Timothy Dames v Ethel Dames

• Jurisdiction: Bahamas
• Judge: Winder, J
• Judgment Date: 09 December 2021
• Court: Supreme Court (Bahamas)
• Docket Number: 2015/CLE/GEN/01470

IN THE SUPREME COURT

Before Hon. Mr. Justice Ian R. Winder

2015/CLE/GEN/01470

Common Law & Equity

Between

Timothy Dames

First Plaintiff

and

Ethel Dames

Second Plaintiff

Desmond Fraser

First Defendant

Ernest Levi Garner, JR.

Second Defendant

Appearances:

Yvette McCartney-Meredith with Valentino Hamilton for the Plaintiffs Damian Gomez QC with Edward Turner for the Second Defendant

Winder, J

This is the application of the Plaintiffs seeking to set aside the Consent Order made on or about 4 September 2018 and filed on November 22, 2018.

1 The Plaintiffs application is brought by Summons dated 3 June 2021 which sought an order in the following terms:

• 1. An Order that the Consent Order made on or about September 4, 2018, and filed on November 22, 2018, be set aside or varied on the grounds that:

  • a. The Writ of Summons in this action was issued and ail proceedings thereon inclusive of the Consent Order in the name of the Second Plaintiff without her authority.

  • b. The Consent order was made based on either a common or unilateral mistake, misrepresentation or fraud of which said mistake, misrepresentation or fraud the Second Defendant was aware of.

  • c. It is in the interest of justice that the consent order should be varied or set aside.

• 2. An Order that the Order of the Honourable Mr. Justice Ian Winder pronounced on December 7, 2020 to the effect that “The Second Defendant be allowed to sell the freehold property being and known as all that piece parcel or tract of land situate on the South Side of West Bay Street approximately Six Thousand Six Hundred and Sixty-eight (6,668) feet East of Lyford Cay Circle in the Western District of the Island of New Providence one of the Islands of the Commonwealth of the Bahamas containing five acres by Public Auction and that the proceeds of sale, less the expenses of the said auction, be paid to the Second Defendant in this action in payment of the Judgment herein dated September 4, 2018 and filed on November 22, 2018” by stayed upon such terms and conditions as the court thinks fit.

• 3. Alternatively, an Order that the Court extend the time under the Order of Mr. Justice Winder pronounced on December 7, 2020, to enable the Plaintiffs to settle any debt (if found to be owing) or obtain a private sale of the property on its own terms to settle any debt (if any) found to be due and owing to the Second Defendant.

2 The application was supported by the affidavit of the Plaintiffs. The First Plaintiff (Timothy) says in his affidavit that:

5. That the other Plaintiff and I entered into a written agreement (the Agreement) dated the 16 ^th day of January, A.D. 2012, with the Defendants whereby we agreed to purchase from them and they agreed to sell to us the issued shares in the said Fraser Trading Limited and Island Block Manufacturing Company Limited at the price of Seven hundred and Twenty-five thousand dollars ($725,000.00), with the purchase price to be apportioned between the 1 ^st Defendant and the 2 ^nd Defendant as stipulated in the said agreement A copy of this agreement is produced and exhibited in my said Affidavit and therein marked exhibit “Exh. TD2 ^M.

6. That a copy of my said Affidavit is now produced and shown to me marked exhibit “Exh. TD 14”

7. That other Plaintiff and I paid to McKinney, Turner and Co. the further sum of Three hundred thousand dollars ($300,000.00) at the time of the execution of the Agreement or thereabout to be distributed to the Defendants. It was a term of the Agreement that the purchase price and all money connected with the Agreement should be paid to the attorneys, McKinney, Turner and Co., to be paid to the Defendants and or applied in accordance with the terms of the agreement. But Mr. Anthony McKinney, Q.C., due to the constant requests to him by the 1 ^st Defendant for money under or connected with the Agreement, instructed me to pay the 1 ^st Defendant's remaining portion of the purchase price directly to him (the 1 ^st Defendant).

8. That the Defendants delivered up possession of the land to the other Plaintiff and me pursuant to the Agreement shortly after the execution of the Agreement and the payment of the said Three hundred thousand dollars ($300,000.00) to the said attorneys of the parties to the Agreement. The other Plaintiff and I were entitled to have possession of the land and to conduct the business of block manufacturing thereon without interference from the Defendants or any of them. It was also a term of the Agreement, express or implied, that the block plant would be in good and working condition. From the date of the Agreement and the taking of possession of the land and block plant, the 1 ^st Defendant has interfered, and continues to interfere, with the Plaintiff possession of the land and operation of the block plant to the extent the production of the plant has been reduced by more than one half of its productive capacity and thereby causing the other Plaintiff and me to suffer serious loss and damage. The 1 ^st Defendant, in spite of the fact that he has received more than his portion of the purchase money continues to conduct himself in such manner. Over the past week he has completely prevented the Mr. Norman McFallane, an agent of the other Plaintiff and me, from operating the plant and removed certain cars which this Honourable Court ordered the other Plaintiff and me to remove. Up to about three weeks ago the 1 ^st Defendant repeatedly locked the property gate and removed the locks installed by Mr. Norman McFallane, thereby preventing him from removing the cars. He has also caused damage to the property and wrongfully removed items belonging to the other Plaintiff and me.

3 The Second Plaintiff (Ethel) says in her affidavit that:

4. That my attorneys have shown me the court documents which contain Statements that they were issued by various attorneys purportedly on my behalf.

5. That since the filing of the Writ in this action and one or two early court hearings in this matter I have never authorized any attorneys or any other person to continue or institute proceedings, file applications, swear Affidavits or agree to Orders on my behalf. Further, I was never served with a Notice of Continuation of hearing or Notice of Hearing in this matter.

6. Immediately after it was brought to my knowledge that court documents were issued in these proceedings on my behalf without my authorization, I instructed C Yvette McCartney-Meredith Chambers and Sears & Co Chambers to make an application to this Honorable Court to set aside the Consent Order entered herein in September 2018 and to stay the Ruling of the Honourable Mr. Justice Ian Winder pronounced in December 2020.

4 Ethel was subject to cross examination on her affidavit.

5 In Paradise Island Ltd. v. Adderley [1996] BHS J. No. 75, Barnett J (as he then was) provides a useful and comprehensive discussion on the relevant law on the setting aside a consent order. At paragraphs 15–37 of the decision Barnett J:

15 This case involves the balancing of two principles. The first is the need for finality in litigation and the avoidance of re-opening cases which, for all intents and purposes, have been dealt with by the Court. The second is to ensure that matters are decided on their merits and not to bind litigants to consents not properly made and where the Court itself has not determined the lis on its merits.

16 In Shepherd v. Robinson (1919) 1 K.B. 474 at p. 477, Bankes L.J. said, “There are two distinct lines of authority relating to compromises said to have been made by counsel against the wishes or instructions of their clients. The first is that represented by Strauss v....