Tamn (DBA Lindy Tamn Realty Listing) v Fountain Beach and Tennis Club Ltd
| Jurisdiction | Anguilla |
| Judge | Blenman, J. |
| Judgment Date | 28 October 2010 |
| Neutral Citation | AI 2010 HC 3 |
| Docket Number | AXAHCV No. 67 of 2009 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Date | 28 October 2010 |
High Court
Blenman, J.
AXAHCV No. 67 of 2009
Mrs. Cora Richardson-Hodge for the applicant/defendant.
Ms. Eustella Fontaine for the claimant/respondent.
Civil practice and procedure - Default judgment — Application to set aside — Civil Procedure Rules Part 13.3.
This is an application by the Fountain Beach and Tennis Club Limited to set aside a default judgment obtained against it by Ms. Linda (Lindy) Tamn.
Ms. Tamn is a Real Estate Agent doing business of listing high end properties in Anguilla.
Fountain Beach is a company incorporated under the Laws of Anguilla, with its registered office at Fountain Beach and Tennis Club, Shoal Bay, Anguilla.
Ms. Tamn alleges that on 20th December 2006, she entered into an Open Listing Agreement with Mr. Mark Amantangel, a director and major shareholder of Fountain Beach, on behalf of Fountain Beach, to list the property for sale.
The terms of the Open Listing Agreement are:
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(a) the minimum sale price of the property would be US$6,500,000.00;
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(b) the commission payable to the claimant from the minimum sale price would be 5% of the sale price;
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(c) a negotiation factor of US$250,000.00 would be added to the minimum sale price;
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(d) the negotiation factor (if realised) would be shared equally between the claimant and the defendant;
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(e) that the 5% commission payable to the claimant would be paid at the time the defendant received any payment from the buyer that was non-refundable;
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(f) that the claimant's half of the negotiation factor would be paid to the claimant, upon the defendant receiving a non-refundable payment that included the negotiation factor.
Ms. Tamn says that the following were, inter alia, implied terms of the Open Listing Agreement:
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(a) the 5% commission on the sale price would be paid to the claimant in a timely manner upon the defendant receiving non-refundable payment(s).
In or about December 2006, Ms. Tamn introduced Fountain Beach to Phil McFillin, the representative for Fran Marincola, a potential buyer interested in purchasing the property. She says that as a result of her successfully listing the property and finding a buyer to purchase same, on 22nd December 2006, an Agreement of Sale for the property was entered into between Fran Marincola or his assignee as the buyer, and Mark Amatangel on behalf of Fountain Beach, for a total purchase price of US$6,750,000.00 which included a negotiation factor of US$250,000.00.
The closing on the 22nd December 2006 Agreement would take place within 9 months and 45 days of the signing of the said Agreement. By an assignment dated 26th December 2006, Fran Marincola assigned his rights under the Agreement dated 22nd December 2006 and introduced one Stephen J. Labov and/or his corporate designate (“buyer”).
Ms. Tamn alleges that as a result of successfully listing the property, she was owed the following sum by the defendant namely: (a) US$125,000.00 for the negotiation factor; (b) US$325,000.00 being 5% sales commission for the sale of the property.
She was paid a portion of the money. However, Ms. Tamn says that she made several requests of Mr. Mark Amantangel for the remainder of the sales commission due and owing, to no avail.
As a result, she has filed the Claim Form and the Statement of Claim seeking compensation from Fountain Beach, the sum of US$275,000.00, together with interests and costs.
She caused the Claim Form and the Statement of Claim to be served on Fountain Beach, at its registered place of business, on 29th July 2009. Neither Acknowledgment of Service nor Defence was filed by Fountain Beach. As a consequence, Ms. Tamn applied for a default judgment on the 13th July 2009.
On the 16th day July 2009, the Judgment in Default was obtained. It was served on Fountain Beach, at its registered office, on 17th July 2009.
On the 22nd September 2009, Fountain Beach filed a Notice of Application to set aside the default judgment. The Notice is accompanied by an Affidavit in Support deposed to Mr. Mark Amantangel, who is the Managing Director and Shareholder of Fountain Beach. The Affidavit has attached to it a Draft Defence and Counterclaim.
Mr. Amantagel said that since the company was incorporated its registered office was situated at the hotel site at Registration Section North Block 59018 B Parcel 32. He says that he has not been at the hotel for 2009; it is non-operational. He does not reside in Anguilla and neither does his siblings. He says that he only became aware of the default judgment on the 19th August 2009. He says that no one was at the hotel at the time of the service of the default judgment and it was only when several weeks after it was served, a friend of his who was passing the hotel and saw the default judgment and brought it to his attention.
The issue that arises for the court to resolve is whether the court should set aside the default judgment.
Part 13.3(1) of CPR 2000 provides that the court may set aside a judgment entered under Part 12, only if the defendant:
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(a) applies to the court as reasonably practicable after finding out that judgment had been entered;
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(b) gives a good explanation for the failure to file an Acknowledgment of Service or a Defence, as the case may be; and
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(c) has a real prospect of successfully defending the claim.
Learned Counsel, Mrs. Richardson-Hodge urged the court to set aside the default judgment that was granted against Fountain Beach and to grant it leave to file its Defence and Counterclaim.
Mrs. Richardson-Hodge also referred the court to Part 13.3(1) of CPR 2000 as being applicable for the application. The requirements are conjunctive.
Learned Counsel, Mrs. Richardson-Hodge urged the court to find, in the circumstances that, Fountain Beach applied reasonably practicable after finding out of the judgment. Counsel referred the court to Thorn PLC v. MacDonald, Civil Appeal Division of England. The Time, 15th October 1999. She also referred to Hodge v. Hodge BVI 0098/2007.
Mrs. Richardson-Hodge also referred the court to Louise Martin v. Antigua Commercial Bank, Claim No. 0115 of 1997, in support of her position that Fountain Beach's application should be favourably considered.
Mrs. Richardson-Hodge reminded the court that the default judgment was obtained on 16th July 2009 but Fountain Beach only became aware of the judgment on the 17th August 2009. The application to set aside the default judgment was filed on 22nd September 2009, approximately five weeks after.
Learned Counsel, Mrs. Richardson-Hodge asked the court to accept that this period of time is a reasonably practicable period of time to ascertain the nature of the matter, retain counsel, instruct counsel and file the necessary documents with the court.
Learned Counsel, Mrs. Richardson-Hodge stated that, on becoming aware, Fountain Beach took immediate steps to retain counsel in order to obtain a copy of the court's file on the matter and to file the necessary application, as soon as reasonable practicable.
Next, Learned Counsel, Mrs. Richardson-Hodge referred the court to Mr. Amatangel's affidavit filed in Support of the Application. Mr. Amantangel deposed in his affidavit that he became aware of the default judgment on 17th August 2009, as a result of someone passing by the hotel and seeing the Judgment in Default notice posted on the door of the hotel. The registered office was located at the hotel premises but the property was closed, non-operational, and all of the beneficial owners were residing outside of Anguilla.
Mrs. Richardson-Hodge invited the court to accept that these are good reasons for Fountain Beach's failure to file an Acknowledgement of Service or Defence. It simply was unaware that the Claim and the Statement of Claim had been served on its registered office.
Learned Counsel, Mrs. Richardson-Hodge stated that the standard that Fountain Beach must achieve is that it has a reasonable prospect of success.
Referring to the Draft Defence and Counterclaim, Mrs. Richardson-Hodge referred the court to Mr. Mark Amantangel's affidavit dated 22nd September 2009, in which he stated that the Open Listing Agreement of 20th December 2006 was over taken by another further Listing Agreement dated 7th February 2007.
Mrs. Richardson-Hodge, Learned Counsel, argued that Fountain Beach does not deny that there are sums of monies owed to Ms. Tamn but that the time for payment has not become due, as a result of the fact that it has not received the balance of monies from the sale. Mrs. Richardson-Hodge urged the court to find that Fountain Beach has a real prospect of defending its claim.
Finally, Mrs. Richardson-Hodge said that Fountain Beach has satisfied the requirements of Part 13.3(1) of CPR 2000 and the court should exercise its discretion and set aside the default judgment.
Learned Counsel, Ms. Fontaine urged the court not to set aside the default judgment due to the non-compliance by Fountain Beach with the dictates of Part 13.3(1) of CPR 2000. Ms. Fontaine said that the matters set out in Part 13.3(1) of CPR 2000 must be read conjunctively and should be satisfied in order for the court to exercise its discretion in favour of Fountain Beach.
In support of her contention, Ms. Fontaine, learned counsel relied on Doreen Leslie v. Bradley Davis et al, Civil Appeal No. 13 of 2006.
Ms. Fontaine argued that Fountain Beach did not apply...
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