Joanna Kesmin Marks v The Bank of Nova Scotia
| Jurisdiction | Barbados |
| Judge | Mr. Justice Barry L. Carrington |
| Judgment Date | 01 November 2022 |
| Neutral Citation | BB 2022 HC 41 |
| Docket Number | NO. CV 1348 OF 2018 NO. CV 2072 OF 2009 |
| Court | High Court (Barbados) |
| Year | 2022 |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
The Honourable Mr. Justice Barry L. Carrington, Judge of the High Court.
NO. CV 1348 OF 2018
NO. CV 1646 of 2016
NO. CV 2072 OF 2009
IN THE MATTER of a conditional contract dated the 13 th day of August, 2009 for the sale of ALL THAT land situate at Road View in the parish of Saint Peter in Barbados formerly believed to contain by estimation 11015.03 square metres being a metric conversion from 2 acres 2 roods 35.5 perches but by a more recent survey made and certified on the 26 th day of August, 2005 by J.M. Peterkin, Land Surveyor found to contain by admeasurements 9973.4 square metres ABUTTING AND BOUNDING towards the North on lands of Joyce Stuart, the Methodist Church, the Estate of Patricia Wilson, deceased, Leslie Worrell and Bjorn Bjerkhamn respectively, towards the West on the sea, towards the South on lands of Azure C. I. Ltd. and towards the East on the public road leading to Speightstown and to Mullins or however else the same may abut and bound together with the building thereon called “Kings Beach Hotel” and all other buildings thereon and made between The Bank of Nova Scotia of the One Part and B. J. Investments Limited of the Other Part.
AND IN THE MATTER of (a) a Debenture/Mortgage dated the 18 th day of July, 1997 and made between Kings Beach Hotel Limited of the First Part Road View Resort Services Limited of the Second Part and Royal Bank of Canada of the Third Part, (b) an Assignment dated the 15 th day of June, 1998 and made between Royal Bank of Canada of the One Part and The Bank of Nova Scotia of the Other Part and (c) a Debenture/Mortgage dated the 15 th day of June, 1998 and made between Kings Beach Hotel Limited of the First Part Road View Resort Services Limited of the Second Part J.G.L. Hotels Limited of the Third Part and The Bank of Nova Scotia of the Fourth Part.
AND IN THE MATTER OF THE Property Act, Chapter 236 of the Laws of Barbados.
Mr. Garth St. E. Patterson Q.C. and Ms. Taylor Laurayne of LEX Caribbean, Attorneys-at-Law for Joanna Kesmin Marks.
Mr. Barry L. V. Gale Q.C. in association with Mrs. Laura F. Harvey-Read, Attorneys-at-Law for Roseal Services Ltd.
Mr. R. Omari Drakes of Clarke, Gittens and Farmer for the Bank of Nova Scotia
At the crux of this matter is an interlocutory application in CV 1348 of 2018 filed by the Second Defendant Roseal Services Limited on July 5, 2021 seeking an Order that the above captioned matters be consolidated and tried as if they were a single claim or, alternatively, that the captioned matters be heard at the same time or immediately after each other.
Those matters touch and concern the sale of the subject matter of these claims, Kings Beach Hotel formerly located in Road View in the parish of St. Peter, the satisfaction of a mortgage held by the Bank of Nova Scotia and the entitlement to the residual sums remaining after payment of the mortgage debt. Moreover, the matters also concern the determination of the legal rights and priority of the securities of the subsequent incumbrancers and Kings Beach Hotel Limited.
The substantive matter, CV 1348 of 2018, was commenced by Claim Form filed on October 10, 2018 in which the Claimant sought, inter alia, to recover from the First Defendant the remaining balance of the sale price for Kings Beach Hotel and damages from the First Defendant for breach of the statutory duty imposed by section 114 of the Property Act, Cap. 236 when it did not directly pay the balance of the proceeds of sale of Kings Beach Hotel to the Claimant as next mortgagee but paid the said money into Court. On July 16, 2021, this court granted leave to the Second Defendant, Roseal Services Limited to be joined as a party to the proceedings. The court ordered the hearing of the interlocutory application for consolidation before dealing with the substantive matter.
As it relates to CV 1646 of 2016, the Second Defendant has sought to challenge, inter alia, the First Marks security and the Second Marks security as well as the amount properly due to the Claimant.
Moreover, CV 2072 of 2009 concerned the sale of the Kings Beach Hotel property by the Bank of Nova Scotia as First Mortgagee and on October 20, 2011, Counsel on its behalf paid into Court the balance of the sale price totaling $15,958,367.67, as trustee. The Bank of Nova Scotia alleged that there were still outstanding unresolved issues to be determined and deemed it prudent to pay the residue into Court in the best interests of all the parties involved.
The issue which arises for determination before the Court is whether the claims intituled CV No, 1348 of 2018, CV No. 1646 of 2016 together with CV No. 2072 of 2009 should be consolidated and tried as one single claim pursuant to Rule 26.1(2)(a) of the Supreme Court ( Civil Procedure) Rules, 2008.
In CV 1348 of 2018, Joanna Marks of 4 High Street Olney in the County of Buckingham, England in her capacity as Mortgagee is the Claimant in this matter.
The Bank of Nova Scotia is a Canadian based organization incorporated and registered as an external company under the Companies Act Cap. 308 of the Laws of Barbados is the First Defendant in this matter.
Roseal Services Limited whose registered office is 2 nd floor, Suite 205-A, Safrey Square, Bank Lane & Bay Street, Nassau, Bahamas in its capacity as mortgagee, is the Second Defendant in this matter.
In CV 1646 of 2016, Roseal Services Ltd. is the Claimant with Joanna Marks as the First Defendant, Caribbean Financial Services Corporation whose principal place of business is Radley Court, Collymore Rock, in the parish of St. Michael is the Second Defendant, Kings Beach Hotel Ltd. of Kings Beach Hotel, Road View, in the parish of St. Peter is the Third Defendant and JGL Hotels Limited (in receivership) of the Kings Beach Village in the parish of St. Peter is the Fourth Defendant.
With respect to CV2072 of 2009, the Bank of Nova Scotia is the Claimant in that matter with Kings Beach Hotel Limited of Kings Beach Hotel, Road View, in the parish of St. Peter as the Defendant.
By virtue of Debentures/Mortgages dated 1997 to 1998 and entered by the Bank of Nova Scotia on the one part and Kings Beach Hotel Limited on the other, securities were created over the Kings Beach Hotel and assigned to or granted directly to the Bank of Nova Scotia.
Moreover, Kings Beach Limited also granted several further securities by way of Debentures/Charges in favour of Joanna Marks, Caribbean Financial Services Corporation and Roseal Services Ltd.
Subsequently, the Bank of Nova Scotia instituted claim no. CV 2072 of 2009 against Kings Beach Hotel Limited for the sale of the Kings Beach Hotel property by the Bank of Nova Scotia as First Mortgagee.
On May 19, 2011, the Bank of Nova Scotia as First Mortgagee and acting pursuant to its powers of sale under its aforesaid security sold the property known as Kings Beach Hotel to BJ Investments Limited for BDS$28 million.
Following this, on October 20, 2011 Messrs. Yearwood & Boyce on behalf of the Bank of Nova Scotia paid into Court in CV No. 2072 of 2009 the sum of $15,958,367.67 noting that it was holding the said money as trustee.
The reasons advanced for the payment into Court of the residue were, inter alia, the outstanding marketing and consultancy fees, undetermined costs and the unresolved disputes associated with the securities held by Ms. Marks, subject to proceedings not yet determined.
On April 27, 2012, Counsel for Ms. Marks sent correspondence to Counsel for the Bank of Nova Scotia contending that the Bank of Nova Scotia had no legal right or authority to pay the said money into Court, rather, by virtue of section 114 of the Property Act Cap. 236 the money should have been paid directly to Ms. Marks as the mortgagee next in line to receive payment.
Significantly, the Bank of Nova Scotia on October 3, 2012 filed an Application seeking relief and directions from the Court in the 2009 BNS Action with regards to inter alia, the payment into Court of the net proceeds of sale as well as the payment of marketing and consultancy fees.
Roseal, on December 13, 2016 filed an Affidavit in support of the October 2012 Application in which it raised numerous issues including the failure of Ms. Marks to comply with the Order of Justice Blackman and the failure to provide a proper accounting in respect of the money claimed under the securities. To date, the issues as identified in the said Affidavit have not yet been determined by the Court.
Consequently, claim no. CV 1646 of 2016 was instituted by Roseal which sought to challenge, inter alia, the priority of the First Marks security and the Second Marks security over that of the Second Defendant's Debenture/Mortgage as well as the amount properly due to the Claimant under these securities as there was a claim for excessive amounts and a failure to provide a proper account of the monies due.
Further, Roseal also filed an application on January 11,2017 to have the 2016 Roseal and the 2009 BNS actions consolidated or alternatively, for those actions to be heard at the same time. The Application was heard but a decision on same is still outstanding.
In the current proceedings (CV1348 of 2018), the Second Defendant on July 5, 2021 filed a Notice of Application for Consolidation seeking inter alia, the...
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