Duncanson & Co (Beryn Duncanson DBA) -v- East Wind Development Company Ltd and ors (CL-AP 11/23; CP-AP 12/23) [2023] TCACA 14 (27 October 2023)


Appeals - Application for Recusal – Refusal to Recuse – Leave to appeal – Application for Stay/Adjournment Pending Appeal refused- Whether the judge exercised proper discretion – Principles to be applied on Stay/Adjournment Pending Appeal

Case summary

As a result of the filing and service of the Originating Summons in CL150/2022 the Registrar of Lands as an Interested Party, imposed a restriction on the disposition of lands of the First Defendant/Respondent.

On 21 June 2023 an oral application by the Plaintiff/Appellant for an adjournment sine die of CL150 was made. On 29 June 2023 Selochan J refused the application for an adjournment sine die. On 24 July 2023 the appellant filed an application for Selochan J to recuse himself.

On 31 July 2023 Selochan J ruled on the appellant’s application for recusal. He found that it was an abuse of process and refused to recuse himself. He granted the appellant leave to appeal the decision, as well as leave to appeal the decision on the application for an adjournment sine die, but refused to stay the proceedings.

By an Amended Notice of Motion filed on 21 August 2023 the appellant sought to appeal the ruling refusing to stay actions CL 150/22 and CL 97/22(The Registrar of Lands application) pending an appeal by the appellant. This court is now being asked to determine the reasonableness or otherwise of the Judge’s exercise of his discretion to refuse the appellant’s application for a stay pending appeal.

Held: The judge exercised his discretion on the correct principles, and there has been no miscarriage of justice. Accordingly, the appeal is dismissed. The Appellant to pay the Respondents’ costs to be taxed if not agreed.

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