Kevin Nigel Andrews v Scotiabank (Bahamas) Ltd

• Jurisdiction: Bahamas
• Judge: Madam Justice Ruth Bowe-Darville
• Judgment Date: 16 January 2020
• Court: Supreme Court (Bahamas)
• Docket Number: 2017 CLE/GEN/00954

Between

Kevin Nigel Andrews

Plaintiff/Respondent

and

Scotiabank (Bahamas) Limited

Defendant/Applicant

Before:

Honourable Madam Justice Ruth Bowe-Darville

2017 CLE/GEN/00954

IN THE SUPREME COURT

Common Law & Equity Division

Strike Out Summons — Order 18 Rule 19 RSC — Fraud — Res judicata

Appearances:

Candace Hepburn for the Applicant

Edward Turner for the Respondent

The Applicant (the ‘Bank’) herein has brought this application seeking to have the claim of Mr. Andrews (the ‘Respondent’) struck out.

Background

1 The Respondent commenced the current action against the Bank claiming that it has falsely found that he owes money on a mortgage to it and that as a consequence of fraud committed against him by the Bank, it was granted vacant possession of his Gamble Heights apartments (the ‘Gamble Heights property’) by the Court. The Bank's position is that the Respondent has unsuccessfully pursued his claim previously and should not be allowed to do so again. Further, it contends that the equitable doctrine of res judicata does not allow the Respondent to bring a new claim. The Bank has brought the current application to this Court asking that this matter be struck out pursuant to Order 18 Rule 19 of the Rules of the Supreme Court.

2 Order 18 Rule 19 of the Rules of the Supreme Court states the following:

The Court may at any stage of the proceedings make an Order to be struck out or amend any pleading or indorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that—

• a. it discloses no reasonable cause of action or defence, as the case may be;

• b. it is scandalous, frivolous or vexatious; or

• c. it may prejudice, embarrass or delay the fair trial of the action; or

• d. it is otherwise an abuse of the court process .

3 Counsel for the Bank advised the Court that while retrieving mortgage documents in relation to the matter at hand it was discovered that there was a previous action between the parties ( Scotiabank (Bahamas) Limited v Kevin Nigel Andrews 2013/CLE/gen/01922), (the ‘2013 action’). She submitted that the Respondent pleaded in his Defence allegations of fraud in the 2013 action which he seeks to do in the current matter before the Court.

4 The Strike Out application was filed on the 18 ^th April 2019 via Summons by the Bank in the following terms:

“LET ALL PARTIES CONCERNED attend…on an application by the Defendant for an Order pursuant to Order 18, Rule 19 of the Rules of the Supreme Court, 1978 to strike out the Writ of Summons filed herein on the grounds that: (i) it is scandalous, frivolous or vexatious and (ii) it is otherwise an abuse of process AND THAT costs of the application and proceedings be borne by the Plaintiff and paid to the Defendant in any event to be taxed if not agreed.”

5 The claim that the Bank is asking the Court to strike was commenced by generally endorsed Writ of Summons on the 16 ^th August, 2017. In it the Respondent claims the following:

• 1. A Declaration that the alleged Mortgage and Certificate of Up-Stamping dated 5th day of April, A.D. 2007 and 15th August, 2007 and recorded in Book 10883 at pages 538 to 556 between the Plaintiff and the Defendant in respect of Lot number 75 should be set aside as fraudulent and void as against the Plaintiff .

• 2. A Declaration that the Plaintiff if (sic) entitled to the Mortgaged property discharged from all claims under the Mortgage .

• 3. An order for the delivery up of the Mortgage to be cancelled .

• 4. Delivery by the Defendant to the Plaintiff of Possession of the Mortgage property .

• 5. An Injunction to restrain the Defendant whether by himself his servants or his agents or otherwise howsoever from assigning the benefit of the Mortgage or of the debts purported to be secure or from doing any act which the Mortgage debts or any one or more of them might become vested in any other person or persons on the faith of the execution by the Plaintiff of the Mortgage .

• 6. Damages.”

• …

6 Indeed, the 2013 action was between the same parties to the current action and was last heard before Hilton, J. for a Stay of the Writ of Possession that the Bank obtained for the Gamble Heights property. I gratefully adopt the history of this matter as set out in the ruling dated the 21 ^st February, 2018.

• 1. This matter came before me by the Defendant filing a Summons on 20 ^th November 2017 supported by an Affidavit of even date seeking the execution by Writ of Possession of the Order made by Evans, J. dated 3 ^rd November 2014 be stayed .

• 2. The Plaintiff contested the Defendant's Summons and filed an Affidavit on 16 ^th January 2018 setting out the history of the matter and requested that the Defendant's Summons be dismissed with costs .

  HISTORY

• 3. This matter commenced with the Plaintiff filing an Originating Summons supported by an Affidavit seeking a judgment for outstanding monies due and owing to the Plaintiff by the Defendant under a Mortgage and possession of the property the subject of the Mortgage .

• 4. The matter was heard by Justice Milton Evans who granted an Order in favour of the Plaintiff on 3rd November 2014 for judgment in the sum of $164,518.17; possession of the property to the Plaintiff, and costs to the Plaintiff

• 5. The Plaintiff obtained a Writ of Possession filed on 27 ^th August 2015 .

• 6. The Defendant applied to the Court of Appeal on 17th August 2016 for an extension of time within which to appeal which was heard by the Court of Appeal who gave its ruling on 29th May 2017 refusing the Defendant's application stating at page 55 of the ruling that

  “we also find that the prospects of success are not good None of the grounds, in our view, have any merit…”

• 7. The Defendant thereafter filed the Summons specified in paragraph one of this ruling .

7 In his Statement of Claim, in this matter, filed on the 14 ^th November, 2017 the Respondent set out his claim:

• 1. The Plaintiff was at all material times the legal owner of Lot number Seventy-five (75) in Block Number One (1) situate in the Subdivision known as “Gamble Heights”, New Providence .

• 2. The Defendant is and was at all material times a Company incorporated under the Statute Laws of the Commonwealth of The Bahamas engaged in the business of Banking throughout the said Commonwealth .

• 3. By an agreement made between the Plaintiff and the Defendant and contained in a Promissory note dated 4 ^th April, 2007 the Defendant agreed to lend the Plaintiff sum of Fifty Five Thousand Dollars ($55,000.00) upon the grant of an equitable charge by way of deposit of the Plaintiff's Title documents to the said Lot number Seventy five (75) in Block One (1) situate in the Subdivision known as “Gamble Height”. The terms of repayment was as follows:

  “the sum of $746.38 on the 27 ^th day of May 2007 and Thereafter 179 equal installments of B$554,26 on the 27 ^th day of each consecutive month, until the principal, interest accrued thereon and all other amounts are paid in full.”

• 4. Pursuant to the terms of the said agreement and in consideration of the said advance in the sum of $55,000.00, the Plaintiff deposited his title deeds to the said property with the Defendant's Palmdale Branch on or about February 2007 .

• 5. As custodian of the Plaintiffs title deed, subject only to the said advance of $55,000.00 the Defendant owed the Plaintiff fiduciary duties, including:

  • (1) a duty to act in good faith and in the best interest of the Plaintiff for the preservation of the Plaintiff's title deeds and the Plaintiff's equity of redemption;

  • (2) a duty not to act so as to enlarge its encumbrance over the Plaintiff's title deeds and the Plaintiffs equity of redemption without any lawful basis for so doing and in the absence of the Plaintiffs knowledge or consent

• 6. The Plaintiff received the said advance of $55,000.00 from the Defendant which was disbursed to the Plaintiffs order as follows:

  • (a) Twenty Seven Thousand Dollars ($27,000.00) to liquidate a loan at Royal Bank of Canada .

  • (b) Twenty Seven Thousand Nine Hundred and Twenty Two ($27,922.00) was left on deposit at Scotiabank Palmdale Branch for the use of the Plaintiff .

• 7. Pursuant to the terms of the Promissory note, the Plaintiff repaid the said Loan which was confirmed by the Defendant servant or agent in June, 2015 when the Plaintiff returned to Nassau from Jamaica to enquire about the foreclosure procedure on the said lot #75. The Plaintiff fully discharged his indebtedness to the Defendant

• 8. On the 31 ^st October 2011 the Plaintiff approached the Defendant for a new loan facility in the amount of Eighty Thousand Dollars ($80,000.00) to complete three (3) one bedroom Apartments that he was adding to his existing apartment building. The Plaintiffs application for the new loan was never completed and the Plaintiff received no additional funds or advances from the Defendant on security of the Plaintiffs said property or at all. The Plaintiff left Nassau for Jamaica from the summer of 2012 to June 2015 .

• 9. On or about June 2015 when the Plaintiff returned from Jamaica to Nassau the Plaintiff requested the release and delivery to him of his Title documents to Lot #75 Gamble Heights. At this time, the Defendant's agent informed him that not only was there a legal Mortgage on the said property in the amount if Fifty Five Thousand Dollars ($55,000.00) but also a Certificate of Up-stamping dated 15 ^th August, 2007 on the said Mortgage in the amount of Eighty Thousand ($80,000.00) .

• 10. That Plaintiff has never executed a Mortgage dated 5 ^th April, 2007 nor did he authorize the Certificate of Up-stamping of the Mortgage in respect of Lot number 75 Block one (1) situate in the Subdivision known as Gamble Heights. Further, the Plaintiff avers that he never received the benefit...