Junkanoo Estates Ltd v UBS (Bahamas) Ltd

• Jurisdiction: Bahamas
• Judge: Madam Justice Charles, JA
• Judgment Date: 12 September 2024
• Neutral Citation: BS 2024 CA 114
• Docket Number: SCCivApp. No. 0049 of 2024
• Court: Court of Appeal (Bahamas)

Between

Junkanoo Estates Ltd

Yuri Starostenko

Irina Tsareva Starostenko

Intended Appellants

and

UBS (Bahamas) Ltd

(In Voluntary Liquidation)

Intended Respondent

Before:

The Honourable Madam Justice Charles, JA

The Honourable Mr. Justice Smith, JA

The Honourable Mr. Justice Turner, JA

SCCivApp. No. 0049 of 2024

IN THE COURT OF APPEAL

Civil appeal — Leave to appeal — Refusal of leave to appeal by trial judge — Test to be applied for leave to appeal — Reasonable prospect of success — Whether intended appeal raises issue which should in the public interest be examined or which requires clarification — Failure to apply for an extension of time within which to appeal — Rule 11 of the Court of Appeal Rules — Parts 11, 25, 26, 27 of the Civil Procedure Rules

On 14 July 2023 the court below gave a Directions Order which the intended appellants sought to appeal by Notice of Motion filed in the Supreme Court on 26 July 2023. On 6 December 2023, before the learned judge below had delivered her judgment on the appellants' Motion of 26 July 2023, the intended appellants sought leave to appeal the Directions Order from the Court of Appeal.

By judgment dated 1 March 2024 the judge below dismissed the Notice Motion and on 5 March 2024, this Court, likewise, dismissed the intended appellants' Motion on the basis that it was premature.

On 8 March 2024, the intended appellants filed the present application, seeking leave to appeal the Directions Order.

Held: application for leave to appeal dismissed. The Intended Appellants are to pay the costs of the Intended Respondent, to be taxed if not agreed.

In order for a court to grant leave to appeal, an applicant has to demonstrate that he has some realistic prospect of succeeding. The fact that a court has reached a clear view is not decisive of whether a challenge to its reasoning is arguable. On the contrary, it is a matter of judgment on an all-encompassing approach which is exercised without thorough re-argument of the same points as led to the judgment. The proposed grounds of appeal need to be considered by the court in exercising this judgment. However, it goes without saying that if there is no ground of appeal raised which has a reasonable prospect of success, leave to appeal must be refused. The court should then consider whether it is appropriate in all the circumstances of the case for the discretion to be exercised to grant leave. Discretion can only arise if there is some arguable basis of appeal.

With respect to the prospect of success of the intended appeal, there is no basis for this Court to conclude that the learned judge either applied the wrong principles, took into account matters which she should not have taken into account or omitted matters which she ought to have considered in making the Directions Order. Consequently, this Court is unable to find that the learned judge exercised her discretion in such a manner that warrants appellate interference. Further, the proposed grounds of appeal do not address any issue of significance and will only result in delay and increased costs.

There is no issue of public interest or points of law which need clarification to justify the grant of leave to appeal to the Intended Appellants.

Rule 11(1) of the Court of Appeal Rules provides that the appeal from an interlocutory order must be filed within fourteen days. In the present case, the intended appeal ought to have been filed by 28 July 2023. Not having filed this intended appeal within time, the intended appellants ought to have applied for an extension of time within which to appeal and leave to appeal. No application for an extension of time has been made.

Junkanoo Estate Ltd and others v UBS Bahamas Ltd (In Voluntary Liquidation) [2017] UKPC 8 considered

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

Maria Iglesias Rouco and another v Juan Sanchez Busnadiego and another [2022] 2 BHS J No. 160 considered

Maria Iglesias Rouco and anor. v Juan Busnadiego and anor. [2021] 1 BHS J. No. 52 considered

Old Fort Bay Property Owners Association Limited v Old Fort Bay Co. Ltd. [2022] 1 BHS J. No. 10 mentioned

Practice Direction (Court of Appeal: Leave to Appeal and Skeleton Arguments) [1999] 1 WLR 2 applied

Smith v. Cosworth Casting Processes Ltd. (1997) 4 All ER 840 applied

APPEARANCES:

No appearance by and on behalf of the First Intended Appellant Second and Third Intended Appellants Pro Se

Mr. Marco Turnquest with Ms. Chizelle Cargill, Counsel for the Respondent

Madam Justice Charles, JA

Judgment delivered by the Honourable

1 . By Notice of Motion filed on 26 July 2023 in the Supreme Court, the Intended Appellants sought leave to appeal or reconsider a Directions Order made by the Honourable Madam Justice Carla Card-Stubbs on 14 July 2023 (“the Directions Order”) in Supreme Court Actions 2014/CLE/gen/01620 and 2015/CLE/gen/01451(“the Supreme Court Actions”).

2 . In a written Judgment delivered on 1 March 2024 (“the Judgment”), the learned judge dismissed the Notice of Motion holding that the application to reconsider the Directions Order which had already been heard is misconceived. For the leave to appeal application, the learned judge held that the Intended Appellants must demonstrate that they have a realistic prospect of success which they have failed to do. She also found that the Intended Appellants failed to demonstrate that she wrongly exercised her discretion.

3 . Before the learned judge delivered the Judgment, on 6 December 2023, the Intended Appellants filed in this Court (SCCivApp. No. 204 of 2023) seeking leave to appeal the Directions Order. On 5 March 2024, this Court dismissed the 6 December Application for prematurity. Shortly thereafter, on 8 March 2024, the Intended Appellants filed the present application seeking leave to appeal the Directions Order (“the 8 March Application”).

4 . The 8 March Application is supported by an Affidavit filed on 22 January 2024 termed “Affidavit Evidence of Fraud”, an Affidavit filed on 13 March 2024 headed “Summarized Evidence” which referred to a number of other affidavits, as well as the First, Second and Third Skeleton Arguments filed on 22 January 2024, 05 March 2024 and 07 May 2024 respectively. In a nutshell, the Intended Appellants assert that the judge failed to comply with the requirements of the Supreme Court Civil Procedure Rules, 2022 (“the CPR”) for the purpose of setting down a case management conference and fixing a trial date.

5 . The Intended Respondent (for convenience, “UBS”) relied on the Affidavit of Lena Bonaby filed on 17 January 2024 and their Submissions opposing the application for leave to appeal filed on 7 May 2024 which superseded their previous written submissions filed on 17 January 2024.

6 . For the reasons which are set out below, I would dismiss the 8 March 2024 Application for leave to appeal the Directions Order and order the Intended Appellants to pay UBS' costs, to be taxed if not agreed.

Background facts

7 . The facts, relevant to this application, was that, on 14 July 2023, the Intended Appellants and representatives for UBS appeared before the learned judge at a case management hearing in the Supreme Court Actions (“the 14 July hearing”). At the time of the 14 July hearing, the Intended Appellants had twenty-four (24) outstanding interlocutory applications and UBS had one (1) outstanding application. UBS' application sought leave to market for sale the Lyford Cay Property (“the Property”) owned by the Intended First Appellant (“Junkanoo”) (“the Marketing Application”).

8 . In the Directions Order, the learned judge made certain directions ordering the Marketing Application to be set down for hearing on 8 December 2023. She also scheduled three (3) of the Intended Appellants' outstanding applications namely (i) for an injunction restraining the sale of the Property; (ii) for possession of the Property and (iii) for permission to re-enter the Property, to be heard at the same time because they were all related.

9 . On 26 July 2023, the Intended Appellants filed a Notice of Application in the Supreme Court seeking leave to appeal the Directions Order (“the 26 July Application”).

10 . On 6 December 2023, the Intended Appellants filed an Application for Leave to Appeal in the Court of Appeal (“the 6 December Application”) also seeking leave to appeal the 14 July Directions Order.

11 . On 1 March 2024, the Intended Appellants' 26 July Application for leave to appeal the 14 July Directions Order was dismissed.

12 . On 5 March 2024, this Court also dismissed the 6 December Application for leave to appeal the 14 July Directions Order for prematurity.

13 . On 8 March 2024, the Intended Appellants filed the 8 March Application in this Court seeking leave to appeal the 14 July Directions Order.

The Judgment in the Court below

14 . The learned judge dismissed the Intended Appellants 26 July Application for leave to appeal the Directions Order finding that the grounds of appeal were unmeritorious and had no prospect of success. In doing so, she relied on her case management powers as contained in the CPR to actively manage cases and fixing a timetable for the disposal of interlocutory applications. She stated:

• “32. It is a court's duty to actively manage a case and fixing a timetable for the disposal of interlocutory applications is (sic) a part of that duty.

• 33. Part 25, Rule 25.1 provides for some of the activities that a Court may undertake in furthering the overriding objective by actively managing cases….”

15 . In paragraphs 39 to 40, the learned judge sets out the general approach of the court in exercising its power to grant leave to appeal.

16 . Continuing, the learned judge observed, amongst other things that:

• “42. … [I]t is not enough for the Applicant to show that they would have preferred a different direction or that a different...