed list submitted by the parties; or, in the absence of such agreement, from a person listed on one of the individual lists submitted by the parties. Within 30 days of completion of the accounting exercise, the expert shall submit to the Registrar of the Supreme Court a report giving the results of the exercise, copies of which shall be forwarded by the Registrar to the attorneys-at-law for the parties within seven days of its receipt. After the expiration of ten days of the service of the report on the parties' attorneys-at-law, the Registrar shall order that the sum found to be outstanding shall be paid by the bank to Mr Seaton, without need for further orders UNLESS either party's attorneys-at-law raise an objection in writing within seven days of service of the report upon them, in which case the Registrar shall refer the matter to the learned judge who may invite or permit further submissions from the parties and make further orders to finalize the matter as he shall deem necessary.”
(Emphasis added)
This court's rationale for adjusting the order for the accounting exercise stipulated by the court below can be seen at paragraphs [107] to [112] of the judgment on appeal. In a nutshell, those paragraphs disclose that the making of the order by this court was informed by the view discussed at the hearing by all the parties and the court that the process of accounting might more easily and competently have been conducted by a chartered accountant or someone with a similar specialist background, rather than the Registrar of the Supreme Court. More germane to this application, however, and as expressed in the underlined portion of this court's order quoted above, is that it was thought that the order was being made “[w]ith the consent of the parties…”
It is important to observe that there was no appeal in respect of the order for accounting that had been made below. The concern arose during the course of argument.
Counsel for the applicants have objected to the making of this court's order with the inclusion of the words: “with the consent of the parties”, on the basis, they say, that there was in fact no consent. In support of...
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