Rawson McDonald v Rawson McDonald & Company

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeMadam Justice Crane-Scott, JA
Judgment Date31 October 2022
Neutral CitationBS 2022 CA 148
Docket NumberSCCivApp No. 94 of 2017
Between
Rawson McDonald
First Applicant/Appellant
and
Rawson McDonald & Company
Second Applicant/Appellant

and

Paul R. Major
Respondent
Before:

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

The Honourable Sir Brian Moree, JA

SCCivApp No. 94 of 2017

IN THE COURT OF APPEAL

Civil Appeal — Appeal dismissed for failure to comply with Registrar's settling Order — Application to restore appeal — Application to extend time for filing record of appeal — Exercise of Court's discretion — Meaning of “good and sufficient cause” — Factors for consideration on application for extension of time — Rules 9(1)(b) and 14(4) and (5) of the Court of Appeal Rules, 2005 — Interpretation and General Clauses Act, Ch. 2 — Computation of Time

In 2017, the Applicants/Appellants filed an appeal against the Judgment of a Supreme Court judge who found them liable to the Respondent in breach of contract and ordered damages to be assessed by the Registrar of the Supreme Court. The liability appeal was lodged within the statutory deadline for appeals and in due course of time, the proceedings went before the Registrar of the Court of Appeal for the record to be settled. The parties appeared before the Registrar who made the usual orders for the filing of the record within a specific period and for the payment of the bond for due prosecution of the appeal.

While the bond was paid as directed, the Applicants/Appellants failed to comply with the requirements of rule 13(3) of the Court of Appeal Rules, 2005 (“the Rules”) in relation to the preparation and filing of the record. The record was ostensibly filed some 4 days late.

According to a notation on the Registry file, the Registrar of the Court of Appeal certified the fact of the Applicants/Appellants' non-compliance to a judge who ordered that the appeal stood dismissed in accordance with rule 14(1) of the Rules.

Following the dismissal of the appeal, the Registry prepared a Notice of Dismissal in the prescribed form and arranged to have the same served upon the Applicants/Appellants. The prescribed Notice of Dismissal was served upon them. After learning of the dismissal, the Applicants/Appellants applied to the Court by Motion under rule 14(4) of the Rules seeking an order under rule 14(5) of the Rules for their liability appeal to be restored and an extension of time under rule 9(1) of the Rules relative to the non-compliant record of appeal.

For reasons which are still unclear, the Motion was not listed for hearing by the Court of Appeal. In the meantime, the Respondent proceeded to have their damages assessed before the Deputy Registrar of the Supreme Court pursuant to the judgment on liability for breach of contract that they had obtained.

Following the assessment, the Applicants/Appellants filed an appeal against the assessment (“the assessment appeal”) and renewed their efforts to have their dismissed liability appeal restored. To this end, on 15 September 2022, they filed an Amended Motion seeking, inter alia, restoration of their liability appeal as well as an extension of time to comply with the requirements of rule 13(3) of the Rules regarding the non-compliant record.

The Amended Motion came on for hearing before the Court and was vigorously opposed by the Respondent. After hearing arguments, the Court reserved its decision.

Held: The appeal against the liability judgment given in the court below on 6 March 2017 is restored. The application for an extension of time within which to file the record of appeal is also allowed. In consequence, the record of appeal filed by the Appellants on 7 th June 2017 shall stand as the record at the hearing of the liability appeal. The Registrar shall further cause both appeals to be set down for hearing together.

In our judgment, the Applicants/Appellants have provided good and sufficient cause to convince the Court that notwithstanding the exceedingly lengthy time which has elapsed since the appeal was dismissed, there are a preponderance of circumstances in this particular case that have inclined this Court in the interests of justice to exercise our discretion in favour of the restoration of the appeal.

We further exercise our discretion under rule 9(1) of the Rules and extend the time within which the record of appeal ought to have been filed.

When considering an application to restore or re-enter a dismissed appeal, some of the matters that may be taken into account include, a. whether the applicant filed its application to restore or re-enter the appeal as soon as possible after it was dismissed or struck out; b. whether the applicant gave a good and sufficient explanation for his non-appearance or for his failure to comply with a Registrar's order or with the Court's Rules; c. whether the respondent would be prejudiced by the restoration or re-entry of the appeal; and d. whether the appeal has any prospect of success to justify its restoration. All of these matters are weighed to determine whether it is in the interests of justice to re-enter or restore the appeal.

Finally, as this Court has said on countless occasions, there are four factors to be considered on an application for extension of time within which to appeal, namely a. the length of the delay, b. the reason for the delay, c. the prospect of success, and d. the prejudice, if any, to the respondent.

Aidan Richard Sherry v The Queen [2013] UKPC 7; applied Al-Medenni v. Mars UK Limited, EWCA Civ 1041; mentioned Archibald Minnis v. Henry Taylor and Linda Cartwright, SCCivApp No. 2 of 2019; considered Calderon v. Calderon, (1992) 43 WIR 159; applied

Darlene Allen-Haye v. Keenan Baldwin and anor, SCCivApp. No. 186 of 2019; mentioned

Derek G. Turner et al v. Edward B. Turner et al, SCCivApp No. 170 of 2013; mentioned Dwight A. Major and Keva Major v The Attorney General, SCCrApp No. 34 of 2007; considered Eden Butler v. Island Hotel Company Limited, SCCivApp. No. 210 of 2017; mentioned Gaydamak and anor v. UBS Bahamas Ltd and anor, (2006) 68 WIR 1; applied

Grimshaw v Dunbar, [1953] 1 QB 408; mentioned

Kendal W. Nottage and Commonwealth Bank Limited, SCCivApp No. 43 of 2016; considered Levine v. Barnett, SCCivApp No. 140 of 2010; considered

Rana v Rana, 2020 ABCA 295; considered

R v Lesser (1939) 27 Cr. App. R. 69; considered

Scotiabank (Bahamas) Limited v. Pinder, SCCivApp. No. 73 of 2021; mentioned

Skybahamas Airlines Ltd v. Southern Air Charters Co, SCCivApp 221 of 2017; considered Specialty Management Group Limited and Graeme Moran, SCCivApp. No. 131 of 2018; considered

Turtle Creek Investments Limited and Daybreak Holdings Limited, SCCivApp No. 234 of 2018; considered

Tyson Strachan v. Albany Resort Operator Ltd, SCCivApp. No. 67 of 2021; mentioned

Appearances:

Mr. Charles Mackay for the Applicants/Appellants

Mrs. Hope Strachan for the Respondent

Delivered by the Honourable Madam Justice Crane-Scott, JA :
Introduction and Background
1

On 13 April 2017, the Applicants/Appellants filed a Notice of Appeal against the Judgment of the Honourable Deborah Fraser J., handed down in the Supreme Court on 6 March 2017 whereby the judge found the First Appellant liable to the Respondent for breach of contract. Additionally, the learned judge ordered damages to be assessed by the Registrar of the Supreme Court and further ordered the Applicants/Appellants to bear 50% of the Respondent's costs together with the costs of the Third Party to be taxed, if not agreed.

2

The appeal (hereinafter referred to as “the liability appeal”) was filed within the statutory deadline for appeals, and in due course of time the proceedings went before the Court of Appeal's Registrar for the settling of the record. The parties appeared before the Court of Appeal's Registrar on 3 May 2017 and the usual orders were made for the preparation and filing (within 30 days) of the record of appeal and for the payment of the bond for due prosecution of the appeal.

3

The bond was paid on 31 May 2017 as directed. However, the Applicants/Appellants failed to comply with the requirements of rule 13(3) of the Court of Appeal Rules, 2005 (hereinafter referred to as “the Rules”) in relation to the preparation and filing of the record of appeal. The record was filed on 7 June 2017, which was ostensibly 4 days beyond the 30-day deadline fixed in the Settling Order.

4

On 9 June 2018 (according to a notation seen in the Registry file), the Registrar certified the fact of the Applicants/Appellants' apparent non-compliance to a judge of the Court who ordered that their liability appeal stood dismissed in accordance with rule 14(1) of the Rules.

5

Following the dismissal of the appeal, the Registry prepared a Notice of Dismissal in the prescribed form dated 12 July 2018 and arranged for notice to be given to the Applicants/Appellants. The Notice was served on the Applicants/Appellants on or about 26 July 2018. On receiving notice of the dismissal of their appeal, the Applicants/Appellants filed a Motion on 7 August 2018 pursuant to rule 14(4) and (5) of the Rules (along with a supporting affidavit) seeking restoration of the appeal and an extension of time under rule 9(1) of the Rules relative to the non-compliant record of appeal.

6

For reasons which remain unclear, the Applicants/Appellants' Motion for restoration of 7 August 2018 has never been listed for hearing before the Court of Appeal. In the meantime, on 29 August 2018, the Respondent proceeded to have their damages assessed before the Registrar of the Supreme Court pursuant to the Judgment on liability which they had obtained.

7

The assessment proceedings were eventually completed on or about 2 December 2021, when Deputy Registrar Misiewicz certified the sum of $232,556.50 as the amount due to the Respondent as damages for breach of contract.

8

On 11 January 2022, the Applicants/Appellants filed a Notice of Appeal (on Court of Appeal file...

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