Real Estate Funding Ltd v Jagger

JurisdictionBahamas
CourtSupreme Court
JudgeMeeres
Judgment Date12 Jun 2013
Docket NumberCLE/gen 1325 of 2004

Supreme Court

Meeres, D.R.

CLE/gen 1325 of 2004

Real Estate Funding Limited
and
Jagger
Appearances:

Kahlil Parker for the plaintiff

Elliot Lockhart along with Gia Moxey for defendant

Civil practice and procedure - Costs — Whether the Bill of Costs were served out of time — Court to consider if delay was reasonable — Delay found to be reasonable — No reason to file the Bill of Costs out of time.

Meeres, DEPUTY REGISTRAR

FACTS
1

This is an application by the plaintiff for an Order pursuant to Order 3 Rule 5 of the Rules of the Supreme Court, 1978, and under the inherent jurisdiction of the Court that the Taxation proceedings upon the defendants' Bill of Costs filed herein on the 30th January, 2012, served upon the plaintiff out of time on the 4th February, 2013 and without the requisite Notice of Intention To Proceed be dismissed or adjourned sine die pending an application by the defendant for leave to serve the said Bill of Costs and proceed thereupon out of time.

2

This matter was commenced by a Generally Indorsed Writ filed on the 22nd day of December, 1988.

3

By an Order made by the Honourable Sir Michael Barnett, Chief Justice on the 2nd November, 2011, it was ordered that the plaintiff do pay to the defendant 85% of its taxed costs.

4

The Notice of Taxation and the Bill of Costs were filed on January 30th, 2012.

5

A sworn Affidavit of Alexandria P. Fernander, Legal Assistant with Cedric L. Parker & Co. was filed on the plaintiff's behalf on the 6th May, 2013. The plaintiff submits that;

  • (a) Counsel for the plaintiff was served with the defendant's Bill of Costs, filed on the 30th day of January A.D. 2012, on the 4th day of February A.D. 2013.

  • (b) Counsel for the plaintiff was served with notice that a date had been fixed for the taxation of the defendant's Bill of Costs by letter from Counsel for the defendant received on the 27th day of February, 2013.

  • (c) The plaintiff has not been served with notice that the defendant has sought, or secured, the necessary leave to serve, or proceed upon, the Bill of Costs out of time.

  • (d) As is stated in the face of the defendant's Bill of Costs, the Order pursuant to which the defendant has prepared her Bill of Costs was made and dated the 2nd November, 2011, over a year before the said Bill of Costs was served upon the plaintiff. The defendant's Bill of Costs was filed on the 30th January, 2012, again over a year before it was served upon the plaintiff.

6

Counsel for the defendant has submitted that proceedings have commenced when the Bill of Costs and other documents were filed on 30th day of January, 2012 which was within the three (3) months period as per Order 59 Rule 19(1) and as was illustrated in Bank For Credit And Foreign Commerce (OverSeas) Limited v. European Caribbean Resorts Company Limited et al (1980) BHS No. 510 No. 510. In this case attention was drawn to Order 59 rule 19 (3) which states that proceedings for taxation ‘must’ begin within 3 months after the judgment and therefore, Notice of Intention to Proceed does not arise as the Bill was filed in time.

7

It is noted that the Order was made on the 2nd November, 2011 and filed on 6th February, 2012. The defendant's Bill of Costs was filed on the 30th January, 2012, and was served upon the plaintiff on the 4th day of February, 2013.

8

Even though Defence Counsel submits that the Bill of Costs and other documents were filed on 30th day of January, 2012 which was within the three (3)...

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