IN THE HIGH COURT OF JUSTICE BETWEEN. TRINIDAD AND TOBAGO MORTGAGE FINANCE COMPANY LIMITED Claimant AND STEPHEN ROBERTS

Similar documents
IN THE HIGH COURT OF JUSTICE BETWEEN YVONNE ROSE MARICHEAU. And MAUREEN BHARAT PEREIRA. And

IN THE HIGH COURT OF JUSTICE BETWEEN. And THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO P.C. SAMAD P.C. PIERRE THIRD DEFENDANT

IN THE HIGH COURT OF JUSTICE NATIONAL INSURANCE BOARD OF AND. BARL NARAYNSINGH ROBIN NARAYNSINGH Defendants Before: Master Margaret Y Mohammed

IN THE HIGH COURT OF JUSTICE. Between STEPHEN LORENZO LODAI. And NAGICO INSURANCE COMPANY LIMITED. (formerly known as GTM INSURANCE COMPANY LIMITED)

IN THE HIGH COURT OF JUSTICE. Between ROBERTO CHARLES AND SHASTRI PRABHUDIAL

IN THE HIGH COURT OF JUSTICE

WASHINGTON COUNTY CIRCUIT COURT CIVIL PROCEDURES (Revised June, 2012)

IN THE HIGH COURT OF JUSTICE GARY LEGGE AND MAUREEN LEGGE. Between CHRIS RAMSAWACK AND WESTERN SHIP AND RIG SUPPLIES LIMITED

VA Form (Home Loan) Revised October 1983, Use Optional. Section 1810, Title 38, U.S.C. Acceptable to Federal National Mortgage Association

IN THE HIGH COURT OF JUSTICE BETWEEN AND RAMDATH DAVE RAMPERSAD, LIQUIDATOR OF HINDU CREDIT UNION CO-OPERATIVE SOCIETY LIMITED

IN THE HIGH COURT OF JUSTICE BETWEEN ROMATI MARAJ CLAIMANT AND ASHAN ALI TIMMY ASHMIR ALI DEFENDANTS

IN THE HIGH COURT OF JUSTICE. PAN AMERICAN INSURANCE COMPANY OF TRINIDAD AND TOBAGO LIMITED Defendant

(27 November 1998 to date) ALIENATION OF LAND ACT 68 OF 1981

ALIENATION OF LAND ACT NO. 68 OF 1981

ALIENATION OF LAND ACT 68 OF 1981 i * [ASSENTED TO 28 AUGUST 1981] [DATE OF COMMENCEMENT: 19 OCTOBER 1982] (Except s. 26: 6 December 1983) (English

The Limitation of Actions Act

SUPREME COURT OF JUDICATURE ACT

IN THE COURT OF APPEAL BETWEEN DOC S ENGINEERING WORKS (1992) LTD DOCS ENGINEERING WORKS LTD RAJ GOSINE SHAMDEO GOSINE AND

Title 8 Laws of Bermuda Item 47 BERMUDA 1973 : 69 DEBTORS ACT 1973 ARRANGEMENT OF SECTIONS. [preamble and words of enactment omitted]

THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV

In the Supreme Court of Belize A.D. 2009

IN THE SUPREME COURT OF BELIZE A.D.2014 ATLANTIC BANK OF BELIZE. Mr. Michel Chebat of Chebat & Co. of counsel for the Claimant.

IN THE SUPREME COURT OF BELIZE, A.D BANANA ENTERPRISES LIMITED

IN THE HIGH COURT OF JUSTICE. Between RASHEED ALI OF ALI S POULTRY AND MEAT SUPPLIES. And NEIL RABINDRANATH SEEPERSAD. And *******************

Agreement to UOB Banker s Guarantee Terms and Conditions

THE SMALL CLAIMS COURT BILL, 2007

IN THE HIGH COURT OF JUSTICE IN THE MATTER OF EASTERN CREDIT UNION CO-OPERATIVE SOCIETY LIMITED AND IN THE MATTER OF THE COMPANIES ACT 1995 BETWEEN

IN THE HIGH COURT OF JUSTICE BETWEEN AND BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER REASONS

IN THE HIGH COURT OF JUSTICE BETWEEN AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO FIRST NAMED DEFENDANT AND AND

IN THE HIGH COURT OF JUSTICE BETWEEN DEOCHAN SAMPATH AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE BETWEEN AND TECU CREDIT UNION CO-OPERATIVE SOCIETY LIMITED

JUDGMENT REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN D. C. DEVELOPERS LIMITED. Claimant AND

REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG CASE NO: 33118/2010. In the matter between:

Unannotated Statutes of Malaysia - Principal Acts/DEBTORS ACT 1957 Act 256/DEBTORS ACT 1957 ACT 256. Incorporating all amendments up to 1 January 2007

c t MECHANICS LIEN ACT

Shortfalls on Sale. Toby Watkin

IN THE HIGH COURT OF JUSTICE, SAN FERNANDO BETWEEN DANIEL SAHADEO ABRAHAM SAHADEO AGNES SULTANTI SELEINA SAHADEO AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

6. Finding on the mortgage or lien, including priority and entitlement to foreclose.

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE. Between. And

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV JUDGMENT OF RONALD YOUNG J

IN THE COURT OF APPEAL ROY FELIX. And. DAVID BROOKS Also called MAVADO

IN THE HIGH COURT OF JUSTICE. Between FIRST CITIZENS BANK LIMITED. And JENNIFER DANIELS

IN THE HIGH COURT OF JUSTICE

IN THE HIGH COURT OF JUSTICE BETWEEN ROOFMAN LIMITED AND. NATIONAL INSURANCE PROPERTY DEVELOPMENT COMPANY Garnishee AND

LIMITATION OF ACTIONS ACT

Debtors 1 LAWS OF MALAYSIA REPRINT. Act 256 DEBTORS ACT Incorporating all amendments up to 1 January 2006

IN THE HIGH COURT OF JUSTICE BETWEEN

FIJI ISLANDS HIGH COURT ACT (CHAPTER 13) HIGH COURT (AMENDMENT) RULES 1998

THE COAL MINES (NATIONALISATION) ACT, 1973 ARRANGEMENT OF SECTIONS

IN THE HIGH COURT OF JUSTICE BETWEEN LENNOX OFFSHORE SERVICES LIMITED AND DECISION

Northern Iron Creditors' Trust Deed

IN THE HIGH COURT OF JUSTICE BETWEEN. PRIME EQUIPMENT RENTALS LIMITED Claimant AND AND THE NEW INDIA ASSURANCE COMPANY (TRINIDAD & TOBAGO) LIMITED

A & A MECHANICAL CONTRACTORS AND COMPANY LIMITED PETROLEUM COMPANY OF TRINIDAD AND TOBAGO

Do You Know How to Advise Your Client When: Your Client Has Judgment for Possession and Needs You to Obtain a Writ of Possession

The Attachment of Debts Act

MORTGAGE DEED THIS DEED OF MORTGAGE IS MADE ON DAY OF THIS MONTH OF IN THE YEAR.

IN THE HIGH COURT OF JUSTICE BETWEEN CELEST CHAITRAM AND ANDREW SAHATOO MOTOR ONE INSURANCE COMPANY LIMITED

IN THE HIGH COURT OF SOUTH AFRICA [WESTERN CAPE HIGH COURT, CAPE TOWN] Coram: LE GRANGE, J

Session of HOUSE BILL No By Committee on Judiciary 2-1

THIS MORTGAGE dated as of the day of, 20., a body corporate, whose

BELIZE DEBTORS ACT CHAPTER 168 REVISED EDITION 2000 SHOWING THE LAW AS AT 31ST DECEMBER, 2000

Title 14: COURT PROCEDURE -- CIVIL

IN THE HIGH COURT OF JUSTICE LLOYD CHARLES AND NORTH WEST REGIONAL HEALTH AUTHORITY THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO *********************

BELIZE LIMITATION ACT CHAPTER 170 REVISED EDITION 2000 SHOWING THE LAW AS AT 31ST DECEMBER, 2000

By-Laws SPRING LAKE FARM HOMEOWNERS ASSOCIATION. Article I. Organization

IN THE HIGH COURT OF JUSTICE BETWEEN AND

The Debt Adjustment Act

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE ANTIGUA AND BARBUDA

TITLE 25. RESIDENTIAL FORECLOSURE AND EVICTION LAW CHAPTER 1. SHORT TITLE, FINDINGS, AND PURPOSE

2011 No. 586 (L. 2) SENIOR COURTS OF ENGLAND AND WALES COUNTY COURTS, ENGLAND AND WALES. The Civil Proceedings Fees (Amendment) Order 2011

THE HINDUSTAN TRACTORS LIMITED (ACQUISITION AND TRANSFER OF UNDERTAKINGS) ACT, 1978 ARRANGEMENT OF SECTIONS

FORM OF MORTGAGE DEED TO BE EXECUTED WHEN THE PROPERTY IS FREEHOLD

THE DISTRICT AND INTERMEDIATE COURTS (CIVIL JURISDICTION) ACT 1888

Downloaded From

IN THE SUPREME COURT OF GRENADA AND THE WEST INDIES ASSOCIATED STATES HIGH COURT OF JUSTICE

IN THE COURT OF APPEAL. and GRENADA TELECOMMUNICATIONS LTD. Mr. P. R. Campbell for the Appellant Mr. S. E. Commissiong for the Respondent

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN)

GUTSCHE FAMILY INVESTMENTS (PTY) LIMITED

WHEREAS having regard to the population and great extent of

IN THE HIGH COURT OF JUSTICE Sub-Registry, San Fernando. VSN INVESTMENTS LIMITED Claimant AND. SEASONS LIMITED (In Receivership)

Part 36 Extraordinary Remedies

IN THE HIGH COURT OF JUSTICE BETWEEN MOHANLAL RAMCHARAN AND CARLYLE AMBROSE SERRANO

ST. GEORGE WEST COUNTY PORT OF SPAIN PETTY CIVIL COURT

MUNICIPAL CLAIM AND TAX LIEN LAW - OMNIBUS AMENDMENTS Act of Aug. 14, 2003, P.L. 83, No. 20 Session of 2003 No

CHAPTER LIMITED PARTNERSHIP ACT

THE LAW RELATING TO GUARANTEES

IN THE HIGH COURT OF JUSTICE BETWEEN QUANTUM CONSTRUCTION LIMITED AND NEWGATE ENTERPRISES CO. LTD.

7:12 PREVIOUS CHAPTER

DEED OF SURETYSHIP. in favour of INTERMEDIARIES GUARANTEE FACILITY LIMITED. Surety in solidum for and co-principal debtor with

IN THE HIGH COURT OF JUSTICE. MARITIME LIFE INSURANCE COMPANY LIMITED Defendant

REPEALED LIMITATION ACT CHAPTER 266

Title 14: COURT PROCEDURE -- CIVIL

DISTRICT AND INTERMEDIATE COURTS (CIVIL JURISDICTION) ACT

IN THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL BETWEEN MAY JOSEPHINE HUMPHREY AND

ICC Rules of Conciliation and Arbitration 1975

IN THE HIGH COURT OF JUSTICE AND

CURATELLE ACT. Act 12 of October 1973 ARRANGEMENT OF SECTIONS PART I PRELIMINARY. 1. Short title 2. Interpretation

HIGH COURT OF JUSTICE. MABLE PHILLIP (Acting through her Attorney Nancy Mc Kenzie Greene) and CORRINE CLARA

Transcription:

IN THE REPUBLIC OF TRINIDAD AND TOBAGO CV2010-00448/HCA S-2360 of 2004 IN THE HIGH COURT OF JUSTICE BETWEEN TRINIDAD AND TOBAGO MORTGAGE FINANCE COMPANY LIMITED Claimant AND STEPHEN ROBERTS ELIZABETH ROBERTS ***************************************** Defendants Before: Master Alexander Appearances: For the claimant: Mr Bronock Reid, Instructed by Ms Geeta Maharaj For the defendants: Mr Terence Martin Milne DECISION 1. At the Case Management Conference ( CMC ) on 7 June, 2011 the court was asked to exercise its discretion under Part 26 of the Rules of the Supreme Court, 1998 as amended (hereinafter the CPR, 1998) to dismiss the claim against the defendants on the grounds that it was statute barred. This application was opposed by the claimant and submissions were ordered to be filed. 2. Before examining the applicable law on this application, I will attempt to provide a brief recital of the history of this matter in order to place the issues in the proper context. This action was commenced by writ of summons indorsed with a statement of claim filed on 22 December, 2004. The claimants sought therein to recover the sum of $16,861.31 plus interest at the rate of 8.5% per annum from 19 October, 2004 to the date of judgment or payment. The monies sought to be recovered were allegedly due on a contract dated 14 June, 1991 and made between the claimant and the defendants (hereinafter the said contract ). Page 1 of 7

3. It is not in dispute between the parties that the last payment made by the defendants under the said contract was on 7 July, 1995. The questions of an acknowledgment of the debt or of a part payment subsequent to that date also do not arise. It is also not in dispute that the instant action was filed outside of the period of limitation for bringing such claims. 4. It is instructive to recite clauses 2 5 of the said contract which are as follows: Clause 2 the sum of $148,704.36 remains due and owing to the Mortgagee under the security of the Deed of Mortgage. Clause 3 the Mortgagors are desirous of selling the said leasehold premises and under the provisions of the Deed of Mortgage they have sought the Mortgagee s consent to such sale. The Mortgagors have also requested the Mortgagee to release and re-assign the said leasehold premises to them freed and discharged from the Deed of Mortgage. Clause 4 the proceeds of sale of the said leasehold premises are insufficient to liquidate the amount now due and owing to the Mortgagee under the security of the Deed of Mortgage. Clause 5 the Mortgagee has agreed to consent to the sale of the said leasehold premises and to release and reconvey the same to the Mortgagors upon the following terms and conditions: a. the Mortgagors shall pay to the Mortgagee on or before the execution hereof the sum of $123,500.00 to be applied towards the amount now due and owing by the mortgagors to the mortgagee upon the security of the Deed of Mortgage. b. the Mortgagors shall pay the balance or sum of $25,204.36 together with interest at the rate of 8.5% per annum by 84 equal monthly installments of $410.33 each, commencing on the 31 st day of May 1991 and thereafter payable on the last day of each and every month. c. the Mortgagors shall pay to the Mortgagors default in the payment of any installment as aforesaid, the entire amount payable hereunder at the time of such default shall immediately become due and payable and may be recoverable by the Mortgagee by suit or otherwise. 5. The matter was filed on 22 December, 2004 under the Rules of the Supreme Court, 1975 as amended (hereinafter the RSC, 1975 ). It was converted from the RSC, 1975 to the CPR, 1998 by notice dated 1 April, 2010. 6. Several issues arise for determination on this application as follows: i. What are the applicable rules/law governing this matter? ii. What is the effect of a statute of limitation? Page 2 of 7

iii. What is the effect of a failure to plead the statute of limitation (under the RSC and CPR)? 7. Submissions of the Claimant Counsel for the claimant submitted as follows i. The law applicable to this matter is the Limitation of Certain Actions Act Chapter 7:09, Act 36 of 1997 and in particular Sub-Section 3(1)(a). ii. The defendants have denied the debt on the basis that the claimant s cause of action is barred by virtue of section 5(1) (a) of the Limitation Act No 22 of 1981 but this Act was never passed so the defendants must be held accountable for the debt. iii. In an action for a debt, a statute of limitation operates, generally, to bar the remedy and not the cause of action. 1 Thus, the cause of action is not extinguished but is rendered unenforceable in a court of law. This means that where a debt is due, a creditor cannot recover that sum in a court of law unless he takes action within the limitation period prescribed by legislation. 2 iv. For a debtor to rely on a statute of limitation, he must plead the statute. 3 He cannot rely simply on the fact that on the face of the claim, the recovery of the debt is statute barred. 4 If he fails to plead the statute of limitation that he relies on to oust the claimant s claim, the creditor is entitled to pursue his action in a court of law since the statute bars the remedy, not the cause of action. v. In the instant case, the defendant s failure to plead the statute of limitation means the defence ought to be struck out since without that plea it is a bare defence and cannot withstand scrutiny as a general statement of non-admission is not a sufficient traverse to the statement of claim. 1 Halsbury s Laws of England 4 th edition paragraph 646 @ p. 290 2 A creditor may, however, recover the debt by any other lawful means that remains open to him. For example, if a sum of money is paid to him by the debtor, he may apply those proceeds to the statute barred debt. 3 Halsbury s Laws of England 4 th edition paragraph 647 @ p. 291. See also The Supreme Court Practice 1997 Volume 1 paragraph 18/8/10 @ p. 302. 4 Halsbury s Laws of England 4 th edition paragraph 647 @ p. 291. Page 3 of 7

8. The Defendants Submissions Counsel for the defendants submitted as follows i. As a result of the conversion of this matter to the CPR, the applicable rules are the CPR, 1998 and not the RSC, 1975. ii. The law applicable to this matter is the Limitation of Certain Actions Act Chapter 7:09, and in particular Sub-Section 3(1)(a). iii. In its bid to oust the claimant s claim, the defendants did in fact raise the defence that the cause of action did not accrue within four years of the action and so is barred. However, it was erroneously stated that the applicable law was section 5(1) of the Limitation Act No 22 of 1981, which is not in existence. iv. In any event, the laws of England and the RSC, 1975 are not applicable to the instant matter so there is no need to plead the statute. v. The applicable law (i.e. the Limitation of Certain Actions Act Chapter 7:09) is clear that the claimant is barred from bringing any action four years after the date on which the cause of action arose. The action is not merely unenforceable but the law prohibits the bringing of the action in the first place. vi. Further, the defendants have pleaded in their defence that the cause of action did not accrue within four years of the commencement of the action i.e. within four years of the last payment under the contract on 7 July 1995. The defendants have also pleaded that because of this fact the action could not be brought by the claimant since the claimant was barred or prohibited from bringing the action. Thus, the erroneous mention of the specific law does not affect the fact that the prohibition was pleaded. vii. There is now no need to make a specific plea of limitation in this jurisdiction. Thus, although the plea of limitation was made by the defendants in the instant case, there really was no necessity to plead it. Page 4 of 7

viii. The court should exercise its discretion under Part 26, CPR 1998 and dismiss this action with costs as the Act prohibits the bringing of the action and it is clearly an abuse of process. 9. The Applicable Rules/Law of Limitation i. Both parties agree that the statute applicable to this matter is the Limitation of Certain Actions Act Chapter 7:09, and in particular Sub-Section 3(1)(a) which states: 3. (1) The following actions shall not be brought after the expiry of four years from the date on which the cause of action accrued, that is to say: (a) actions founded on contract (other than a contract made by deed) on quasi-contract or in tort; ii. In contention, however, is whether the matter falls under the RSC, 1975 or the CPR, 1998? In the view of this court, this matter was converted from the RSC, 1975 to the CPR, 1998 on 1 April, 2010 and consequent on its conversion, the applicable rules are the CPR, 1998 and not the RSC. 10. Application and effect of a Statute of Limitation Can the failure of the defendants to plead the correct Statute of Limitation operate to defeat the current application? Under the RSC, 1975 it is clear that for a debtor to rely on a statute of limitation, he must plead the statute. 5 debt is statute barred. 6 He cannot rely simply on the fact that on the face of the claim, the recovery of the In the instant case, the debtor has pleaded the limitation point but sought erroneously to rely on a non-existent statute of limitation. 7 The claimant has submitted that this faulty pleading is insufficient to oust the claimant s claim, and, as the creditor, it is entitled to pursue its action in a court of law since the statute bars the remedy, not the cause of 5 Halsbury s Laws of England 4 th edition paragraph 647 @ p. 291. See also The Supreme Court Practice 1997 Volume 1 paragraph 18/8/10 @ p. 302. 6 Halsbury s Laws of England 4 th edition paragraph 647 @ p. 291. 7 Section 5(1) (a) of the Limitation Act No 22 of 1981. Page 5 of 7

action. Given the defendant s failure to plead the statute of limitation, the defence ought to be struck out, as a bare defence, since a general statement of non-admission is not a sufficient traverse to the statement of claim. It must be noted that it is not in issue that the claimant s action was filed outside of the limitation period. In contention on the part of the claimant is the failure of the defendant to plead the statute. 11. The defendants attorneys have submitted that, as a result of its conversion to the CPR, the applicable rules are the CPR, 1998 and not the RSC, 1975 and under the CPR, 1998 there is no need to plead the Statute of Limitation. 12. In the view of this court, on conversion the instant matter would be governed by the rules of the CPR, 1998. The CPR, 1998 is silent with respect to any requirement for the Statute of Limitation to be pleaded by a debtor who wishes to oust the claimant s claim on the basis that it is statute barred. Authority for this position is found in the judgment of Gobin J in Wendell Beckles v The Attorney General of Trinidad and Tobago 8 who held that a defendant is entitled to raise the issue of limitation at the hearing of an assessment of damages since the CPR clearly gives the jurisdiction to allow a defendant to be heard on a matter which was not raised in a defence but imposes certain strictures in relation to matters which must be pleaded. She expressed the current position thus: I am not of the view that Limitation is a matter which must be pleaded. There is now no CPR rule requiring this as there was under the previous Order 18 of the Rules of the Supreme Court. In England, the former requirement for an express pleading of limitation has been retained by way of a practice direction. It is not surprising then that the learning in Blackstone s Civil Practice (2005) suggests (Page 99) that limitation is a procedural defence and that it will not be taken by the Court on its own motion. That is the position as it applies under the English practice. 8 Wendell Beckles v The Attorney General of Trinidad and Tobago, John Rougier & the Commissioner of Prisons, CV2009-03303 @ paragraphs 11 & 12. Page 6 of 7

There has been a deliberate departure from this position in our jurisdiction. I consider the difference in our current rule from our former rule under the RSC and the present English rule to result in a widened jurisdiction in the Court to allow a party to raise limitation even in the absence of a formal defence and I would go so far to say that a Court effectively managing a case may raise it on its own to prevent the waste of precious Court time and resources on stale claims but subject to a requirement that notice be given to the parties. 13. The above position was re-affirmed by Pemberton J recently in Nigel Aparball and ors v The Attorney General of Trinidad and Tobago CV2007-04365 who associating herself with the Gobin dicta stated, [I]t is open to a Defendant to raise the issue of limitation after a Defence is filed. There is no need for a specific plea in the pleadings. 14. In the instant case, the limitation was pleaded by the defendants albeit in reliance on a nonexistent statute. In the case of Harnett v Fisher [1927] AC 573 a defendant was allowed to amend his pleading so as to plead a subsisting statute of limitation instead of one which had been repealed. Based on the Gobin dicta, however, there was no necessity to plead the limitation in the defence under the new dispensation of the CPR. 15. CONCLUSION I find that on the facts as pleaded in the statement of claim, the claimant s case is statute barred. I also find that the instant matter is governed by the CPR and that it was open to the defendants to raise the issue of limitation. In the circumstances, I dismiss this action and order the claimant to pay the costs of the defendants to be assessed, if not agreed. Dated 27 th January, 2012 Martha Alexander Master of the High Court Judicial Research Assistant: Kimberly Romany Page 7 of 7