Bajan Services Ltd v The Bank of Nova Scotia
| Jurisdiction | Barbados |
| Judge | Mr. Justice Barry L. Carrington |
| Judgment Date | 18 February 2022 |
| Neutral Citation | BB 2022 HC 003 |
| Docket Number | NO. CV 509 OF 2012 |
| Court | High Court (Barbados) |
The Honourable Mr. Justice Barry L. Carrington, Judge of the High Court.
NO. CV 509 OF 2012
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
Mr. Roger C. Forde, Q.C. in association with Ms. Trish L. Bryan, Attorneys — at-Law for the Claimant.
Mrs. Alicia V. Richards-Hill of Messrs. Yearwood & Boyce, Attorneys-at-Law for the Defendant.
The Claimant and Defendant entered into an agreement for the payment of a commission for the sale of a property over which the Defendant held a charge by way of legal mortgage and was exercising its power of sale. The agreement entailed the payment of the commission when the Claimant introduced a prospective purchaser and whose transaction proceeded to the completion of a sale. A purchaser, introduced by the Claimant, bought the property through a vehicle of several companies and Counsel for the Claimant was later informed that it was not entitled to the commission. The Defendant refused to pay the commission because the company and not the prospective purchaser bought the property, and that company was introduced by an attorney-at-law.
The Claimant commenced proceedings for payment of the commission and a Defence was filed. Approximately eight (8) years later, the Claimant applied to the court to have its Statement of Claim amended and for leave to file the affidavit of a witness. The Defendant vigorously opposed the application on the grounds that the purported amendment was not based on new information that became known through discovery, rather it was the recollection of a conversation about how the sale was to be facilitated. The Defendant argued that if allowed, the amendment would lead to the creation of new causes of action and, the Defendant would be deprived the benefit of relying on the Limitation of Actions Act, Cap 231 (“Limitations of Action Act”). The court is required to determine, if in the circumstances, the Claimant should be given leave to amend its Statement of Claim and file the affidavit.
Bajan Services Limited (“the Claimant”) is a company registered in accordance with the Companies Act Cap.308 with its office at Battaleys, St. Peter. The Bank of Nova Scotia (“the Defendant”) is a company governed by the Bank Act of the Laws of Canada and registered as an external company in Barbados with its principal place of business at Broad Street, Bridgetown.
By an Agreement dated August 11, 2011, the Claimant was appointed by the Defendant in the exercise of its power of sale, to act as a real estate agent for the sale of the property known as “Kings Beach” in Road View, St. Peter over which the Defendant held a charge by way of a legal mortgage.
The terms of the Agreement provided for the payment of a commission to the Claimant of 2.5% plus VAT only in circumstances where the Claimant introduced a prospective purchaser whose transaction proceeded to completion of a sale. Subsequently, at a meeting between the parties on September 9, 2011, it was agreed that Mr. Simon Nixon of England was introduced to the Defendant by the Claimant as a prospective purchaser, who would purchase the said property through the vehicle of certain companies and the Claimant would be entitled to the commission on completion of the sale.
Moreover, Counsel for Mr. Nixon informed the Defendant via email of his client's intention to purchase the said property and later executed an Agreement dated September 29, 2011, for the purchase of the property. On completion of the sale around October 2011, the Claimant submitted a Proforma Invoice to the Defendant for the payment of the commission but was advised via letter that it was not entitled to the said commission. The Claimant's Counsel wrote to the Defendant seeking payment but was told by Counsel for the Defendant that it was not entitled to it.
As a result, the Claimant on March 27, 2012, commenced an action for breach of an Agreement seeking to recover the sum of $937,062.50 together with interest. The Defendant entered a Defence denying each allegation and later filed Applications for the striking out the Claim and to have summary judgment entered on the Claimant's claim.
On February 19, 2020 at a case management conference, orders were made for the filing of additional affidavits and written submissions re. the Application by the Defendant for Summary Judgment. Following that conference, the Claimant allegedly discovered new information material to the proceedings, and has now sought leave to amend its Statement of Claim and to file an affidavit of a witness.
Counsel for the Claimant Mr. Forde Q.C. submitted that the amendment should be allowed as there is a dispute which requires further investigation. As alleged in paragraph 9 of the Statement of Claim, the invoice for payment was submitted on September 15, 2011, and it was only after the closing of the sale on October 3, 2011, that it was disclosed that the Claimant was not entitled to the commission.
Mr. Forde Q.C. argued that the proposed amendment discloses that the allegations in paragraphs 6, 7, and 13 do no more than amplify paragraph 5 of the Statement of Claim to make it clear that a meeting was held re. the agreement to pay the commission and to identify the companies that comprise the vehicle of companies pleaded in paragraph 5.
As for the proposed amendment at paragraph 13, Counsel argued that it simply contends that the Defendant had no intention of paying the commission. However, in response to counsel for the Defendant's claim that paragraph 13 is a material change in which the Claimant is alleging fraud and negligence for the first time, Mr. Forde Q.C. essentially admits that paragraph 13 will introduce new causes of action which arose some eight (8) years ago. Relying on Part 8.5 of the Civil Procedure Rules, 2008 (“CPR”), he said that the Claimant is entitled to put forward a new cause of action to determine the real issues in dispute, subject only to the Limitation of Actions Act and Part 20.2 (2) of the CPR. Counsel indicated that the particulars of fraud are found in the proposed paragraph 13 of the amended Statement of Claim and there was no need to repeat them. Counsel however indicated that for the avoidance of doubt, the particulars of fraud are that “the Defendant knew that it did not intend to pay the commission or that it did not care whether the representation that it would pay the commission was true or false.”
Counsel referred to Charlesworth v Relay Road Ltd. (in liquidation) and others [1999] 4 All ER 397 (“ Charlesworth v Relay Road Ltd.”) and argued that Part 20 of the CPR does not specify how the Courts' discretion should be exercised. However, the case law indicates that the overriding objective should be used as a basis for the decision and as such the court should allow amendments which enable the real matters in controversy to be determined.
Counsel for the Defendant Mrs. Richards-Hill strongly resisted the amendment as a tactic considering the Defendant's pending summary judgment application, and contended that no good reason has been advanced for the amendments being sought which is an important consideration for the Court in determining whether to exercise its discretion in the Claimant's favour.
Counsel surmised that on reviewing the proposed changes, the Claimant is seeking to make material changes to its Statement of Claim that are not supported by any documents now introduced. Rather, the alleged discovery would appear to be one of ‘memory’ of a specific methodology by which the sale would be assured by Mr. Nixon, which the Claimant failed and/or neglected to mention at the time of filing or the intervening eight (8) years.
Further, Counsel stated that the Claimant is seeking to introduce two (2) new causes of action, namely, fraud and negligence both of which are not properly pleaded. Counsel referred to Hague Plant Ltd v Hague [2014] EWCA Civ. 1609 as authority for the proposition that proposed amendments must comply with the rules of drafting and pleading. Counsel added that the information is not new and only became known through the process of discovery but rather, were material terms of a purported oral contract made on September 9, 2011, and are being introduced after the period set out in the Limitation of Actions Act. Counsel strongly contended that the new causes of action do not arise from the facts already pleaded and, those facts set out in the draft Claim, draft Affidavit and Affidavit in Support, do not support the newly proposed causes of action.
Changes to Statement of Case generally, and after the end of a relevant limitation period, are dealt with by Part 20 of the CPR. Part 20.1(1) states that a statement of case may be amended at any time prior to a case management conference and the filing of a defence without the court's permission. Subparagraph (2) provides that the court may give permission to amend a statement of case at a case management conference or, at any time afterwards, on an application being made to the court.
By subparagraph (3), a Statement of case may not be amended without permission under this rule if the amendment involves a change of parties which could not be made without permission under Part 19 or if Part 20.2 (changes to statement of case after the end of a relevant limitation period), applies. An amended statement of case should be filed promptly, and a copy served on all other parties within seven (7) days (subparagraph 4), while a certificate of truth must be included (subparagraph 5).
Blackstone's Civil Practice, 2011 (“Blackstone's”) at para. 31.1 stipulates that the basis on which the Court allows an...
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