Maurice Clive Russell v Mark E. Munnings

• Jurisdiction: Bahamas
• Judge: Madam Senior Justice Deborah Fraser
• Judgment Date: 28 July 2023
• Docket Number: 2023/CLE/gen/00345
• Court: Supreme Court (Bahamas)

BETWEEN

Maurice Clive Russell

Claimant

and

Mark E. Munnings (In his capacity as Judicial Trustee of the Assets of the late STANFORD GUSTAVUS OUTTEN also known as Standord Gustavous Outten, Gus Outten, Gustavious Outten or Big Jew)

First Defendant

and

Tiphaney C. Russell (In her capacity as Assistant Judicial Trustee of the Assets of the late Stanford Gustavus Outten also known as Stanford Sustavous Outten, Gus Outten, Gustavious Outten or Big Jew)

Second Defendant

and

Bradley Outten also known as Brad Outten (As Executor of the estate of the late STANFORD GUSTAVUS OUTTEN also known as Stanford Sustavous Outten, Gus Outten, Gustavious Outten or Big Jew)

Third Defendant

and

Marjorie Outten (In her capacity as Personal Representative of the Estate of the late STANFORD GUSTAVUS OUTTEN also known as Stanford Sustavous Outten, Gus Outten, Gustavious Outten or Big Jew)

Fourth Defendant

Before:

Her Ladyship The Honourable Madam Senior Justice Deborah Fraser

2023/CLE/gen/00345

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

COMMON LAW AND EQUITY DIVISION

Application to extend interim injunction — Rule 17.(1)(b), (e) and (h)(ii) and (iii) of the Supreme Court Civil Procedure Rules, 2022 — Interim Injunction — Serious Issue to be tried — Balance of Convenience — Adequacy of Damages — Special Factors to be considered — Interim Orders

Appearances:

Ms. Lisa Clarke-Esfakis for the Claimant

Mrs. Michaela Ellis for the First and Second Defendants

No Appearance for the Third Defendant

Ms. Terrel Butler for the Fourth Defendant

1 This is an application brought by Mr. Maurice Clive Russell (“ Claimant)” for an extension of an interim injunction made on 22 May 2023 and a request for further interim orders.

Background

2 By an Order made on 13 July 2021 in the Consolidated Supreme Court Action of the late Standford Gustavus Outten (also known as Standord Gustavous Outten, Gus Outten, Gustavious Outten or Big Jew)(“Deceased”), Mr. Mark E. Munnings (“ First Defendant)” was appointed the Judicial Trustee of the Deceased's estate and Ms. Tiphaney C. Russell was appointed to assist the First Defendant in his duties as Judicial Trustee (“Second Defendant” and collectively, “ Judicial Trustees”). By virtue of the Judicial Trustees' appointments, they were empowered to make all inquiries in an effort to locate and secure all assets in the Deceased's estate.

3 During the course of the Judicial Trustees' duties sanctioned by the court, various entities (such as banks, insurance companies and governmental agencies) were contacted in an effort to ascertain the true ownership of several assets in the Deceased's estate. A report relating to such findings was subsequently made and submitted to the court in compliance with the Judicial Trustees' duties to keep the court apprised of all dealings/inquiries relating to the Deceased's estate.

4 During the Judicial Trustees' management of the Deceased's estate, the Claimant asserted ownership of a 2007 Kenworth Orange Truck bearing the VIN No. #3WKDAB8X8F171619 (“ Kenworth Truck)” and the 2007 International White Semi Truck bearing the VIN No. #2HSCNCR27C386483 (“White Truck” and collectively, “ Trucks”).

5 Despite these assertions, information gathered by the Judicial Trustees from the Government of The Bahamas revealed that the Deceased was the owner of Trucks for the purposes of his business formerly known as “Gus Outten Trucking”.

6 It was established that the Claimant did import the Kenworth Truck, but that it was subsequently sold to the Deceased through a Bill of Sale. This was confirmed from the records of Department of Road Traffic which revealed that the Deceased possessed a license, insurance and registration in relation to the Kenworth Truck.

7 Attorneys who purportedly represented the Claimant approached the Judicial Trustees and demanded delivery of one of or both of the Trucks to the Claimant. The Judicial Trustees informed the attorneys that transfer of ownership of the Trucks was not within their purview and that they would need to approach the Supreme Court for a determination of the true ownership of the Trucks (as there were competing ownership claims). The Trucks were listed in the Will of the Deceased and, as mentioned above, government records reflected that the Deceased was indeed the true owner.

8 By sanction of the court, the Judicial Trustees sought to sell the assets of the Deceased (including the Kentworth Truck) in efforts to settle the statement of accounts of the Deceased's estate.

9 Consequently, the Claimant filed an Application without Notice supported by a draft Order on 18 May 2023, inter alia, for an injunction preventing the sale of the Trucks.

10 On 22 May 2023, an interim injunction (“ Interim Injunction)” was granted in the following terms:

“ IT IS HEREBY ORDERED AND DIRECTED that:

a. The Defendants, individually and jointly, or by their agents or servants or otherwise and howsoever be restrained from posting, selling or transferring or otherwise dealing with or disposing of the 2007 Kenworth Tractor Truck (VIN #3WKDAB8X87F171619) vehicle and the 2007 International 9400 Semi Truck (VIN #2HSCNSCR27C386483) vehicle, for a period of twenty-eight (28) days from the date of this order or until the further order of this Honorable Court.

b. The Defendants immediately notify the Claimant of the location of the 2007 Kenworth Tractor Truck (VIN# 2HSCNSCR27C386483) vehicle.

c. The Claimant is hereby granted leave to inspect the 2007 Kenworth Tractor Truck (VIN#3WKDAB8X87F17619) vehicle and the 2007 International 9400 Semi Truck (VIN# 2HCNSCR27C386483) vehicle, to ascertain their current condition and state.

d. The Claimant do file a Claim in the Supreme Court of The Bahamas within fourteen (14) days from the date of this order;

e. The Claimant to file an Affidavit in this cause exhibiting evidence of ownership of the said 2007 Kenworth Tractor Truck VIN#3WKDAB8X87F171619) vehicle and the 2007 International 9400 Semi Truck (VIN# 2HSCNSCR27C386483) vehicle on or before 25 May 2023.

f. The Claimant do personally serve each of the Defendant with this order, the Affidavit in Support and with notice of the date and time on which the court will further consider this application.”

11 The Interim Injunction then expired (as it only remained in effect for twenty-eight days). Consequently, on 09 June 2023, the Claimant filed a Notice of Application requesting the following:

“ (a) An Order that the Defendants, whether individually or collectively, or by their agents or servants or otherwise and howsoever be restrained from posting, selling or transferring or otherwise dealing with or disposing of the 2007 Kenworth Tractor Truck (VIN#3WKDAB8X87F171619) vehicle and the 2007 International 9400 Semi Truck (VIN# 2HSCNSCR27C386483) vehicle

(b) An interim Injunction Order that the Defendants, whether individually or collectively, or by their agents or servants or otherwise and howsoever be restrained from accessing, dissipating, distributing or otherwise using any proceeds of sale or rental income derived from the sale and or rental of the 2007 Kenworth Tractor Truck VIN#3WKDAB8X87F171619) vehicle and the 2007 International 9400 Semi Truck (VIN# 2HSCNSCR27C386483) vehicle, for a period of twenty-eight (28) days from the date of this order or until the further order of this Honourable Court.

(c) An Order that the Defendants immediately notify the Claimant of the location of the 2007 Kenworth Tractor Truck VIN#3WKDAB8X87F171619) vehicle and the 2007 International 9400 Semi Truck (VIN# 2HSCNSCR27C386483) vehicle;

(d) An Order granting the Claimant access to inspect the 2007 Kenworth Tractor Truck VIN#3WKDAB8X87F171619) vehicle and the 2007 International 9400 Semi Truck (VIN# 2HSCNSCR27C386483) vehicle, to ascertain their current condition and state of disrepair.

(e) An Order that the Claimant do file a Claim in the Supreme Court of The Bahamas within fourteen (14) days from the date of this order;

(f) That a date be fixed for the further consideration of this application;

(g) That the Claimant do personally serve each of the Defendants with this order, the Affidavit in Support and with notice of the date and time on which the court will further consider this application.

(h) An Order that the Court make any order as to costs that it considers just in relation to any order made in this application.”

ISSUE

12 The issue that this Court must decide is whether the Court ought to grant the interim orders sought by the Claimant?

Claimant's Evidence

13 The Claimant filed the Affidavit of Maurice Clive Russell (“ Russell Affidavit)” where he provides that: (i) he is the proprietor of Maurice Russell t/a MLR Earthmoving & Heavy Equipment in New Bight, Cat Island and is a veteran in the heavy equipment business with twenty-three years' experience; (ii) he is the owner of the Trucks; (iii) He met the Deceased in or about 2001 and they began business together as they both owned heavy equipment businesses and used their respective equipment for various projects; (iii) an oral agreement was made between the Claimant and the Deceased whereby the Deceased agreed to allow the Claimant to use the Deceased's property to store the Claimant's heavy equipment in Nassau, The Bahamas; (iv) the Claimant's heavy equipment was used by the Deceased (with consent from the Claimant) on various projects and the Deceased would share the profit with the Claimant; (v) the Deceased would assist in the sale and lease of the Claimant's equipment; (vi) the business arrangement between the Claimant and the Deceased was known to the Deceased's family; (vii) the Claimant purchased the Trucks as part of his heavy equipment business; (viii) On 02 November 2017, the Claimant imported the Kenworth Truck (information relevant to such importation is exhibited) and stored it on the Deceased's property; and (ix) the Claimant...