Belgravia Internation Bank & Trust Company Ltd et Al v CIBC Trust Company Bahamas Ltd
| Jurisdiction | Bahamas |
| Judge | Conteh, J.A.,Blackman, J.A.,John, J.A. |
| Judgment Date | 26 February 2014 |
| Neutral Citation | BS 2014 CA 27 |
| Docket Number | SCCivApp & CAIS No. 189 of 2011; SCCivApp & CAIS No. 155 of 2012; SCCivApp & CAIS No. 27 of 2012 |
| Court | Court of Appeal (Bahamas) |
| Date | 26 February 2014 |
Court of Appeal
Blackman, J.A.; John, J.A.; Conteh J.A.
SCCivApp & CAIS No. 189 of 2011; SCCivApp & CAIS No. 155 of 2012; SCCivApp & CAIS No. 27 of 2012
Mr. Maurice Gliriton with Ms. Meryl Glinton, counsel for appellants in 189/2011, 155/2012 and 27/2012.
Mr. Brian Simms, QC, with Ms. Simone Fitzcharles, counsel for respondents in 189/2011, 155/2012 and 27/2012.
Mr. Brian Simms, QC, with Ms. Simone Fitzcharles, counsel for appellants in 27/2012.
Mr. Maurice Glinton with Ms. Meryl Glinton, counsel for respondents in 27/2012.
Civil practice and procedure - Appeal — Interlocutory Appeals — Whether the judge was right in not awarding costs and ordering instead ‘costs in the cause’ — Administration action involving claims by trustees to their costs — Costs regime pursuant to statute and rules of the Court — Meaning of ‘costs in the cause’ — Whether the removal of the affidavit from court file and the permanent injunction granted by the judge was proper — Gratuitous disclosure of confidential information by a trustee/licensee in breach of Section 19 of the Banks and Trust Companies Regulations Act — Whether the judge was wrong not to grant leave to amend the application for committal proceeding — Principles applicable in amending pleadings — Whether the judge lacked jurisdiction to interpret its Accounting Order to express the kind of Accounting Order the court intended at the time order made — Whether the judge erred in granting the order and specific and further discovery — Appeals dismissed — Permanent injunction set aside — Trustee Act — Rules of the Supreme Court.
Interlocutory Appeals-whether “costs in the cause” Orders made by judge on an application for an account and Summary Judgment wrong; and whether trustees are entitled to costs in circumstances where action has not been concluded; principles applicable in relation to costs of trustees in an administration action; Order granting permanent injunction against defendant its, officers, employees, agents and attorneys, and removal of Affidavit from Court file in alleged breach of s. 19 of The Bankers and Trust Companies Regulations Act, 2000; whether Judge wrong not to grant leave to amend application for committal proceedings against defendant in alleged breach of Account Order; whether judge lacked jurisdiction to interpret earlier Accounting Order to express what kind of Accounting Order Court intended when Order was made; whether judge wrong to have granted Order for Specific and Further Discovery.
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i) dismissing appeal, judge's “costs in the cause” Orders were properly made in the circumstances, given issues joined between the parties, and in the absence of a Beddoe application or a Beddoe Order. And the Orders did not necessarily deny or deprive appellant/trustees of their costs
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ii) The permanent injunction was in the circumstances unsustainable, and the Affidavit did not breach s. 19 of Bankers and Trusts Companies Regulation Act; to allow injunction to stand would, given issues joined between the parties, fetter defendant from mounting proper Defence to claims against it and Affidavit was not, in the circumstances, an impermissible disclosure of confidential matters concerning trusts and beneficiaries- permanent injunction discharged and Order removing Affidavit from Court file set aside.
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iii) Judge properly refused application to amend application for committal proceedings by having Order whose enforcement was sought endorsed with penal notice; and that it was arguable that defendant was in breach of Order given its attempts to comply with it; contempt of court has severe consequences, its commission requires strict proof
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iv) Order granting Specific Discovery of documents and Further Discovery properly made in the light of provisions of RSC 24.
Belgravia's appeals and respondent's notice dismissed; and CIBC's appeal against permanent injunction and removal of affidavit from court file allowed.
We say at the outset that the proceedings that have culminated in the appeals that fall for judgment by the court are illustrative of how litigation ought not to be conducted. Indeed, the trial judge from whose decisions the several appeals have been taken plaintively in one of his rulings bemoaned the “nightmare” presented by the litigation because of the volume of the documentation presented. This has been no less so before this Court.
The issues are compounded by the fact that the substantive claims themselves are yet to be heard and determined by a trial court. But the parties or rather their legal advisers have embarked upon an extended, and no doubt, expensive forensic jostling at what is only the interlocutory stage of the trial of the issues joined between them on the pleadings so far.
The proceedings proper had their genesis in a claim for a breach of trust claimed by Belgravia International Bank & Trust Company Limited, (“Belgravia” for short), against CIBC Trust Company (Bahamas) Limited, (“CIBC” for short).
In substance, however, all these appeals are from interlocutory decisions and orders made by the learned judge below. The appeals were however heard together as they all stemmed from the action between the parties which was launched as far back as 2005. We are constrained, however, to say that the Record of Appeal filed in this appeal (several volumes in total with over hundred pages each), is by no means how such record should be produced. It did not make for easy reading; and it was far from easy to follow. But we nonetheless, tried to make the best of it, but at great expense of time and effort in circumstances in which the appeals themselves could hardly be said to be straightforward.
Sometime in June, 1996, Belgravia and CIBC entered into an agreement to act as joint or co-trustees of various Bagdonovich Family Trusts, with CIBC acting as Managing Trustee and Administrator of the various trusts listed in Appendix A of the Re-Amended Statement of Claim which launched the proceedings giving rise to the several appeals in this matter.
Later, differences appeared between these two original co-trustees. Later, on or around 6th March, 2006, Experta Trust Company (Bahamas) Limited (“Experta” for short), the second appellant and respondent in these appeals, was appointed as co-trustee in place of CIBC. References to “Belgravia” in this judgment therefore include “Experta” and the other appellants identified in the Belgravia's action.
After the removal of CIBC as a co-trustee, Belgravia in July 2005, commenced proceedings by writ against it essentially for breach of trust: See generally, the Re-Amended Statement of Claim dated 16th February, 2009. Later an Originating Summons seeking certain Declarations and Orders against CIBC was also taken out by Belgravia. The two proceedings were later consolidated, with CIBC as the defendant.
After CIBC filed a Defence and Counter-Claim, Belgravia and Experta, as plaintiffs in their capacity as trustees of the Trusts listed in Appendix A of the Statement of Claim filed an application on 23rd June, 2009, seeking the following Orders from the learned judge below:
“(i) pursuant to RSC Order 18, rule 21 that the actions be tried without further pleadings beyond the re-amended statement of claim filed 16 February;
(ii) pursuant to RSC Order 74, rule 4 any order to which the plaintiffs' may be entitled by reason of its alleged breach of trust willful default or other misconduct;
(iii) under RSC Order 14 final judgment in respect of a number of reliefs including, inter alia, an accounting of all trust assets now or once in its custody and/ or control as qualified trustee and co-trustee of the various trusts listed in Appendix A to the statement of claim and the underlying companies owned by the said trusts”
This pre-emptive move by Belgravia and Experta against CIBC did not however, find favour with the learned judge. It is however pertinent to note that Belgravia's summons only came ups for hearing and determination before the learned judge on 8th, 9th and 28th April, 2010, In his reserved Decision on Belgravia's application delivered on 6th August, 2010, he noted that Belgravia's summons was issued before the Order of Albury, J. (retired) dated 6th July, 2009, granting leave to CIBC to serve an amended Defence. The amended Defence was filed on 27th July, 2009, after the issue of Belgravia's summons.
The learned judge considered the principles applicable to an application for the granting of default or summary judgment and refused Belgravia's application.
However, in relation to Belgravia's application “pursuant to RSC Order 74, rule 4 any Order to which (it) may be entitled…” the learned judge stated in paragraphs 14, 15, and 16 of his Decision as follows:
“14. The issue of accounting is different. A trustee has a duty at common law to account to the beneficiaries (see Re Dartnall [1895] Ch. 474 and Lindley, L.J. in Law v. Bouverie [1891] 3. Ch. 82.94).In addition the conformed trustee deeds for each of the said trusts have an express clause requiring annual accounts to be provided to the beneficiaries. The clause reads as follows:
‘Accounting so long as settlor is living and legally competent, the trustee shall render an accounting annually unless the protector waives in a signed instrument this right to an account. However, after the death or legal disability of settler, the trustee shall render an accounting at least annually regarding the transaction of trusts created by this instrument by delivering a written account to the protector and to each current income Beneficiary.’
The defendants raised the issue that the beneficiaries are not parties to the action and Belgravia and Experta did not have locus standi,...
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