James Fleck v Pittstown Point Landings Ltd

• Jurisdiction: Bahamas
• Judge: Evans, JA
• Judgment Date: 05 March 2019
• Neutral Citation: BS 2019 CA 25
• Court: Court of Appeal (Bahamas)
• Date: 05 March 2019
• Docket Number: SCCivApp & CAIS No. 242 of 2017

IN THE COURT OF APPEAL

Before:

The Hon Sir Hartman Longley, President, Kt

The Hon Mr Justice Barnett, JA

The Hon Mr Justice Evans, JA

SCCivApp & CAIS No. 242 of 2017

James Fleck

David Wishneski

Appellant

and

Pittstown Point Landings Limited

Respondent

Ms Glenda Roker (holding brief on behalf of Mr V. Alvred Gray), Counsel for First Appellant

No appearance by or on behalf of the Second Appellant

Mr Leroy Smith, Counsel for Respondent

Civil practice and procedure - Application for restoration of an appeal that was struck out — Whether there was a good reason for restoring the matter — Delay.

1 (Application for Restoration)

2 The oral judgment of the court was delivered by

Evans, JA

3 This is an application by the first appellant, James Fleck. There was on record a second appellant, who we understand is no longer represented by counsel who appears this morning, and so we have no application from him as far as we are concerned.

4 The record was settled on 23rd June, 2018, and the record was to be filed within 30 days of that date. To date there has not been a record produced. As a result, the appeal was struck out on 23rd July, 2018. This is an application now for restoration. It is supported by an affidavit filed on 23rd October, 2018 sworn by one Mario Gray.

5 We have reviewed the affidavit, and we have heard counsel in this matter on behalf of the proposed appellant.

6 We can see no good reason disclosed in the affidavit or that was submitted by counsel that would satisfy us that this matter should be restored. We are not quite clear as to why there was a need for the transcript (which has been given as the reason for the delay in putting together the record).

7 Also, it is quite clear that the 30 days expired and there was no application made to extend the period prior to that.

8 Finally, the application is only now being made to us (filed 23rd October 2018), and there is really no good excuse for that delay as well.

9 In all of the circumstances, we find that (as I have already indicated) there is really no good reason for us to grant the application. The application is therefore dismissed.

10 We award costs to the respondents, to be taxed if not agreed.

Dated this 5th day of March, 2019

EVANS, JA