Caribbean Banking Corporation Ltd Claimant v Francis Michael Defendant [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Matthew J. (Ag.) |
| Judgment Date | 16 May 2008 |
| Judgment citation (vLex) | [2008] ECSC J0516-7 |
| Court | High Court (Saint Vincent) |
| Docket Number | HIGH COURT CLAIM NO. 560 OF 2001 |
| Date | 16 May 2008 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
HIGH COURT CLAIM NO. 560 OF 2001
On December 20, 2001 the Claimant filed a claim form requesting the following relief:
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(1) The sum of $10,147.00 outstanding on the principal of a loan granted on November 23, 2001;
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(2) Interest at the rate of 9 per cent per annum on the said loan of $8,377.91 as at December 17, 2001 and continuing at the daily rate of $2.50 per day;
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(3) Late fees of $900 as at December 2001 on the said loan and continuing at the monthly rate of $20.00 per month until payment;
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(4) Costs.
In its accompanying statement of claim the Claimant alleged that the Defendant owes the sum of $10.147.00 being the amount due and owing by the Defendant to the Claimant on the principal of the said loan, plus interest of $8,377.91 at the rate of 9 per cent as at December 17, 2001 and continuing until payment at the daily rate of S2.50.
The Claimant alleged that the Defendant had been in default in his payments on the said loan since April 1998 and therefore also owes the Claimant late fees of $900 as at December 2001 and continuing at the monthly rate of $20.00 until payment.
On June 10, 2003 the Defendant filed a defence and counterclaim. In the defence the Defendant stated that a mortgage bill of sale was executed by him on November 23, 1995 in respect of a passenger van registered as HA 610 to secure repayment of the principal sum of $40,000.
The Defendant admitted that he fell into arrears in relation to the Bill of Sale but could not state the exact month or date when he fell into arrears. The Defendant stated that there was not reserved in the said Bill of Sale any power in the Claimant to sue for any shortfall in the event of the vehicle being seized and sold by the Claimant and in the absence of the specific reservation of such a power the Claimant cannot maintain the present action.
The Defendant stated that on January 27, 1996 the Claimant repossessed the vehicle in exercise of the power of seizure conferred upon the Claimant under clauses 7 and 8 of the said Bill of Sale, and the Claimant sold the vehicle on February 3,1999.
The Defendant asserted that the seizure of the vehicle constituted the exhaustion of the only remedy conferred upon the Claimant under the terms of the said Bill of Sale, and that there was no residual or implied remedy in the nature of an action for shortfall between the amount owing on the date of the seizure and the amount realized from the eventual sale of the vehicle.
In his counterclaim the Defendant stated that:
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(1) The Defendant asserts that proper accounts should be taken so as to ensure that there is no element of compound interest in the amounts claimed in the statement of claim;
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(2) The Defendant challenges the contractual basis and the imposition of the purported late fee;
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(3) The Defendant challenges the calculation of the purported interest;
And that the Court should make consequential orders.
In November 2007 the Claimant filed a reply and defence to the counterclaim in which it joined issue with the Defendant's defence except where the Defendant indicated admissions.
The Claimant denied that the seizure of the vehicle constituted the only remedy available and it was at liberty to sue for the balance left owing,
The Claimant asserted that proper accounts have always been kept with respect to the Defendant's loan agreement and the making of an order for accounts and inquiries should be disallowed.
A witness statement was filed on November 21, 2007 by Arnold Dalrymple, the Recoveries Officer at the Claimant Bank and one was filed by the Defendant on June 29, 2007.
Dalrymple stated that he had been employed by the Claimant Bank for the past 30 years and had conduct of all matters regarding customers of the Bank who had defaulted on loan agreements.
He said the Defendant was issued the loan based on terms including repayment by way of monthly installments of $1,383.00 at the rate of 8 per cent per annum.
He said the Defendant's vehicle HA 610 was used as security for the loan and at the date of the grant of the loan, the vehicle, a minibus, was valued at $49,000.00.
He stated that the Defendant defaulted on his monthly installments in 1996 and the Bank seized the vehicle on January 27,1996 when it was valued at $12,000.00.
He said pending the sale of the vehicle storage fees of $1,432.25 were incurred. The vehicle was sold for $12,000. The balance then due on the principal was $10,147.00; interest of $8,377.91; and late fees of $900.00.
In his witness statement the Defendant asserted that in the absence of a specific reservation of power to sue for any shortfall the Claimant could not maintain the action.
He said he did not maintain accounts pertaining to his transaction with the Claimant and he was in no position to state what were the true amounts owing to the Claimant on the date of the seizure of the vehicle; and what part of that balance was attributable to principal and what part was attributable to interest.
It appears to the Court that the Defendant should at least request copies of the accounts relating to his transaction before he requests the Court to make orders in respect of things he could easily obtain upon request.
The Defendant asserted that the Claimant was accountable for the diminution on the value of the vehicle during the year which elapsed between seizure and sale and during which the said vehicle remained in the exclusive custody of the Claimant.
The Defendant stated that between January 30, 2004 and February 4, 2004 the Claimant wrongfully seized the sum of $10,000 from his account, allegedly in satisfaction of its claim against him in these proceedings.
Suit 560 of 2001 was first called for hearing on December 11, 2007. Counsel and clients were present. Whatever might have been stated in the witness statements the Court was told by both Counsel that "the central legal issue is whether the Bank can claim if there is a shortfall from the Bill of Sale. Facts are not in dispute."
The Court proposed a hearing date for submissions on March 3, 2008 but in the meantime the Parties should file and exchange their submissions not later than February 26, 2008.
The Defendant filed his submissions on February 26, 2008 and the Claimant filed its submissions late February 28, 2008. On on March 4, 2008 both sides requested time to file other submissions skeleton arguments in reply to each other's earlier submissions. The joint request was granted and the time limit set for these further submission was March 18, 2008. The matter was further adjourned to April 2, 2008.
The Claimant filed what he called a reply to the Defendant's earlier submission late again on March 27, 2008. The Defendant's Queen's Counsel, as he usually does, had again filed on March 17, 2008 within the limit set. The Parties appeared on April 2, 2008 to my surprise hoping to have a judgment delivered. The matter was reserved.
Learned Counsel for the Claimant submitted that the loan contract is part of the Bill of Sale. He referred to the printed words in the Bill of Sale which states that the borrower "doth hereby assign unto the Bank and its assigns all and singular the several chattels and things specifically described in the schedule hereto (hereinafter called the property) by way of security for the payment of the sum of forty thousand dollars."
Reference was made to Clause 6 of the Bill of Sale which states "that all amounts paid by the Bank and charged to the Borrower hereunder shall be payable by the Borrower on demand at the aforementioned branch of the Bank."
Counsel submitted that there was a contract for money lent between the Parties. He stated that the Bill...
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