Evelyn Julia Frith v Scotiabank (bahamas) Ltd

• Jurisdiction: Bahamas
• Judge: Mr. Justice Jon Isaacs, JA
• Judgment Date: 15 December 2021
• Neutral Citation: BS 2021 CA 200
• Docket Number: SCCivApp. No. 88 of 2021
• Year: 2021
• Court: Court of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

SCCivApp. No. 88 of 2021

Between

Evelyn Julia Frith

Appellant

and

Scotiabank (Bahamas) Limited

Respondent

APPEARANCES:

Ms. Travette Pyfrom, Counsel for the Appellant

Ms. Michaela Barnett Ellis, Counsel for the Respondent

Axis M&E UK Ltd & Anor v Multiplex Construction Europe Ltd [2019] EWHC 169 (TCC) considered

Barker v Purvis (1888) 56 LT 131 distinguished

Henry William Hatton v Hugh Harris [1892] A.C. 547 considered

IC v RC [2020] EWHC 2997 (Fam) considered

Re Inchcape Craigmyle v Inchcape [1942] 2 All ER 157 considered

Regina v Knightsbridge Crown Court ex parte International Sporting Club (London) Ltd [1982] QB 304 considered

Shaun Miller v premier Imports Ltd SCCivApp No. 9 of 2019 applied

Shipwright v Clements 1871. 19 W.R. 599 considered

Smith v Albury [1993] BHS J. No. 2 considered

Civil Appeal — Mortgage — RSC Order 20 r10 — RSC Order 73 r2 — Slip Rule — Perfected Order

The respondent filed an Originating Summons on 27 January 2015, seeking payment of $261,043.77 being the principal, interest and additional costs owed to them by the appellant. The sum arose out of a mortgage and a further charge made between the parties dated 16 June 2004 and 4 June 2007 respectively over Lot Number 26A (“LN 26A”) of Boatswain Hill, New Providence. The respondent also sought delivery up of the Lot. Evans J heard the parties and made an Order that the appellant pay the sum owed to the respondent as well as cost. By Summons filed on the 25 August 2015, the Appellant applied for inter alia, an order pursuant to Order 20 rule 10 of the RSC 1978 known as the Slip Rule, varying the amount so as to reflect payments made by the appellant to the respondent between July 2007 to February 2013 and or alternatively for an order that the bank provide an accounting of the sums paid. The learned judge denied the appellant's application on the ground that the court was functus officio and ordered that the appellant pay the respondent's costs. The appellant now appeals on five (5) grounds inter alia, that the learned judge “erred and misdirected herself in fact and in law when she dismissed the Plaintiff's Order 20 r 11 application on the basis that court was functus officio”. This Court heard the parties and reserved its decision.

Held: the appeal is dismissed. It is the usual practice for the costs of the appeal to go to the successful party and that is the order we propose to make subject to any representations that the parties may wish to make in writing within one week of the pronouncement of this judgment. Should none be made, the costs of the appeal are those of the respondent.

In light of the cases of Barker and Hatton, I am satisfied that the Judge did retain the power to make a correction to Evans, J's order if it could be shown that such a correction was warranted. I understand the Judge's use of the term in the circumstances of this case where she has found that the appellant was seeking to totally alter the order made by Evans, J, that she was precluded from acting on that application. If the effect of the application was to alter the order the Judge would not be able to accede to the application. She would, in effect, be functus officio.

The key then is to know what the manifest intention of the Evans Order was. It is the view of the Court that it was intended to give effect to the plea contained in the OS; and that is precisely what it did. In the premises there is no slip, no accidental omission.

The Court is satisfied that had the Judge acceded to the appellant's application to correct the Evans Order, she would have fallen into the same error as the judge in Miller (Supra). Thus, the view expressed by the Judge that the avenue open to the appellant to seek relief was via an appeal, is not incorrect.

Mr. Justice Jon Isaacs, JA

Judgment delivered by The Honourable

1 The appellant appeals the decision of Madam Justice Indra Charles (“the Judge”) given on 27 May 2021, whereby she dismissed the appellant's application and awarded costs to the respondent. The appellant asks that we set aside the Judge's Order and that we correct an Order dated 2 July 2015, that had been made by Mr. Justice Milton Evans (“the Evans Order”). She also seeks costs.

2 The appellant's grounds of appeal are as follows:

“1. The Learned Judge erred in fact and law when she declined

to issue a written judgment.

2. The Learned judge erred and misdirected herself in fact and in law when she dismissed the Plaintiff's Order 20 r 11 application on the basis that court was funtus (sic) officio;

3. The learned judge erred and misdirected herself in fact and in law when she found that Order 20 r 11 did not give jurisdiction to the court to alter an order of the court and that the proper procedure was an appeal of the order;

4. The Learned judge found that the record of the court failed to disclose whether the judge took into consideration the evidence of the Appellant that the Appellant had made payments which were not reflected in the accounting. Having found that the record of the court was absent the transcript of the proceedings the judge ought to have concluded that on the available evidence the order contained an omission and ought to have directed that the record be supplemented to reflect the omission. The judge incorrectly held that that there was no accidental slip or error in circumstances where there was no transcript of the earlier proceedings available.

5. The Learned judge incorrectly found that Order 20 r11 application sought an entirely different order when the Appellant's evidence sought merely to correct a mathematical error in the order. Order 20 r 11 permits such an application to be made to correct mathematical error; the learned judge ought to have acceded to the Appellant's application and corrected the Order of Evans J to reflect the payments made by the Appellant.”

Background

3 The respondent filed an Originating Summons (“OS”) on 27 January 2015, seeking payment of $261,043.77, which, when broken down, represented $219,057.87 as principal, $41,927.90 as interest as of 22 September 2014 and $58.00 as add on charges. The sums being pursued by the respondent arose out of a mortgage made between the appellant and the respondent dated 16 June 2004; and a further charge made on 4 June 2007, over Lot Number 26A (“LN 26A”) of Boatswain Hill located in the Western District of New Providence. The respondent also sought delivery up of LN 26A.

4 The particulars contained in the OS provided pursuant to Order 73 rule 2 of the Rules of the Supreme Court (“the RSC”) were as follows:

(a) The date on which the loan was made was on the 25th June, A.D., 2007;

(b) The amount actually lent to the Defendant under the Loan was $176,057.00;

(c) The rate percent, per annum of interest charged 10.5% with interest continuing to accrue at a rate of $60.02 per diem.

(d) The date when the contract for repayment was made was on the 25th June, A.D., 2007;

(e) The amount repaid under the Loan is $122,519.12 of which $2,000.00 was applied to principal and $120,519.12 was applied to the interest;

(f) The amount due and unpaid under the loan is $261,043.77 and it is particularized as follows:-

(i) The principal balance of $219,057.87;

(ii) Interest Outstanding of $ 41,927.90;

(iii) Add-on-Charges of $58.00;

(g) The date upon which such unpaid sum or sums became due under the Loan was in or about 28th February, 2013.

(h) The amount of interest due as at the 22nd September, 2014 under the Loan is $41,927.90 which continues to accrue at the said rate of 10.5% per annum.”

5 The OS was supported by an affidavit sworn by Allan Butler, Manager of the respondent's Adjustment centre, Rosetta Street, Palmdale location. He gave a history of the mortgage relationship between the appellant and the respondent based largely on the records held by the respondent. He averred that the appellant went into default on 28 February 2013; that a letter of demand was sent to her through the respondent's attorneys demanding payment of the monies due under the mortgage and further charge; and despite the demand the appellant had not satisfied the loan. It was his evidence that the last credit to the loan account was made on 3 December 2012.

6 The appellant swore an affidavit on 4 May 2015 in response to Mr. Butler's affidavit and admitted borrowing monies from the respondent and to entering into a mortgage and further charge to secure the payment of said monies. At paragraph 4 iii and iv she admits getting a further charge of $166,000.00 from the respondent to build a house but decided to build a complex instead of just one house. She does not say that her change of intention was communicated to the respondent; and in fact, at paragraph 4 vi she specifically says that she did not notify the respondent of the changes because she thought that “all they would be concerned about is that the building was being built and that their money was being repaid”.

7 The appellant recounts her concern when it appeared that the respondent had ceased to debiting her account in 2008 and her interactions with one Ms. Rolle who in December 2008, telephoned her to advise that the respondent was requiring the appellant to pay the full amount to bring her account current. The appellant said that monies were on her account but the respondent had stopped debiting her account. As a result she went in and paid the respondent. Thereafter the respondent continued to debit her account.

8 The appellant averred that in December 2009, she went into the Bank and spoke to Ms. Rolle who told her to bring in the occupancy certificate. The appellant enquired of Ms. Rolle if the respondent would release a part of her property so she could sell it and pay...