Fairway Property Managers Inc. v Bimini Bay Homeowners Association Ltd
| Jurisdiction | Bahamas |
| Judge | Kristina Wallace Whitfield |
| Judgment Date | 11 March 2024 |
| Neutral Citation | BS 2024 CA 34 |
| Docket Number | SCCivApp. No. 44 of 2023 |
| Court | Court of Appeal (Bahamas) |
Kristina Wallace Whitfield, Registrar
SCCivApp. No. 44 of 2023
IN THE COURT OF APPEAL
Civil appeal — Taxation — Authority of counsel to appear in taxation proceedings
The Court granted two costs orders in favour of the intended respondents. The Bills of Costs were filed and a date for taxation set. At the taxation hearings, counsel for the intended appellant raised preliminary objections relative to the authority of counsel for the intended respondents to act on behalf of the first and third through eleventh intended respondents. Counsel for the intended respondents submitted that the preliminary objections ought to be dismissed and the Bills of Costs taxed.
Held: Preliminary objections dismissed.
Taxation proceedings are not the appropriate forum for counsel for the intended appellant to attempt to litigate the issue of counsel for the intended respondents' authority, or lack thereof, as counsel for the intended respondents appeared in the Court of Appeal on behalf of the intended respondents and no objection was taken to their appearance. Further, no application was made to stay the proceedings pending a determination of counsel for the intended respondents' authority to act on behalf of their clients.
The Taxing Master is entitled to rely on and proceed on the basis that by commencing the taxation proceedings on behalf of the intended respondents, counsel warranted that they had the requisite authority to commence the taxation proceedings, unless and until the contrary had been shown.
Zoya Ltd. v Ahmed (trading as Property Mart) [2017] Ch 127 considered
Mr. Keod Smith, Counsel for the Intended Appellant
Mr. Kevin Moree with Mr. Devaughn Rolle, Counsel for the First and Second Intended Respondents
Mrs. Krystal Rolle, KC with Ms. Kendrea Demeritte, Counsel for the Third to Eleventh Intended Respondents
. Pursuant to costs orders dated 30 May 2023 and 12 July 2023 the first and second intended respondents filed Bills of Costs dated 29 August 2023 and 12 October 2023. The October Bill of Costs was amended on 30 November 2023. The third through eleventh intended respondents filed their Bills of Costs on 14 August 2023.
. The Bills of the third through eleventh intended respondents were set for taxation on 8 December 2023 while the Bills of the first and second intended respondents were set for taxation on 11 December 2023. At each of those hearings, counsel for the intended appellant raised a preliminary objection which, he submitted, prevented the taxation of the Bills of Costs. In summary, the objections related to the authority of Mrs. Rolle, KC and Mr. Moree to act on behalf of the first and third through eleventh intended respondents. I dismissed the preliminary objections with written Reasons for Decision to follow and I proceeded to tax the four Bills of Costs. My reasons for the dismissal of the preliminary objection are as follows.
. The first and second intended respondents are the Homeowners' Association and Developer, respectively, of Bimini Bay, while the third through eleventh intended respondents are nine of eleven sub associations of the parent Homeowners' Association.
. The intended appellant:
“ 7. …is the owner of a single unit in Bimini Bay being Unit 41033 in Bimini Bay Phase 1-C-41 (“Phase 1-C4”). Phase 1- C4 was not a plaintiff in the proceedings in the court below and as such Unit 41033 was not a unit represented by the 3rd through 11th intended respondents 1.”
. The background to the action which gave rise to the costs orders may be gleaned from the headnote of the Court's substantive judgment and is as follows:
“ The 3 rd through 11 th respondents commenced an action seeking to enforce certain property rights as against the 1 st and 2 nd respondents. The matter was set down for hearing. Prior to the hearing date, the parties reached an agreement on the issues before the court and agreed to prepare a Consent Order to reflect their agreement. The Consent Order was signed on 21 March 2022 by the learned judge below and filed on 22 March 2022. The Consent Order addressed all of the relief sought by the 3 rd through 11 th respondents.
On 21 March 2022 the intended appellant, an owner of a unit in Bimini Bay, but not a unit represented by the 3 rd through 11 th respondents, filed a Summons, seeking to be added as a party to the Supreme Court action. At the hearing of the Summons a preliminary objection was taken on the ground that the Supreme Court was functus officio. The preliminary objection was upheld and the intended appellant's application was dismissed.
The intended appellant sought leave to appeal below; that application was refused and the application for leave to appeal was renewed in this Court.”
. The application for leave was listed for hearing before the Court on 30 May 2023. On that date Mrs. Rolle, KC and Ms. Kendrea Demeritte appeared for the third through eleventh intended respondents and Mr. Moree appeared for the first and second intended respondents. The intended appellant had not served its submissions on the intended respondents and the matter was adjourned. Counsel for the intended respondents sought the costs of the adjournment. The Court awarded the intended respondents the costs thrown away by that day's adjournment, to be taxed if not agreed, and the application for leave was adjourned to 19 June 2023.
. On 19 June 2023, again, Mrs. Rolle, KC and Ms. Kendrea Demeritte appeared for the third through eleventh intended respondents and Mr. Moree appeared for the first and second intended respondents, respectively. At the hearing of the substantive application, both Mrs. Rolle, KC and Mr. Moree made submissions before the Court. The Court reserved its decision and delivered judgment on 12 July 2023, denying the application for leave to appeal and awarding costs to the intended respondents.
. The intended respondents duly filed their Bills of Costs and, as noted, the Bills were set for hearing on 8 and 11 December 2023, respectively. By letters dated 30 November 2023 counsel for the intended appellant advised as follows:
“ We have been instructed by Mr. John Grunow of Fairway Property Managers Inc. (“Fairway”) to request of the Court an adjournment of the upcoming Taxation of the Bills of Costs as he has been diagnosed yesterday evening with COVID which is highly unlikely to clear up such that he would (sic) in a position on behalf of Fairway to attend to the matters related to two Bills of Costs both filed herein by Messrs. Rolle & Rolle on 14th August 2023 [filed herein by Messrs. McKinney Bancroft & Hughes on 29 th August 2023 and 12 th October 2023], the Court's Notice of which was emailed to us last Friday.
We have been told that Mr. Grunow, who resides in Key Largo, Florida, is not able to make the 2 hours' drive to the Bahamas Consulate in Miami, Florida to swear an Affidavit addressing this request or to be able to review and respond to the respective Affidavits complete attending to this request made last evening.
In the meantime, our Client has also instructed us to ask the Court to require respective Directors of the 3rd through 11th Intended Respondents [Directors of the 1st Intended Respondents, Bimini Bay Homeowners Associations Ltd (“BBHAL”)], in pursuance of, inter alia, Rules 35(2), 35(4), 35(7), 35(9), 35(10) and 35(12)(e) of the Court of Appeal Rules as well as Registrar's duty to ensure that the party who claims that it is receiving costs in relation to the filed Bill of Costs, do produce Affidavit Evidence sworn to by each of them that they, as Boards of Directors of juridical entities, had met and resolved to engage Messrs. Rolle and Rolle led by Mrs. Krystal Rolle KC [sworn to by the Board of Directors of BBHAL as a juridical entity, had met and resolved to engage Messrs. McKinney Bancroft & Hughes led by Attorney Mr. Kevin Moree] and instructed that firm and Attorney to defend as against Appeal No. 44 of 2023, incur professional charges that are recoverable by that Attorney as set out in the said Bills of Costs .
While we hope for Mr. Grunow's speedy recovery, we would be grateful if the Court would accommodate Fairway (sic) request for adjournment as well as the Affidavit evidence requested.” [Emphasis added]
. By letter dated 4 December 2023, Mrs. Rolle, KC responded as follows:
“ We hereby acknowledge receipt of the letter from Mr. Keod Smith on behalf of the Intended Appellant seeking to adjourn the Taxation of the 3 rd through 11 th Intended Respondents' Bills of Costs scheduled for Friday 8 th December, 2023.
For the reasons set out below, we vehemently object to the adjournment of the Taxation of the 3 rd through 11 th Intended Respondents' Bills of Costs and respectfully invite the Registrar to proceed with these Taxations as duly scheduled.
First and foremost, as is evident from the Judgment of the Court and the Certificate of the Order of the Court dated 12 th July, 2023, the Court has directed that the Intended Appellant pay the Costs of the 3 rd through 11 th Intended Respondents and the Registrar is thereby mandated to Tax those costs. The Intended Appellant has no ability whatsoever to prevent...
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