IN THE HIGH COURT OF JUSTICE

Transcription

1 THE REPUBLIC OF TRINIDAD TOBAGO IN THE HIGH COURT OF JUSTICE CV IN THE MATTER OF THE PROPERTY COMPRISED IN A MEMORUM OF SECOND MORTGAGE DATED THE 15 TH DAY OF AUGUST 2013 REGISTERED IN VOLUME F-5195 FOLIO 263 MADE BETWEEN BIG Q CONSULTING SERVICES LTD (BORROWER) FRANCIS BERTR JOANN BERTR (LOWNERS) FIRST CITIZENS BANK LIMITED (FIRST CITIZENS) IN THE MATTER OF THE REAL PROPERTY ACT CHAPTER 56:02 BETWEEN FIRST CITIZENS BANK LIMITED Claimant BIG Q CONSULTING SERVICES LIMITED First Defendant FRANCIS BERTR Second Defendant JOANN BERTR Third Defendant Page 1 of 6

2 Before the Honourable Mr Justice Ronnie Boodoosingh Appearances: Mr Prakash Deonarine and Ms Susan Moolchan for the Claimants The Defendants, Unrepresented Date: 26 September 2017 Ruling 1. I am to decide on costs. There was a mortgage granted by the claimant to the first defendant. There was a failure to pay and a claim was filed by the claimant. As required by the CPR, the claim was brought by means of a fixed date claim form. It was ordered that the first defendant must repay the outstanding sums to the claimant. The issue of costs is outstanding, as the claimants contend that they are entitled to prescribed costs and not fixed costs. 2. This is a claim arising out of a mortgage. As such it is governed by part 69 of the CPR. Part 69 includes: 69.1 (1) This Part deals with claims by a mortgagor or mortgagee for any of the following forms of relief: (a) payment of moneys secured by a mortgage; (b) sale of a mortgaged property; (c) foreclosure; (d) possession of a mortgaged property; (e) redemption of a mortgage; (f) reconveyance of the property or release from the mortgage; and (g) delivery of possession by the mortgagee, which are referred to in this Part as mortgage claims. (2) In this Part mortgage includes a legal or equitable mortgage and a legal or equitable charge; Page 2 of 6

3 mortgagor means the person who has granted a mortgage of the mortgaged property; and mortgagee means the person to whom the mortgage was granted. Mortgage claim to be by fixed date claim 69.2 A mortgage claim is made by issuing a fixed date claim. (The procedure relating to fixed date claims is dealt with in rules 8.1(4) and 27.2) 3. Rule 8.1(4) states as follows: (4) Form 2 (fixed date claim) must be used (a) in proceedings for possession of premises which are (i) occupied in whole or in part for residential purposes; or (ii) subject to any statutory restrictions on the claimant s right to possession; (b) in claims arising out of hire-purchase or credit sale agreements; (c) whenever its use is required by a rule or practice direction; and (d) where by any enactment proceedings are to be commenced by originating summons or motion. 4. Additionally, rule 27.2 sets out as follows: 27.2 (1) When a fixed date claim is issued the court must fix a date for the first hearing of the claim. (2) On that hearing, in addition to any other powers that the court may have, the court shall have all the powers of a case management conference. (3) The court may, however, treat the first hearing as the trial of the claim if it is not defended or it considers that the claim can be dealt with summarily. (4) The general rule is that the court must give at least 14 days notice of any first hearing. (5) However, this is subject to any rule or statutory provision, which, specifies a different period. (6) The court may with or without an application direct that shorter notice be given (a) if the parties agree; or (b) in urgent cases. Page 3 of 6

4 5. Costs are dealt with by Parts 66 and 67 of the CPR. In most instances, where fixed costs are not applicable, prescribed costs are awarded. Rule 67.4 provides: Fixed Costs 67.4 (1) A party is entitled to the costs set out in Part I of Appendix A. (2) The court may, however, direct that some other amount of costs be allowed for the work covered by any item in Part 2 of Appendix A. (3) If so, the court must assess such costs. (Rules and deal with the assessment of costs) 6. Additionally, rule 67.5 states: Prescribed costs 67.5 (1) The general rule is that where rule 67.4 does not apply and a party is entitled to the costs of any proceedings those costs must be determined in accordance with Appendices B and C to this Part and paragraphs (2) (4) of this rule Therefore the starting point must be to examine the provisions of Part I of Appendix A to see whether fixed costs are applicable. This part outlines as follows: APPENDIX A PART 1 This part of the appendix sets out the fixed costs applicable to a claim for a specified sum of money: (a) Table 1 which a defendant who does not defend must pay to the claimant, in addition to the amount claimed and interest and the court fees paid by the claimant, in order to avoid judgment being entered against him under Part 12. These sums are to be entered on the claim form. The table also deals with claims for possession of land or delivery of goods and an application for an attachment of debts order. (b) Table 2 which a claimant is entitled to include as costs in any default judgment under Part 12 in addition to the costs set out in Table 1. Page 4 of 6 SCALE OF FIXED COSTS

5 TABLE 1 1. This Table shows the fixed costs to be entered on a claim form or provisional attachment of debts order in respect of attorney s-at-law charges (a) in an action for payment of a specified sum of money; (b) in attachment of debt proceedings; or (c) in an action for the recovery of land. 8. The claimant submits that the first part of Appendix A relates to a claim for a specified sum, where the claim is not defended and the claimant may obtain default judgment. The claimant further submits that the extension to claims for possession of land should relate only to those matters in which default judgment may be obtained. I disagree with this interpretation of the Appendix A. The paragraph does go on to state that the table also deals with claims for possession of land or delivery of goods and an application for an attachment of debt order. Also, being an operative word in that sentence leads me to conclude that although these matters may be in relation to claims for a specified sum, it is not necessary that they relate only to matters for which default judgment can be obtained. 9. Additionally, rule 8.1(4) of the CPR states that whenever it is required by a rule or practice direction, the matter should commence by way of fixed date claim form. In these circumstances this property is subject to a mortgage and falls squarely within the provisions of Part 69. Part 69 instructs that matters of this nature must be commenced by way of fixed date claim form. Since I have already concluded that paragraph (a) of Appendix A ought not to be interpreted to mean that fixed costs are only applicable in matters relative to possession of land in which there is a claim for a specified sum and where default judgment can be obtained, then the fixed cost regime applies to matters of this nature. This is a claim for a specified sum of money in the sense that a definite sum has been claimed and for possession of land. 10. The claimant also raised the issue that the where the claimant seeks final judgment at the first hearing, he is put through the rigors of proving his case, whether or not the claim is defended. The claimant relies on the provisions of Part However, Part 69.4 outlines all that the claimant is required to include in the claim form and this is not contingent upon whether or not judgment is being sought at the first hearing. The rules provide that the first hearing can be treated as the trial of the matter. The claimant contends that a judgment made at this point is considered to be a final judgment, whereas default judgment is considered interlocutory. The claimant further submits that on this basis, the prescribed costs are deemed to be applicable. I disagree with this position. Default judgment is not interlocutory, as unless a defendant obtains an order for judgment to be set aside, he will Page 5 of 6

6 only be heard on matters relative to costs, the time of payment of any judgment debt and enforcement. Unless the judgment is set aside, this effectively determines the matter. 11. The defendants have not attempted to challenge the claim. The court has not had to give further directions. An order was made for payment of the outstanding sum as well as delivery up of possession of the property. Had the matter gone further, there would be a case for awarding prescribed costs. As stated before, part 69.4 outlines what is required when filing a claim of this nature, which is not dependent on the first hearing being treated as a trial of the matter. 12. I was referred to the Eastern Caribbean case of Bank of Nova Scotia v Anthea Joseph and Another, DOMHC CV 2014/0204 decided by Stephenson J on 16 December In that case the claim was held to be a mortgage claim and not a claim for a specified sum of money for the purposes of Part 14 of the Eastern Caribbean CPR. The submission was made it appears that it was strictly a claim for a specified sum of money, which was rightly rejected by the court. The court then went on to decide the application before it which was an application to pay by instalments. The issue of the costs regime applicable does not appear to have been argued as it is only referred to in the order of the court. It is not my finding that this is exclusively a claim for a specified sum of money. The point is that having regard to the claims sought, a specified sum of money is claimed as well as vacant possession of the subject property. Both of these aspects are satisfied in this claim for the purposes of costs. I therefore, respectfully, do not see any reason to depart from the position taken in Scotiabank Trinidad and Tobago Limited v Carlos Law and Diane Law, CV , decided 3 October The position here is also consistent with the approach in England and Wales as reflected in the note from Atkins referred to in the Scotiabank v Law ruling. 13. In my view, the applicable regime in these circumstances is the fixed costs regime. The defendants must pay costs to the claimants in the sum of $1, I thank attorneys for the claimant for their submissions. Ronnie Boodoosingh Judge Page 6 of 6