(1) Maria Iglesias Rouco, (2) Lucia Maria Iglesias, (3) Javier Jesus Iglesias Rouco, (4) Fernando Iglesias, (5) Indira Iglesias, (6) Alejandro Iglesias, (7) Pablo Iglesias v (1) Juan Sanchez Busnadiego (in his capacity as Judicial Administrator of the Spanish Estate of Jesus Iglesias Rouco), (2) Surf ‘N’ Turf Ltd, (3) Deltec Bank & Trust Ltd, (4) Ingrid Iglesias, (5) Holowesko Pyfrom & Fletcher (A law partnership), (6) Altus Ltd
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Isaacs, JA,Mr. Justice Evans, JA,Mr. Justice Bethell, JA |
| Judgment Date | 04 July 2022 |
| Neutral Citation | BS 2022 CA 094 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCivApp. Nos. 147 & 148 2021 |
The Honourable Mr. Justice Isaacs, JA
The Honourable Mr. Justice Evans, JA
The Honourable Mr. Justice Bethell, JA
SCCivApp. Nos. 147 & 148 2021
COMMONWEALTH OF THE BAHAMAS
Civil appeal — Unless order — Security for costs — Leave to appeal — Stay of proceedings — Stay pending appeal - Spanish estate — Strike out
Held: Applications for leave to appeal and stay pending appeal dismissed. Decisions of the judge affirmed. Costs to the intended respondents, to be taxed if not agreed. The costs of the second and third respondents are certified fit for two counsel.
“The test on a leave application is whether the proposed appeal has realistic prospects of success or whether it raises an issue that should in the public interest be examined by the court or whether the law requires clarifying.”
In order to succeed in challenging the exercise of a judicial discretion an applicant must persuade the Court that the Judge exercised the discretion under a mistake of law; or in disregard of principle; or under a misapprehension as to the facts; or that she took into account irrelevant matters; or that she failed to exercise her discretion; or finally, that the conclusion which she reached in the exercise of her discretion was outside the generous ambit within which a reasonable disagreement is possible
Having reviewed the Judge's decision in the round, this Court will not interfere with the judge's determination to refuse the stay application nor her refusal to grant leave to appeal that decision. In these circumstances, the Court need not consider the application for an extension of time within which to appeal as no leave to appeal has been granted.
AWH Fund Limited (In Compulsory Liquidation) v. ZCM Asset Holding Company (Bermuda) Limited [2014] 2 BHS J. No. 53 mentioned
David Cummings et. al. v Sumner Point Properties Limited SCCivApp. No. 18 of 2016 considered
G v G [1985] 2 All ER 225 (HL) mentioned
Gregory Cottis (as Executor of the Estate of Raymond Adams) v Robert Adams (a beneficiary of the Estate of Raymond Adams) SCCivApp. No. 23 of 2021 mentioned
Hadmor Productions Ltd v Hamilton [1983] A.C. 191 (HL) mentioned
Keod Smith v Coalition to Protect Clifton Bay SCCivApp No. 20 of 2017 considered
Nvidia Corporation (a company incorporated in Delaware) and other companies v Hardware Labs Performance Systems Inc (a company incorporated in the Philippines) [2016] EWHC 3135 (Ch) considered
Robert Adams (a beneficiary of the estate of Raymond Adams) v Gregory Cottis 2018/PRO/cpr/00035 mentioned
Sejeroe-Olsen v Attorney General for the Commonwealth of The Bahamas [1997] BHS J. No. 53 considered
Smith v Cosworth Casting Processes Limited (1997) 4 All ER 840 mentioned
Sumner Point Properties Limited v. Cummings [2015] 3 BHS J. No. 35 mentioned
Wembley National Stadium Limited v Wembley (London) Limited [2000] Lexis Citation 2361 considered
This intended appeal concerns assets alleged to comprise the estate of Jesus Rouco a Spanish citizen and the father of all of the intended appellants and also the fourth intended respondent. The assets, approximately, four million dollars are currently being held by the third respondent, in an account in the name of the second respondent.
Rouco died in February 2017 in Spain. It is alleged that weeks prior to Rouco's death he executed a Mandate which requested that the fifth intended respondent arrange for the incorporation of an International Business Company (IBC). The Mandate further provided that shares in the IBC were to be held on trust for Rouco during his lifetime and after his death the sixth intended respondent would hold the shares on behalf of the fourth intended respondent. In December 2016 Rouco allegedly sent instructions to the third intended respondent to transfer the assets in his account to the intended second respondent's account.
The intended appellants are of the view that the funds form a part of their father's estate which, under Spanish law, form a part of his patrimony to be shared among his eight children. The intended fourth respondent disagrees. She is of the view that the funds do not form a part of Rouco's estate and therefore do not fall to be distributed among his heirs.
The intended appellants commenced an action in the Spanish courts. The third intended respondent, having been notified of the Spanish proceedings, froze the second intended respondent's account. The second intended respondent requested that the third intended respondent transfer its assets in the account elsewhere. The third intended respondent refused and, as a result, was sued for breach of contract. The third intended respondent filed an inter pleader summons.
Thereafter, the intended appellants filed a statement of claim. The second through sixth intended respondents applied for security for costs and the intended appellant applied for a stay of the proceedings until a decision had been made in the Spanish courts involving the Judicial Administrator. The stay was refused, however, an order for security for costs was made in favour of the intended respondents. The costs were ordered to be paid within twenty-eight days. Days before the security became due to be paid the intended appellants sought an extension of time within which to pay the security for costs. The application was not resisted by the second through sixth respondents. An extension of time to 14 October 2021 within which to pay the security was agreed. Notwithstanding the extension of time, the intended appellants failed to pay the security for costs and the intended respondents filed applications to strike out the Statement of Claim on this basis.
The intended appellants then sought leave to appeal and a stay pending appeal. The judge heard the strike out applications, notwithstanding counsel for the intended appellants’ argument that the strike out applications should be heard after his leave to appeal application and further, that the matter should not be struck out while there was an intended appeal pending. The judge made an Unless Order to the effect that unless the security was paid by 15 December 2021 the Statement of Claim would be struck out without further order. On 3 December 2021 the intended appellants’ application for leave to appeal and a stay of the unless order was heard and refused.
The intended appellants now seek, inter alia, a stay of the proceedings pending the application for leave to appeal, leave to appeal, an extension of time within which to appeal and a stay pending the determination of the appeal.
Mr. Christopher Jenkins with Mr. Sebastian Masnyk, Counsel for the Intended Appellants
No appearance by the Intended First Respondent
Mrs. Gail Lockhart-Charles, QC with Ms. Candice Knowles, Counsel for the Intended Second Respondent
Mr. Leif Farquharson, QC with Mrs. Christina Davis-Justin, Counsel for the Intended Third Respondent
Mr. Ryan Brown, Counsel for the Intended Fourth Respondent
Mr. Leroy Smith with Mr. Jonathan Deal, Counsel for the Intended Fifth and Sixth Respondents
On 13 December 2021, the intended appellants filed a Certificate of Urgency to show why the matter ought to be heard expeditiously. The following reasons were proffered:
“1. On the 18 November 2021, an Unless Order was made by the Supreme Court in the underlying action 2017/CLE/gen/00937 which will result in the strike out of the underlying action on 15 December 2021.
2. The Appellants have made two leave to appeal applications relating to two orders made by the lower court on 1 September 2021 (which ruling was not provided until, and dated as 3 November 2021) and on 18 November 2021.
3. The Appellants had filed their first leave to appeal application relating to the first order (wherein the Supreme Court refused to grant a stay) on 17 November 2021, within 14 days of the re-dated Ruling being provided. The Supreme Court declined to hear that application at the hearing of 18 November 2021 and instead made the Unless Order.
4. The Appellants thereafter had both aforementioned applications for leave to appeal and a stay pending determination of the appeal heard on 3 December 2021. On 7 December 2021, the Supreme Court refused the applications. The Appellants now seek leave from this Court to appeal and a stay pending determination of the appeals before the Court of Appeal, which will otherwise not be heard prior to the underlying action being dismissed by consequence of the aforementioned unless order.
5. If the Unless Order takes effect prior to the applications being heard, and in particular the applications for a stay pending determination of the appeals, then the Appellants will be prevented from seeking relief from the Court of Appeal, as the underlying action will have been dismissed causing great prejudice to the Appellants, as the $4 Million in assets currently frozen will thereafter be released and may leave the jurisdiction.
6. The Appellants require the matter to be heard urgently so that they are able to prevent the dismissal of their Action before the Court of Appeal is able to consider the matter.”
On 7 March 2022, we heard the submissions of Counsel; and reserved our decision. We render it now. As we do so, we state at the outset that if our judgment seems to be curt in its treatment of the submissions of Counsel, no disrespect is intended; but rather, the...
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