Yulande Christopher T/A Yulande Christopher & Associates and Then Thomas and Christopher Law Partners v Gregory Duncan
| Jurisdiction | Jamaica |
| Judge | Cresencia Brown Beckford, J |
| Judgment Date | 27 July 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU2020CD00050 |
[2022] JMCC Comm 23
CLAIM NO. SU2020CD00050
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE COMMERCIAL DIVISION
Civil Procedure — Application to set aside Default Cost Certificate — Rule 65.22 of the Civil Procedure Rules — Whether good reason exists for Application to be set aside
Ms. Yualande Christopher instructed by Yualande Christopher & Associates, Attorneys-at-Law for the Claimant.
Mr. Gregory Duncan in his personal capacity and on behalf of Global Design and Builders Limited.
The Defendants filed Notice of Application to set aside Default Judgment on February 25, 2022 (“the first application”) and Notice of Application to Set Aside Default Cost Certificate and Discharge of Final Charging Orders on March 1, 2022 (“the second application”). The relevant underlying facts will be set out later. Despite the difference in nomenclature, both applications sought the same relief, that is, setting aside the Default Cost Certificate. Mr. Duncan indicated that he was relying on Rule 65.18 (2) of the Civil Procedure Rules (“CPR”) 2002 (as amended on the 3rd of August 2020). Ms. Yualande Christopher on behalf of the Claimant submitted that the Defendants should withdraw the first application or it be struck out. Mr. Gregory Duncan on behalf of the Defendants responded that he had made full and final payment of the agreed invoices and the Claimant was not out of pocket. Further, the Defendants were not served with the Claim Form. He indicated he was relying on the second application but refused to withdraw the first application. The Claimant further submitted that the Defendants in refusing to withdraw the first application for unspecified reasons, unsupported by cases or facts, the application should be struck out with costs to the Claimant.
The Court advised the Defendants of Rule 65.22 (4) of the CPR whereupon Mr. Duncan requested an extension of time for the Defendants to file the Points of Dispute. He indicated that there was a Charging Order in respect of the property and an Order for Sale was being sought. This would require a Valuation Report in respect of the property. Ms. Christopher objected to this oral application on the basis that the Defendants have had time to do so. The matter was previously adjourned on their request and the Claimant has been waiting for a long time to have the matter heard. The prejudice to the Claimant does not justify giving the Defendants more time.
Having considered the submissions, the Court ordered that the Application filed February 25th 2022 is struck out with costs to the Respondent on the basis that the Applicant has elected to proceed on Application filed March 1st 2022, which is a duplication despite the misnomer. The oral Application to file Points of Dispute in relation to Application filed March 1st 2022 was refused on the basis that the Notice to file and serve Points of Dispute was served in February 2020, over two (2) years ago and the Defendants were not moved to act until Application for Sale of Land was filed. Further, the Application to set aside the Default Cost Certificate was filed some three months ago.
The Court thereafter heard submissions on the second application. The refusal to extend the time to the Defendants to file the proposed Points of Dispute will be further expanded in the judgment.
On July 25, 2022, late in the afternoon as I was engaged in a trial, and less than two (2) days before this court was set to deliver judgment, I received the Defendants Application for Court Order filed July 22, 2022 for this court to recuse itself in this (and all matters concerning the Defendants) because of conflict of interest. For reasons set out in a separate judgment, I refused the Application
The Claimant served as Attorney-at-Law for the Defendants for the years spanning 2016–2018. The principal representatives of the parties were Ms. Yualande Christopher for the Claimant and Mr. Gregory Duncan for the Defendants. Mr. Duncan is the sole shareholder of Global Designs and Builders Limited. Following the termination of their relationship in 2018, the Claimant submitted its invoices for work carried out to Mr. Duncan and Global Designs and Builders on the 14 th and 19 th December 2019. Pursuant to the Defendants' instructions, the invoices were also sent to the Defendants' new Attorneys-at-Law, Chen Green and Company by letter on the 8 th January 2019. On the 12 th February 2020, the Claimant filed and served on the Defendants the Bill of Costs, submitted pursuant to S. 21 and 22 of The Legal Profession Act, with Notice to serve Points of Dispute within 28 days after the date of service and Notice of Taxation.
The Defendants failed to file their Points of Dispute, and a Default Cost Certificate in the sum of Sixteen Million Seven Hundred and Seventy Thousand Dollars and Thirteen Dollars and Ninety-Three cents ($16,770,013.93) was granted against both Defendants on the 7 th December 2020. On February 3, 2022, the Claimant filed an Application for the Sale of Land belonging to the Second Defendant on the basis that no payment had been made by the Defendants in satisfaction of the judgment sum with interest and costs. On the 21 st February 2022, the Defendants filed an objection to the Application. By an order of Batts J on the 24 th February 2022, a Final Charging Order was granted to the Claimant. On 1 st March 2022, the Defendants filed a Notice of Application to Set Aside Default Cost Certificate & Discharge of Final Charging Orders. At the time of hearing there was no proposed Points of Dispute exhibited by the Defendants.
Mr. Duncan for himself and the Second Defendant firstly submitted that the Claimant was in breach of Rule 65.18 (2) of the CPR, as it served its Bill of Costs in excess of three months after the costs became due. The invoices attached showed a breach of this rule, therefore, what was before the court was improper and unjustly putting him (Mr. Duncan) up against every point on the ground that the invoices were settled. Mr. Duncan also submitted that the invoices in the Bill of Costs were not incurred. The invoices settled were not the ones presented in the Bill of Costs which were ‘fictitious’. He relied on his Further Affidavit in Support of Application for Court Orders filed May 9, 2022 in which a chain of email correspondence was attached. These he said were invoices presented as final invoices with an overall outstanding balance of Two Million Two Hundred and Ninety-Three Thousand and Sixteen Dollars and Twenty-Five Cents ($2,293,016.25). He maintained sums in excess this amount had been paid and the invoices to which he agreed had been signed by him. He submitted that the invoices in the Bill of Costs were not agreed and were not presented to him. He said these invoices were fabricated to show sums owed when none was owed. He further submitted that an hourly rate of Fifteen Thousand Dollars ($15,000.00) was agreed upon. This was the rate on the settled and paid invoices. However, the ‘fictitious’ Bill of Costs had an hourly rate of Twenty-Five Thousand Dollars ($25,000.00) and Fifty Thousand Dollars ($50,000.00) in some instances.
The Claimant referred to the Affidavit of Gregory Duncan filed May 9, 2022, in which he exhibited five invoices he said were presented to him. These invoices which he accepted, were not paid. The balance was therefore carried forward in subsequent invoices as the work carried out by the Claimant did not end at the date the invoices were sent. The subsequent invoices formed the basis of the Default Cost Certificate. The Claimant went on to explain each invoice pointing to the supporting documents.
Ms. Yualande Christopher in her Affidavit filed May 10, 2022 sought to explain the six (6) cheques which the Defendants allege was payment in satisfaction of the Claimant's Bill of Costs. She states:
Cheque No. 000411-$4,050.000.00
5. The Defendants” CIBC Cheque No. 000411 dated 26.05.2017 for Four Million and Fifty Thousand Jamaican Dollars ($4,050,000.00), was paid to us to be allotted as follows:
Deposit on the purchase of property at 71 Border Avenue. $3,050,000.00 Legal Fees to be applied to Orville Palmer matter -$500 000.00
Exhibited and marked “YC-1” is an email from the 2nd Defendant confirming his instructions on how to allow the payment.
When the transaction fell through and was cancelled, the Claimant returned the sum
of $3,050,000.00 by wire transfer to the 2nd Defendant. Exhibited and marked “YC-2” and “YC-3” are wire transfer instructions dated May 31, 2017, and Statement of Account confirming payment of $3,550,000.00 to the 2nd Defendant. The 1st Defendant confirmed receipt of the reimbursement by phone on the 5th of June 2017.
The payment of $500,000.00 was duly applied towards reducing the invoice no, 00001118-0001 and is already accounted for. Exhibited and marked “YC-4” for ease of identity is a copy of the said invoice accounting for the $500,000.00.
Cheque No. 0004688
CIBC Cheque No. 000468 dated 29.06.2017 for Five Hundred Thousand Jamaican Dollars ($500,000.00), was paid to us by the 2nd Defendant in anticipation of a settlement of claim with Tankweld Limited, with whom the Defendant was embroiled in litigation. Indeed, the Defendant's cheque is endorsed with the instructions “ payment to Tankweld”. The 2nd Defendant's offer was refused, so the sum was reimbursed in full to the 2nd Defendant. Exhibited and marked “YC-5a” for identification is our Sagicor Bank Ltd. cheque no. 6000530 in the amount of $500,000.00 endorsed in the 1s Defendant's name and “YC-5b” is statement...
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