THE REPUBLIC OF TRINIDAD AND TOBAGO. IN THE HIGH COURT OF JUSTICE Port of Spain

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Port of Spain Claim No. CV BETWEEN DENISE BEEBAKHEE NICHOLAS BEEBAKHEE Claimants AND WILLIE ROOPCHAN JOSEPH C. GEORGE Defendants Before the Honourable Mme. Justice Jacqueline Wilson Date of Delivery: November 11, 2018 APPEARANCES: Mr. Raj Joseph and Mr. Robert Boodoosingh Attorneys at law for the Claimants Mr. Joseph Sookoo and Ms. Tracey Wiltshire Attorneys at law for the First Defendant JUDGMENT 1. The Defendants seek summary judgment against the Claimants in respect of the whole of their claim filed on 31 January The Defendants allege that there is no claim in law as asserted by the Claimants and that, even if there were such a claim, no facts are pleaded by the Claimants to support the relief sought in the claim. 1

2 3. In the premises, the Defendants assert that the claim has no realistic prospect of success. THE CLAIMANTS CLAIM 4. In their claim form the Claimants seek the following relief: i. Damages for wrongful and/ or excessive levy/ distress ii. iii. Costs Such further and/ or other relief as the Honourable Court deems fit in the circumstances of the case. 5. In their statement of case the Claimants allege that they are the wife and son, respectively, of Eshwarlal Beebakhee and live on Beebakhee Avenue, Curepe, on property that is owned by them. They state that Mr. Beebakhee does not reside with them or share ownership of the property. 6. The Claimants state that in 2009 Mr. Beebakhee unsuccessfully sued the First Defendant and a money judgment and costs were awarded against him. They allege that on 16 April 2015, while Mr. Beebakhee was overseas, a Marshal of the Supreme Court and an agent of the First Defendant came to their home demanding payment of the judgment debt and threatening to remove the contents of their home if the debt was not paid immediately. 7. The First Claimant states that she called Mr. Beebakhee on the telephone and told him what was transpiring at her home. Mr. Beebakhee then spoke to the Marshal and the agent of the First Defendant to explain that he was not the owner of the house or of its contents. Nevertheless, the Marshal and the agent insisted that the First Claimant accompany them to the Bank so that the judgment debt could be repaid. In so doing, they Claimants allege that the 2

3 Defendants did not give credit for post-dated cheques that were previously sent to them by Mr. Beebakhee and not returned. THE DEFENCE 8. The Second Defendant is the Attorney-at-law for the First Defendant. The Defendants allege that in the court proceedings brought by Mr. Beebakhee against the First Defendant, Mr. Beebakhee identified the premises where the Claimants reside as his residence. They state that Mr. Beebakhee was unsuccessful in the proceedings and in his appeal and was ordered to pay the First Defendant s costs in the sums of $12, and $33, and has failed to do so. 9. The Defendants state that on 9 December 2014 they obtained a writ of execution against Mr. Beebakhee which was passed to the Marshal for execution and that on the 16 April 2015 the Marshal and the agent of the First Defendant went to Mr. Beebakhee s given address for execution of the writ. 10. The Defendants admit that the First Claimant telephoned Mr. Beebakhee while the Marshal and the First Defendant s agent were at her home. They state that Mr. Beebakhee negotiated with them to prevent the execution of the writ and to settle the judgment debt. Mr. Beebakhee agreed to make a part payment of $46, on the judgment debt and to pay the costs of execution in the sum of $ He agreed to pay the outstanding balance owed by him when he returned to the jurisdiction the following week. 11. The Defendants state that Mr. Beebakhee instructed the First Claimant to enter into a walking possession agreement in respect of the contents of the premises until the agreed sums were paid. As a result the Marshal and the First Defendant s agent accompanied the 3

4 First Claimant to the Bank where she withdrew sums from Mr. Beebakhee s account which were paid by cheque in the amount of $46, and $5, to the First Defendant s agent. Upon receipt of payment, the First Defendant s agent endorsed the writ of execution to indicate that the walking possession was terminated. THE PARTIES SUBMISSIONS 12. In their written submissions the Claimants abandoned the claim for wrongful distress. Therefore the claim for wrongful/ excessive levy is the sole complaint that now subsists against the Defendants. 13. The Defendants contend that, when taken at its highest, the Claimant s case has no realistic prospect of success. 14. The Defendants submit that there is no basis on which to support the claim of excessive levy. They submit that they obtained a court order for a writ of execution against Mr. Beebakhee and that the writ was executed at the address given by Mr. Beebakhee in his witness statement. They submit further that the Claimants have failed to identify the goods or the value of the goods that were the subject of the alleged levy and have failed to aver that the post-dated cheques allegedly sent to them by Mr. Beebakhee were either accepted or encashed. 15. The Defendants submit further that no levy took place, as alleged by the Claimants, as the mere act of seizing and detaining a person s goods in order to obtain payment was not a levy, unless followed by a sale of the goods. The Defendants rely on the authority of Watkinson v Hollington [1943] 2 All ER 573 where it was stated that the word levy means to raise a sum by legal execution or process. 4

5 The Defendants assert that in order to avoid the levy a sum of money was paid by the Claimants. 16. The Defendants submit that even if a levy did in fact occur, which was either wrongful or excessive, the proper claim lay against the Marshal whose lawful duty it was to ascertain ownership of any goods taken and that if in doubt, the Marshal could protect himself (and ascertain ownership of goods seized prior to sale) by way of interpleader: Smith v Keal (1882) 9 QBD In response, the Claimants submit that there are serious issues to be tried on the claim which are wholly unsuitable for determination through the summary process. The Claimants submit that the critical issue for determination is whether the Defendants, acting through the Marshal and the agent of the First Defendant, sought to execute the writ on the property of persons other than the judgment debtor named on the writ. 18. The Claimants submit that the Defendants evidence filed in support of the application for summary judgment contradicts the Claimants evidence on critical matters and that the conflict should be resolved at the trial stage after the discovery process has been undertaken and witnesses cross-examined. The areas of conflict identified by the Claimants are whether Mr. Beebakhee and/ or the Claimants did in fact inform the Defendants that the house and its contents did not belong to Mr. Beebakhee and whether Mr. Beebakhee did authorise the First Claimant to enter into a walking possession agreement until the agreed sums were paid. 19. The Claimants submit further that there were irregularities in the execution of the writ in that the sums levied were paid to the Second 5

6 Defendant and not the First Defendant, as specified in the writ, and no receipt for payment was provided by the Marshal. ANALYSIS AND DECISION 20. Part 15.2 of the Civil Proceedings Rules (the CPR) enables the court to give summary judgment against a claimant on the whole or part of a claim or on a particular issue if it considers that the claimant has no realistic prospect of success on the claim, part of the claim or issue. 21. The summary disposal of claims or issues that do not need full investigation or trial serves as a filter to ensure that only cases with a real prospect of success go forward to trial The principles to be applied in deciding whether an order for summary judgment should be made were summarised by Lewison J in The Federal Republic of Nigeria v Santolina Investment Corporation and others [2007] EWHC 437 as follows: i. The court must consider whether the defendant has a realistic as opposed to a fanciful prospect of success Swain v Hillman [2001] 2 All ER 91; ii. iii. iv. A realistic defence is one that carries some degree of conviction. This means a defence that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]; In reaching its conclusion the court must not conduct a mini-trial : Swain v Hillman; This does not mean that the court must take at face value and without analysis everything that a defendant says in his statements before the court. In some cases it 1 Sweet & Maxwell, The White Book Service 2015, para

7 may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; v. However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550; vi. vii. Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63; Although there is no longer an absolute bar on obtaining summary judgment when fraud is alleged, the fact that a claim is based on fraud is a relevant factor. The risk of a finding of dishonesty may itself provide a compelling reason for allowing a case to proceed to trial, even where the case looks strong on the papers: Wrexham Association Football Club Ltd v Crucialmove Ltd [2006] EWCA Civ 237 at [57]. 7

8 23. The starting point in the determination of this application is to consider the description of the claim brought by the Claimants, 2 the remedy sought by them 3 and the facts on which they rely to support the claim and remedy As indicated above, the Claimants seek damages for wrongful and/ or excessive levy. The remedy is sought in circumstances where the Defendants purported to execute a writ of execution on premises owned by the Claimants and not the judgment debtor named in the writ. 25. The questions that arise are: i. What is the wrong that was suffered by the Claimants as a result of the Defendants actions; and ii. What loss was sustained by them. 26. No complaint is made by the Claimants that the Defendants entry on their premises was unlawful or that the Defendants unlawfully interfered with their goods or property. Neither do the Claimants assert that the sums paid by the First Claimant to the Second Defendant were drawn from the Claimants accounts or that the Claimants otherwise suffered loss as a result of such payment. 27. Having failed to identify a substantive wrong or to demonstrate any loss, the Claimants ultimately sought refuge in purported irregularities in the execution of the writ, such as the payment of sums under the writ to the Second Defendant and not the First Defendant, as judgment debtor, and the Marshal s failure to issue a 2 CPR 8.5(1)(a) 3 CPR 8.5(1)(b) 4 CPR 8.6(1) 8

9 receipt for such payment. otherwise redeem the Claimants case. Such recourse, however, could not 28. In addition, the Claimants assertion that there are conflicts in the evidence that require closer examination ignores the fact that there is no foundation on which the Claimants case is built. 29. In the circumstances, the Claimant s case has no realistic prospect of success and should be disposed of at an early stage. 30. I therefore order that: i. There shall be summary judgment for the Defendants against the Claimants in respect of the whole of the claim; ii. iii. The Claimants shall pay 55% of the prescribed costs of the claim, assessed in the sum of $7,700.00, to the Defendants; The Claimants shall pay the Defendants costs of this application to be assessed by this court in default of agreement. Jacqueline Wilson Judge 9