Cuthwin Webster Claimant v Preston Bryan Defendant [ECSC]

• Jurisdiction: Anguilla
• Judge: SMALL DAVIS, J (Ag)
• Judgment Date: 07 July 2009
• Judgment citation (vLex): [2009] ECSC J0707-1
• Docket Number: CLAIM NO. AXAHCV2008/0020
• Date: 07 July 2009
• Court: High Court (Saint Christopher, Nevis And Anguilla)

[2009] ECSC J0707-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

A.D. 2009

CLAIM NO. AXAHCV2008/0020

Between:

Cuthwin Webster

Claimant

and

Preston Bryan

Defendant

Appearances:

Mrs. Tara Ruan instructed by Caribbean Juris Chambers for the Defendant/Applicant

Mr. Anthony Astaphan, Mr. Collin Meade with him, instructed by Astaphan's Chambers for the Claimant/Respondent

Civil Procedure Rules 2000 (CPR 2000) —Application to set aside judgment obtained in default of defence —Good explanation for failure to file defence —Real prospect of successfully defending the claim.

SMALL DAVIS, J (Ag)

1 Before the Court is an application to set aside a default judgment entered on 17 ^th April 2009. The application filed on 14 ^th May 2009 is supported by an Affidavit sworn by Preston Bryan and filed on the same date. The Claimant opposed the application and filed evidence in opposition,

The Claimant's claim

2 The brief background to the matter is as follows. The Claimant initiated these proceedings against the Defendant by Claim Form and Statement of Claim filed on 7 ^th May 2008 seeking relief by way of specific performance of an oral agreement by which the Claimant alleges that the Defendant agreed to lend him US$25,000 to be secured by three parcels of land which the Claimant owned registered at Registration Section East Central Block 89218B Parcels 210, 223 and 225 of the Register Book of Titles. The security was effected by way of a transfer of the titles of the said parcels to the Defendant. The further terms of the oral agreement were that the sum of US$38,000, which comprised the sum borrowed plus agreed interest, was to be repaid as and when the Claimant was able to do so. The Claimant asserts that he repaid US$14,000 whereupon the Defendant re-transferred Parcel 219 to him but that when he was ready, willing and able to repay the balance of US$24,000 the Defendant refused to complete the agreement to re-transfer the remaining two parcels to the Claimant, instead, now asserting that the two parcels had been purchased by him. Hence the claim.

3 An Acknowledgment of Service was filed on behalf of the Defendant on 9 ^th June 2008 in which he did not admit the claim and indicated his intention to defend the claim. The Defence was therefore due by 25 ^th June 2008. No Defence was filed by that date. On 16 ^th September 2008 the Claimant made a request for the entry of judgment in default of defence. Three days later, on 19 ^th September 2008, a Notice of Change of Solicitors as well as an Application for extension of time to file defence and a supporting affidavit were filed on behalf of the Defendant. On 23 ^rd September 2008 a Defence was filed without leave of the court or consent of the Claimant.

The Defence

4 The Defence constituted a complete denial of the claim. The Defendant set out a different factual matrix. The Defence was detailed in the statement of facts and the supporting documentation were exhibited. The Claimant was in financial difficulties and offered three parcels of land for sale in order to raise capital. The Defendant agreed to purchase the parcels and the transactions were concluded on 19 ^th April 1996, 29 ^th May 1996 and 4 ^th October 1996. The total sum paid for the three parcels was US$43,000. The Defendant exhibited proof of payment of stamp duty and registration fees for each transfer. In fact, the parcels had to be subdivided in order to create new parcels which were transferred to the Defendant. In January 2003 the Claimant asked to purchase and the Defendant agreed to sell back Parcel 219, which was immediately adjacent to the Claimant's residence. Then in 2005 the Claimant sought to purchase either of the two remaining parcels. The Defendant indicated that he would be willing to sell back Parcel 223 at the current market value but the Claimant took issue with that proposal, asserting instead that the purchase price should be the same as he had sold it to the Defendant for in 1996. No agreement was reached. In October 2006 the Defendant received the Claimant's solicitors' letter before action demanding specific performance of an oral agreement along the lines set out in paragraph 2 above.

The application for extension of time to file defence

5 The Claimant filed an affidavit in opposition to the Defendant's application for extension of time to file a defence in which he asserted that there was no good explanation for the failure to file the defence within the time limited by the Rules and denied the truth of the "draft defence" filed on 23 ^rd September 2008, challenged the viability of the defence and repeated his claim. The Defendant replied to the Claimant's evidence, giving further details of the reasons for the failure to file the defence within time, which the Defendant said was due to a breakdown within his former solicitors' office.

6 There is no note available to the court to explain what transpired on the hearing of the Defendant's application for extension of time to file a defence which came on for hearing on 21 ^st November 2008. At the hearing of this application the court was informed that the learned judge directed the Registrar to enter default judgment and that the Defendant should then take the necessary steps to have it set aside.

The entry of judgment in default

7 The judgment in default of defence was entered on 17 ^th April 2009 in the following terms:

"UPON IT APPEARING

(1) That the Defendant has filed an Acknowledgment of Service

(2) That the period for filing a Defence has expired and that the Defendant has not filed a Defence or an Admission of Liability with a request for time to pay

(3) That the Defendant has not satisfied the claim against him in full AND UPON reading the affidavit of filed on pursuant to CPR 12.10.05

IT IS HEREBY ADJUDGED:

(1) THAT Judgment is entered for the Claimant for terms to be decided by the Court and costs

TAKE NOTICE that the Court will determine the terms under this judgment on 14 ^th May 2009 at 9 o'clock in the forenoon at the High Court of Justice."

8 The Default Judgment was served on the Defendant's solicitors on 28 ^th April 2009.

The application to set aside

9 The present application to set aside the default judgment was filed on 14 ^th May 2008 supported by the Second affidavit of Preston Bryan 1. In seeking to satisfy the first of the three conjunctive requirements of CPR 13.3 which sets out the court's discretionary power to set aside a default judgment that is regularly entered, the Defendant's counsel submitted that the Defendant has applied to set aside the default judgment as soon as reasonably practicable after the Default Judgment was served upon him. The Defendant relied upon the cases of Louise Martin (as widow and executrix of the Estate of Alexis Martin, deceased) v Antigua Commercial Bank2 and Earl Hodge v Albion Hodge3 in which the respective courts found a period of fifteen days and thirteen days between being served with the judgment and the filing

of the application to set it aside was reasonable. As further evidence of the promptitude of the Defendant's response to reverse or mitigate the failure to file the defence within time, his Counsel further adverted to the fact that the Defendant had sought to file his defence from 23 ^rd September 2008, had made an application for extension of time to file a defence prior to entry of the default judgment and in acceding to the court's direction given...