AWH Fund Ltd (in Compulsory Liquidation) v ZCM Asset Holding Company (Bermuda) Ltd
| Jurisdiction | Bahamas |
| Judge | Allen, P. |
| Judgment Date | 16 September 2014 |
| Neutral Citation | BS 2014 CA 128 |
| Docket Number | SCCivApp No. 316 of 2013 |
| Court | Court of Appeal (Bahamas) |
| Date | 16 September 2014 |
Court of Appeal
Allen, P.; John, J.A.; Adderley, J.A.
SCCivApp No. 316 of 2013
Ms. Travette Pyfrom with Mr. E.P. Toothe counsel for the appellant.
Mr. Brian Simms with Ms. Sophia Rolle counsel for the respondent.
CM Van Stillevoldt BV v. El Carriers Inc. [1983] 1 All E.R. 699 mentioned Norwhich and Peterborough Building Society v. Stead [1991] 2 All E.R. 800 applied Seaconsar Ltd. v. Bank Markazi [1993] 3 W.L.R. 756 considered Smith v. Cosworth Casting Processes Ltd. [1997] 4 All E.R. 840 applied
Civil Practice and Procedure - Extension of time to apply for leave to appeal — Consideration of factors relevant to the exercise of discretion to extend time — Consideration of CM Van Stillevoldt BV v. El Carriers Inc [1983] 1 All ER 699 — Whether the specified time period in Rule 11 of the Court of Appeal Rules began to run from the date on the date of pronouncement of the Supreme Court for leave to appeal application or whether the time began on the date the judgement was made — Whether the Counsel's preoccupation with other matters amounted to a good and sufficient reason for delay in filing an appeal to Court — Whether the Respondent was a necessary and proper party to the action where the trial judge had not provided a conclusion — Whether the trial judge erred in the interpretation of Order 11 Rule 8 where it was concluded that a liquidator cannot be permitted to serve a fraudulent preference claim on a payee outside of the jurisdiction — Whether the Appellant had a series issue to be tried — Whether the issue as to whether service out of the jurisdiction was permissible in insolvency proceedings within the Bahamas required clarifying — Prejudice to parties — Application granted
In 2008 the appellant was granted leave to serve the respondent out of the jurisdiction. In 2013 the order granting leave to serve out of the jurisdiction was set aside. The appellant seeks to extend the time in which to appeal the 2013 decision.
Held:– application granted, no order as to costs
In circumstances where an applicant had applied for leave to appeal before a learned trial judge within the period stipulated by the Rules of the Supreme Court, the 14 days referred to in Rule 11 of the Court of Appeal Rules will only begin to run once a pronouncement is made on the application for leave to appeal.
The court will refuse an application for an extension of time if satisfied that the applicant has no realistic prospect of succeeding on the appeal. Further the court can grant the application even if it is not so satisfied where the issue raised may be one which the court considers should in the public interest be examined by the court or where, the court takes the view that the case raises an issue of law which requires clarifying.
The learned trail judge provided no supporting reasons for her determination that the liquidator did not disclose a good and arguable cause of action under Order 11. Further on the face of it, Order 11, r. 8 (4) seems to contradict the learned trial judges ruling that Order 11 only applied to proceedings begun by writ or originating summons. Additionally, the wider question of whether service out of the jurisdiction is permissible in insolvency proceedings within The Bahamas is an area of law of public interest that requires clarifying.
This is an application for an extension of time within which to apply for leave to appeal the November 12th 2013 decision of Justice Rhonda Bain where she set aside the 2008 decision of the Registrar to allow service of the appellant's summons outside of the jurisdiction.
The facts and procedural history are simple and agreed. On 27th June 2008 the Registrar of the Supreme Court granted to the intended appellant (“appellant”) leave to serve the intended respondent (“respondent”) with an amended summons outside the jurisdiction. Upon being served, the respondent entered a conditional appearance to the action and subsequently applied to have set aside the order granting leave to serve outside the jurisdiction. By her judgment dated 12th November 2013, Justice Bain acceded to the respondent's application and set aside the order of the Registrar granting leave to serve the amended summons.
On 28th November 2013 the appellant applied, in the Supreme Court, for leave to appeal the 12th November 2013 judgment. On the same day the appellant filed in this court an application for an extension of time within which to appeal, and to file and serve the Notice of Appeal.
On the 24th February 2014, Justice Bain determined that as the appellant had filed a Notice of Appeal in the Court of Appeal the court's powers vis-à-vis an application for leave to appeal were functus.
On the 3rd April 2014 the appellant filed a second Notice of Motion in this court seeking an extension of time and for an order granting leave to appeal and an order validating the Notice of Appeal filed 28th November 2013.
It is common ground between the parties that the November 12th 2013 judgment is an interlocutory judgment. It was established; in line with Bahamian authorities that the Notice of Appeal filed November 28th 2013 is a nullity. As such, the current application is grounded in the April 3rd 2014 Notice of Motion.
The classic statement of the factors relevant to the exercise of the discretion to extend time are as stated by Griffiths, LF in CM Van Stillevoldt BY v. El Carriers Inc. [1983] 1 All E.R. 699 and are as McCowan LI set them out in Norwich and Peterborough Building Society v. Stead [1991] 2 All E.R. 800. They are (1) the length of the delay (2) the reasons for the delay (3) the chance of the appeal succeeding if the time is extended (4) the degree of prejudice to the intended respondent if the application is granted.
Rule 11 of the Court of Appeal Rules provides as follows:–
“11. (1) Every notice of appeal shall be filed and a copy thereof served by the appellant upon all parties to the proceedings in the court below who are directly affected by the appeal –
(a) in the case of an appeal from an interlocutory order, fourteen days;
(b) ……
Calculated from the date on which the judgment or order of the court below was pronounced or made.”
The appellant is of the view that time began to run on the 24th February 2014, the date of the Supreme Court's ruling denying the appellant leave to appeal. As such, the appellant would be out of time by 15 days. The appellant however did not serve the respondent, with the leave documents, until the 6th June 2014; thereby extending the delay to some three and a half months. The respondent, on the other hand, is of the view that time began to run on the 12th November 2013, the date on which the judgment being appealed was made; if this position is correct the appellant would be out of time by some six months.
The Rules of the Supreme Court provide that in civil interlocutory proceedings an applicant seeking to appeal the decision of the trial judge must seek the leave of that judge to appeal the decision. It would be manifestly unfair for time to begin to run, in this court, against an intended appellant who has followed the stipulated rules and applied, as required, for leave to appeal before the trial judge. As such, in circumstances where an applicant has applied for leave to appeal before a learned trial judge within the period stipulated by the Rules of the Supreme Court, the 14 days referred to in Rule 11 of the Court of Appeal Rules will only...
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