Coastal Property Services Ltd et Al v Synovus Bank et Al

JurisdictionBahamas
JudgeIsaacs, J.
Judgment Date21 January 2015
CourtSupreme Court (Bahamas)
Docket Number2015/CLE/GEN/00011
Date21 January 2015

Supreme Court

Isaacs, J.

2015/CLE/GEN/00011

Coastal Property Services Ltd et al
and
Synovus Bank et al
Appearances:

Roy Sweeting and Patrick Ryan with him for plaintiffs

Jacy Whittaker for 2nd & 3rd defendants Kenra Parris-Whittaker for 4th defendant

No appearance by or on behalf of 1st defendant

Civil practice and procedure - Protection of property rights — Relief from order — Ex — parte order to deliver documents, computers, records in possession — Parties prohibited from using or making reference to privileged information — Finding that there was no reason to rely on confidential information ceased without informing the other side — Information to be disclosed before any further action could be taken — Relief sought not granted.

Isaacs, J.
1

The genesis of this action can be summarized in the following manner. In CLE/gen action No. FP/00001 of 2012 (the 2012 action) by an Ex-parte Order the 2nd defendant (Mr. Gomez) was appointed Receiver and Manager of all the assets in The Bahamas of William B. Johnson and W.B. Johnson Investment Co. Inc., an American citizen and an American company respectively. The appointment of a Receiver was made at the instance of the 1' defendant, Synovus, an American Bank, based on a default judgment in its favour against William B. Johnson for an unpaid debt. The said assets consist solely of shares in the 2nd plaintiff, Guana Cay (Abaco) Development Company Ltd. (GCAD).

2

GCAD, a Bahamian company, is the owner and developer of Orchid Bay Yacht Club and Marina, a residential and commercial real estate development at Great Guana Cay, Abaco. The 1st plaintiff, Coastal Property Service Ltd. (Coastal), has a debenture mortgage given by GCAD over all of the assets save for four specific lots of land. There exists a dispute between the parties as to whether or not the debenture mortgage has been satisfied; Coastal's position is that it has not been satisfied.

3

Under the terms of the debenture mortgage the 3' plaintiff (Mr. Albury) was appointed Receiver and Manager of the assets of GCAD, and since January 2013 Coastal has been a creditor in possession of the assets charged under the debenture, including a cottage in which Mr. Albury and his wife, the 4th plaintiff, resided.

4

By a second Ex-parte Order Mr. Gomez was given leave to appoint Directors of GCAD and to conduct litigation on its behalf. With these two Ex-parte Orders in hand, on 12 December 2013, Mr. Gomez proceeded to remove Mr. and Mrs. Albury from the cottage as well as their computers, personal effects and a fleet of rental golf carts owned by Mrs. Albury, none which belonged to GCAD.

5

In the circumstances there were purportedly two Receivers, Mr. Albury appointed under the terms of the debenture and Mr. Gomez appointed by the Ex-parte Order. The question then arose as to whether or not a Receiver, in the case of Mr. Gomez, can be appointed over shares in a company; and if the answer is in the affirmative, can that Receiver then take control of all the physical assets of the company. These questions remain unanswered, but no such question arises relative to the appointment of Mr. Albury as Receiver under the debenture mortgage. The plaintiffs herein could not be heard in the 2012 action because they are not parties thereto. On advice the instant action was launched in an effort to protect the proprietary rights of the plaintiffs.

6

On 14 January 2014 the plaintiffs secured an Ex-parte Order from this Court in the following terms:

1
    An interlocutory injunction is hereby granted against the defendants directing that they, along with their servants or agents, immediately and continuing until trial or further Order, yield possession and control of the real property and other assets owned by, or stored on the property of Guana Cay (Abaco) Development Company Ltd on the island of Great Guana Cay in the Abaco chain of islands back to Coastal property Services Ltd and its Receiver, Mr. James Albury, and; 2. In yielding possession and control of the aforementioned real property and other assets, the defendants by their servants or agents or otherwise, must deliver to Coastal Property Services Ltd all computers, documents, records and information the property of the plaintiffs in their possession, including all copies thereof which may have been made while the defendants have been in occupation and control of the real property and other assets of Guana Cay (Abaco) Development Company Ltd, and all copies of all the keys to any and all locks that have been changed or re-keyed on the property at the direction of the defendants. 3. The defendants must, within seven (7) days of their compliance with paragraphs 1 and 2 hereof, provide the plaintiffs by way of a sworn Affidavit with a) a detailed accounting of all funds received by them during and by reason of their occupation and control of the real property and other assets of Guana Cay (Abaco) Development Company Ltd, including without limitation, details of when and from whom such funds were received and for what purpose and how such funds have been applied or dealt with, and b) details of any removal or disposal of any other asset or information belonging to the plaintiffs and held or stored on the real property owned by Guana Cay (Abaco) Development Company Ltd. 4. The defendants and each of them whether by their servants or agents or otherwise are hereby enjoined until trial or further Order from making any...

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