Ten Oc Estates Ltd and Cga Ltd v Becker Landscaping
| Jurisdiction | Bahamas |
| Judge | Hepburn, J. |
| Judgment Date | 22 November 2011 |
| Court | Supreme Court (Bahamas) |
| Docket Number | COM/lab/ 783 of 2008 |
| Date | 22 November 2011 |
Supreme Court
Hepburn, J.
COM/lab/ 783 of 2008
Ferron J. M. Bethel! for the plaintiffs
E. Terrry North (with Wynsome Carey) for the defendant
Civil Practice and Procedure - Appeal — Judgment in default of appearance — Judgment in default of defence — Whether the judgment in default of appearance should be set aside — Whether defendant entitled leave to proceed with summons.
This ruling concerns three notices of appeal: two by the defendant and one by the plaintiffs. At the centre of the dispute are a judgment in default of appearance and a judgment in default of defence entered by the plaintiffs.
By order dated 15 May 2008 Mr. Justice Lockhart (Ag) granted the plaintiffs leave to serve the defendant out of the jurisdiction and extended the time for entering an appearance to 45 days, that is to say, on or before 4 July 2008. On June 27 2008 (i.e. within the limited for so doing by Lockhart J (Ag)) the defendant issued a summons seeking (1) leave to enter a conditional appearance pursuant to Rules of the Supreme Court (“RSC”) Order 12 rule 6(1) and (2) and order that the defendant do file an application by summons pursuant to RSC Order 12 rule 7(1) within 14 days to have the writ filed herein set aside for lack of jurisdiction or alternatively on the basis of forum non conveniens. It seems from the record that the defendant put the incorrect action number on the summons therefore the summons was not placed on the Court file or entered in the cause list for this action.
The summons was not served on the plaintiff and on 7 July 2008 the plaintiffs entered Final Judgment (“the Judgment in Default of Appearance”) against the defendant in the sum of $855,526.00, plus interest and costs.
On 17 September 2008 the defendant applied by way of summons to have the Judgment in Default of Appearance “set aside on the ground that it was irregular, alternatively on the ground that the defendant had good grounds for setting aside this action on the basis of jurisdiction and in the further alternative that it had a good defence to the action”. That summons was supported by the affidavit of Christopher Gouthro sworn 25 September 2011 and filed 26 September 2008. Camille Cleare swore an affidavit on behalf of the plaintiffs on 11 November 2008. Ms Cleare's affidavit in response was filed on 17 November 2008.
The defendant's summons was heard before Deputy Registrar Marilyn Meeres who, in a written ruling dated 22 January 2009, ordered that the Judgment in Default of appearance be set aside and the defendant be allowed to file a defence within 14 days, and ordered costs against the defendant.
The ruling of Deputy Registrar Meeres is set out below:
- This is an application by the defendant to have a judgment set aside. 2. The defendant took out a Summons to apply for leave to enter a conditional appearance to the action on the 27 June 2008. 3. This Summons had not been served on the plaintiffs at the time they entered the Judgment as the Summons had the wrong action number. For this reason when the plaintiffs conducted the usual search there was no indication of this Summons. 4. The defendant did contact counsel for the plaintiffs requesting the correct action number but this was not forthcoming. 5. The defendant also contends that It has a good defence to this action. 6. Plaintiffs' counsel is objecting to having the Judgment set aside on the ground (among others) that paragraph 5 of the defence is the only specific traverse and that all other paragraphs are general admissions or denials. 7. The Court is of the view that although the action number was incorrect the defendant's Summons to enter a conditional appearance was properly before the Court. That submission by the plaintiff Is therefore dismissed. 8. In any event, before the Court can set aside a judgment it must be convinced that there Is no defence to the action. 9. Having compared the draft defence with the Statement of Claim the Court Is of the view that there is a reasonable defence to this action and disagrees with plaintiff counsels' (sic) submission that it does not specifically deal with matters pleaded. 10. The Court has also considered plaintiff Counsel's submission to have the amount of the judgment brought Into the Jurisdiction as the defendant is a foreign entity. However, there Is nothing before the Court to show that the defendant avoided the expiration of a specific (sic) did in fact file its Summons to enter a conditional appearance in the prescribed time. (sic) 11. The Court therefore orders that the said Judgment be set aside and that the defendant be allowed to file the appropriate Defence within the next fourteen (14) days. 12. The costs of this application is to be borne by the defendant.
On 27 January 2009, the plaintiffs filed a notice of appeal (“the plaintiffs notice of appeal”) to a judge in chambers pursuant to RSC 0. 58 r. 1 against the ruling of Deputy Registrar Meeres, within the time limited by 0. 51 r. 1(3).
By their notice of appeal, the plaintiffs sought have the ruling of Deputy Registrar Meeres set aside:
“… insofar as the learned Registrar ought to have ordered that the defendant pay the amount of the judgment, or some part thereof Into Court, as a condition of setting aside the said Default Judgment, the defendant being a non-resident and having challenged the jurisdiction of this Court.
AND THAT the costs of this and the application before the Deputy Registrar be the plaintiffs' costs in any event.”
On 28 January 2009, the defendant filed a notice of cross appeal (“the defendant's notice of cross appeal”) to a judge in chambers against the ruling of Deputy Registrar Meeres. The defendant's notice of cross appeal is set out below:
TAKE NOTICE that the above-named defendant intends to cross appeal against the Decision of the Learned Deputy Registrar, Mrs. Marilyn Moores, given on the 22nd day of January, 2009 wherein the defendant's Summons Issued on the 17th day of September, 2008 on an application to set aside the Judgment in default entered herein on the 7 day of July, 2008 was granted in so far as the aforementioned Judgment in default was thereby set aside and the defendant granted fourteen (14) days from the date of Order in which to enter and serve Its defence, with the costs of the application to the plaintiffs.
AND FURTHER TAKE NOTICE that you are required to attend before a judge of the Supreme Court, … on the hearing of an application on the part of the defendant that the said Decision of the Deputy Registrar be set aside to the extent that (1.) the Deputy Registrar ought to have granted the defendant Fourteen (14) days to enter and serve a conditional appearance and file an application pursuant to Order 12 Rule 7(1) rather than Fourteen (14) days to enter and serve its defence. (2.) the Deputy Registrar ought to have held that costs be awarded to the defendant or at least the costs be in the cause and not that the defendant pay the plaintiff's costs. The defendant appeals on the grounds that:
1. The Summons of the defendant seeking leave to enter a Conditional Appearance pursuant to Order 12 rule 6(1) was held valid by the learned Deputy Registrar and the natural result of the Summons being valid is to grant the application of the defendant to enter and serve a conditional appearance.
2. The Summons of the defendant seeking leave to enter a Conditional Appearance having been held valid the defendant ought not to suffer the costs of the plaintiffs and costs ought to follow the event and therefore be awarded to the defendant or at least ordered to be costs in the cause.
The defendant filed its notice of cross appeal after the expiry of the time limited RSC 0. 58 r.1(3) and neither sought to obtain a stay of the ruling of Deputy Registrar Meeres in the meantime nor did it file its defence. The cross appeal falls to be determined pursuant to RSC 0.58. Rule 1(1) provides as follows:
“1. (1) An appeal shall lie to a Judge in chambers from any judgment, order or decision of the Registrar.
(2) The appeal shall be brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice to attend before the judge on a day specified in the notice.
(3) Unless the Court otherwise orders, the notice must be issued within 5 days after the judgment, order or decision appealed against was given or made and served not less than 2 clear days before the day fixed for hearing the appeal.
(4) Except so far as the Court may otherwise direct, an appeal under this rule shall not operate as a stay of the proceedings In which the appeal is brought.”
On 6 February 2009 the plaintiffs entered a Final Judgment (“the Judgment in Default of Defence”) on the ground that the defendant had not filed its defence pursuant to the ruling of Deputy Registrar Meeres.
When the appeals came on for hearing before me on 15 September 2009, Ms Cleare informed the Court that as the defendant had not filed its defence in compliance of the order of Deputy Registrar Meeres and had not obtained a stay of that order, the plaintiffs had on 6 February 2009 filed Judgment in Default of Defence and were not proceeding with their appeal.
Mr. Guthro wished to proceed with the defendant's notice of cross appeal notwithstanding that Judgment in Default of Defence had been entered against the defendant. The Court asked to be satisfied on two issues: (i) whether the cross appeal had been issued within the time limited by RSC Order 58 rule 1(3) and, if it had not, would the plaintiffs be seeking an extension of time in which to do so; and (ii) whether, in light of the Judgment in Default of Defence, the Court could, nevertheless, proceed with the defendants...
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