Andrew Popely (Representing the interests of the beneficiaries of Blue Ridge Trust) Claimant/Respondent v Ayton Ltd Corporate Directors Ltd St. Vincent Trust Services Ltd Lex Services Ltd Defendants/Applicants [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Thom, J. |
| Judgment Date | 28 November 2013 |
| Judgment citation (vLex) | [2013] ECSC J1128-1 |
| Court | High Court (Saint Vincent) |
| Docket Number | HIGH COURT CIVIL CLAIM NO. 1 OF 2005 |
| Date | 28 November 2013 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
HIGH COURT CIVIL CLAIM NO. 1 OF 2005
Mr. G. Boilers and Mr. P.R. Campbell Q.C. for the Applicants.
Mr. Stanley John for the Respondent.
Mr. Akin John for Cosmos Trust Ltd.
On October 31, 2012 this Court gave judgment in favor of the Respondent and made the following orders:
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(a) That the powers of the Director of Ayton Limited have been exercised in a manner that is oppressive and that unfairly disregarded the interest of the beneficiaries of the Blue Ridge Trust which is the sole shareholder of the First Defendant.
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(b) No sums are due to the Third Defendant from either the beneficiaries of the Blue Ridge Trust or from the Blue Ridge Trust in respect of services rendered and expenses incurred by the Third Defendant as Trustee of the Blue Ridge Trust in relation to Casterbridge Properties Limited. Neither the Blue Ridge Trust nor the beneficiaries of the Blue Ridge Trust are liable for any of the expenses incurred in the Casterbridge Properties Limited litigation.
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(c) The Third Defendant must account and indemnify the Blue Ridge Trust thirty per cent (30%) of the distributable assets of Casterbridge Properties Limited including thirty per cent (30%) of the £3.67 million settled by Mars Trust Limited by the Third Defendant and thirty per cent (30%) of the price of the timeshare welks that were transferred by Casterbridge Properties Limited to Pono Finance Limited.
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(d) The Third Defendant is hereby removed as Trustee of the Blue Ridge Trust with immediate effect.
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(e) Cosmos Trust Limited is appointed Trustee of the Blue Ridge Trust with immediate effect and all assets of Blue Ridge Trust are hereby vested in Cosmos Trust Limited with immediate effect.
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(f) The resolution to wind up Ayton Limited is set aside.
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(g) The sum of £15,000 being security for the Defendant's costs and is held at the Scotia Bank, Kingstown, Saint Vincent and the Grenadines be paid forthwith to the Claimant.
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(h) The Second, Third and Fourth Defendants to pay the Claimant's costs, such costs to be prescribed costs.
The Defendants have filed an appeal and seek a stay of execution of the judgment and an injunction against Cosmos Trust Limited and the Directors of Ayton Limited being the Claimant and John Anthony Popely.
The Claimant opposed the application for a stay of execution and the application for an injunction. John Anthony Popely and Cosmos Trust also opposed the application for an injunction.
The application for a stay of execution is supported by two affidavits of Ms. Juliana Keizer dated the 12 th and 29 th days of November 2013. The grounds of application for the stay of execution are:
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(i) Having regard to the terms of the said judgment, the Defendants urge the Court to rule that it would be just and convenient to make the Order for a stay of execution of the judgment pending the hearing and determination of the intended appeal in order to prevent undue prejudice to the Defendants in that without a stay, the appeal would be rendered nugatory and if successful the loss which the Defendants would suffer could not be compensated in damages. The Claimant is in any event impecunious.
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(ii) The Defendants believe that their appeal would have a realistic prospect of succeeding if not on all of the issues then at least on some of the issues to be contested in the proposed appeal in all the circumstances of the case.
At the hearing Mr. Boilers stated that having regard to the events which occurred since the judgment as outlined in the affidavit of Hermie Miller dated November 30, 2012 on behalf of the Respondent the Applicants only seek a stay of paragraph (c) of the Order.
Mr. Boilers submitted that the Court has an inherent jurisdiction to grant a stay of proceedings pending the hearing of an appeal. An application for leave to appeal or the filing of an appeal does not operate as a stay unless an order granting a stay is obtained from the Court of Appeal or a single judge of the Court of Appeal or a judge of the Court below. Mr. Boilers referred the Court to CPR 2000 Part 62.19.
Mr. Boilers further submitted that the jurisdiction is discretionary and is exercisable in cases where the Court thinks that it is just and convenient to make the order to prevent undue prejudice to the parties or prevent an abuse of process of the Court. The Court will likely grant a stay pending an appeal if the appeal would otherwise be rendered nugatory or the appellant would suffer loss which could not be compensated in damages.
The Court will also consider whether the appeal has a realistic prospect of succeeding. In this case the evidence shows that the Applicants have a reasonable prospect of success in their appeal. The issues of res judicata, the rule in Foss and Harbottle and the issue of the monetary award against the Applicant St. Vincent Trust Services are matters that should be ventilated before the Court of Appeal. Mr. Boilers relied on the cases of Enzo Addari v Edy Gay Addari1, and Ipoc International Growth Fund Limited v L V Finance Group Ltd. et al2.
Mr. Stanley John in response submitted the power of a judge at first instance to hear an application for a stay of execution instead of the Judge of the Court of Appeal can only be exercised where it would otherwise cause inconvenience or delay not to do so. Mr. John relied on Section 33 of the Eastern Caribbean Supreme Court Act and Sections 27 and 28 of the Eastern Caribbean Court of Appeal Rules. He further submitted that there is no evidence of inconvenience or delay therefore there is no basis upon which this Court can proceed to hear the application for a stay of execution.
Mr. John next submitted that the power to grant a stay of execution is discretionary and an applicant must establish that there are special or exceptional circumstances justifying the grant of a stay of execution. This is because a successful party ought not to be deprived of the fruits of a judgment given in his favor. Mr. John relied on the cases of Marie Makhoul v Cecily Foster3, Courtesy Taxi Co-operative Society Ltd v Lucien Joseph4,
and 1st National Bank of St. Lucia Limited v Universal Fishing and Trading Co. Ltd5. Mr. John then submitted that there is no evidence in the affidavit of Ms. Keizer to establish that there are exceptional circumstances upon which the court should exercise its discretion. Further the Defendants' appeal has little chance of succeeding.Section 33 of the Eastern Caribbean Supreme Court Act read as follows:
"Where an appeal has been brought under the provisions of Section 32 and is pending in the Court of Appeal a Judge of the High Court may hear and determine such application incidental to the appeal and not involving the decision thereof as may be prescribed by rules of court; but an order made on any such application may be discharged or varied by the Court of Appeal."
Sections 27(1) and 28(1) of the Eastern Caribbean Court of Appeal Rules read as follows:
"27(1) In any cause or matter pending before the court a single Judge of the Court may upon application make orders for -
(a) giving security for costs to be occasioned by any appeal;
(b) leave to appeal in foma pauperis;
(c) a stay of execution on any judgment appealed from pending the determination of such appeal;
(d) an injunction restraining the defendant in the action from disposing or parting with possession of the subject matter of the appeal pending the determination thereof;
(e) extension of time;
and may hear and determine and make orders on any other interlocutory application."
"28(1) Applications referred to in the preceding rule shall ordinarily be made to a Judge of the Court, but, where this may cause undue inconvenience or delay, a Judge of the Court below may exercise the powers of a single Judge of the Court under that rule."
The effect of the above provisions is that a judge of first instance may hear and determine an application for a stay of execution where undue inconvenience or delay would result if the application is made to a single Judge of the Court of Appeal. I agree with Mr. Stanley John that the Applicants did not adduce any evidence of undue inconvenience or delay.
However, I take into consideration that the Eastern Caribbean Court of Appeal is an itinerant Court with its Headquarters in St. Lucia. At the time of the filing of this appeal being November 12, 2012, the Court of Appeal was not sitting in Saint Vincent and the Grenadines (St, Vincent) and the Court was not due to sit in St. Vincent until February 2013. I therefore find in the circumstances it was appropriate for the application to be made to the Court below in St. Vincent.The approach to be adopted by the Court on an application for a stay of execution is outlined in several decisions of the Court of Appeal including the cases of Marie Makhoul and Marguerita Desir v Sabina James Alcide6. In Marie Makhoul Madam George-Creque JA (as she then was) stated the principles in paragraph 3 to 5 of the judgment as follows:
"3. The general rule is for no stay, as a successful litigant is entitled to the fruits of his judgment without fetter. Accordingly, there must be good reasons advanced for depriving or in essence enjoining a successful litigant from reaping the fruits of a judgment in his favor, particularly after a full trial on the merits.
4. The modern authority on the guiding principles the court employs in exercising its discretion to grant a stay is the case of Linotype-Hell Finance Ltd v Baker where Staughton L.J....
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