Noxi Arthur Waldron v Stafford Waldron et al

EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE COMMONWEAL TH OF DOMINICA In the matter of the Estate of SAMUEL A. WALDRON CIVIL NO. DOMHCV 2018/0029 BETWEEN: NOXI ARTHUR WALDRON formerly known as LENNOX AUGUSTINE WALDRON Applicant/Claimant and STAFFORD WALDRON a.k.a. STARFORD WALDRON (Surviving Personal Representative of the Estate of Samuel Arthur Waldron) Respondent/Defendant DOMINICA CO-OPERATIVE SOCIETIES LEAGUE LTD Intervener/Applicant CIVIL NO. DOMHCV 2020/0033 BETWEEN: NOXI ARTHUR WALDRON formerly known as LENNOX AUGUSTINE WALDRON Applicant/Claimant and STAFFORD WALDRON a.k.a. STARFORD WALDRON (Surviving Personal Representative of the Estate of Samuel Arthur Waldron) Respondent/Defendant DOMINICA CO-OPERATIVE SOCIETIES LEAGUE LTD Intervener/Applicant CIVIL NO. DOMHCV 2020/0152 IN THE MATTER OF THE TITLES BY REGISTRATION ACT CHAPTER 56:50 SECTIONS 114. 119 AND AND IN IN THE MATTER OF CERTIFICATE OF TITLE REGISTERED IN BOOKS OF TITLE FB FOLIO 36 CONTAINING 7.577 ACRES, E9 FOLIO 76 CONTAINING 10347 SQUARE FEET OR 0.240 ACRES AND FB FOLIO 35 CONTAINING 7 ACRES OR 2P AND IN THE MATTER OF THE APPLICATION OF NOXI AURTHURWALDRON FOR AN ORDER TO SUSTAIN CAVEATS AND TO ORDER THEIR CONTINUANCE ON THE REGISTER UNTIL SUCH TIME AS MAY BE ORDERED BY THE COURT BETWEEN: NOXI ARTHUR WALDRON formerly known as LENNOX AUGUSTINE WALDRON Applicant/Claimant and STAFFORD WALDRON a.k.a. STARFORD WALDRON (Surviving Personal Representative of the Estate of Samuel Arthur Waldron) Respondent/Defendant DOMINICA CO-OPERATIVE SOCIETIES LEAGUE LTD Intervener/Applicant Appeareances: Jodi J Luke of Platinum Law Chambers for Noxi Arthur Waldron Hazel Johnson of de Freitas, de Freitas & Johnson for Stafford Arthur Waldron Dawn Yearwood Stewart of Dawn Yearwood Chambers for The Dominica Co-operative Societies League Ltd 2021: September 30th RULING (With written reasons)

1.Stephenson J.: Before the court are a number of applications for consideration. Firstly, there is an application filed on the 12th November 2020 by the defendant to strike out the action DOMCHV152 of 2020 and secondly, a similar application filed on the 24th March 2021 by the Dominica Co-Operative Societies League Ltd ("The intervener") to strike out the claims brought by Noxi Arthur Waldron ("the claimant") against Stafford Waldron ('the defendant") which affects the interveners.

2.To appreciate the applications currently before the court ii is necessary to briefly state a history of the litigation involving the property in issue.

3.The substantive case before the court arises out of a dispute between the claimant and the respondent as it regards the estate of Samuel Arthur Waldron. This dispute was first brought before the court in DOMHCV2018/0029. That case was settled at mediation and a consent order based on the terms of the duly signed mediation agreement was entered on the 21st January 2019, the relevant terms of the order are: 1) ''The estate consists of six properties with accumulated value of $596,374.00; 2) The estate owed the Roseau City Council rates in the amount of $6,388.35; 3) There are five beneficiaries of the estate and each beneficiary is entitled to share of $117,997.13, let's say $118,000.00; 4) The property at Cross lane Certificate of title FB folio 37 with building there on valued at $242,800.00 to be transferred to Noxi Waldron the claimant and Joseph Waldron as tenants in common; 11. All transactions to be perfected within no more than 6 months"

4.Noxi Waldron did not comply with the terms of the consent order and on the 3rd March 2019 he filed an ex parte application with a certificate of urgency for an extension of time to comply which his obligations under the order of court dated 16th October 2018 and for an interim injunction to prevent the sale of property located on Cross Lane more particularly described as a portion of land known as a residential lot in Roseau containing 1,114 square feet registered in Book of Titles F8 Folio 37 ("the property") and for a declaration that the sale of this property is null and void and in breach of the consent order dated 16th October 2018.

5.The portion of land registered in Book ofTitles F8 Folio 47 comprising 1,114 square feet and registered in the name of Muriel S Waldron and Starford Waldron as Personal Representatives of Samuel A. Waldron was purchased by the Dominica Co-operative Credit Union League Ltd from the defendant who is the sole surviving personal representative of the Estate of Samuel Arthur Waldron deceased for the sum of $242, 800.00 ("the property"). Starford A Waldron the defendant signed a memorandum of transfer to the intervener as purchaser on the 4th February 2019.1

6.That application was granted ex parte on the 12th March 2019. On the 27th March 2019 the defendant applied for the ex parte order made on the 12th March 2019 to be set aside on the grounds that there was no urgency, that there was material non-disclosure on the part of the applicant/claimant Noxi Waldron, that there was no return dale for the injunction entitling the respondent to be heard on the application for injunctive relief and that the granting of a final declarative order on an exparte application was irregular and the order did not comply with CPR 11.6 (3).

7.On the 21st October 2019 on an interpartes hearing the application of the 12th March 2019 was wholly set aside and an order was made as to costs. A date for further interpartes hearing was fixed for 16th December 2019. On the 17th December 2019 following an interpartes hearing and due consideration of authorities the application was refused by Madam Justice Wynante Adrien Roberts and costs awarded to the Starford Waldron2.

8.On the 11th August 2020 Noxi Waldron the claimant filed DOMHCV2020/0152 seeking an order to sustain caveats placed on the properties concerning the litigation and for an order for the continuance of same until such lime as may be ordered by the claimant. The fixed date claim was accompanied by an exparte application to sustain the said caveats along with a notice of urgency. An exparte order sustaining the caveats was granted by the court as currently constituted on the 25th August 2020.

9.The order of 25th August 2020 made pursuant to the exparte application sustaining caveats placed on five parcels of land associated with the estate of Samuel A Waldron by the claimant Noxi Arthur Waldron in DOMHCV152 of 2020. It is to be noted that this application was accompanied by a certificate of extreme urgency filed by the claimant. 1 O. Applications3 were filed by the defendant on the said 12th November 2020 by the defendant to strike out and set aside order of court dated 25th August 2020 on the grounds that the action is frivolous, vexatious and/or abuse of process and it has no real prospect of success and that Suit no DOMHCV2018/0029 is res judicata having been subject to a final order of the Court which was not appealed. The defendant also applied for an order of costs against the claimant.

11.The defendant averred that: 1) There was a mediation agreement in DOMHCV2019/0029 which agreement was made a consent order of court4; 2) The claimant failed to purchase the property as agreed and subsequently ordered and therefore he had no duty to transfer the property to the claimant as claimed; 3) The claimant acknowledged his default and that he through his solicitors wrote on the 28th January 2019 seeking an additional six months to comply with the agreement and applied an order of court which was not acceded to by the defendant5; 4) That on the 4th February 2019 he sold and transferred the property to a third party and that third party was a genuine bona fide purchaser; 5) That the claimant lodged caveats against all the properties comprising the estate of Samuel W Waldron in March 2019 and later applied to the court to vary the consent order and this application was eventually dismissed in his presence on the 17ö December 2019. The claimant never appealed this order dismissing his application. 6) On 11th January 2020 the defendant lodged orders to dismiss the caveats lodged by the claimant; 7) The caveat orders were not sustained within the 21 days as stipulated by law. That the orders obtained by the claimant on the 11 e of February 2021 was never served on him until July 2020; 8) That the consent order entered in DOMHCV29 of 2018 was a final order and that there were no pending enforcement proceedings and that the said action is no longer alive or an active suit to justify sustaining the caveats;

12.The claimant filed a notice of opposition to the defendant's application to strike out and set aside the order of court dated 11 e February 2020 on the 19th November 2020.

13.The claimant contended that the application brought by the defendant is misconceived that the application is emanating under the Title by Registration Act6 for an order to sustain a caveat and cannot be an abuse of process further that the defendant's application is erroneous as there has been no final order of court and the order was in respect of an interlocutory application which was not determinative of the issues which arose on the claim.

14.On the 21st January 2021 the claimant applied for an order to sustain the caveat in DOMHCV152 of 2020 with an accompanying affidavit setting forth the claimant's case. This affidavit was sworn to by Vernice Adams the claimant's duly appointed agent. ("Ms. Adams")

15.As it regards the intervener Ms Adams averred that the intervener was not a bona fide purchaser for value and exhibited a letter dated the 26th March 2019 and relied on the contents of the said letter. 7The letter from Mrs Laurina Vidal Telemaque of the law office of Laurina A Vidal was addressed to Ms Mary A Roberts of Prevost and Roberts chambers indicating to them that the intervener purchased the property from the administrators of the estate of Samuel A Waldron and made reference to an order obtained by the claimant declaring the sale null and void. The letter also informed Ms Roberts of the interveners continued interest in acquiring the property in order to locate their offices on the lot and inquiring whether or not the claimant would be willing to consider an alternative purchase price to inform them of such. The intervener also sought to emphasize to the claimant their urgent need for the parcel to construct their office.

16.I pause here to say that I do not agree with the claimant's submission that this letter evidences the interveners knowledge of the legal issues before they bought the property as this letter is dated after the sale and receipt of the memorandum of transfer, it is therefore understood that they became aware of the proceedings subsequent to the purchase.

17.The matter came up before the court as currently constituted on the 22nd January 2021 and the Dominica Co-operative Credit Union League Ltd (the intervener) was added as a party to the proceedings. The matters were also ordered to be brought up together and all the files along with the parties, the claimant, defendant and intervener all represented by Counsel appeared before the court on the 25th August 2020, 18th September 2020.

18.On the 24th March 2021 the intervener filed an application to strike out the claims brought by the claimant in DOMHCV33 of 2020 and DOMHCV152 of 2020. This application was accompanied by an affidavit of Phoenix Belfield the General Manager of the League ("Mr Belfield"). (the respondents) for damages arising out of the criminal proceedings formerly brought against him. Georges J dismissed the claim for damages and the appellant appealed to the Court of Appeal. Held: dismissing the appeal, that the institution of the claim after obtaining the consent order was an abuse of process even if the appellant might not strictly have been estopped per rem judicatam from instituting it; further, the appellant's rights of action and causes of action (arising from the former criminal proceedings against him) had been merged in the consent order ('transit in rem judicatam') and had ceased to exist; the claim was also an abuse of process as being a breach of an order of the court and as the consent order had created a promissory estoppel."

31.Mediation is a form of alternative dispute resolution in which a mediator follows a structured process to facilitate an agreed settlement between the parties to a dispute. In the case at bar the agreement reached at mediation has pursuant to the terms of the CPR 2000 been made an order of court. The position as this court understands it is that where there is such an order it takes the form of an agreement between the parties and that it can only be set aside for reason that are available to set aside a contract. That is if there is common fundamental mistake, fraud, misrepresentation or frustration.

Re: Huddersfield Banking Co Ltd v Henry Lister & Son Ltd 16

32.Moise J in Applewaite Lake v Barbara Hardtman and another17 had this to say "The balance which the court seeks to create in such an instance is to firstly appreciate that there must be finality to litigation. The court is obligated to give no more of its time and resources to the parties in any case than what is reasonably necessary to resolve the substance of the dispute between them. In the case of a consent order, it is an order of the court and insofar as it brings an end to proceedings, the parties are bound by its terms. On the other hand, it is appreciated that consent orders are of the nature of a contract mutually entered into by the parties. Insofar as that is the case, it is not an order which was made after the court had considered the substance of the case. The prevailing principle therefore

36.Having considered the law and the evidence adduced by the claimant who at all times bore the burden of proof albeit on the balance of probabilities, there is no evidence of misrepresentation, mistake or fraud which would enable this court to consider setting aside the agreement. The mediation agreement and the subsequent order was meant to bring an end to the dispute between the parties. Each party was obliged and meant to abide by their agreement and obligations. The claimant is not at liberty to relitigate the matter and it is most certainly not a function of the court in the absence of demonstrable causes of actions to permit such actions to proceed in the hope that a cause of action or some evidence may come up or be uncovered as the case proceeds.

37.It is this court's view that the claimant has no probable cause of action before the court the matters between himself and the defendant having being litigated before and concluded in a mediation agreement and order. This matter is therefore dismissed with costs to the defendant and the intervener to be taxed if not agreed.

38.It is to be noted that failure to make specific mention of any point of submission does not mean that it has been ignored or there has been a failure to take it into account. Similarly, many good issues and points have been raised by both counsel which in the court's view is not necessary to discuss in order to resolve or to decide the main issue in the case at bar. I wish to thank Counsel for their helpful submissions and their understanding in the length of time it has taken the court to render this ruling.

M E Birnie Stephenson

High Court Judge

BY THE COURT

REGISTRAR