Oswald Sitney v Francis Sitney

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Actie, J.
• Judgment Date: 27 February 2024
• Judgment citation (vLex): [2024] ECSC J0227-3
• Docket Number: CLAIM NO. GDAHCV 2021/0127

Between:

Oswald Sitney (As Personal Representative of the Estate of Thomas Bristol)

Claimant/Respondent

and

Francis Sitney

Defendant/Applicant

Before:

The Hon. Mde. Justice Agnes Actie High Court Judge

CLAIM NO. GDAHCV 2021/0127

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

Appearances:

Mr. Francis Paul for the Claimant/Respondent

Mr. Nigel Stewart for the Defendant/Applicant

RULING

Actie, J.

1 The applicant/defendant, Francis Sitney, acting pursuant to Rule 39.5 of the CPR 2000, as amended applies to set aside the final Judgment made in the applicant's absence on the 4 ^th day of April 2023.

Factual background

2 The parties to the claim are siblings but the applicant is not a named beneficiary of the Will of his deceased father (Thomas Bristol). The claimant as personal representative of the estate of Thomas Bristol filed a claim on 26 ^th March 2021 against the applicant seeking various reliefs inter-alia vacant possession of a parcel of land together with buildings situate on the Carenage, an injunction, an account of all monies outstanding and or received by the defendant in respect of rental of the property; to pay such money as may be found due and owing; mesne profits; damages and costs.

3 It is the evidence that Thomas Bristol during his lifetime granted a power of attorney to both parties in 2012 and by a court order dated 8 ^th July 2019, the applicant was appointed guardian of his father.

4 It is the defendant's pleaded case that he paid property taxes, maintenance and refurbishment fees, judgment debts and penalties on behalf of his father, all with an intention to acquire an interest in the property. The defence counterclaimed that the property is subject to a resulting trust in the applicant's favour and he is entitled to a beneficial share or interest in the property, or in the alternative that the claimant do repay such sums as found to have been paid on behalf of his deceased father's estate.

5 The trial of the matter was conducted on the 29 ^th March 2023 and the court delivered its decision on April 4 ^th 2023 in favour of the claimant in the absence of the defendant and dismissed the defendant's counterclaim.

The Application

6 The grounds of the defendant's application to set aside the judgment are as follows:

• i. On the 27 ^th day of March, 2023, at 2:53 p.m., the Applicant, through his Solicitors, caused to be filed, an Application pursuant to Rule 27.8 of the Civil Procedure Rules 2000 (as amended), requesting that the trial of this matter, the said trial having been scheduled to be held on the 29 ^th day of March, 2023, may be postponed.

• ii. In support of the said Application, the Affidavit of Azel Hood was filed, detailing that the Applicant had suffered a relapse of a chronic mental condition earlier in the month of March, which said relapse had caused the Applicant to be hospitalized, and exhibiting a letter dated 23 ^rd March 2023, from Dr. Xioping Shao, the Staff Psychiatrist at the Department of Veterans Affairs, who indicated that the Applicant's clinical condition, had deteriorated as a result of the stress attendant with the court proceedings.

• iii. The Affidavit also exhibited an urgent email to the Registrar of the Supreme Court dated the 24 ^th day of March 2023, at 1:14 p.m., alerting the Court that the Applicant's health had deteriorated due to stress, and that a request would be made shortly requesting for the trial date to be varied so as to ascertain from the aforementioned Dr. Shao how soon the Applicant could potentially be ready for trial.

• iv. The Court refused the Applicant's application for a variation of the trial date.

• v. As a result of the Applicant's ill health, and on the advice of his medical practitioners, the Applicant was not present at the trial.

• vi. Due to the Applicant's absence, the Learned Trial Judge made the decision to admit only the Respondent's evidence, and therefore, the order the Judge made and entered in these proceedings on the 4 ^th day of April 2023, was based only on the evidence of the Respondent.

• vii. Had the Applicant's evidence been admitted, there is a good chance that some other order might have been made, because the Applicant's evidence alludes to an understanding as between himself and his late father, that the Carenage property which had been placed in the applicant's complete control would eventually be conveyed to him, but that the said agreement was never formally committed to writing because the Applicant's father lost the mental capacity to do so prior to his death.

• viii. This evidence would bolster an Applicant's pleading that there was a trust in favour of himself, since the Applicant's father was aware of the sums the Applicant expended on the property, and the Applicant's management of same, and intended to convey the subject property to the Applicant in recognition of same.

Law and analysis

7 CPR 39.5 (Revised Edition) 2003 makes provision for the setting aside of judgments or orders given in a party's absence and reads as follows:

“39.5 (1) A party who was not present at a trial at which judgment was given or an order made may apply to set aside that judgment or order.

(2) The application must be made within 14 days after the date on which the judgment or order was served on the applicant.

(3) The application to set aside the judgment or order must be supported by evidence on affidavit.

(4) If the evidence shows that the party or legal practitioner was not notified of the date fixed for the trial at which the judgment was given or the order made, the judgment or order must be set aside.

(5) In all other cases, the evidence must show –

(a) that –

(i) there was a good reason for failing to attend the hearing; and

(ii) it is likely that, had the party or legal practitioner attended, some other judgment or order might have been given or made; or

(b) exceptional reasons why the judgment or order should be set aside.” [emphasis added]

8 An application to set aside judgment made in a...