Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 51 of 2016

Frank Gedeus -v- Gilbert Fitzroy Selver (CL 51 of 2016) [2022] TCASC 44 (22 November 2022);

Media neutral citation
[2022] TCASC 44
Case summary:

This is a ruling on 3 applications (1) for leave to appeal summary judgment, (2) for a stay of execution of judgment pending appeal (3) a Notice of Motion filed by the Plaintiff for the issue of a writ of sequestration by way of enforcement of the judgment.

Headnote and holding:

The Court refused leave to appeal on the basis that none of the proposed grounds of appeal had a realistic prospect of success and in consequence the stay application fell away. The 3rd application was not pursued. 

 

 

IN THE SUPREME COURT

TURKS AND CAICOS ISLANDS

ACTION NO. CL-51/16

 

 

 

 

BETWEEN:

 

 

 

 

 

 

FRANK GEDEUS

PLAINTIFFS

 

 

 

 

and

 

 

 

 

 

GILBERT SELVER

DEFENDANT

 

 

 

 

 

 

 

 

REASONS

 

 

       

 

Before:                            The Hon. Mr. Justice Anthony S. Gruchot

 

Appearances:                 Ms Chloe McMillan of F Chambers for the Plaintiffs

                                         Mr. George C. Missick of Geordins for the Defendant

Hearing Date:                14thNovember 2022  

Venue:                            Court 5, Graceway Plaza, Providenciales

To be Handed Down:    Tuesday 22nd November 2022 at 9:00 a.m. by email

 

Introduction

  1. There were 3 applications before the Court. The 1st was an application for leave to appeal summary judgment given on 26th August 2022 and perfected on 14th September 2022 in which the Defendant was ordered to pay to the Plaintiff the sum of US$23,300.00 together with the costs of the action, and if leave was granted, the 2nd application for a stay of execution of the judgment pending appeal.
  2. The 3rd application was a Notice of Motion filed by the Plaintiff for the issue of a writ of sequestration by way of enforcement of the judgment.
  3. I refused leave to appeal on the basis that none of the proposed grounds of appeal had a realistic prospect of success and in consequence the stay application fell away. The 3rd application was not pursued.
  4. I said that I would give my reasons in writing. These are those reasons.
  5. The facts of the claim are set out in the written judgment of Hylton J dated 26th August 2022 and can be summarised as:
    1. In 2006 the Defendant entered into an oral contract with the Plaintiff to sell him a parcel of land in Blue Hills described as 60501/179 for the sum of US$26,000.00.
    2. Payment for the land was to be made by way of installments, but there was no specific agreement as to how the monies were to be paid or when the transaction was to close.
    3. Various payments were alleged to have been paid by the Plaintiff in the total amount of US$23,300.00 at which time the Plaintiff called for the land to be transferred to him, access to the land having been granted and the Plaintiff had commenced works to construct a dwelling on the land.
    4. It became apparent the Defendant could not transfer the land to the Plaintiff as it was encumbered (together with other parcels) by a charge to Meridian Mortgage Corporation Ltd. (‘Meridian’) to secure the sum of US$200,000.00 in respect of which, on 16th June 2015, an order for sale by private treaty had been granted by Shuster J under the provisions of the said charge.
    5. Meridian became aware that the Plaintiff was in occupation of the land and offered to sell the land to the Plaintiff under its power of sale together with an offer to finance the transaction. On 31st July 2015 a loan agreement with Meridian was executed by the Plaintiff and his wife and (presumably) the land was so transferred.
  6. What then followed was:
    1. On 2nd March 2016 the Plaintiff brought a claim for the return of monies paid to the Defendant, at that time acting in person.
    2. On 3rd May 2016 the Defendant, also acting in person, filed a Defence to the claim. Save for a denial of an allegation that the Plaintiff had asked the Defendant for the return of the monies paid and the Defendant had refused repayment, the Defence did not traverse any specific denial of the facts pleaded in the Statement of Claim, but simply pleaded non-admissions and put the Plaintiff to proof of payments of the sums claimed.
    3. The matter did not progress through 2017 despite a number of directions hearings and dates being fixed for trial, until the Plaintiff changed attorneys to those presently instructed. On 6th July 2020 a further summons for directions was filed which came before the Court on 28th September 2020 at which time the Plaintiff was given leave to amend the Statement of Claim which was subsequently filed on 13th October 2020 and served on the Defendant’s attorneys, who had by that time changed to those presently instructed. It should be noted that there was no attendance at that hearing by the Defendant or his attorney.
    4. A further directions hearing was held on 12th May 2021, both parties being represented and the matter was fixed for trial on 9 December 2021.
    5. The Defendant failed to comply with that directions order and as a result the trial date again passed and the Plaintiff issued his summons for summary judgment.

The Application for Summary Judgment

  1. The application for summary judgment was put on the following grounds:
    1. The Defence did not comply with Ord.18 r.13(3) to the extent that it did not specifically traverse to the allegations of fact in the Statement of Claim and amounted to mere denials or non-admissions, and as such it was defective, alternatively, that it had no prospect of success, and should be struck out,
    2. That the Defendant had no defence as to liability.
    3. That the Defence did not demonstrate any defence that had a real prospect of success.
  2. The application before the Court was one for summary judgment under Ord.14, together with an alternative remedy that the Defence be struck out pursuant to Ord, 18 r.19(a).
  3. The application for summary judgment was resisted on the following grounds:
    1. That the matter could not proceed as no notice of intention to proceed pursuant to Ord.3 r.6 had been filed and served and accordingly the Court had no jurisdiction to hear the application; that there is no authority to get around Ord.3 r.6 and there must be strict compliance.
    2. Alternatively, that if the Court is able to waive service of such a notice, no application for that relief was before the Court and so the Court could not grant the relief.
    3. The application for summary judgment was too late in the proceedings, the claim having been commenced some 6 years ago.
    4. The Defendant had not been given leave to file an amended defence following the leave granted to the Plaintiff to file the Amended Statement of Claim and should be allowed to do so.
    5. The agreement between the Plaintiff and the Defendant could not be enforced as it was not in writing as required by s.37 of the Registered Land Ordinance (Cap. 9.01) (‘RLO’).
    6. The Defendant wished to join in Meridian as a third party to the proceedings and should be allowed to do so.
    7. That the Plaintiff was in breach of the agreement because he stopped making payments.
  4. Hylton J reserved his decision and dealt comprehensively with each of the above matters in his judgment.

The Application for Leave to Appeal

  1. The grounds put forward upon which the proposed application for appeal was to be founded were that:
    1. the learned judge was wrong in law to hear the application as the Court had no jurisdiction as no notice of intention to proceed had been served pursuant to Ord.3 r.6 following a break of over 12 months in the proceedings and, as a result of the forgoing, the summary judgment was null and void or alternatively, as there was no application for relief against the failure to serve a notice, the application should not have proceeded.
    2. following the same reasoning, the Defendant submits that the Court lacked jurisdiction to grant leave to the Plaintiff to file the Amended Statement of Claim[1].
    3. alternatively, if the Court had the power to waive the requirement for such a notice, then it could only do so on an application and, there was no such application. Accordingly, the learned judge erred in letting the matter proceed.

(together, ‘the Ord.3 r.6 Grounds’)

    1. the learned judge erred in law by concluding that the Defendant appeared to be factually incorrect in relation to the alleged gap in the proceedings by taking into consideration that the Plaintiff filed a summons for directions on 20th January 2021, filed a list of documents on 8th July 2021 and a witness statement on 1st November 2021. The learned Judge fell into error by taking the above filings as proceedings in the action when none of them were.

(‘the Gap Calculation Ground’)

    1. The learned Judge erred in law and fact and denied the Defendant a right to a fair hearing and due process by failing to have regard to the fact that the Respondent was granted leave to file an Amended Statement of Claim but that the Appellant was not given leave to file an amended defence and, that he ought to have granted the Defendant leave to file and serve an amended defence before ruling on a summary judgment application.

(‘the Amended Defence Ground’)

    1. The learned Judge failed to consider the fact of the Plaintiff’s delay of 6 years after filing his claim before bringing an application for summary judgment and the effect of the matter being fixed for trial as barring a late application for an order for Summary Judgment.

(‘the Delay / Fixed Trial Ground’)

    1. The decision of the learned Judge to grant final judgment was wrong as a matter of law because in the exercise of his discretion he failed to take into account [sufficiently or at all] the principles laid down by the Court of Appeal in S -v- Gloucestershire CC [2001] 2 WLR 909.

(‘the S -v- G Principles Ground’)

    1. The learned Judge erred in law on his interpretation and application of section 37 of the Registered Land Ordinance (Cap 9.01)

(‘the Section 37 RLO Ground’)

    1. The learned Judge erred in principle that by conducting an inappropriate mini trial on disputed facts on a summary judgment application has no real prospect of success at a trial.

(‘the Mini Trial Ground’)

    1. The decision of the learned Judge was perverse in that, on the basis of the evidence in the case, no reasonable tribunal could have reached such a decision.

(‘the Perverse Ground’)

  1. It is noteworthy that the application for summary judgment was resisted on 7 grounds but that there were 10 grounds in respect of which the Defendant considered he had a realistic prospect of success on appeal, the inference being that the Defendant considered that the learned judge erred in every aspect of his approach to the application. The Court is not assisted in such applications by a party taking every point on which an unsuccessful litigant loses the case, regardless of merit. Pursuing hopeless points wastes the time of the Court, and increases costs to the litigants.

Discussion

  1. In order for the Defendant to obtain leave to appeal, he must satisfy the Court that the proposed grounds of appeal have a real or realistic prospect of success[2]. I have, in Arnold Sampath and another -v- The Estate of Cliff Anderson Sampath (Deceased) CL-47/19, given a detailed exposition as to the development of that test and do not therefore repeat the same here.
  2. Dealing with each of the matters in paragraph 11 above:

The Ord.3 r.6 Grounds

  1. The grounds set out at paragraph 11) a), b) & c) above are all with respect to the same alleged failing i.e., that there had been a gap in the proceedings of more than a year and:
    1. there had been a failure to serve a notice of intention to proceed pursuant to Ord.3 r.6.;
    2. there can be no relief granted from that failure and there must be strict compliance; and alternatively,
    3. if the court can grant relief, the Defendant submits that it must be on formal application, and there was no application.

As such the Defendant submits that the court had no jurisdiction to hear the summary judgment application and as a result the judgment is null and void.

  1. The learned judge dealt with these objections, rejecting them in reliance on the powers granted to the Court under Ord.2 r.1 (1) & (2). The learned judge set out the full rules in his judgment.
  2. The same objection was renewed in this leave application but with no submission as to why the learned judge was wrong. I reject the submission that failure to serve the notice makes the summary judgment null and void. Ord.2 r.1 provides:

the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.” (My emphasis)

  1. The learned judge held that:

“Even if the Plaintiff failed to comply with Order 3, rule 6, there is no automatic sanction for non-compliance and the Defendant has not provided any evidence or made any argument that he was prejudiced. This objection therefore also fails.”[3] (Emphasis added)

  1. The Defendant has not made any challenge to that finding. The learned judge clearly, insofar as he accepted that there was any need for notice, exercised his discretion and waived the irregularity. I also do not accept that in the absence of a formal application that the Court was debarred from dealing with the issue, nor did the Defendant refer to any authority to that end.
  2. Moreover, and in particular to the suggested break in the proceedings before issuing the summons heard on 28th September 2020, if there was any force in the Defendant’s argument, no application had been made by him to set aside the irregularity. Ord.2 r.2 provides:

“An application to set aside for irregularity, any proceeding, any step taken in any proceeding or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.” (My emphasis).

  1. No application was made by the Defendant with reference to the Amended Statement of Claim until he raised an objection within the summary judgment application almost 2 years after the service of that document. In the event the objection, even if valid, comes too late.
  2. With respect to the alleged 2nd gap in the proceedings the learned judge did not accept that there was such a gap[4] (to which see the Gap Calculation Ground commentary below).
  3. Mr. Missick, in his oral submissions suggested that he had authority to the effect that there cannot be any waiver of the requirement to serve notice pursuant Ord.3 r.6. He did not refer to any such authority in his written submissions, nor was there any suggestion that such authority had been put to Hylton J. Further, Mr. Missick did not have any copy of the authority and could not direct the Court to its’ title or citation. I would comment that it is not for the Court to be sent off to research authorities for the parties, especially not on such a weak suggestion that such authority exists.
  4. There is no reference in the notes to Ord.3 r.6 to the effect that the Court does not have any discretion to waive the requirement and the argument is put in a vacuum. That said, for the reasons that follow I do not need to consider that point any further.
  5. I do not accept that the issues raised by the Defendant in respect of these grounds have any realistic prospect of success on appeal, particularly in light of the following consideration.

The Gap Calculation Ground

  1. The Defendant contends that the learned judge erred in law by concluding that the Defendant appeared to be factually incorrect in relation to the alleged 2nd gap in the proceedings.
  2. The error in law is that he contends that the filing of a summons for directions on 20th January 2021, the filing a list of documents on 8th July 2021 and a filing witness statement on 1st November 2021 were not steps in the proceedings. Unfortunately, Mr. Missick did not expand on that contention either in his skeleton argument or in his oral submissions. I reject his submission for the following reasons:
    1. The learned judge dealt briefly with this issue, but did not elaborate for the reasons set out above[5].
    2. Ord.3 r.6 makes the point that a summons upon which no order is made is not a proceeding for the purpose of the rule. Conversely therefore, a summons upon which an order is made, is a proceeding for the purposes of the rule. Hylton J makes the point that the summons of 20th January 2021 was heard and led to the matter being fixed for trial on 15 December 2021. I do not agree that steps were not taken in the proceedings for the period complained of.
    3. What is overlooked by the Defendant (and it appears by the learned judge) was that a Notice of Intention to Proceed was filed on 1st February 2019 and a further Notice of Intention to Proceed was filed on 3rd March 2020, the matter actively being pursued following that 2nd notice.
    4. Any suggestion that the matter was somehow stymied pursuant to Ord.3 r.6 is not correct and the grounds of appeal based thereon have no realistic prospect of success.

The Amended Defence Ground

  1. The learned judge did not deal with the amended defence issue in his written judgment, but I was told by Ms McMillan that the point was ventilated and rejected at the summary judgment hearing and Mr. Missick did not suggest otherwise.
  2. Mr. Missick submits that the learned Judge erred in law and fact and denied the Defendant a right to a fair hearing and due process. He bases these submissions on:
    1. The learned judge failing to have regard to the fact that the Respondent was granted leave to file an Amended Statement of Claim but that the Appellant was not given leave to file an Amended Defence;
    2.  that he [the judge] ought to have granted the Defendant leave to file and serve an Amended Defence before ruling on a summary judgment application.
  3. The above arguments were fundamentally flawed. On perusal of the minute of the summary judgment hearing, the following is recorded:
    1. Mr. Missick submitted that “it would be unconscionable not to allow the Defendant to file an amended defence to the replaced statement of claim”.
    2. When asked if there was an application to file an amended defence, the question was answered in the negative, but Mr. Missick submitted that there was an intention to make an application.
    3. The learned judge then considered whether there was need for leave to be given to file an amended defence and concluded there was not. There is no ground of appeal put forward on that finding.
  4. No further argument has been made with respect to whether leave is required but I do not accept the submission by the Defendant that he has been denied the right to a fair hearing and due process by the learned judge or otherwise. Nor do I accept Mr. Missick’s oral submission that the Defendant has been denied the opportunity to file an amended defence for the following reasons:
    1. The Plaintiff was granted leave to amend his Statement of Claim on 28th September 2020. As noted above, neither the Defendant nor his counsel attended that hearing. No explanation has been given as to why. Notwithstanding, the Amended Statement of Claim was served on the Defendant on 16th October 2020 by email and on 20th October 2020 by hard copy.
    2. No issue was taken at that time by the Defendant with regards the purported required leave or omission of the same. The matter came back before the Court on 12th May 2021 at which time a draft directions order, approved by the Defendant, was submitted. That order was silent as to leave to file a defence but, what is noteworthy is that the order set the matter down for trial on 9 December 2021. The corollary of that must be that the Defendant was content to proceed to trial on his original defence.
    3. It was not until the hearing of the summary judgment application that the issue of an amended defence was raised, by which time the Defendant had a period of some 10 to 11 months to make his application if he thought fit. I conclude that this issue has been raised at such a late stage in the hope that it would stave off the inevitable.
    4. In the event, I am not of the view that this ground has any realistic prospect of success for the reasons above and those set out in paragraphs 0 to 52) (not all facts before the court. What are the additional fact that would be in the amended defence) below.

The Delay / Fixed Trial Ground

  1. The ground of appeal here does no more than simply say the learned judge failed to consider the issue of the 6-year delay and in this application, the Defendant simply repeats the same submission that he made at the summary judgment hearing.
  2. It is plainly wrong to suggest that the matter was not considered by learned judge. He dealt with this argument in his judgment and in doing so explained why, notwithstanding the matter had been listed for trial on more than one occasion, it was not ready for trial[6].
  3. No other error of the learned judge is suggested. A repetition of the same argument that failed before, does not amount to a ground of appeal without an averment as to why it was wrongly decided.
  4. I am of the view that notwithstanding the delay in bringing the summary judgment application, it is clear that the matter was not ready for trial, a fact to which Mr. Missick agreed with me. The Defendant had not complied with any directions with respect to disclosure and statements. Whilst the matter had been listed for trial on more than one occasion, the reality is that the case was in no shape to be set down for trial, let alone it could be considered to have been set down.
  5. This ground of appeal has no realistic prospect of success.

The S -v- G Principles Ground

  1. In his written submissions Mr. Missick sets out the 6 guidelines propounded by May LJ in S -v- Gloucestershire County Council ; L -v- Tower Hamlets London Borough Council and another - [2001] 2 WLR 909 suggesting that the learned judge has erred in law for failing to take into account those guidelines. Those guidelines are that the court must be satisfied:
    1. All [substantial] relevant facts reasonably capable of being brought before the court are before it.
    2. [That the facts are undisputed or] that there is no real prospect of disputing such facts.
    3. There is no real prospect of oral evidence affecting the court’s assessment of the facts.
    4. There is no real prospect of gaps in the evidence being filled.
    5. There is no real prospect of the claim or issue succeeding or of the defence or issue being successfully defended.
    6. There is no other reason why the case should be disposed of at trial.
  2. There is no reference to these guidelines in the judgment or indeed in the minute of the hearing. But also, there are also no submissions from the Defendant in this application as to what relevant facts were not before the court and Mr. Missick was unable to identify any such facts at the hearing before me.
  3. The learned judge set out in his judgment the salient facts upon which the Plaintiff relied[7] and further noted that the Defendant did not dispute those facts.
  4. Mr. Missick eluded to the fact that the terms of the oral agreement between the Plaintiff and the Defendant were not before the court. That is simply not the case. The salient terms of the agreement had been pleaded and accepted by the Defendant.
  5. In the absence of any substance to the submission that there ought to be matters before the Court which were not, the submission stands in a vacuum and I therefore assume that all relevant facts reasonably capable of being before it, were in fact before it.
  6. No gaps in evidence have been asserted by the Defendant.
  7. In light of the above I do not consider that the bald assertion that the learned judge failed to take into account the above guidelines is sufficient to establish a ground of appeal that has any prospect of success when viewed in the light of the above narrative.

The Section 37 RLO Ground

  1. This ground is a further bald assertion that the learned judge erred in the interpretation and application of sec. 37 of the RLO. No submission is made as how the learned judge fell into error.
  2. The learned judge dealt with this objection in his judgment[8] and the Defendant in this application does not expand or even comment on the reasoning set out. The Plaintiff’s claim was not to enforce the agreement between him and the Defendant, but was seeking the return of monies paid given the failure of that agreement. If it was that the Defendant was asserting that he was entitled to retain the monies paid due to an alleged breach of the agreement by the Plaintiff, (as it appears from the minute, he was attempting to argue at the summary judgment application), then the application of sec. 37 RLO would operate against him for he [the Defendant] would be seeking to enforce the agreement he says is invalid because of the provisions of sec. 37. He cannot have it both ways.
  3. The mere assertion that ‘the judge got it wrong’ is insufficient to amount to a ground of appeal that has a realistic prospect of success.

The Mini Trial Ground

  1. No submissions was made in respect of this ground whatsoever. It is again yet another bald assertion but is no doubt a reference to Royal Bank of Scotland International Ltd -v- JP SPC 4 [2022] UKPC 18 in which the Privy Council, in dealing with an appeal on a strike out application under Ord.18, also commented on the approach to an application for summary judgment to the extent:

“The courts have discouraged mini-trials in complex cases on disputed issues. The rule is designed to deal with cases that are not fit for trial at all.” (My emphasis)

  1. This is anything but a complex case and there is nothing of substance in the Defence. There is no merit in this ground of appeal and it does not meet the required threshold of having a realistic prospect of success.

The Perverse Ground

  1. Again, this is another bald assertion unamplified by any argument whatsoever. Given the failure of the above grounds to cross the required threshold of having a realistic prospect of success there can be no realistic prospect of this ground succeeding.

Further Discussion

  1. Whilst not included in the proposed grounds of appeal set out in the summons for leave to appeal, nor cogently set out in Mr. Missick’s submissions, but rather alluded to as an afterthought in conjunction with the S -v- G Principles Ground, there was a further suggested ground of appeal, or perhaps put more correctly, a suggestion to support the guideline that the Court must be satisfied that all the relevant facts reasonably capable of being before the Court, are before it. That was that the Defendant wished to join Meridian as a defendant.
  2. The submission was that the Defendant wished to join in Meridian on an indemnity claim by the Defendant in respect of any liability the Defendant may incur in these proceedings. The Defendant further submitted that as Meridian was not before the Court then this was “some other reason for a trial”.
  3. I was unable to determine in the context of the claim, what cause of action the Defendant would have against Meridian, and Mr. Missick was unable to assist me beyond stating that it would be an indemnity claim. In the absence of any cogently articulated argument as to why Meridian should be joined in the action and, given that the Court could not see what the cause of action could be, then this is not a matter which has any realistic prospect of success on appeal. This, particularly so, given that on 24th March 2017, Shuster J ordered that if the Defendant wished to join Meridian to the proceedings he must do so as soon as possible and that had not been done. I refer to paragraph 31)b) above as the same reasoning is equally applicable here.

Conclusion

  1. There was, in my view, nothing in either in the grounds set out in the summons, or in Mr. Missick’s written and oral submissions that could impeach Hylton J’s judgment and which would have a realistic prospect of success.
  2. Accordingly, I refused leave to appeal and ordered the Defendant to pay the cost of the same, to be taxed if not agreed.

 

 

21st November 2022

 

 

 

The Hon. Justice Anthony S. Gruchot

Judge

 

[1] It is unclear how it is suggested that the learned judge fell into error in this respect, no issue having been taken with respect to the Amended Statement of Claim for very nearly 2 years.

[2] See Swain -v- Hillman and Another [2001] 1 All ER 91; Tanfern Limited -v- Cameron MacDonald and Another [2000] 1 WLR 1311

[3] At paragraph 18

[4] See paragraph 15 of the judgment

[5] Ibid

[6] See paragraphs 8 to 12

[7] At paragraph 26

[8] At paragraphs 28 to 30