Globe Finance Inc. v Sir Neville Nicholls
| Jurisdiction | Barbados |
| Judge | Mr Justice William J, Chandler |
| Judgment Date | 11 December 2022 |
| Neutral Citation | BB 2022 HC 53 |
| Docket Number | No. 501 of 2012 |
| Court | High Court (Barbados) |
IN THE SUPREME COURT OF JUDICATURE
IN THE HIGH COURT OF JUSTICE
CIVIL DIVISION
the Honourable Mr Justice William J, Chandler, Judge of the High Court.
No. 501 of 2012
Mr. Errol Niles, Attorney-at-Law for the Applicants/Defendants.
Ms. Richelle Nichols of Clarke, Gittens & Farmer, Attorneys-at-Law for the Respondent/Claimant.
Ms. Marsha Lougheed Deputy Solicitor General for the Chief Marshal.
Application for possession of mortgaged property — Previous consent order not requiring leave to issue writ of possession — Application for injunction restraining Chief Marshall from taking possession — Allegation that dwelling house on the mortgaged property was to be excluded from mortgage by agreement — Whether application for injunction a relitigation of the issues decided on in the order — whether application for injunction an abuse of process of Court.
There are two applications presently before the Court. The first is a Without Notice Application filed 23 March 2015 by the First and Second Defendants to restrain the Chief Marshal from enforcing a Writ of Possession dated 9 March 2015 “in the manner it was granted as long as this Writ directs the Chief Marshal to seize the personal residence of the Defendants.” (emphasis added). The second is an application by the Claimant to strike out the application for injunctive relief as an abuse of the process of the Court.
The Claimant is a banking institution registered in Barbados which granted loan facilities to the First and Second Defendants secured by a mortgage over the Defendants' property at Farm Gap, Green Hill St. Michael (the mortgaged property) to enable their son Mr Philip Nicholls, an Attorney-at-Law to fulfil certain legal obligations to clients which were then outstanding. The nature of the mortgage arrangements was to facilitate the repayment of those funds by Mr. Nicholls. There was default in the payment of the mortgage and the Claimant applied to the Court for payment of the monies secured by the mortgage and possession of the mortgaged properties.
A consent order was reached between the parties, the First and Second defendants being represented by Mr. Nicholls and Mrs. Charmain Delice-Hunte (Mrs. Delice-Hunte), in which it was agreed, inter alia, that the Claimant was at liberty to issue a writ of possession without leave of the Court.
The allegation that the residence of the First and Second Defendants was to be excluded from the mortgage and on which they rely in support of the application for injunctive relief, is ably set out in the affidavit of the First Defendant.
The first application is supported by an affidavit filed 23 March 2015 and sworn to by the First Defendant, also an Attorney-at-Law, in which the First Defendant deposed that he and his wife (the Second Defendant) were approached by their son Mr. Nicholls who indicated to them that the Claimant had issued him with a letter to the effect that the demand loan of $500,000.00 made to him in 2007, be repaid in full by the end of the year or that it be amortized over 15 years with monthly payments of just over $5, 000.00.
The purpose of the loan was to assist Mr. Nicholls with overcoming challenges he was facing at the law firm of Cottle Catford & Co (Cottle) as a result of his former Partners allegedly defaulting on their legal obligation to repay certain moneys owed to Cottle of which Mr. Nicholls was also a partner.
The loan was secured by a Memorandum of Deposit of Deeds over the Defendants' property at Farm Gap, Green Hill St. Michael (the mortgaged property). It is the position of the First Defendant that it was clear to all parties to the transaction that the residence occupied by the deponent and his wife was not to be subject to the charge. He further deposed that, at the time negotiations were conducted, he and Mr. Nicholls indicated to the Claimant that there was ample other land surrounding the residence of a value which would cover the loan without the need to charge the residence. It was his position that he and the Second Defendant, his wife, consented to the charge and executed same on that basis.
The First Defendant enclosed a copy of the conveyance dated 29 March 1976 between Leslie Fairall and he and his wife drawing attention to the description of the property which says “Together with the messuage or dwellinghouse thereon called “Andover”, and deposed that “This aspect of the description of the property charged is missing from all references in the description of the property so charged and indeed to all legal Notices as a result of the action of the Claimant.”
He deposed that it had come to his attention on 19 March 2015 that the Claimant had procured a Writ of Possession for execution on a judgment obtained as a result of a default in repayment. It was his position that, while the Claimant was entitled to a Writ of Possession, it was only entitled to possession of property over which it had a charge, which did not include the dwellinghouse.
Further, he deposed that it was his understanding that the manner in which the writ was obtained that someone was acting in an unethical manner having regard to the understanding that the residence would not be charged and that he, himself had pointed out in verbal and written communications that their residence was never part of the property so charged. It was on that basis that the Defendants objected to the execution of the Writ of Possession.
Interestingly, at paragraph [16] he deposed that “While we both freely allowed the charging of our property we have never agreed to the charge over our residence and to allow for same to be now possessed would do violation to all our rights not only because of the actions of the Claimant in seeking to enforce property they agreed was not part of the charge but because of the failure of the Judicial system to prevent the clear manipulation of the system by Attorneys-at-Law representing our son's former Partners who have been found liable for more than 6 years for amounts greater than those sought by the Claimant from which he seeks to clear the obligation to the Claimant”.
A Certificate of Urgency was filed on even date in support of the Without Notice Application. On 2 November 2015 this Court ordered that certified copies of the application and affidavit in support be served on the Attorneys-at-Law for the Claimant and the Chief Marshal and that the Attorney-at-Law for the First and Second Defendants produce a copy of the mortgage.
On the adjourned date, Ms. Richelle Nichols, counsel for the Claimant proposed to argue, in limine, that the application for injunctive relief was an abuse of the process of the Court. The Court ordered on 2 September 2015 that the Claimants file and serve particulars of the point in limine which it intended to raise together with written submissions in support on or before 8 July 2015. It was further ordered that the First and Second Defendants and the Chief Marshal, represented by Ms. Deidre Gay-McKenna of the Solicitors General Office, do file and serve submissions in response on or before 29 July 2015 should the Chief Marshal be so advised.
On 8 July 2015 Ms. Nichols filed particulars on her point in limine. In substance she contended that the Without Notice Application ought to be struck out as an abuse of the process of the Court. She submitted that the Defendants' application is a claim which was not made in earlier proceedings but could and should have been so made; there had been an earlier decision by the High Court on exactly the same cause of action between the same parties and as such the application amounted to re-litigation, accordingly the application was an abuse of process of Court and ought to be struck out. She relied on the following facts, to ground her position that the power of the Chief Marshal to take possession of the mortgaged property was derived from the order of possession which had been granted by the Court:
“That by order of Court dated 20 June 2012 the Respondent/Claimant was granted possession of 32,150 square feet and 19,660 square feet of land (“the Mortgaged Properties”) at Farm Gap St. Michael. This order was stayed for 3 months after the expiration of which, the Claimant was entitled to proceed to issue a Writ of Possession in order to obtain vacant possession. As a result of the Defendants inability to satisfy the outstanding indebtedness to the Claimant, the Writ of Possession was filed on 17 April 2014.”
She opined that by Notice of Application filed 23 March 2015 the Defendants were seeking an order restraining the Chief Marshal from enforcing the Writ of Possession in the terms earlier set out in parenthesis at paragraph 1 of this decision. It was Counsel's submission that the affidavits of Sir Neville Nicholls dated 23 March 2015 and 20 April 2015 raised for the first time the doctrine of mistake. It was her position that, by law, the application of the Defendants to restrain the Chief Marshal from executing the Writ of Possession implied that the order conferring that power on the Chief Marshal was in some way defective. She relied on Kotonou v National Westminster Bank Plc [2011] 1 All ER (Comm) 1164 to argue that the application ought to be struck out as an abuse of process where:
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a. The litigant in the second claim wishes to challenge adverse findings in the earlier proceedings;
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b. The litigant in the second claim wishes to make a claim which was not made in the earlier proceedings but which the Court finds could and should have made in the earlier...
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