Chester Clarke Substituted Plaintiff Marthe Clarke Added Plaintiff v Bank of Nova Scotia Julian Compton Defendants Bertram Arthur Third Party [ECSC]

JurisdictionSt Vincent and the Grenadines
CourtHigh Court (Saint Vincent)
JudgeMitchell, J
Judgment Date18 April 2000
Judgment citation (vLex)[2000] ECSC J0418-2
Date18 April 2000
Docket NumberCIVIL SUIT NO. 39 OF 1994
[2000] ECSC J0418-2

IN THE HIGH COURT OF JUSTICE

CIVIL SUIT NO. 39 OF 1994

Between:
Chester Clarke
Substituted Plaintiff
Marthe Clarke
Added Plaintiff
and
Bank of Nova Scotia Julian Compton
Defendants

and

Bertram Arthur
Third Party
DECISION
Mitchell, J
1

This is a ruling on costs in two interlocutory applications heard in Chambers in this case. The dispute centred on the form of the order for costs consequent on two applications made by the Plaintiff. To understand the dispute over the question of costs, it will be necessary to set out briefly the Plaintiffs' claim and the history of the proceedings and of the applications in question.

2

The suit in this case commenced on 28 January 1994 with the issue of a specially endorsed writ. The parties at that time were Leon Clarke (hereinafter the "Original Plaintiff') vs Bank of Nova Scotia (hereinafter the "1st Defendant") and Julian Compton (hereinafter the "2nd Defendant"). The Original Plaintiffs action was for specific performance of a contract of sale of land dated 1 November 1989. The facts as pleaded by the Original Plaintiff may be summarized this way. The Original Plaintiff claimed that he had attended an auction sale at which the 1st Defendant was selling 2 parcels of land of the 2nd Defendant. The Original Plaintiff had purchased the 2 parcels of land and gone into occupation of the 2 parcels. Subsequently, the Original Plaintiff sent a conveyance to the 1sl Defendant, only to be told that the 1st Defendant had sold only one of the parcels to the Plaintiff. On 21 February 1994 the 1st Defendant filed its defence. The substance of the defence was that the Original Plaintiff had made a successful bid on only one parcel of land. The defence was further that the Original Plaintiff was estopped from alleging that he bought two parcels as, since 13 February 1990, the 1st Defendant had executed a deed prepared by the solicitor for the Original Plaintiff which deed is registered in the Registry. On 18 March 1994 the Original Plaintiff filed his reply to the defence. He asserted that the deed of 13 February 1990, as the Defendants were aware, had been executed and registered under protest. On 4 May 1994, the summons for directions was filed. We can count this as the first interlocutory summons in these proceedings. On 13 May 1994 Joseph J made the usual order for discovery, etc, on the summons for directions. That disposed of the first summons. On 13 July 1994 the Original Plaintiffs list of documents and affidavit verifying were filed. On 2 August 1994 the Original Plaintiff filed the request for hearing.

3

On 25 November 1997, Chester Clarke (hereinafter "the Substituted Plaintiff") applied to be substituted as Plaintiff, the Original Plaintiff having died. This was the second summons. In the affidavit in support, the Substituted Plaintiff deposed that the Original Plaintiff, his father, had bought the land in dispute on his behalfas he was residing in Canada at the time. On 28 November 1997, the appropriate order disposing of the second summons was made substituting Chester Clarke, with costs to be costs in the cause. On 12 January 1998, the 1st Defendant applied by summons, the third summons, for an order setting aside the order of substitution on a number of grounds that are not relevant here. On 29 January 1998, the 1st Defendant filed another and duplicate summons, the fourth summons, for leave to apply to set aside the order of 27 November 1997. On 10 March 1998, the 1st Defendant filed a summons, the fifth summons, to add a further ground why the order of 28 November should be set aside. On 13 March 1998, Baptiste J heard the 1st Defendant's application for leave to apply to set aside his order of 29 January 1998 and refused leave. That order of Baptiste J effectively disposed of the third, fourth, and fifth summonses. That order was not appealed. On 14 October 1999, the 1st Defendant filed another summons, the sixth summons, to the same effect as the third and fourth summonses. On 19 October 1999 the 2nd Defendant applied by summons, the seventh summons, for leave to file a defence out of time. On 21 October 1999 the court heard argument on the applications in the sixth and seventh summonses together. On 29 October 1999 the court by a written decision with reasons made the following orders:

1. The 2nd Defendant was given leave to serve and file his defence within 7 days, costs to be costs in the cause.

2. The court had no authority to set aside the order made by Baptiste J on 28 November 1997, and the applications of the 1st Defendant were dismissed. Costs of the application were ordered to be costs in the cause.

These orders have not been appealed against. That disposed of the 6th and 7th summonses.

4

On 15 November 1999, the 1st Defendant applied by summons, the eighth summons, pursuant to Order 20 for leave to amend its defence. On 16 November 1999 the 1st Defendant applied pursuant to Order 26, the ninth summons, for leave to serve interrogatories on the Plaintiff. Before these applications could be heard, Chester Clarke, the Substituted Plaintiff, applied by way of a summons filed on 26 November 1999, the tenth summons, for an order that Marthe Clarke be added as a Plaintiff and for costs of the application to be costs in the cause. The affidavit in support of this tenth summons claimed that Marthe Clarke was the wife of the Substituted Plaintiff and held an equitable interest in the property in question in the suit. Meanwhile, on 30 November 1999, the 1st Defendant applied by summons, the eleventh summons, for leave to substitute its amended defence with another amended defence. On 30 November 1999, the 1st Defendant filed a supplemental summons, the twelfth summons, for leave to serve interrogatories. On the same 30 November 1999, the 1st Defendant applied by way of summons, the thirteenth summons, for leave to issue and serve a 3rd Party Notice upon Bertram Arthur and that costs be costs in the cause. On 3rd December 1999, the pending applications came up before Adams J. Adams J ordered that the application of the 1st Defendant for the 3rd Party Notice was granted. That order was not appealed, and effectively disposed of the thirteenth summons. The Plaintiffs application on the tenth summons to join Marthe Clarke as an Additional Plaintiff was granted at the same time by Adams J. The order on the costs of the application to join Marthe Clarke was highly disputed, and the question of costs was deferred for argument. That disposed of the tenth summons, other than the question of the appropriate form of the order for costs to be made on it. The 3rd Party Notice was duly filed and served. On 6 January 2000, the 3rd Party entered an appearance.

5

Meanwhile, the 1st Defendant on 10 January 2000 applied by way of summons, the fourteenth summons, for the order filed on 23 December 1999 to be set aside due to errors and inaccuracies in it. On the same date, the Plaintiffs filed a summons, the fifteenth summons, pursuant to 0. 20 r. 5 of the Rules of the Supreme Court for leave to amend their statement of claim. The pending applications came up in Chambers on 4 February 2000. The Defendants and 3rd Party indicated that they had no objection to the Plaintiffs application in the fifteenth summons to amend the statement of claim, provided the usual order as to costs was made. Leave was given to amend the statement of claim, subject to determination of the order as to costs. The Plaintiffs had objected to the application by the Defendants for the "usual order" for costs and urged that the court order the Plaintiffs to pay only the "costs of the application." As the earlier provision for costs in the application in the tenth summons dealt with by Adams J had not yet been made, argument on the...

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