Battaleys (Barbados) Ltd v Kaupthung Singer & Friedlander Ltd et Al

CourtCaribbean Court of Justice
Docket NumberCCJ Application No. BBCV 2015/02; BB Civil Appeal No. 18 of 2014
JudgeHayton, J.
Judgment Date20 Mar 2015
JurisdictionCaribbean States

Caribbean Court of Justice

Nelson, J.CCJ; Wit, J.CCJ; Hayton, J.CCJ

CCJ Application No. BBCV 2015/02; BB Civil Appeal No. 18 of 2014

Battaleys (Barbados) Limited
and
Kaupthung Singer & Friedlander Limited et al
Appearances:

Mr. Alair Shepherd, QC and Mr. Andrew Clarke for the applicant

Mr. Garth St E W Patterson, QC, Ms. Tammi Pilgrim and Mr. Bartlett Morgan for the first three respondents

Civil Practice and Procedure - Special leave to appeal — Whether the application for leave special leave to appeal should be granted pursuant to section 8 of the Caribbean Court of Justice Act, Cap 117 where the injunction sought by the wording was not temporary but permanent — Real possibility of success — Extension of time — Whether an application for an extension of time should be granted where the circumstances were foreseeable — Applications dismissed.

Hayton, J.
1

There are three applications by Battaleys (Barbados) Limited (“ Battaleys”) before the Court: (1) an application for an extension of time to file an application for special leave; (2) an application filed on 28th January, 2015 for special leave to appeal the decision of the Court of Appeal of Barbados dated 16th December, 2014 refusing injunctive relief; (3) if both those applications are granted, an application for injunctive relief pending resolution of the appeal proceeding to this Court. At the end of the hearing this Court refused to grant the first two applications, so that the third application also failed, and stated that it would give its reasons later. These are those reasons.

THE BACKGROUND
2

The dispute underlying this application arises from two loans made to Battaleys by Kaupthung Singer and Friedlander Limited (“Kaupthung”) for US $11,868,000 and US $2,800,000 and secured by two legal mortgages over Battaleys' lands. Battaleys defaulted on the loans and Kaupthung under its apparent powers as mortgagee appointed Christopher Sambrano and Craig Waterman (the second and third respondents) to be receivers with a view to sale of the mortgaged lands. By a Claim Form and Statement of Claim filed on 17th January, 2014 Battaleys commenced proceedings (the “Prime Proceedings”) against Kaupthung and the second and third respondents. Battaleys claimed declarations that the two loans and the two mortgages were “null and void and unenforceable” and the appointment of the two receivers “of no effect”, and sought an interim and a permanent injunction restraining Kaupthung and its two receivers from proceeding further in any way. The basis for these claims was the allegation that Kaupthung in granting the loans and taking security therefor had been conducting business without a licence in breach of the Financial Institutions Act, Cap 324A.

3

Mr. Alair Shepherd QC informed the Court that at one stage B M Holdco Limited (“Holdco”), the Fourth respondent, had itself joined as a defendant in the High Court proceedings, but subsequently it filed an application to withdraw and discontinue its participation. Its counsel was ill at the scheduled hearing of this application which was then adjourned and has not since been heard. No one appeared before this Court to represent Holdco, Mr. Garth Patterson QC stating that he had heard from Holdco's counsel that Holdco wanted no further part in the proceedings.

4

Kaupthung responded to the Prime Proceedings by filing an application on 29th January, 2014 for summary judgment and/or for Battaleys' claim to be struck out. On 19th June, 2014 Cornelius, J. dismissed the application and Kaupthung, with the requisite leave of Cornelius, J., then filed an appeal to the Court of Appeal (the “Kaupthung Appeal”).

5

Meanwhile, Battaleys had applied in the Prime Proceedings for an interim injunction, till its case was heard, restraining the sale, mortgage or alienation of any of its assets by any of the respondents, their servants or agents. On 4th July, 2014 Cornelius, J. in an oral judgment refused to grant the interim injunction on the basis that Battaleys would be adequately compensated by the award of damages if it turned out that Battaleys' claim succeeded in the Prime Proceedings, though the judge provided no written judgment.

6

On 7th July, 2014 Battaleys, needing no leave from Cornelius, J., filed an appeal in the Court of Appeal against the 4th July judgment (the “Battaleys Appeal”). It also filed with that Court an application pursuant to Rule 62.16(1) (c) of the Supreme Court ( Civil Procedure) Rules. The Rule enables a judge to “make orders for “(c) an injunction restraining any party from disposing of or parting with possession of the subject matter of an appeal pending the determination of the appeal.” Battaleys sought the following Order, “That an injunction be granted restraining the defendants by themselves their servants or agents in any way whatsoever from selling mortgaging or alienating in any way any of the assets of the claimant.”

7

On 10th July, 2014 Sir Marston Gibson, C.J. granted that injunction without any notice having been given to the respondents, who therefore on 15th July filed an application with the Court of Appeal under s 53(3) of the Supreme Court of Judicature Act, Cap 117A, to have the injunction discharged.

8

On 10th December, 2014, after Mr. Alair Shepherd QC for Battaleys had conceded that the Chief Justice's order was a nullity, the Court of Appeal discharged the order. It then heard Mr. Shepherd QC's application for the grant of an injunction, pending the hearing of the Battaleys Appeal.

9

On 16th December, 2014 it held that the above wording of the injunction sought by Battaleys amounted to the permanent injunction sought by Battaleys in the Prime Proceedings waiting to be heard by the High Court. The Court of Appeal had no jurisdiction to grant such an injunction because this “would be tantamount to...

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