Bahama Towers Ltd v Lew
| Jurisdiction | Bahamas |
| Judge | Sawyer, J.,J. |
| Judgment Date | 21 July 1992 |
| Docket Number | 1784 of 1991 |
| Court | Supreme Court (Bahamas) |
| Date | 21 July 1992 |
Supreme Court
Sawyer, J.
1784 of 1991
Mr. F.R.M. Smith, Mrs. E. Evans & Mrs. P. Bridgewater for plaintiff.
Ms. C. McDonald, Mr. Sears & Miss M. Lockhart for defendant.
Practice and procedure - Injunction — Ex parte application for injunction granted — No appearance to writ — No defence or Counterclaim — Plaintiff applied for discharge of injunction — Order 29, Rules 1(2) & (3) RSC — Defendant had no locus standi to file ex parte application — Injunction dissolved.
On 6th July, 1992, I discharged an injunction dated 4th May, 1992, which had been granted by a judge of this Court do the defendant on an ex parte application. At that time I indicated I would give my reasons in writing and I do so now.
At the time when the ex parte injunction was granted at the request of the defendant, no appearance had formally been entered by or on his behalf to the Writ of Summons nor had a defence or defence and Counterclaim been filed to the Statement of Claim and the time stipulated by the Rules of the Supreme Court for doing those things had long since passed. There is nothing on the file to show whether the defendant ever intended to apply for leave to enter an appearance and defence out of time or to plead a Counterclaim.
Mr. Smith, for the plaintiff, submitted in effect, that as the defendant had not entered an appearance and had not filed a defence and Counterclaim, it was a novel application which was made in this case and that as the defendant lacked the necessary standing to make an ex parte application the Court therefore lacked jurisdiction to grant the order which was in fact granted.
Ms. McDonald submitted, as I understood her, that as the defendant had “appeared” by counsel on that ex parte application, this Court should not find that there was no appearance by the defendant or deal with the plaintiff's application in that light.. She relied on the decision in Redditch Benefit Building Society v. Roberts [1940] 1 All E.R. 342.
In that case, the defendant who was a mortgagor of the plaintiff Building Society, failed to enter an appearance to legal process taken out by the Building Society to recover the amount of the mortgage debt and for possession of the property. At the hearing before the Registrar on an application for leave to enter judgment in default of appearance under what was then Order 55 (compare Order 77 of the Rules of the Supreme Court) the defendant appeared personally and, apparently, indicated that he wished to contest the Building Society's claim. In spite of that personal appearance, the Registrar nevertheless gave leave to the Building Society to enter judgment in default of appearance by the defendant.
On appeal, the Court of Appeal (England) in that case decided that leave to enter judgment in default of appearance ought not to have been given as the defendant had been before the Court (although he had technically not appeared) and was anxious to put himself in a position to defend the action.
In this case, while it is correct that counsel “appeared” for the defendant, that appearance was on an ex parte application of which no notice was given to the plaintiff whereas in the Redditch case, the defendant there appeared on an application by the plaintiff so that both parties were actually present before the Court when the leave was given. I think the circumstances of the defendant in this case are distinguishable from those in the Redditch case on that basis. However, if the non-appearance of the defendant in this case were the only ground of the plaintiff's complaint, I may well have taken a different view.
The gravamen of the plaintiff's application according to Mr. Smith, was that as the defendant is not in the position of a quasi-plaintiff, while an application for an injunction could have been made by him, it could not be made ex parte.
This in my view was, and is, a correct interpretation of Order 29, r. 1(2) and (3) of the Rules of the Supreme Court which read –
“(2) Where the applicant is the plaintiff and the case is one of urgency such application may be made ex parte on affidavit, but except as aforesaid, such application must be made by motion or summons.
“(3) The plaintiff may not make such an application before the issue of the writ or originating summons by which the cause or matter is to be begun except where the case is one of urgency and in that case the injunction may be granted on terms providing for the issue of the writ of summons and such other terms, if any, as the Court thinks fit.”
(Emphasis added).
As stated earlier, in this case, when the ex parte application was made, not only had the defendant not entered an appearance — and it was too late to do so without leave of the Court — but the defendant had also not filed any defence and/or Counterclaim to the plaintiff's Statement of Claim which at that stage would also have required the Court's leave.
While counsel for the defendant could not deny those facts, it was contended, on behalf of the defendant, that the plaintiff's Statement of Claim itself, in fact showed the defendant's Counterclaim and as it was not necessary, in cases of urgency (which it was submitted this was) for even a writ to be filed by an intending plaintiff in cases of urgency, so in this case it was not necessary for the defendant to have filed a defence and Counterclaim before making the ex parte application. That appeared to be an attractive argument at first glance, but in the end I rejected it for to accept it would mean that a defendant who is out of time in entering an appearance to a writ of summons and also out of time in filing a defence and Counterclaim, if he intends to do so, could,...
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