Frank Gedeus v Gilbert Selver
| Jurisdiction | Turks and Caicos Islands |
| Judge | Mr. Justice Anthony S. Gruchot |
| Judgment Date | 22 November 2022 |
| Docket Number | ACTION NO. CL-51/16 |
| Court | Supreme Court (Turks and Caicos) |
The Hon. Mr. Justice Anthony S. Gruchot
ACTION NO. CL-51/16
IN THE SUPREME COURT
Ms Chloe McMillan of F Chambers for the Plaintiffs
Mr. George C. Missick of Geordins for the Defendant
) There were 3 applications before the Court. The 1 st was an application for leave to appeal summary judgment given on 26 th August 2022 and perfected on 14 th September 2022 in which the Defendant was ordered to pay to the Plaintiff the sum of US$23,300.00 together with the costs of the action, and if leave was granted, the 2 nd application for a stay of execution of the judgment pending appeal.
) The 3 rd application was a Notice of Motion filed by the Plaintiff for the issue of a writ of sequestration by way of enforcement of the judgment.
) I refused leave to appeal on the basis that none of the proposed grounds of appeal had a realistic prospect of success and in consequence the stay application fell away. The 3 rd application was not pursued.
) I said that I would give my reasons in writing. These are those reasons.
) The facts of the claim are set out in the written judgment of Hylton J dated 26 th August 2022 and can be summarised as:
-
a) In 2006 the Defendant entered into an oral contract with the Plaintiff to sell him a parcel of land in Blue Hills described as 60501/179 for the sum of US$26,000.00.
-
b) Payment for the land was to be made by way of installments, but there was no specific agreement as to how the monies were to be paid or when the transaction was to close.
-
c) Various payments were alleged to have been paid by the Plaintiff in the total amount of US$23,300.00 at which time the Plaintiff called for the land to be transferred to him, access to the land having been granted and the Plaintiff had commenced works to construct a dwelling on the land.
-
d) It became apparent the Defendant could not transfer the land to the Plaintiff as it was encumbered (together with other parcels) by a charge to Meridian Mortgage Corporation Ltd. (‘Meridian’) to secure the sum of US$200,000.00 in respect of which, on 16 th June 2015, an order for sale by private treaty had been granted by Shuster J under the provisions of the said charge.
-
e) Meridian became aware that the Plaintiff was in occupation of the land and offered to sell the land to the Plaintiff under its power of sale together with an offer to finance the transaction. On 31 st July 2015 a loan agreement with Meridian was executed by the Plaintiff and his wife and (presumably) the land was so transferred.
) What then followed was:
-
a) On 2 nd March 2016 the Plaintiff brought a claim for the return of monies paid to the Defendant, at that time acting in person.
-
b) On 3 rd May 2016 the Defendant, also acting in person, filed a Defence to the claim. Save for a denial of an allegation that the Plaintiff had asked the Defendant for the return of the monies paid and the Defendant had refused repayment, the Defence did not traverse any specific denial of the facts pleaded in the Statement of Claim, but simply pleaded non-admissions and put the Plaintiff to proof of payments of the sums claimed.
-
c) The matter did not progress through 2017 despite a number of directions hearings and dates being fixed for trial, until the Plaintiff changed attorneys to those presently instructed. On 6 th July 2020 a further summons for directions was filed which came before the Court on 28 th September 2020 at which time the Plaintiff was given leave to amend the Statement of Claim which was subsequently filed on 13 th October 2020 and served on the Defendant's attorneys, who had by that time changed to those presently instructed. It should be noted that there was no attendance at that hearing by the Defendant or his attorney.
-
d) A further directions hearing was held on 12 th May 2021, both parties being represented and the matter was fixed for trial on 9 December 2021.
-
e) The Defendant failed to comply with that directions order and as a result the trial date again passed and the Plaintiff issued his summons for summary judgment.
) The application for summary judgment was put on the following grounds:
-
a) The Defence did not comply with Ord.18 r.13(3) to the extent that it did not specifically traverse to the allegations of fact in the Statement of Claim and amounted to mere denials or non-admissions, and as such it was defective, alternatively, that it had no prospect of success, and should be struck out,
-
b) That the Defendant had no defence as to liability.
-
c) That the Defence did not demonstrate any defence that had a real prospect of success.
) The application before the Court was one for summary judgment under Ord.14, together with an alternative remedy that the Defence be struck out pursuant to Ord, 18 r.19(a).
) The application for summary judgment was resisted on the following grounds:
-
a) That the matter could not proceed as no notice of intention to proceed pursuant to Ord.3 r.6 had been filed and served and accordingly the Court had no jurisdiction to hear the application; that there is no authority to get around Ord.3 r.6 and there must be strict compliance.
-
b) Alternatively, that if the Court is able to waive service of such a notice, no application for that relief was before the Court and so the Court could not grant the relief.
-
c) The application for summary judgment was too late in the proceedings, the claim having been commenced some 6 years ago.
-
d) The Defendant had not been given leave to file an amended defence following the leave granted to the Plaintiff to file the Amended Statement of Claim and should be allowed to do so.
-
e) The agreement between the Plaintiff and the Defendant could not be enforced as it was not in writing as required by s.37 of the Registered Land Ordinance (Cap. 9.01) (‘RLO’).
-
f) The Defendant wished to join in Meridian as a third party to the proceedings and should be allowed to do so.
-
g) That the Plaintiff was in breach of the agreement because he stopped making payments.
) Hylton J reserved his decision and dealt comprehensively with each of the above matters in his judgment.
) The grounds put forward upon which the proposed application for appeal was to be founded were that:
-
a) the learned judge was wrong in law to hear the application as the Court had no jurisdiction as no notice of intention to proceed had been served pursuant to Ord.3 r.6 following a break of over 12 months in the proceedings and, as a result of the forgoing, the summary judgment was null and void or alternatively, as there was no application for relief against the failure to serve a notice, the application should not have proceeded.
-
b) following the same reasoning, the Defendant submits that the Court lacked jurisdiction to grant leave to the Plaintiff to file the Amended Statement of Claim 1.
-
c) alternatively, if the Court had the power to waive the requirement for such a notice, then it could only do so on an application and, there was no such application. Accordingly, the learned judge erred in letting the matter proceed.
(together, ‘the Ord.3 r.6 Grounds’)
-
d) the learned judge erred in law by concluding that the Defendant appeared to be factually incorrect in relation to the alleged gap in the proceedings by taking into consideration that the Plaintiff filed a summons for directions on 20 th January 2021, filed a list of documents on 8 th July 2021 and a witness statement on 1 st November 2021. The learned Judge fell into error by taking the above filings as proceedings in the action when none of them were.
(‘the Gap Calculation Ground’)
-
e) The learned Judge erred in law and fact and denied the Defendant a right to a fair hearing and due process by failing to have regard to the fact that the Respondent was granted leave to file an Amended Statement of Claim but that the Appellant was not given leave to file an amended defence and, that he ought to have granted the Defendant leave to file and serve an amended defence before ruling on a summary judgment application.
(‘the Amended Defence Ground’)
-
f) The learned Judge failed to consider the fact of the Plaintiff's delay of 6 years after filing his claim before bringing an application for summary judgment and the effect of the matter being fixed for trial as barring a late application for an order for Summary Judgment.
(‘the Delay / Fixed Trial Ground’)
-
g) The decision of the learned Judge to grant final judgment was wrong as a matter of law because in the exercise of his discretion he failed to take into account [sufficiently or at all] the principles laid down by the Court of Appeal in S v Gloucestershire CC [2001] 2 WLR 909.
(‘the S v G Principles Ground’)
-
h) The learned Judge erred in law on his interpretation and application of section 37 of the Registered Land Ordinance (Cap 9.01)
(‘the Section 37 RLO Ground’)
-
i) The learned Judge erred in principle that by conducting an inappropriate mini trial on disputed facts on a summary judgment application has no real prospect of success at a trial.
(‘the Mini Trial Ground’)
-
j) The decision of the learned Judge was perverse in that, on the basis of the evidence in the case, no reasonable tribunal could have reached such a decision.
(‘the Perverse Ground’)
) It is noteworthy that the application for summary judgment was resisted on 7 grounds but that there were 10 grounds in respect of which the Defendant considered he had a realistic prospect of success on appeal, the inference being that the Defendant considered that the learned judge erred in every aspect of his approach to the application. The Court is not assisted in such applications by a party taking every point on which an unsuccessful litigant loses the case, regardless of...
To continue reading
Request your trial