Fairway Property Managers Inc. v Bimini Bay Homeowners Association Ltd

• Jurisdiction: Bahamas
• Judge: Mr. Justice Isaacs, JA,Sir Michael Barnett, P
• Judgment Date: 12 July 2023
• Neutral Citation: BS 2023 CA 98
• Docket Number: SCCivApp. No. 44 of 2023
• Court: Court of Appeal (Bahamas)

BETWEEN

Fairway Property Managers Inc.

Intended Appellant

and

Bimini Bay Homeowners Association Limited (1)

Rav Bahamas Limited (2)

Bimini Bay Phase 1-A2 Condominium Association Limited (3)

Bimini Bay Phase 1-A3 Condominium Association Limited (4)

Bimini Bay Phase 1-B1 Condominium Association Limited (5)

Bimini Bay Phase 1-B2 Condominium Association Limited (6)

Bimini Bay Phase 1-B3 Condominium Association Limited (7)

Bimini Bay Phase 1-B4 Condominium Association Limited (8)

Bimini Bay Phase 1-C1 Condominium Association Limited (9)

Bimini Bay Phase 1-C2 Condominium Association Limited (10)

Bimini Bay Phase 1-C3 Condominium Association Limited (11)

Intended Respondents

BEFORE:

The Honourable Sir Michael Barnett, P

The Honourable Mr. Justice Isaacs, JA

The Honourable Mr. Justice Evans, JA

SCCivApp. No. 44 of 2023

COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

Civil appeal — Application for leave to appeal an interlocutory order — Test to be applied on a leave to appeal application — Application for an extension of time — Consent Order — Setting aside a Consent Order — Whether the court became functus officio after signing the Consent Order — Rules 9 and 27 of the Court of Appeal Rules

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.

By its draft Notice of Appeal the intended appellant sought the following: 1) an Order of certiorari quashing the decision of the court below; 2) an Order setting aside the Consent Order; 3) costs and 4) further or other relief.

Held ( Barnett, P. concurring): Applications for leave to appeal and for an extension of time are denied. Costs in this Court and in the court below are to be paid by the intended appellant to the intended respondents, such costs to be taxed if not agreed.

per Isaacs, JA: On a leave to appeal application the test is “whether the proposed appeal has realistic prospects of success or whether it raises an issue that should in the public interest be examined by the court or whether the law requires clarifying… Where the application is for leave to appeal from an interlocutory order, additional considerations arise: (a) the point may not be of sufficient significance to justify the cost of an appeal; (b) the procedural consequences of an appeal (e.g. loss of the trial date) may outweigh the significance of the interlocutory issue; (c) it may be more convenient to determine the point at or after trial. In all such cases leave to appeal should be refused.”

On the issue of certiorari, the Rules of the Supreme Court, Order 53 outlines the manner in which an application for certiorari may be made.

The Consent Order was signed by the judge on 21 March 2022. At that date the court became functus officio and the judge did not err in so concluding.

None of the intended appellant's proposed grounds of appeal has any prospects of success and leave to appeal is denied. In light of the Court's denial of the intended appellant's application for leave to appeal, consideration of the application for an extension of time is unnecessary; but, for the sake of completeness, the extension of time application is also denied.

per Barnett, P: The decision of the judge to dismiss the application by the intended appellant to be added as a defendant was a proper exercise of his discretion and the proposed appeal has no prospects of success.

The respondents, who were the parties to the action in the court below, resolved the action by consent. The judge cannot be faulted for refusing to join the intended appellant as a defendant to an action which had already been resolved by the parties to that action.

Almazeedi v Penner and another [2018] UKPC 3 distinguished

Apollon Metaxides v Swart et al And Silver Point Condominium Apartments v Swart et al. [2015] UKPC 32 applied

Junkanoo Estates Limited et al v UBS (Bahamas) Ltd. SCCivApp. No. 24 of 2018 considered

Keod Smith v Coalition to Protect Clifton Bay SCCivApp No. 20 of 2017 considered

Millar v Dickson [2001] UKPC D4; [2002] 1 WLR 1615 considered

Practice Note (Court of Appeal: procedure) [1999] 1 All ER 186 considered

Salomon v Salomon [1897] AC 22 mentioned

Stubbs et al v The Queen [2018] UKPC 30 distinguished

APPEARANCES:

Mr. Roushcard Martin with Mr. Keod Smith, Counsel for the Intended Appellant

Mr. Kevin Moree, Counsel for the 1 ^st and 2 ^nd Intended Respondents

Ms. Krystal Rolle, KC with Ms. Kendrea Demereitte, Counsel for the 3 ^rd to 11 ^th Intended Respondents

Judgment delivered by the Honourable Mr. Justice Isaacs, JA :

1 . The intended appellant applies to this Court for leave to appeal an interlocutory order of Mr. Justice Neil Brathwaite (“the Judge”) delivered on 14 March 2023, wherein the Judge dismissed an application made by the intended appellant to set aside a Consent Order and to entertain an application to join it as a party to the action.

Background

2 . The 3 ^rd through 11 ^th intended respondents commenced an action by Originating Summons filed in the Supreme Court on 22 October 2021, seeking, inter alia, the enforcement of certain rights that each owner of property within Bimini Bay has by virtue of their respective conveyances as well as certain obligations of the 1 ^st and 2 ^nd intended respondents imposed by the Declaration of Covenants for Bimini Bay and the Articles of Association of the 2 ^nd intended respondent. The issues for the Court's determination in the 3 ^rd through 11 ^th intended respondents' action were questions of law with little, if any, disputes of fact.

3 . The 1 ^st through 11 ^th intended respondents appeared before Sr. Justice Indra Charles (as she then was) on 16 February 2022, for a case management hearing at which time directions were given to the 1 ^st through 11 ^th intended respondents and the Originating Summons was set down for hearing for 21 March 2022.

4 . Prior to the hearing date of 21 March 2022, the 1 ^st through 11 ^th intended respondents reached an agreement on all of the issues and relief prayed for by the Originating Summons and thereafter entered into a Consent Order which embodied the terms of the parties' agreement. The Consent Order was signed by the parties and by Sr. Justice Charles on 21 March 2022. The Consent Order was then filed on 22 March 2022. The Consent Order disposed of all relief prayed for by the 3 ^rd through 11 ^th intended respondents' Originating Summons, as well as the issue of costs.

5 . On 21 March 2022, the intended appellant filed a Summons seeking to be added as a party to the Supreme Court action. An Amended Summons was filed on 17 May 2022, and on 8 July 2022, a Re-Amended Summons was filed. The Re-Amended Summons sought the following:

1. Fairway be joined as a party to the Supreme Court Action;

2. Mrs. Krystal Rolle, KC be disqualified from acting as Counsel for the Sub-Associations;

3. The Consent Order be struck out;

4. The execution of the Consent Order be stayed; and

5. Wasted costs be paid to Fairway by counsel for the Sub-Associations and RAV and BBHOA on a solicitor and client own full indemnified basis or, alternatively, by the Sub-Associations and RAV and Bimini Bay Homeowners Association (BBHOA) on a party-party basis.

6 . The application for joinder was made pursuant to Rules of the Supreme Court Order 15 rule 6 which provides:

“ 6. (1) No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

(2) At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application —

(a) order any person who has been improperly or unnecessarily made a party of who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) order any of the following persons to be added as a party, namely —

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter,

but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.

(3) An application by any person for an order under paragraph (2) adding him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest...