NEVILLE CENAC et al v DAVID TATE et al

SAINT LUCIA: IN THE HIGH COURT OF JUSTICE Suit No. 983 of 1999 BETWEEN: NEVILLE CENAC JULITA CENAC Plaintiffs and DAVID TATE DEBRA TATE Defendants Miss Cybelle Cenac for Plaintiffs Miss Estelle George for the Defendants _________________________ 2000: October 13; November 29. _________________________ JUDGMENT

[1]d’AUVERGNE J: By Summons dated 8th March 2000 and filed on the 9th March 200 0 t he D efendants’ ap plication s ought t he following: that th e Judgment filed in default of defence on the 27th day of January 2000, the order dated 1 st February and t he Writ of E xecution f iled o n t he 28th January 2000 be set aside, or struck out and or dismissed or stayed, and that the Defendants be granted leave to file and serve their defence out of time and t hat t he matter t hereafter t ake i ts normal co urse, and t hat t he cost of the application be cost in the cause.

[2]The Summons was supported by an affidavit of the first-named Defendant who dep osed that his original so licitor i n S t. Luci a w as Mr. Dexter Theodore, t he nephew of t he first-named Plaintiff; that t he sa id so licitor executed an agreement for sale between the Plaintiffs and the Defendants where it is stated by clause 2 t hat “before the closing date the property shall have p assed an i ndependent i nspection t o t he sa tisfaction of t he purchaser.” He depo sed t hat no su ch i nspection ev er t ook place an d moreover the property was plagued with f aults which were detailed in a letter (exhibited) to Mr. Theodore dated 20th October 1999.

[3]He further deposed that the first-named Plaintiff was claiming the “deposit” of EC$100,000.00 whereas by paragraph 3 of the said agreement the first- named Plaintiff then the first-named vendor acknowledged receipt of the said deposit meaning the sum of EC$100,000.00, that the Plaintiffs were fully a ware of t he n umerous faults existing with t he pr operty but r ather misrepresented and induced the Defendants to purchase the property. He concluded by st ating t hat t he D efendants ha d a g ood a nd arguable defence and a good chance of success.

[4]I pause here to note that a draft Defence and Counter-Claim was exhibited with the application. day of April 2000 t hree affidavits were filed on behalf of the

[5]On the 14th Plaintiffs, one of which was deposed to by the first-named Plaintiff. The gist o f h is thirty-three par agraphed affidavit i s that t he first-named Defendant depended on the income he would have earned as a financier from Caribbean islands he worked for and that not knowing whether his enterprise would have t hrived he pl aced an “ escape cl ause” in t he agreement and manufactured the serious faults he complained of; that he used various tactics to get his belongings out of St. Lucia but which were only returned because of a Writ of Seizure.

[6]He said that the Defendants owed him a few months rental and never paid the deposit of $100,000.00 or any part of it. He concluded by stating that the Defendants were not resident in St. Lucia and that their behaviour in endeavouring t o remove f rom St. Lucia t heir only assets therein without paying arrears of rent in respect of the said house and also without paying the deposit indicated that they did not intend to pay them and therefore would ur ge t he C ourt t o or der t he ap plicants to p ay t he a mount o f t he judgment including costs should the judgment be set aside.

[7]Peter F elix a bui lding C ontractor and plumber o f B onne Terre deposed that he v isited t he h ouse i n q uestion and f ound a bsolutely no w ater seeping through the roof or the walls.

[8]Timothy Ja mes deposed t hat t he first-named D efendant co ntacted hi m through his “St.Lucia one stop” website and that he in turn introduced him to the f irst-named P laintiff an d v isited t he property al ong w ith t he first- named Defendant.

[9]On the 17th day of April 2000 Dexter Theodore barrister-at-law deposed to an affidavit stating when and how he met the first-named Applicant, of his promise to deposit t he E C$100,000.00 i nto hi s (Theodore’s) cl ients’ account but he never deposited the same or any part thereof and that it was seven months after meeting the first-named Defendant that the first- named P laintiff i nformed hi m o f the ar rears of r ental by t he D efendants and requested permission to withdraw rental from the “deposit” whereupon he informed him that the “deposit” had ever been paid.

[10]On t he 3 0th May 2000 Notice o f I ntention t o cr oss-examine D efendant David Tate was filed and served. The day after a report of Mr. Lester B.R. Arnold, Civil Engineer was filed in support of the Plaintiff.

[11]At the hearing, Learned Counsel for the Defendants told the Court that the claim was founded on an agreement dated 29 th December 1999 which the Defendants are alleged to have breached and judgment was obtained in default on the basis of the Plaintiff’s claim. She said that there were many serious issues to be t ried for ex ample, t he property i n q uestion s hould have been inspected and upon inspection were found to have numerous defects.

[12]She further informed the Court that at the time of the alleged breaches the parties were represented by the same solicitor and it was thereafter the Defendants had to seek a change of solicitor. She quoted the case of: (i) Evans v Bartham 1937, 2 ALL ER Vol2, page 646; (ii) Royal B ank o f C anada vs B enetton (St. L ucia) Lt d. v Tr aci Betts 143 of 1995; (iii) Order 13 Rule 9/14 of United Kingdom Supreme Court Practice

[13]Learned Counsel for the Plaintiffs commenced her argument by informing the Court that the affidavit of Davit Tate, the first-named Defendant filed on the 9th March 2000 was invalid under Article 38 of the Code of Civil Procedure which states that an affidavit from any Country must bear the “Common S eal of su ch co untry, B orough or I ncorporated t own”. S he, however told the Court that she would waive that point.

[14]She s aid t hat t he D raft D efence filed w as without m erit a nd g ave a summary o f the a ffidavits filed on behalf o f t he P laintiffs an d t hen concentrated on t he affidavit of Neville Cenac, first-named Plaintiff. S he said that the latter never induced the Defendants to rent his premises, that with regard to the inspection of the premises she argued that no closing date had been set and, moreover, there was no indication as to who would carry out the inspection and t hat either of the parties could have carried out t he i nspection t hrough so meone q ualified t o d o so , n ot by t he first- named Defendant himself.

[15]She ar gued t hat i t w as undisputed t hat D efendants commenced occupation o f the pr operty from 1 st July 1999 an d i t w as only upon approval of the first-named Defendant’s Alien’s Landholding Licence that he st arted ou tlining al leged de fects which he n ever sh owed t o t he Plaintiff’s; that he had sufficient time to put in his defence, but he only did so when the Writ of Seizure was filed.

[16]She concluded by urging the Court to dismiss the application with costs or alternatively that the Defendants be asked to make payment into Court as security for costs. She said that the Defendants were not residents of St. Lucia and are not easily located.

Conclusion

[17]At pa ge 6 of t he St. Lucia C ase S uit 143 o f 19 95 namely R oyal an d Benetton ( St.Lucia) Ltd a nd Tr aci B etts Matthew J. as he t hen w as enumerated t he principles which C ourts apply i n se tting asi de default judgments. I adopt and reiterated those principles.

[18]Learned C ounsel for t he P laintiffs spent a l ong t ime ar guing, g iving reasons why t he app lication sh ould be dismissed w ith co sts. T hese arguments therefore l ed me t o t he co nclusion t hat t here i s a case t o answer. I then considered the draft defence filed with the application in order to ascertain whether the defence has merits to which I should pay heed and why was the default allowed to occur.

[19]Having examined the defence in accordance with the principles laid down in Saudi Eagle 1986 2LLR 221; 223. I find that there is “a real prospect of success” with “some degree of conviction”. In the Saudi case [supra] it was found t hat t he D efendants had t aken a del iberate decision not t o defend the P laintiffs’ claim b ecause t he D efendants had no ass ets but upon r emembering t hat t he Plaintiffs had earlier ob tained s ecurity i n respect of the matter and w ere holding a bond, they applied to set aside the judgment.

[20]The pr esent ca se, i n m y j udgment, ca n be di stinguished i n t hat t he application to set aside was done within a r easonable time and that the Defendants have set up defences which show a real prospect of success, that is, if the evidence is forth coming. However, because of the difficulty involved in locating the Defendants which, a perusal of Sheriff’s Minutes on file w ill sh ow, I t hink it pr udent t o order t he D efendants to p ay i nto Court S ecurity f or C osts. ( Case o f Allen v Ta ylor [1992] P IQR 25 5 considered).

[21]As stated earlier, I think the defence has merit and t hat the Defendants should have a proper adjudication on the merits.

[22]My Order is as follows: (1) In the exercise of my discretion I set aside the default judgment filed by day of January 2000 and I grant leave to the the Plaintiffs on the 27th Defendants to f ile an d se rve t heir de fence on t he P laintiffs w ithin twenty-eight (28) days. (2) That t he D efendants do de posit t he sum o f E C$100,000 as security within twenty-eight (28) days of this judgment (3) Failure to adhere to (1) and (2) above will result in judgment and costs to be taxed in favour of the Plaintiffs. (4) That t he D efendants do p ay co sts in an y e vent t o t he P laintiffs occasioned by the setting aside of the default judgment to be agreed or otherwise taxed.

SUZIE d’AUVERGNE

High Court Judge

Suit No. 983 of 1999 D’Auvergne, J Delivered: 29/11/00