RBO Advisors Company Ltd t/a RBO Advisors v Vidette Lobue Bell
| Jurisdiction | Bahamas |
| Judge | Madam Justice G. Diane Stewart |
| Judgment Date | 14 December 2022 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2020/CLE/gen/01226 |
and
BS 2022 SC 157
The Hon. Madam Justice G. Diane Stewart
2020/CLE/gen/01226
IN THE SUPREME COURT
COMMON LAW AND EQUITY DIVISION
Sharanna Bodie for the Plaintiff
Leon Bethell for the Defendants
By Summons filed 8 th February 2021, the Defendants seek that the judgment in default issued against them on 13 th January 2021 (the “Default Judgment”) be set aside and subsequently for a stay of the garnishee order made 25 th January 2021 (the “Garnishee Order”). They also seek an injunction restraining the Plaintiff, its servants or agents from executing on them any other similar order made in the Supreme Court in addition to an order for both the Plaintiff and themselves to file their respective statements of claim.
During the hearing to set aside the Default Judgment, a stay of the garnishee application was ordered until the hearing and determination of this application. Additionally, the Defendants were given leave to amend their summons to reflect their reliance on Order 19 rule 9 of the Rules of the Supreme Court (“RSC”) instead of Order 49 rule 2 of the RSC.
The grounds relied on by the Defendants were set out in the said Summons and the Affidavit of Ashan Wilson was filed on 8 th February 2021 in support of the application. The affidavit which also sums up the background of the substantive action. The Plaintiff was granted a judgment in default of defence on 13 th January 2021 for failure by the Defendants to serve a Defence. Judgment was entered against the Defendants in the amount of $33,790.85.
Thereafter, a Garnishee Order to Show Cause was granted by Deputy Registrar Carol Misiewicz on 25 th January 2021 and filed 27 th January 2021 ordering all debts due or accruing from Scotiabank (Bahamas) Limited, the Garnishee to the Defendants be attached to settle the judgment in default in the amount of $33,790.85
The Defendants aver that the Plaintiff had filed a Specially Endorsed Writ against the Defendants seeking damages for unpaid legal fees in the amount of $33,790.85 (Thirty-three thousand seven hundred and ninety dollars and eighty five cents) (the “Writ of Summons”). The unpaid legal fees related to the Plaintiff's alleged representation to fulfill the Bahamas Road Traffic's Department requirement for licensing the First Defendant's motor vehicle and the appropriate fees surrounding the same.
The Defendants are American citizens but are ordinarily resident in Governors Harbour, Eleuthera, one of the islands of the Commonwealth of The Bahamas. They allege that they were out of the jurisdiction when the Plaintiff served its Writ of Summons by email. The Plaintiff should or ought to have known that they were out of the jurisdiction, and in addition, the Defendant's counsel had informed the Plaintiff of the same. Notwithstanding, on 15 th January 2021, the Defendants' counsel filed a Defence and served it electronically on the Plaintiff and subsequently informed the Plaintiff that the Defendants were out of the jurisdiction and were expected to return in a few weeks.
On the afternoon of 15 th January 2021, the Defendants' Counsel was served with the Plaintiff's application for Judgment in Default dated 13 th January 2021 or thirteen days after the service of the Defendants Notice and Memorandum of Appearance which was filed 24 th December 2020. The Defendants' Counsel informed the Plaintiff that a Defence had been filed and served on their chambers and that there were triable issues to be heard on the merits.
The application for a judgment in default of defence was allegedly filed prematurely and was granted despite the Defence having being filed and served within the specified period. It was an interlocutory judgment which was never made final.
With respect to the legal work performed by the Plaintiff on their behalf, the Defendants aver that the Plaintiff failed to answer the dispute and failed to file an application for taxation before the Registrar of the Supreme Court. Additionally, the Plaintiff failed to detail a bill of costs setting out the scope of work which would amount to $33,790.85 and that the work was inconsistent with the retainer instructions.
The Defendants subsequently filed the affidavits of Vidette Lobue Bell on 3 rd March 2021 and 25 th March 2021 in support of their application for the Default Judgment to be set aside (the “Bell Affidavits”). By the Bell Affidavits, the First Defendant avers that she intended to show that they have a good defence which has a real prospect of success. She explained that she and her husband, the Second Defendant, had made plans to relocate to The Bahamas from California, one of the states of the United States of America after her husband was diagnosed with significant cerebral atrophy and was predisposed to cognitive dysfunction and dementia in early 2019.
His doctors advised her that they should relocate to another jurisdiction so that he could enjoy peace, quietness and relaxation to cope with his conditions. Prior to this, they had not lived in their former home in Malibu, California since 2018 as they had to abandon their home due to a wildfire that swept through their neighborhood in November 2018. They stayed at the Island House Hotel in October 2019 for a number of weeks. During their stay, the Second Defendant obtained medical care from Doctors Hospital.
In November 2019 they were informed of the sale of Sand Castle House in Exuma which they sought to purchase but in fact leased first to assess its suitability. They met and became acquainted with the Plaintiff, Mr. Ryan Brown (“Mr. Brown”) who offered to provide them legal services despite their having already retained counsel. They initially retained the Plaintiff to assist them with a criminal matter and another civil matter. He later befriended them, visited their home and pried into their personal business.
Mr. Brown became aware of their desire to purchase a motor vehicle, a house and a lot of land on the island of Eleuthera and represented that he could provide his legal services at a much cheaper rate than the attorney they had originally retained. She felt pressured and agreed however, she never signed an engagement letter to pay the Plaintiff the sum of 3 % or 4% of for any property transaction.
They then agreed for the Plaintiff to assist with the purchase of Lots #6 and #7 at Governor's Harbour, Eleuthera in the name of TGB Trust which is a trust company based in California and of which her husband is a beneficiary. Based on their prior communication with the Plaintiff, he should have known that her husband was not physically and mentally able to execute any legal and binding agreement without her assistance. However, the Plaintiff visited with her husband while she was not at home and engaged him to sign a retainer agreement without consulting her as her husband's guardian.
Once she became aware of the execution of the said retainer agreement, she contacted the Plaintiff and protested his actions. She later discovered that instead of paying a deposit in the name of TGB Trust as instructed by her and her husband, it was paid in her husband's name which she also protested as it was against her instructions. The Plaintiff also offered to assist her with registering her BMW motor vehicle. He informed her that it could not be registered in her name because she was a U.S. and not a Bahamian citizen. Therefore the vehicle needed to be and was registered in the Plaintiff's name.
She then sent him questions regarding the status of the work he had agreed to do. However, the Plaintiff became angry, failed to answer the questions as he claimed to have answered them already and stated that he would withdraw as counsel after her request to return their documents. The legal fees listed by the Plaintiff were outrageous and inconsistent with the inflated bill of costs provided to them for the little work that was done by him.
The First Defendant claims that she was forced to retain two additional attorneys to complete the property transactions and to receive the title deed and license plate from the Plaintiff. The Plaintiff had continued to send bills to her without doing any work and failed to explain his billing. Some of the communication the Plaintiff billed them for were forwarded emails containing jokes. She had advised her attorney that she was in Florida attending scheduled medical treatments when she was served with the Writ of Summons.
In response to the Defendants' application, the Plaintiff filed the detailed Affidavit of Ryan Brown on 16 th March 2021 in which he avers that the First Defendant was referred to him on 7 th December 2019 by Cynthia Brown who had reached out to his former coworker to find an attorney to represent the First Defendant in the Magistrate Court against claims that she had assaulted the Second Defendant by biting off his ear.
On the same day he spoke to the First Defendant and they agreed that his company RBO Advisors, would act on her behalf subject to the execution of a retainer agreement and the payment of the necessary legal fees. Because of an issue with her wire transfer his office was not paid until 13 th December 2019. Nonetheless, on 10 th December 2019 he travelled to Exuma and represented her in the Magistrate Court and also learnt that two civil matters were filed against her as well.
The First Defendant was granted bail however, because she was unable to facilitate the wire transfer at the time, he paid for her bail with the understanding that she would reimburse him. Upon her release on bail he was able to contact the landlord to have the Defendants re-enter the rental unit in which they were staying in order for them to retrieve their personal items....
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