Gateway Ascendancy Ltd v Cutell Louise Miller

• Jurisdiction: Bahamas
• Judge: Mr. Justice Neil Brathwaite
• Judgment Date: 07 June 2023
• Docket Number: 2014/CLE/gen/1755
• Court: Supreme Court (Bahamas)

IN THE MATTER of property comprised in a Mortgage dated the 5 ^th day of January, A.D, 2010 between Cutell Louise Miller and Scotiabank (Bahamas) Limited of record in the Registry of Records in the City of Nassau in the Island of New Providence in Volume 10991 at pages 270 to 285,

AND IN THE MATTER of the Conveyancing and Law of Property Act, Chapter 138 of lie Revised Statute Laws of the Commonwealth of The Bahamas.

Between:

Gateway Ascendancy Ltd.

Plaintiff

and

Cutell Louise Miller

Defendant

Before The Hon Mr. Justice Neil Brathwaite

2014/CLE/gen/1755

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

COMMON LAW AND EQUITY DIVISION

Appearances:

Candice Hepburn for the Plaintiff

Rouschard Martin for the Defendant

DECISION

FACTUAL SUMMARY

1 On 19 ^th January 2015 Scotiabank obtained an Order for vacant possession of a property at Lot Number 1372 in the subdivision known as Golden Gates Estate Section Two Addition situate in the Western District of the Island of New Providence, which was the subject of a mortgage between

the Defendant and Scotiabank. That mortgage was transferred to Gateway Financial Limited and then Gateway Ascendancy Limited, who thereafter obtained an Order on 30 ^th October 2019 substituting Gateway Ascendancy Limited for the Scotiabank as Plaintiff in the matter. That Order was provided to counsel for the Defendant, who was advised of the intention to seek a Writ of Possession, and who requested time to take instructions. A Writ of Possession was then obtained, and was served on the Defendant by the Deputy Provost Marshall on 25 ^th November 2020, along with the Order authorizing substitution and enforcement.

2 There followed discussions with the Defendant via counsel with a view to seeking alternate financing arrangements. Those efforts were not successful, and in February 2021 the Defendant was again advised of the intention to proceed with enforcement. New defence counsel then came in to the matter, and further discussions ensued. Again those discussions were not fruitful, and the Deputy Provost Marshall attempted to take possession of the subject property on 26 ^th March 2021 by changing the locks on the premises. The Defendants personal effects were subsequently removed and placed in storage.

3 By Summons filed 26 ^th March 2021 the Defendant seeks the following Order:

• 1. Pursuant to Order 45 (11) of the Rules of the Supreme Court (RSC rules) and the inherent jurisdiction of the Court granting to the Defendant a stay of execution of the Order hereinafter mentioned pending the determination of the other relief sought under this Summons.

• 2. Setting aside the Order made herein on the 30th October, 2019 (the Order) and the Plaintiffs Writ of Possession issued on the 6th October, 2020 and filed on the 14th October, 2021 on the ground that the Plaintiff as substituted party has no right of enforcement in this action subsequent to the Judgment or Order of the Court granted upon or in respect of the Originating Summons herein, AND there being nothing to be done in this action.

• 3. Striking out Gateway as substituted party on the ground that there is a) nothing left in this action to be done; b) Gateway has no right of enforcement; and c) and pursuant to Order 18, r. 19 of the Rules of the Supreme Court, that Gateway's presence in this action is an abuse of the process.

• 4. that the Plaintiff shall pay the Defendant's costs of this application to be taxed if not agreed.

DEFENDANT'S CASE

4 The Defendant submits that the Plaintiff as substituted has no right of enforcement of the judgment debt in this action, as a party may only be substituted after judgment as long as there is something left to be done, such as assessment of damages, but not inclusive of enforcement, and cite Attorney General v. Corporation of Birmingham (1880) 15 Ch. D., 423.

5 The Defendant also cites Northern Electric Co. Ltd. v. Turko (1959) B.C.J. No. 27, in which the plaintiff entered judgment by default against the defendant. A third party paid the judgment debt and the judgment creditor assigned the judgment to him and applied for him to be substituted in the action in place of the assignor. Collins J, dismissed the application and stated that the said Rule did not permit an assignee of a judgment debt to be substituted as the judgment creditor in a judgment already drawn up and entered.

6 The Defendant relies on Canadian Imperial Bank of Commerce v. Garneu (1986) 1 B.C.L.R (2d) 53 (S.C.) in which Southern J, relying on Attorney-General v. Corporation of Birmingham (1880) 15 Ch. D. 423 (C.A.), ruled that persons or parties could not be added after a final judgment or order, and remarked at p.8:

“2. Generally, parties cannot be added after judgment. See Attorney-General v Corporation of Birmingham (1882)… in which Jessel MR, James and Brett L.JJ concurring, stated at p. 425:

“A statement of claim or bill cannot be amended after final judgment. If it becomes necessary to enforce that judgment against persons who have acquired a title after it was made, an action must be brought for that purpose…….”

7 The Defendant suggests that Royal Bank of Canada v. Olson (1990) b.c.j. no. 359 (s.c.) supports the same principle, as in that case an application to have the assignee of the judgment of Royal Bank against the defendant substituted as the plaintiff was rejected on the basis that the rules for substitution and adding of parties do not apply after judgment. The Defendant therefore submits that there could be no substitution, and therefore no enforcement, after judgment.

8 The Defendant also submits that the Plaintiff required leave obtain a Writ of Possession, as a party had changed, and that such required leave was not obtained, and relies on Order 46 rule 2 (1) (b) which reads as follows:

2 (1) A writ of execution to enforce a judgment or order may not issue without the leave of the Court in the following cases, that is to say —

(a) where six years or more have elapsed since the date of the judgment or order;

(b) where any change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the judgment or order.

9 The Defendant therefore submits that the Order for substitution should not have been granted, but that even if it was properly made, leave was required before obtaining a Writ of Possession. They submit that as such leave was not sought, the Writ of Possession was irregularly obtained, and should be set aside.

10 The Defendant cites RSC Order 15, rule 8 (5) which states the following in reference to Order 15, rule 8 (2): Any application to the Court by a person served with an Order made ex parte under this rule for the discharge or variation of the Order must be made within 14 days after the service of the order on the person.”

11 The Defendant therefore submits that the ex parte Order of the 30th October, 2019 was required to be personally served on the Defendant to allow her an opportunity to be heard, but that she was not served with the Order. The Defendants further submit that there was no question of the Order for substitution being appealed, as the order was made ex parte with no right to be heard by the Defendant, and in such circumstances the Court of Appeal has stated that such orders should be the exception rather than the rule, and cite the decision of the Court of Appeal in Annishka Missick aka Annishka Hanchell v Larell R.L. Hanchell SCCivApp. No. 87 of 2020 at paragraph 10 which reads as follows:

“10. Unless there was an immediate threat of harm to the safety and welfare of the children it is difficult to apprehend the basis for making the Order without any notice to the mother. I adopt the observation of Mostyn J in Re W (minors) [2016] EWHC 2226 (Fam) in relation to an ex parte non molestation order where he said:

‘It has been stated time and again that ex parte relief of this nature must be very much the exception rather than the rule because it offends a fundamental principle of natural justice which is that judicial decisions should be made after having heard both sides. Lord Hoffmann has described the principle of Audi Alteram Partem as “salutary and important” but I would go further and say that it is a virtually indispensable ingredient of the administration of justice which can only...