Between Stephenson Tomlinson Plaintiff v Shyam Michael Mashumbi Ebanks Defendants
| Jurisdiction | Cayman Islands |
| Judge | Marlene Carter |
| Judgment Date | 21 March 2023 |
| Docket Number | Cause No.: G 120 of 2022 |
| Court | Grand Court (Cayman Islands) |
The Hon. Justice Marlene Carter (Actg.)
Cause No.: G 120 of 2022
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CIVIL DIVISION
Civil litigation — Order 14 r. 1 — summary judgment — promissory note — defence and counterclaim
Ms. Cherry Bridges of Ritch and Conolly for the Plaintiff
Mr. Brett Basdeo and Mr. Chaowei Fan of Walkers for the Defendant
By Writ of Summons dated 1 June 2022, the Plaintiff claims a sum of money payable by the Defendant on a Promissory Note dated 31 July 2018 (“the Promissory Note”).
The Plaintiff claims that the amount lent to the Defendant on the Promissory Note was the sum of CI$127, 475.00 with interest at the rate of 2.5 percent per annum for a term of five years together with all legal fees and disbursements arising from the preparation of the Promissory Note and including but not limited to any stamp duty payable thereon. Attached to the Promissory Note was a schedule for repayment. (“Schedule 1”). The Plaintiff states that the payment of the principal sum was in instalments.
On 4 October 2022 the Plaintiff filed a summons seeking summary judgment pursuant to Order 14 of the Grand Court Rules. The Plaintiff sought the following relief:
“ 1. The Defendant do pay to the Plaintiff forthwith the total of the sums pleaded in the Statement of Claim dated 1 June 2022 in the sum of at least CI$151,279.41 plus all other costs incurred from 1 June 2022 and continuing interest accruing from 1 June 2022 to the date of the judgment, the total amount to be calculated up to the date of judgment.
2. The Defendant do pay the Plaintiff's costs of this application pursuant to the terms of the Promissory Note dated 31 July 2018 or alternatively, the Defendant do pay the Plaintiff's costs of this application to be taxed if not agreed.
3. Such further or other relief as the Court shall think fit.”
In his first affidavit in support of the instant application the Plaintiff related that the actual sum advanced to the Defendant was some CI$229.30 less that the amount stated on the Promissory Note, or CI$127,245.70. (“the Principal Sum”). The Plaintiff also stated that the Defendant made some payments towards the Principal Sum. Between 17 October 2018, and 12 March 2020, the Defendant made payments to the Plaintiff totaling CI$19,160.53 in accordance with Schedule 1.
The Defendant has not filed a defence to the Statement of Claim. The Defendant contends that the acknowledgment of service to the Writ of Summons was filed within the stipulated time frame, through the Court's online portal. However, the filed copy was issued from the Civil Registry with a date outside the statutory period for filing same. The Defendant has sought to highlight that there was no fault on his part. By summons dated 21 July 2022 the Defendant seeks leave to file a defence out of time. It is unclear why the this summons for extension of time was not listed for hearing before the application for summary judgment. Both summonses are before the court.
The Plaintiff indicates in his affidavit in support of the present application that having checked the electronic portal on the date upon which the acknowledgment of service was to have been filed and having noted that none appeared to have been filed, his attorneys issued an application for judgment in default. The Plaintiff has not pursued the application for default judgment. However, the Plaintiff does seek to refer to same where it may impact costs sought on the instant application.
The Plaintiff filed two affidavits in support of the application for summary judgment. The Defendant objects to summary judgment being granted. The Defendant has filed one affidavit in opposition.
In the first of the Plaintiffs affidavits, he refers to his claim as set out in paragraphs 2–4 above and states that he believes that there is no defence to his action on the Promissory Note.
The Plaintiffs second affidavit was filed “in response to the first affidavit of the Defendant.” The Plaintiff stated in response to matters set out in the Defendant's affidavit: “It is simply not relevant to the issue of the Promissory Note and is merely an attempt to muddy the waters to give the illusion that the Defendant has some sort of Defence to this action on a Promissory Note. For the avoidance of doubt, I do not accept that the Defendant's allegations are true …”
The Plaintiff produced “copies of all the cheques and corresponding cheque stubs evidencing all the payments made by way of loan to the Defendant in the total sum of $127,245.70 and in respect of which the Defendant executed the Promissory Note date 31 July 2018.”
The Plaintiff reiterated his belief that there is no defence to his claim on the Promissory Note and asked the court to refuse to grant the Defendant an extension of time to file his defence to the claim.
In an action for summary judgment where the Plaintiff avers that there is no defence to his claim the burden is on the Defendant to show that there is a triable issue.
In his affidavit in opposition the Defendant states that he has a real prospect of success in defending the claim brought by the Plaintiff for the following reasons:
“a) Contrary to the allegations made in the statement of claim, the Plaintiff did not advance all the funds directly to me, nor at the time alleged, pursuant to the promissory note dated 31 July 2018.
b) Some of the funds alleged to have been lent to me under the Promissory Note were actually paid by the Plaintiff directly to a certain contractor for the renovation of an office space for the mutual benefit of
i. Tomlinson Printing Limited t/a PrintTek, (“PrintTek”) and
ii. NCI Freight & Logistics Limited. (“NCI”);
c) The Promissory Note does not reflect a subsequent agreed amendment of the sums due to apportion those costs between PrintTek and NCI;
d) The calculations of interest set out in the statement of claim are incorrect;
e) In hindsight, I believe that I was improperly pressured into entering into the Promissory Note due to my personal financial circumstances arising from the Plaintiff's refused to fund PrintTek as originally contemplated, and
f) The Plaintiff is unable to recover his full legal fees of recovery action under the Promissory Note.
In answer the Plaintiff does not deny that the funds were not advanced all at once to the Defendant. The Plaintiff agrees that some funds were paid directly to a contractor but insists that this was at the request of the Defendant and for his benefit. Any submission that the Promissory Note does not reflect a subsequent agreed amendment is deemed by the Plaintiff as irrelevant to the claim. In his second affidavit in support of the application, the Plaintiff agrees that the calculations of interest are incorrect and has recalculated same to take account of the Defendant's submissions in this regard.
The Plaintiff denies that he exerted any improper pressure on the Defendant to cause him to sign the Promissory Note. On the matter of the recovery of legal fees the Plaintiff submits that the court can determine whether all the legal fees sought are reasonable and recoverable in all the circumstances.
In re Sterling Macro Fund, Mangatal J. referred to the
“ … the judgment of Lewison J. in Easyair Ltd v Opal Telecom Ltd (2009) EWHC 339 (Ch) at (15). The principles were set out by Lewison J. in the context of an application by a defendant for summary judgment dismissing a claim. These principles were subsequently approved by the English Court of Appeal in A C Ward & Son v Catlin (Five) Ltd (2009) EWCA Civ 1098, [2010] Lloyd's Rep IR 301 at [24] on a case by a plaintiff for summary judgment. The principles are as follows:-
i. The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 1 All ER 91
ii. A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8].
iii. In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman.
iv. This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no reed substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at {10}.
v. However, in reaching its conclusions the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550.
vi. Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict on the facts at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63.
vii. On the other hand it is not uncommon for an application under Rule 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination...
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