Re Coutts and Company (Nassau) Ltd (in Voluntary Liquidation)

JurisdictionBahamas
CourtSupreme Court
JudgeFraser, J
Judgment Date24 Oct 2016
Docket NumberCLE/gen/0667

Supreme Court

Fraser, J.

CLE/gen/0667

Coutts and Company (Nassau) Limited (In Voluntary Liquidation), Re:
Appearances:

Mrs. Tara Cooper-Burnside for the respondent

Mr. Craig Butler for the applicant

Legislation:

Order 66 Rule 33 of the Rules of the Supreme Court of Bahamas

Commercial Law - Certificate of taxation — Whether Registrar had the authority under its inherent jurisdiction to set aside the certificate of taxation having considered the evidence presented — Evidence showed there was a vast discrepancy in the amounts being taxed —Registrar had authority to set aside the certificate of taxation — Objection in limine could have been raised at the hearing — Allowing objection four years after the Registrar's decision and after applicants participated in a taxation amounted to an abuse of process.

Fraser, J
1

A summons was filed on the 13th October 2011, on the part of Coutts and Company (Nassau) Limited (In Voluntary Liquidation (“respondent”) for a review of the decision of the Deputy Registrar to allow the items and sums set forth in the respondent's objections to Taxation filed on the 23rd day of September, 2011.

BACKGROUND
2

When the parties first appeared before this Court in April 2015, the intention was to deal with the summons of 13th October, 2011. However, at the time Counsel for the applicants (Anser Ali, Patrona Ali and Aleya Ali) raised a point in limine.

3

Counsel for the applicants submits that the certificate of Taxation granted on the 30th November 2010, and filed on the 1St day of December A.D. 2010, (the first certificate) must remain and the certificate granted to the respondents (the second certificate) must be set aside as the respondent's summons used to set aside the first certificate was procedurally flawed and the Registrar had no inherent jurisdiction to hear the application to have it set aside.

4

Both counsel provided written submissions on the point and I reserved my ruling in that regard. I regret that I have only now been able to provide the ruling in this regard.

5

In support of this application Counsel for the applicants submits that once the first certificate was perfected, the Registrar had no inherent jurisdiction to hear the summons or to set aside the Certificate as the inherent jurisdiction cannot be pleaded as the authority in a summons to move the Court. It was further submitted that Counsel for the respondent did not seek to have the certificate set aside on the basis of an irregularity for example where they were not aware of the proceedings or of the date when the hearing was to take place; or there was a clerical error in the Order. Once the Certificate was perfected the Registrar had no inherent jurisdiction to hear the summons to set aside the certificate and was functus officio. ( Belgravia International Bank and Trust Company Ltd and another v. CIBC Trust Company Bahamas Ltd. et al. SCCir v. App and Cais No. 189 of 2011 SCCir App and Cais No. 155 of 2012 SCCir App and Cais No. 27 of 2012), Family Guardian Insurance Company v. Dixon 2010 CLE/gen/01638 (were cited in this regard). Counsel argues that the only option open to Counsel for the respondent was to seek a review of the Order.

6

Counsel further submitted that the attorneys for Coutts and Co (the respondent) cannot seek to rely upon an irregularity as in this case there was none. The affidavit evidence of Pavia Crossgill filed by Coutts and Company states that the firm of Higgs and Johnson was not aware of the Taxation and the matter was heard in their absence.

7

Counsel submits however that this is contradicted by the evidence of Antonia Marva Saunders filed on the 15th December 2010 by the applicants who stated that Counsel for the respondent was in attendance on the date that the matter had been adjourned by the Registrar to the 20th day of October A.D., 2010. However, on the 20th October 2010, Counsel for the respondent did not appear.

8

The evidence of Antonia Marva Saunders further states that the Firm of Higgs and Johnson was contacted by telephone by the secretary of the Deputy Registrar and the matter was adjourned to the 10th November, 2010 and it was not necessary for counsel for the applicants to send a written notice of the adjourned hearing to Counsel for Coutts and Company. Also, it was not necessary considering that the Registrar proceeded having been satisfied that notice had been given to the attorney for Coutts and Company to attend on the adjourned date.

9

It is Counsel's for the applicants submission that where counsel elects not to attend and the Court proceeds in their absence then they cannot take advantage of their own wrong and you must accept the consequences of the deliberate action. Further that Counsel has not provided an explanation to the court as to why she was not present. ( Preston Bankers Co. v. William Allseys and Sons Ltd (1891–1894) ALL ER. Rep. 688. Regina v. Cripps Ex part Muldon and others (1984) QB. 686.

10

Finally, Counsel for the applicant advanced the argument that under Order 66, Rule 33 Rules of the Supreme Court is mandatory and no review shall take place once the Certificate of Taxation has been signed.

11

In response to the point in limine Counsel for the respondent, firstly submits that on the 10th November 2010 the applicants were seeking to have the remainder of a Bill of Cost of the 10th November 2004, pursuant to the decision of the Court of Appeal taxed...

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