Marvalyn Taylor-Wright and Anwar Wright v Hallmark Bank and Trust Ltd
| Jurisdiction | Turks and Caicos Islands |
| Judge | Williams, J. |
| Judgment Date | 22 July 2009 |
| Court | Supreme Court (Turks and Caicos) |
| Docket Number | CL 9/09 |
| Date | 22 July 2009 |
Supreme Court
Williams, J.
CL 9/09
For the First plaintiff: Marvalyn Taylor-Wright
For the Second plaintiff: Anwar Wright
For the defendant: Peter McKnight
Balli Trading v. Afalona Shipping, the Coral [1993] 1 Lloyd's Rep 1 CA
Crown House Engineering Ltd v. Amec Products Ltd. [1989] 48 B.L.R. 32
Lincoln Eatmon, Jerome Lee, John Leiba v. Hallmark Bank and Trust Limited, Olint TCI Corporation Limited, David Smith CL 154/08
Saunders v. Anglia Building Society [1971] A.C. 1004
Norwich and Peterborough Building Society v. Steed (No. 2) [1993] Ch. 116
United Dominions Trust Ltd. v. Western [1976] Q.B. 513
Niichimen v. Gatoil [1987] 2 Lloyd's Rep 46
European Asian Bank AG v. Punjab Sindbank Naz [1983] 2 All E.R. 508
Cow v. Casey [1949] 1 K.B. 474
Sethia Liner Ltd. v. State Trading Corp of India Ltd. [1986] 2 All E.R.
House & Overseas Insurance [1990] 1 W.L.R. 153
Van Lynn Developments Ltd. v. Pelias Construction Co. Ltd. [1968] 2 W.L.R. 1141
Ionian Bank Ltd. v. Couvreur [1969] 1 W.L.R. 78
Orders 14, 14A and Part II of Supreme Court, Civil Rules 2000 of Turks and Caicos Islands
Civil Practice and Procedure - Summary Judgment — Whether the application for summary judgment should be granted where the Bank put forward facts which raised an arguable defence that the Bank did not authorise the distribution of the agreement — Finding that the application should not be granted.
I have before me the plaintiffs' Summons dated 6th March, 2009 and filed pursuant to Orders 14, 14A and Part II Supreme Court, Civil Rules 2000:
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A) Applying for an order that Summary Judgment be entered against the defendant.
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B) In the alternative seeking that the case be disposed of by the determination of various questions of law, namely:
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(i) Whether as a licensed Corporate Trustee the defendant had the legal competence to appoint and/or delegate powers to the named investment manager under the Agreement between the parties in circumstances where the said investment manager was not competent and qualified to manage trust property under the laws of the Turks and Caicos Islands.
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(ii) if not so competent, whether the defendant acted in good faith and without neglect as required by Section 24 of the Trust Ordinance in making such appointment or delegating or permitting the continuation thereof
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(iii) Whether the defendant as the licensed financial institution, Corporate Service Provider and part of the supervisory regime of the Turks and Caicos Islands financial services system had any legal competence to delegate to the investment manager named in the Agreement between the parties, such functions and duties imposed by the Islands' financial laws on the defendant.
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C) In the alternative seeking an order that the defendant do make an interim payment to them in the sum of $817,000.
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D) In the alternative seeking an order that the defendant do make an interim payment in the sum of $653,600 being 80% of the $817,000. The Summons also contained a request for the defendant to provide further information, but this was not pursued.
The defendant opposes these applications. Procedural Background
On 29th April 2008, a letter before action was sent to Overseas Locket Corporation in Jamaica from the First plaintiff. [Page 32 plaintiffs' bundle] In the letter the plaintiff requested the immediate release of $200,000 and the balance two weeks thereafter.
On 17th June 2008, Michael Howard, Member Care Manager for Overseas Locket International Corporation wrote, using a Panama address, to the First plaintiff in which he confirmed that she “maintains United States dollars investments with our Club.” [Page 56 plaintiffs' bundle] He said that her investment stood in excess of $800,000 and that she would be repaid in full by July 16 2008.
Payment was not made and on 22nd July 2008 a letter before action was sent on behalf of the plaintiffs to the Chief Executive Officer at Hallmark Bank and Trust Limited (“Hallmark”). [Pages 61–62 plaintiffs' bundle] The letter sought payment of $817,000 plus accrued profits since 1st June 2008. The letter indicated that if the plaintiffs did not hear from Hallmark by 25th July 2008, then legal proceedings would be brought.
On 24th July 2008 Swann Trowbridge McKnight (“STM”) wrote to the plaintiffs on behalf of the defendant. [Page 64 plaintiffs' bundle] The letter stated, “our client has no record of receiving funds from your client. Any action your clients propose against our client is wholly misconceived. Our client has never had any communication with your clients. It goes without saying any proceedings will be vigorously defended.”
On 24th July 2008 the plaintiffs responded to STM and attached a copy of the Agreement. [Page 66 plaintiffs' bundle] STM were asked whether they were authorised to accept service.
After the 24th July 2008 further correspondence was exchanged but no rapprochement could be reached. On 26th September an advance copy of the proposed Statement of Claim was sent to STM.
Proceedings were initiated by the plaintiffs by means of a Writ of Summons and a Statement of Claim, both filed on 20th January 2009. The plaintiffs' basic claim against Hallmark is for (i) damages for breach of contract, (ii) damages for tortuous negligence, (iii) damages for breach of statutory duty and (iv) in the further alternative a declaration that the defendant is liable to repay $817,000 as Trustee or Constructive Trustee. This was served on the defendant on 21st January 2009.
On 3rd February 2009 the defendant filed an Acknowledgment of Service, indicating an intention to defend the whole of the claim.
On 6th February 2009 the defendant notified the plaintiffs that, unless they could satisfy them that they had assets within the jurisdiction, they would make an application for security for costs in the sum of $250,000. The defendant also contended that the Writ was defective as it did not include the plaintiffs' addresses for service nor nominated any local attorneys to accept service on their behalf. The addresses were requested, failing which an application for a stay would be made.
On 16th February 2009 the defendants filed a summons, returnable on 27th February 2009, seeking an order to set aside the plaintiffs' writ on the ground that it did not comply with Order 6, rule 5. This was supported by the First Affidavit of Peter McKnight which was sworn on 16th February 2009. The plaintiffs replied on 20th February 2009 stating that the date was not convenient and had been arranged without any consultation and asked for a new date to be allocated.
On 24th February 2009 the First plaintiff filed an affidavit sworn by her on 23rd February 2009. The plaintiffs filed an Amended Statement of Claim dated 20th February on 24th February 2009 which now contained the requisite detail of their addresses.
Hallmark filed its Acknowledgment of Service on 26th February 2009 again indicating an intention to defend the whole of the claim. The defendant filed a Summons seeking security for costs, returnable on 27th March 2009. The affidavit in support of the Summons sworn by Brian Trowbridge, Chairman and Chief Executive Officer of Hallmark, was filed on 20th March 2009
On 27th February 2009 the defendant's Summons to set aside the plaintiffs writ came before the Court. The defendant no longer sought to proceed with the Summons, so no substantive order was made and the parties were to bear their own costs.
On 11th March 2009 at 9.18am the defendant filed his Defence dated 10 th March 2009. [Pages 208–222 plaintiffs' bundle]
On 11th March 2009 at 11.45am the plaintiffs filed the Summons for Summary Judgment dated 6th March 2009, which I am considering herein. [Pages 1–4 plaintiffs' bundle] The filing of the Summons after the filing of the Defence does not preclude the plaintiffs from applying for summary judgment [ McLardy v. Slateum (1890) 24 Q.B.D. 504 Pollock 13 at page 506]. The plaintiffs' filed an affidavit in support sworn by both plaintiffs on 6th March 2009. [Pages 5–76 plaintiffs' bundle] A supplemental affidavit which was sworn by the First plaintiff on 17th March 2009 was filed without leave [Note 14/2/2 White Book — “A copy of the supporting affidavit must be served on the defendant not less than 10 clear days before the return day and it should therefore be ready at or before the time that the summons is issued.”] on 23rd March 2009. [Pages 77–142 plaintiffs' bundle] A further supplemental affidavit sworn by the First plaintiff on 23rd March 2009 was filed without leave on 24th March 2009. An affidavit sworn by George Scott on 23rd March 2009 was filed without leave in support of the plaintiffs' summons. [Pages 143–169 plaintiffs' bundle] No issue was taken by the defendant about the filing of these affidavits.
On 23rd and 24th March 2009 the First plaintiff filed affidavits in respect of the application for security for costs.
The Summons for Security for Costs and the Summary Judgment Summons came before this Court on 27th March 2009 with a time estimate of half to a full day. Due to the full Court list there was a lack of Court time to hear the matter and the summonses were adjourned for hearing on 12th with a possibility of running into 13th May 2009.
Brian Trowbridge filed affidavits in opposition to the plaintiffs' Summons for Summary Judgment on 5th and 12th May 2009. Leave was given to file the latter affidavit although it had been filed within the three days before the return day.
On 11th May 2009 the Court received the skeleton argument prepared by Mr. McKnight and the fifty-two page skeleton argument prepared by the First plaintiff I have carefully considered the contents of both skeleton...
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