Little Bay Partners LLC v Besing Shores Ltd

• Jurisdiction: Bahamas
• Judge: Mr. Justice Smith, JA
• Judgment Date: 07 March 2024
• Neutral Citation: BS 2024 CA 31
• Docket Number: SCCivApp. No. 54 OF 2023
• Court: Court of Appeal (Bahamas)

BETWEEN

Little Bay Partners LLC

Appellant

and

Besing Shores Ltd.

Respondent

BEFORE:

The Honourable Mr. Justice Evans, JA

The Honourable Mr. Justice Smith, JA

The Honourable Mr. Justice Turner, JA

SCCivApp. No. 54 OF 2023

IN THE COURT OF APPEAL

Civil appeal — Costs — Costs follow the event unless special circumstances warrant a departure from the usual rule — Partial success on appeal — Issue based approach to the award of costs

On 6 February 2024 the Court delivered its substantive judgment, allowing the appeal in part. The issue of costs was reserved. The appeal required the Court to determine three issues and the Respondent was successful on two of the three issues.

Held: Appellant to pay 85% of the Respondent's costs both here and below, to be taxed if not agreed.

Rubis Bahamas Ltd. v Lillian Antoinette Russell SCCivApp. No 86 of 2022 applied

Swart et al v Appollon Metaxides, Silver Point Condominium Apt SCCivApp. No. 78 of 2012 considered

APPEARANCES:

Mr. Brian Simms, KC with Mr. Valdere Murphy, Counsel for the Appellant

Mrs. Gail Lockhart-Charles, KC with Mrs. Syann Thompson-Wells, Counsel for the Respondent

DECISION ON COSTS

Delivered by the Honourable Mr. Justice Smith, JA :

1 . This is a reserved ruling on the issue of costs.

2 . In the substantive action, the Respondent claimed, inter alia, the return of the deposit of USD $480,000.00 that it had paid in respect of an agreement for the sale of land in Harbour Island. The Appellant counterclaimed for the forfeiture of the deposit.

3 . The Supreme Court judge found for the Respondent and in summary, ordered the return of the deposit plus related expenses and interest. The counterclaim of the Appellant was dismissed. The Appellant was also ordered to pay the costs of Respondent.

4 . On appeal, we affirmed the order of the trial judge, save for the payment of the related expenses which were claimed as special damages.

5 . The Appellant therefore succeeded in part on its appeal.

Some General Principles

6 . The statutory requirement for ordering costs in the Court of Appeal has been set out in the case of Rubis Bahamas Ltd. v Lillian Antoinette Russell SCCivApp. No 86 of 2022 (delivered on 11 December 2023) where Sir Michael Barnett, P cited the following:

“ 10. The statutory regime for ordering costs in this Court is as follows:

Court of Appeal Rules, 2005

24. (1) In relation to an appeal, the court shall have all the powers and duties as to amendment and otherwise of the Supreme Court.

…

(5) The Court may make such order as to the whole or any part of the costs of an appeal as may be just, and may, in special circumstances, order that such security shall be given for the costs of an appeal as may be just.”

Supreme Court Act

“ 30. (1) Subject to this or any other Act and to rules of court, the costs of and incidental to all proceedings in the Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge and the Court or judge shall have full power to determine by whom and to what extent the costs are to be paid.”

7 . Further, since this action was commenced before the date of commencement of the Civil Proceedings Rules, the former 1978 Rules of the Supreme Court would apply. (see the Civil Proceedings Rules, section 4 “Savings and transitional.”)

8 . In that case, Order 59 of Rules of The Supreme Court (1978) would apply and, as Sir Michael Barnett, P stated at paragraph 11 of the Rubis Bahamas case cited above, citing Isaacs, JA in Swart et al v Appollon Metaxides, Silver Point Condominium Apt SCCivApp. No. 78 of 2012 (22 October 2018), the Court of Appeal would “ generally have regard to the practice that obtains in the Supreme Court. In my view, this makes estimably good sense.”

9 . Further, in the Rubis Bahamas case, the following is stated at paragraph 13:

“ 13. It is settled law that costs are at the discretion of the court. It is generally accepted and the authorities confirm that this...