Susan Barbara Dodge v Michael Simanic et al

SAINT CHRISTOPHER AND NEVIS IN THE COURT OF APPEAL HCVAP 2008/013 BETWEEN: SUSAN BARBARA DODGE (Appointed as Trustee of the Estate of RAYMOND ARNOLD DODGE also known as RAY DODGE) and TONY ZAPPAROLI Respondents/Claimants and MICHAEL SIMANIC st and Defendant and ROYAL ST. KITTS CASINO LIMITED ALCEO ZULIANI Applicants/Intended Appellants and LEO TOFOLI th Before: Defendant The Hon. Mde. Janice George-Creque Justice of Appeal On Written Submissions of: Mr. Glenford Hamilton of the firm of Hamilton and Co. for the Applicants/Intended appellants Frank E. Walwyn of the Chambers of Caribbean Associated Attorneys on behalf of the Respondents/Claimants ___________________________ 2009: February 24; March 10. ___________________________2 JUDGMENT

[1]GEORGE-CREQUE, J.A.: On 18 th December 2008, the applicants being the 2 nd and 3 rd defendants in the court below made application for leave to appeal to the Court of Appeal against the decision of the Order of the judge made on 5 th December 2008, and also for a Stay of that Order. It is supported by the affidavit of Jason Hamilton filed on the same date. This affidavit is quite short and does not seek to set out the basis on which leave or a stay is being sought. It merely seeks to suggest that the judge’s ruling and directions given on 5 th December 2008 are in conflict with or contrary to his earlier decisions made on 4 th December 2006, and nd November 2007. In that decision the judge opined that it was not possible to register a foreign judgment in rem, in this case Canadian, relating to foreign land. The learned judge further stated that there were orders of the Canadian Court which affected title to certain lands in St. Kitts and that such an order would be unenforceable. The applicants also say that matters which formed part of the claim which was heard in Canada was set down for hearing in St. Kitts notwithstanding that the judge ruled that the defendants are estopped from re– litigating those matters. Neither the decision of the learned judge of 22 nd November 2007, nor the Order of 5 th December 2008 has been submitted by the applicants.

[2]For completeness it is noted that Judgment in Default of Defence was entered against the 1 st defendant on 31 st December 2002. The 4 th defendant is not being pursued. The 1 st defendant does not seek leave to appeal nor has he appealed the judgment so entered or the order made on 22 nd

[3]On 5 November 2007, dismissing his application to set aside the said judgment. th January 2009, an affidavit was filed on behalf of the respondents in which they opposed the application for leave and a stay. They have helpfully exhibited the decision of 22 nd November and have also sought to provide the history of the proceedings as well as an account of the hearing before the learned judge on 5 th December 2008, leading to the case management directions in respect of the issues which were to proceed to trial. They also accounted for the lack of the 3 sealed Order containing those directions, the same not having as at that date been sealed by the court.

[4]On 20 th January, the application came up for case management before Edwards J.A. It was ordered and directed that the application be adjourned to 24 th February 2009, for determination by a single judge on paper. She further directed that the applicants transmit to the Court of Appeal a copy of the Order of the Judge made on 5 th December 2008, (being the Order in respect of which leave and the stay is being sought) by 30 th January 2009, and that the applicants file, serve and transmit their written submissions in support of the application in compliance with Practice Directions No.2 of 2008 and 3 of 2008 by 9 th February 2009, and for the respondents to file and serve theirs by 12 th

[5]The Order containing these directions was transmitted by the court office to the solicitors for the applicants and the respondents on 23 February 2009. rd January 2009. By then the respondents had already filed their written submissions in opposition to the grant of leave and a stay. To date the applicants have failed to comply with the practice directions as aforesaid and have further failed to comply with the directions contained in the Order of 20 th January. They have sought no extension of time, nor have they sought relief from sanctions in respect of their failure.

[6]Having regard to the affidavit and submissions of counsel for the respondents and having perused the written decision of the learned Judge dated 22 nd On 19 th January, 2009 November 2007, coupled with the lack of compliance without explanation by the applicants, I have come to the view, which by inference the applicants may have also arrived at, that the application for leave and a stay is wholly unmeritorious.4

[7]Accordingly, the application is hereby dismissed. The applicants shall pay the costs of the respondents in the sum of $1, 500.00.

Janice George- Creque

Justice of Appeal