Saint Christopher Club Ltd v Saint Christopher Club Condominiums and Others
| Jurisdiction | Saint Kitts and Nevis |
| Judge | RAWLINS, J.A.,Hugh A. Rawlins,Justice of Appeal |
| Judgment Date | 15 January 2008 |
| Judgment citation (vLex) | [2008] ECSC J0115-2 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
| Docket Number | CIVIL APPEAL No. 4 OF 2007 |
| Date | 15 January 2008 |
IN THE COURT OF APPEAL
The Hon. Mr. Hugh A. Rawlins Justice of Appeal
CIVIL APPEAL No. 4 OF 2007
Mr. Glenford Hamilton for the Applicants/2 nd to 9 th Respondents
Mr. Sylvester Anthony for the Respondent/Appellant
Mr. Fitzroy Eddy for the 1 st Respondent
Civil Procedure — application to vary order under the slip rule or the inherent jurisdiction of the court — whether errors contained in the order were errors of substance or genuine slips — rule 42.10 of the Civil Procedure Rules 2000 (CPR 2000)
The respondents, the claimants in the substantive claim, stated in the claim that they are the owners of condominium property registered pursuant to the Condominium Act 1976. The appellant, the defendant in the claim, is the registered proprietor and developer of the condominium property. The respondents sought an order terminating the government of the property on the ground that they suffered loss and damage as a result of the appellant's mismanagement. The appellant did not file a defence and default judgment was entered against it. The respondents successfully applied for an injunction restraining the appellant from, among other things, entering upon the property. The appellant appealed against the order granting the injunction and applied for an order staying the operation of the injunction until the appeal had been determined. The High Court later discharged the injunction, which event rendered the application for stay redundant. The appellant accordingly withdrew the appeal and the stay application when the application for stay came up for hearing before a single judge of the Court of Appeal on 30 th May 2007. The court however ordered costs to the appellant on the ground that the respondents had not complied with case management directions to file written submissions in preparation for the hearing of the stay application.
The applicants, the 2 nd to 9 th respondents, applied to the court to vary the order of 30 th May, 2007 under rule 42.10 of the CPR 2000 (the slip rule) to reflect that contrary to what appeared in a citation to the order the 2 nd to 9 th respondents were not represented by the same firm of solicitors that represented the 1 st respondent. The 2 nd to 9 th respondents also presented proof that showed that their solicitors had in fact filed submissions on their behalf, before the hearing on 30 th May 2007, in compliance with the case management directions. They therefore also prayed that the relevant recital in the order be amended to reflect this, and, consequentially, that the order should also be amended to state that the costs order was not made against them. When the parties came to court on 14 th January 2008, they informed the court that solicitors for the 1 st respondent had also filed submissions in compliance with the case management directions.
Held, allowing the application, varying the order and awarding costs to the applicants:-
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(1) After an order is perfected or an appeal against that order is filed, the slip rule may only be used to correct genuine clerical errors or accidental slips or omissions in the order.
McKnight v McKnight (1983) 44 WIR 349 , Markos v Goodfellow No. 2 [2002] EWCA Civ 1542 and Smithkline Beecham Plc. v Apotex Europe Ltd. [2005] EWHC 1655 applied.
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(2) Since the errors contained in the order of 30 th May, 2007 were errors of substance rather than genuine slips the court cannot vary or amend that order under rule 42.10 of CPR 2000.
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(3) However, the errors are so clear on the face of the order that the court will, in its inherent jurisdiction, amend the order in the interest of justice.
After a hearing by teleconference on 30 th May 2007, this Court issued an order in the following terms:
" UPON READING the Notice of Application herein and the Directions issued on the 24 th day of April, 2007 under Part 62.14 of the Civil Procedure Rules 2006 by Her Ladyship, the Hon. Ola Mae Edwards Justice of Appeal [Ag.].
AND UPON NOTING that written submissions were filed by solicitors for the Appellant/Applicant on 22 nd May 2007 in compliance with the Directions issued on 24 th April 2007, but no submissions have been filed on behalf of the Respondents;
AND UPON HEARING Mr. Anthony Sylvester, Counsel for the Appellant/Applicant and Mr. Fitzroy Eddy, counsel for the Respondents;
IT IS ORDERED THAT:
The appeal is withdrawn and therefore dismissed and the application for stay of execution is accordingly dismissed with costs to the Appellant to be assessed, if not agreed."
The 3 rd recital of the order indicates that Mr. Hamilton, learned counsel for the 2 nd to 9 th respondents, was not present. After the order was brought to his attention, he applied to vary the order on behalf of these respondents. The application stated as follows:
"The applicants, Boris Jurisic, Drs. Ellie Debbas and Azer, John C Lowe, Alex Ciaputa, Reginald Ward, Auriela Trestrail and Katayba Alghanim all of Frigate Bay, St. Kitts hereby apply to the Court of Appeal pursuant to Parts 42.10 of the Civil Procedure Rules 2000 and/or the inherent jurisdiction of the Court for:
1. An order correcting or modifying the order of His Lordship, the Hon. Hugh Rawlins, Justice of Appeal given via teleconference on the 30 th day of May 2007 to reflect that submissions had in fact been filed on behalf of the respondents.
2. An order that the applicants were and had always been represented by Glenford Hamilton and not Fitzroy Eddy as is reflected in the order and that the representation in the said order that Fitzroy Eddy acted as Counsel for the Respondents is incorrect.
3. An order deleting that portion of the order which reads "with costs to the appellant to be assessed, if not agreed."
The grounds of the application were stated as follows:
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1. The applicants named in this application have interests which are separate and distinct from that of the 1 st Respondent.
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2. The applicants filed or caused to be filed an affidavit in opposition to the application and submissions within the time prescribed by an order of Her Ladyship, the Hon. Ola Mae Edwards, Justice of Appeal on 24 th day of April 2007.
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3. Both the affidavit in opposition and the submissions were served on the Appellant/Applicant within the time prescribed in the said order.
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4. Arrangements were made with Counsel for the Applicants herein for his participation in the teleconference to deal with the Appellant's application.
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5. Counsel for the above-named respondents/applicants was never permitted to participate in the schedule teleconference and there is no indication from the order that the presiding judge knew or was made aware that Counsel for the Respondents/Applicants was required to participate or that it was brought to his attention that submissions were filed and served on the other side.
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6. The Applicants' case was not properly put to or heard by the Court.
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7. As a consequence decisions were taken and orders made to the detriment of the Applicants without representation and the Applicants are prejudiced thereby.
A brief procedural history of the case should present a helpful background for the determination of this application.
The substantive claim was filed on 29 th November 2006 by Mr. Hamilton as solicitor for all of the present respondents, who were the claimants. The first claimant, who is the first respondent in the present proceeding, is a corporation created pursuant to the terms of the Condominium Act 1976 (hereinafter "the Act"). The corporation was established upon the registration of a declaration and description of a condominium property pursuant to the Act. The respondents asserted in the claim that they were the owners of the condominium property pursuant to the said Act. The appellant, who is the defendant in the substantive claim, was the declarant under the said Act and the registered proprietor and developer of the condominium property. The respondents asserted in the claim that the appellant so mismanaged the property that the unit owners suffered damage and loss as a result. They sought an order terminating the government of the property by the appellant pursuant to the provisions of the Act, and costs.
The appellant did not file a defence. The respondents therefore applied to have default judgment entered against the appellant. This application was granted by a High Court judge on 9 th February 2007. That default judgment terminated the government of the condominium property by the appellant. The appellant was ordered to pay $1,230.00 costs and the parties were granted leave to file such applications as were necessary to ensure the smooth execution of the legal process in relation to the property.
On 20 th February 2007, the respondents applied for an injunction to restrain the appellant from entering upon the condominium property and erecting any structures upon it, and to restrain the appellant from alienating any part of the property. On 21 st February 2007, the appellant applied for an order vacating the default judgment. A judge of the High Court heard both applications. On 27 th February 2007, the judge granted the injunction against the appellant. The judge also dismissed the appellant's application to vacate the default judgment.
On 23 rd March 2007, the judge consolidated the substantive claim herein with another claim which the 1 st respondent had instituted against the appellant in 2004. The judge stayed the consolidated matters.
On 21 st March 2007, the appellant appealed the order which the judge made on 27 th...
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