republic of trinidad and tobago in the high court of justice claim no. cv2017...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2017-02665

BETWEEN

PETER CALDON

Claimant

AND

DAIN GARCIA

First Defendant

TONI PIERRE

Second Defendant

Before the Honourable Mr. Justice Robin N. Mohammed

Date of Delivery: 16th January 2019

Appearances:

Mr Yaseen Ahmed instructed by Ms Tara Lutchman for the Claimant

Mr Lasana Murray for the First Defendant

Ms Keilah Granger for the Second Defendant

DECISION ON CLAIMANT’S APPLICATION FOR JUDGMENT IN DEFAULT

AND FIRST DEFENDANT’S APPLICATION TO STRIKE OUT

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I. Background:

[1] This Claim primarily seeks from the Defendants the liquidation of three costs Orders from

a previous related action between the Claimant and the First Defendant’s father, Edward

Garcia, totalling TT$273,539.50 along with, inter alia, damages for Fraud and/or

Negligence.

[2] The Claimant, Peter Caldon, by virtue of a Lease Agreement dated the 4th September,

1995, became a tenant in the premises owned by Edward Garcia, the father of the First

Defendant, situate at No 20 Raglan Street, Arima. By High Court Action No 2257 of

2001, Mr Caldon brought proceedings against Edward seeking, inter alia, specific

performance of the Lease Agreement, damages for breach of the Lease Agreement and

an Injunction preventing Edward or his agents from disposing, assigning or selling the

premises.

In that Claim (the “Previous Action”), Mr Caldon alleged that he had requested from

Edward the opportunity to exercise the option of purchasing the premises pursuant to the

Lease Agreement. However, he averred that in response, Edward informed him that he

was in breach of the Lease Agreement and as a result, called upon him (Peter Caldon) to

deliver up vacant possession.

Despite Mr Caldon’s refutation of these allegations, Edward allegedly refused to either

renew the Lease and/or to allow Mr Caldon to purchase the premises. The cause of action

arose when Mr Caldon was out of the jurisdiction and without his knowledge or consent,

he pleads that Edward entered the premises and proceeded to remove all his personal

belongings before changing the locks.

After filing the Previous Action, Mr Caldon filed a Notice of Motion for Judgment.

However, by subsequent Court Order, the Notice was withdrawn and Edward was ordered

to pay costs which, when taxed, amounted to $21,371.75. A second Notice of Motion was

filed by Mr Caldon and in similar fashion, it was, by Court Order, withdrawn with costs

to be borne by Edward, this time, in the sum of $14,058.75.

The Previous Action proceeded to trial and at the end, judgment was awarded in favour

of Mr Caldon requiring Edward to, inter alia, (i) renew the Lease; (ii) permit Mr Caldon

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to purchase the premises; (iii) restrain from disposing of the premises in any way that

would prejudice Mr Caldon’s rights; (iv) pay damages in the sum of $5,000.00 and (v)

pay costs on both the claim and counterclaim. Such costs were taxed and eventually

ordered in the sum of $83,057.75.

Edward has to date, failed to abide by the Judgment Orders causing Mr Caldon to apply

for and receive a variation of the Judgment Order to the effect that Mr Caldon would now

pay the purchase price of the premises into Court and upon receipt, Edward would convey

the premises to him. In default, the power to effect such conveyance was given to the

Registrar.

To preserve his position, Mr Caldon caused a lis pendens to be registered against the

premises and the Judgment Orders were registered against Edward thereby giving notice

to the world of the encumbrances on the premises.

Mr Caldon, however, was unable to raise the purchase price for the premises and thus,

applied to have the premises sold. The application was granted by court order stipulating,

inter alia, that the sale be conducted by auction and advertised in the Gazette. Further,

the aforementioned costs taxed in the sums of $83,057.75, $21,371.75 and $14,058.75

were to be deducted from the proceeds of sale.

Just over 3 years after this last court order, Mr Caldon sought an update from Edward on

the status of the three outstanding Orders for costs. Several months later, Mr Caldon,

through his attorney, discovered that Edward died in 2012. More importantly, it was

discovered that the premises had been transferred to the First Defendant herein, Mr Dain

Garcia—Edward’s son, by Deed of Gift.

Thus, the instant Claim was brought against Dain, as the current occupier of the premises

and the Second Defendant, who was the attorney of both Edward and Dain and who

prepared the Deed of Gift. Dain’s liability was on the basis that he colluded with Edward

in breach of the Court’s Orders to transfer the premises to himself so as to defeat the

judgment in favour of Mr Caldon and/or inter alia, failed to inform the Court of Edward’s

death.

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In those circumstances, this action sought several reliefs to, inter alia, (i) set aside the

Deed of Gift and (ii) sell the premises whereby the proceeds of sale, less the sums due for

costs, are to be paid to Mr Caldon. Damages for fraud and/or negligence were also sought.

[3] Only the Second Defendant, Toni Pierre, filed a Defence in this matter in which all

allegations with respect to the Previous Action and its attendant costs Orders were either

denied or put to proof.

With respect to the Deed of Gift, Toni’s case was that she was contacted by Edward’s

previous attorney, Ms Leandra Ramcharan, who referred Dain as a client with instructions

to prepare the Deed of Gift. Toni’s case was that, because it seemed a straightforward

conveyance between related parties, i.e. from father to son in the form of a Deed of Gift,

the normal practice was that a title search was not necessary. Thus, Toni pleaded that she

proceeded to prepare the Deed of Gift on instructions from Dain and sent the Deed to be

assessed by Stamp Duty. It was only when Dain visited Toni to collect the file, that she

was informed that Leandra had told Dain that she, Leandra, was, at that point,

representing Edward in the Previous Action and that a Judgment was about to be

registered against Edward.

Toni maintains that she was (i) unaware of any proceedings against Edward and (ii)

unaware that Leandra Ramcharan was acting for Edward in a litigious matter, prior to

being so informed by Leandra. In those circumstances, all allegations of fraudulent

collusion between herself, Dain, Leandra and/or Edward were denied.

[4] Having had no sight of a Defence for the First Defendant, Mr Caldon, by Application of

the 16th October, 2017, filed for Judgment in Default of Defence and/or summary

judgment against Mr Dain Garcia.

[5] Toni, on the 23rd November, 2017, opted to bring an Ancillary Claim against Leandra

Ramcharan as attorney–at-law for Edward on the basis that she accepted the brief to

prepare the Deed of Gift solely on the information provided to her by Leandra and that

Leandra withheld material facts about her relationship with Edward as it pertained to the

Previous Action and as a result, any liability on her part was caused or contributed to by

the non-disclosure and/or misrepresentations of Leandra Ramcharan.

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[6] On even date, Dain Garcia filed his Application (i) to be removed from these

proceedings on the basis that he is an improper party pursuant to Part 19.2 (4) of the

CPR 1998 and/or (ii) that the Claimant’s Claim be dismissed under Part 26.1 (1) (k) of

the CPR 1998 or struck out under Part 26.2 (1) (c) of the CPR 1998 as it discloses no

cause of action. In default of these orders, an extension of time to file his Defence was

sought.

II. Submissions, Law & Analysis:

[7] Before the Court are therefore two Applications for determination: (i) the Claimant’s

Application for Judgment in Default of Defence and (ii) the First Defendant’s

Application to have the Claim against him struck out and/or that he be removed

from these proceedings. Given the nature of these Applications, it would be logical to

first address the First Defendant’s Application, for if successful, it would render the

Claimant’s Application for Default Judgment nullified.

The First Defendant’s Application:

[8] In Mr Lasana Murray’s affidavit in support, he deposed that because his client, the First

Defendant, was neither a party to the Previous Action nor the Legal Personal

Representative or Administrator of the Estate of Edward Garcia, Dain was therefore not

a proper party to these proceedings. Further, he contended that Dain did not execute the

Deed of Gift in his personal capacity. For these reasons, Mr Murray deposed that the

Claimant’s Claim discloses no grounds for bringing the claim against his client.

In his submissions, Mr Murray relied on Section 7 of the Wills and Probate Act,

Chapter 9:03, which he contends sets out the law on bringing claims against any

“representative, devisee or devisees” of a deceased for his liability for debts. He reasoned

that this Claim was brought against the First Defendant in his personal capacity and

because Dain never received a grant of probate or letters of administration for the estate

of Edward Garcia, his client lacks the locus standi to defend the Claim.

[9] Counsel for the Claimant, Mr Ahmed’s, response was to submit case law to show that,

because the Deed of Gift was executed after the Judgment Orders against Edward and the

premises had been registered, the transfer of the premises to Dain is null and void. It was

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clear, however, that Ms Lutchman failed to address the material issue raised by the First

Defendant i.e. whether Dain Garcia has the locus standi to defend the claim and/or

whether he was the proper party to be sued.

[10] Mr Murray replied by introducing a new argument. He was now contending that the

limitation period to bring this Claim had expired. He submitted that pursuant to Section

3 (2) of the Limitations of Certain Actions Act, Chap 7:09, no action can be brought

upon any judgment after the expiry of 12 years from the date of the final judgment. In

those circumstances, he advanced that this Claim was now statute barred.

[11] In my assessment, it is agreed that Section 7 of the Wills and Probate Act permits a

creditor to bring an action for recovery of a debt against only the representative or

devisee(s) of a person’s estate and/or provides for only the representative or devisee(s) to

be liable for the deceased’s debts:

“Nothing herein contained shall be taken to relieve or discharge any

representative, devisee, or devisees of any person from his or their liability for the

debts and contracts of such person to the extent of the property descended or

devised to such representative, devisee, or devisees; and where any person, by

bond, covenant, or other specialty, shall have bound himself and his heirs or

representative, every creditor shall and may have and maintain his action of debt

or covenant upon such bond, covenant, or specialty against the representative and

the devisee or devisees of such obligor or covenantor, or the devisee or devisees

of such first mentioned devisee or devisees jointly in the same manner as he might

by the law of England, and such representative, devisee, or devisees may plead

any plea to such action which he or they would be permitted to plead by the law

of England: Provided that all the estate which any person shall die possessed of or

entitled to shall be assets to be administered for the payment of all the just debts of

such person.”

[12] In accordance with this provision, Part 21.7 of the CPR 1998 sets out the proper

procedure for initiating proceedings involving the estate of a deceased, which reads as

follows:

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1) “Where in any proceedings it appears that a dead person was interested in the

proceedings then, if the dead person had no personal representatives, the court

may make an order appointing someone to represent his estate for the purpose of

the proceedings.

2) A person may be appointed as a representative if he—

a) Can fairly and competently conduct proceedings on behalf of the

estate of the deceased person; and

b) Has no interest adverse to that of the estate of the deceased person.

3) The court may make such an order on or without an application.

4) Until the court has appointed someone to represent the dead person’s estate, the

claimant may take no step in the proceedings apart from applying for an order to

have a representative appointed under this rule.

5) A decision in proceedings where the court has appointed a representative under

this rule binds the estate to the same extent as if the person appointed were an

executor or administrator of the deceased person’s estate.”

For Part 21.7 to apply therefore, it must first be shown that the deceased, in this case, Mr

Edward Garcia, had an interest in these proceedings. In my opinion, the answer to this

question must be in the affirmative. The reliefs sought by Mr Caldon in this action are

summarised as follows: (i) an Order to set aside the Deed of Gift transferring the subject

premises from the deceased to the First Defendant; (ii) an Order that the subject premises

be put up for sale by auction; (iii) an Order that the proceeds of sale be used to discharge

the outstanding legal fees and judgment costs orders owed by the deceased from the

previous action to Mr Caldon; (iv) an Order that, in default, either or both Defendants be

liable to pay all sums due and owing by the deceased to Mr Caldon.

Evidently, therefore, each of these reliefs directly involves or affects the deceased as he

was the person named in the costs orders made in favour of Mr Caldon and further, he

was the previous owner of the subject premises.

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[13] Thus, Part 21.7 applies which, as cited above, requires the Court to appoint a

representative of Edward’s estate for the purpose of these proceedings. However, no

application has been made by the Claimant to appoint Dain as a representative and thus,

considering that the court has made no such appointment, Part 21.7 (4) prevents Mr

Caldon from “taking any steps in these proceedings apart from applying for an order

to have a representative appointed under this rule.”

[14] Indeed, in Dass & Ors v Jankee & Ors CV 2016-02038, Justice Margaret Mohammed

also had to deal with the applicability of Part 21.7 of the CPR 1998 and opted to rely on

the dicta of Rahim J in her assessment at page 25. Rahim J in Anthony Jackson v James

Seurajh1 gave the following commentary on the operation of Part 21.7, with which I

agree:

“In this way the provisions of the CPR acknowledge that there are circumstances

in which a claim would be instituted without knowledge that the Defendant is in

fact deceased and recognizes that in those circumstances there must be a stay of

further proceedings until adequate arrangements are made for a representative to

be appointed. The Rules therefore identify three broad categories. The first is when

a claim is instituted and the defendant dies thereafter in which case the proceedings

are stayed [rule 21.9 (5)] and an application for substitution is made (rule 19.5).

The second is when it is known prior to the beginning of any proceedings that a

deceased person has an interest in those proceedings. In that case there is also a

stay of any proceedings (which in this case means for practical purposes that a

claim cannot be filed) by virtue of rule 21.7 (4) and the claimant applies for an

order that a representative be appointed [rule 21.7 (1)]. The third is when any

proceedings (whether a claim or otherwise) are begun and it becomes apparent

during the process that a named party in fact died prior to the filing of the claim.

In those circumstances, the claim is stayed by virtue of rule 21.7 (4) until a

representative is appointed.”

1 CV: 2012-05167

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There is therefore little doubt in my mind, that the Claimant ought to have applied to have

Dain Garcia appointed as the representative of Edward Garcia’s estate prior to instituting

this action. However, his failure to do so does not, by itself, require me to strike out the

Claim. For one, I am permitted under Part 21.7 (3) to make the order appointing Dain

Garcia as the representative with or without an application. Further, as indicated by my

brother Rahim J and as confirmed in Part 21.7 (4), the lack of any appointed

representative in this matter merely puts all proceedings on stay until such appointment

is made.

There is simply nothing in the Rules that suggests that this omission on the part of the

Claimant results in the Claim being struck out or void ab initio. Thus, in similar fashion

to my Sister, Mohammed J2, I also exercise my discretion to appoint Mr Dain Garcia

as the legal personal representative of the estate of Edward Garcia for the purpose of

defending these proceedings.

[15] Having deemed that Dain Garcia be appointed as the Legal Personal Representative of

Edward’s estate, Mr Murray’s argument that Dain has no liability in these proceedings

because it was Edward and not Dain who signed the Deed of Gift becomes meritless. The

premises which forms the subject of the Deed of Gift was, by Court order dated the 19th

April, 2013 and entered on the 1st March, 2018, ordered to be sold. In those

circumstances, the Deed of Gift and Dain’s acceptance of same and current occupation

of the premises is illegal and invalid. This finding directly affects Dain and moreover,

given the allegations of collusion and fraud made in the Claim, there is the possibility of

liability falling on him as well.

[16] In the alternative, Mr Murray submitted that the limitation period has expired for the

enforcement of the first two judgment orders that were registered against Edward Garcia

in the Memorandum of Judgments attached as ‘H’ to the Claim.

In the attached Memorandum, the three judgments registered were dated the 26th June,

2004, the 31st May, 2007 and the 18th March, 2004.

2 See para 51 of CV 2016-02038

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[17] Section 3 (2) of the Limitations of Certain Actions Act, Chap 7:09 prevents the

bringing of any action on any judgment after the expiry of 12 years of the date of the

judgment. Section 3 (2) provides:

2) An action shall not be brought upon any judgment after the expiry of twelve years

from the final judgment and no arrears of interest in respect of any judgment debt,

shall be recovered after the expiry of twelve years from the date of the final

judgment.”

However, Section 3 (3) provides some exceptions, which Mr Murray failed to mention

in his submissions:

3) “This section shall not apply to any—

a) claim for specific performance of a contract or for an injunction

or for other equitable relief;

b) action to which section 8 applies; or

c) action under the Compensation for Injuries Act.”

Section 8 states that it applies to situations “…where there is more than one person for

whose benefit an action under the Compensation for Injuries Act is brought.”

[18] The two earliest judgments registered in the Memorandum of Judgment were dated the

18th March, 2004 and the 26th June, 2004. None of the Orders granted in either of these

judgments related to a claim for specific performance, injunction or other equitable relief.

Rather, it provided directions for the matter and orders for costs in the sums of $14,058.75

and $21,371.75.

The date of this Claim is the 21st July, 2017. Thus, according to Section 3 (2) of the Act,

the time to bring this claim for the enforcement of these two judgments would have

expired on the 18th March, 2016 and the 26th June, 2016 respectively.

[19] The third judgment of the 31st May, 2007, however, is not only within the expiration

period (expires on 31st May, 2019) but more importantly, granted Orders for specific

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performance and an Injunction, which exempt it from the limitation period in Section 3

(3).

[20] Notwithstanding this analysis, it is material to note that nowhere in the Second

Defendant’s Defence was it pleaded that they intend to rely on the Limitation period to

strike out the Claim. More importantly, in the First Defendant’s Application, the orders

applied for with respect to having the Claim struck out and/or dismissed made no mention

of the expiry of the limitation period:

1) “An order that the Claimant’s Claim be dismissed against the First Defendant

pursuant to rule 26.1(1)(k) of the CPR 1998 upon any and/or all of the grounds

contained herein; and/or

2) An order that the Claimant’s Claim be struck out pursuant to rule 26.2(1)(c) of the

CPR 1998 as it discloses no grounds for bringing a claim against the First

Defendant.”

In those circumstances, because of the failure of the Second Defendant to plead the

Limitation period in the Defence and more notably, the failure of the First Defendant to

apply for the claim to be struck out on this basis, Section 3 of the Limitations of Certain

Actions Act cannot be relied on at the stage of submissions to strike out the Claim.

[21] Having therefore dismissed the First Defendant’s Application to strike out and/or dismiss

the Claim, the Court must now assess the application for an extension of time.

Extension of time to file Defence:

[22] It was stated in Mr Murray’s affidavit in support that the deadline for filing the Defence

for the First Defendant would have expired on the 28th August, 2017 due to the fact that

28 days would have then perished after the filing of the Claim on the 21st July, 2017.

However, this amounts to a miscalculation of the stipulated time period based on a failure

to account for the long vacation which, pursuant to Part 79.1(2)(a) CPR, runs from the

1st August to the 15th September. During the long vacation, the 28 day period for filing

a Defence is not counted as time prescribed by the CPR for serving any statement of case

other than the Claimant’s statement of case served with his claim form does not run: [see

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Part 2.9 (1) CPR]. This means that, on a proper calculation, the 28 ‘clear’ days for filing

the Defence would not have expired until the 18th October, 2017.

[23] Further, I take into account the Privy Council decision in the landmark case of Attorney

General v Kerron Matthews3 which confirmed that there is no implied sanction for the

failure to file a Defence on time. Rather, such non-compliance merely opens the

Defendant up to an application for default judgment.

Such application was filed by the Claimant on the 16th October, 2017. However, given

my calculations above, this application for default judgment was actually made

prematurely as the time had not yet expired.

[24] Thus, in circumstances where the Court must assess an application for extension of time

prior to any sanction being imposed, the dicta of Rajnauth-Lee J.A (as she then was) in

Rowley v Ramlogan C.A.Civ.P.215/2014 becomes relevant:

“In the above cases, the Court of Appeal was disposed to the view, and I agree,

that the trial judge’s approach in applications to extend time should not be

restrictive. In such applications, there are several factors which the trial judge

should take into account, that is to say, the Rule 26.7 factors (without the

mandatory threshold requirements), the overriding objective and the question of

prejudice. These factors, however, are not to be regarded as "hurdles to be

cleared "in the determination of an application to extend time. They are factors

to be borne in mind by the trial judge in determining whether he should grant or

refuse an application for extension of time. The trial judge has to balance the

various factors and will attach such weight to each having regard to the

circumstances of the case. Of course, not all the factors will be relevant to every

case and the list of factors is not exhaustive. All the circumstances must be

considered. In addition, I wish to observe that this approach should not be

considered as unnecessarily burdening the trial judge.”

3 [2011] UKPC 38; Privy Council Appeal No 0068 of 2010

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In assessing whether to grant the First Defendant an extension of time to file the Defence,

I must therefore consider the Part 26.7 factors without the threshold requirements as

follows:

1) whether the application was made promptly;

2) whether the failure to comply was not intentional;

3) whether there is a good explanation for the application;

4) whether the party in default has generally complied with all other relevant rules,

practice directions, orders and directions;

5) the interests of the administration of justice;

6) whether the failure to comply was due to the party or his attorney;

7) whether the failure to comply has been or can be remedied within a reasonable

time; and

8) Whether the trial date or any likely trial date can still be met if relief is granted.

Promptitude:

[25] In Rajnauth-Lee’s decision, the facts were similar in that there was no sanction imposed

for failing to file the Defence on time. Her reasoning on the issue of promptitude was as

follows:

“Where an application for an extension of time is made before the sanction takes

effect, it should be regarded generally as a prompt application. I am mindful

however that there may be circumstances where the applicant, knowing full well

that the order of the court cannot be complied with, may yet delay the making of

the application. In that event, it would be for the trial judge to consider how such

a delay would impact on the exercise of the court's discretion. The issue of

promptness does not arise in this case as far as the original application to extend

time is concerned since this application was made prior to the sanction taking

effect. In addition, there is no contention that there has been any undue delay in

the filing of the original application.”

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Similarly, I find that the issue of promptitude does not arise as no sanction had yet been

imposed. Further, considering that the deadline for the filing of the Defence expired on

the 18th October, 2017, the application for an extension of time was filed together with

application to strike out the Claim against the First Defendant.

Intentionality:

[26] Ms Lutchman in her submissions failed to oppose the First Defendant’s application for

an extension of time and thus, advanced no arguments under this head. There is therefore

nothing to suggest that the non-compliance was intentional. In any event, in Trincan Oil4

supra, the Panel determined that, despite the fact that the reasoning for the delay—being

that senior counsel’s several attempts to get a proper note on the law were unsuccessful—

may not amount to a good explanation, the party always had the intention of filing an

appeal. Similarly, Mr Murray’s reasoning for the delay as stated in his affidavit in support

was that “the First Defendant has not been able to provide full and complete instructions

required for the preparation and filing of his Defence in the matter herein and I am still

in the process of taking instructions required to file the Defence herein.”

This explanation to me, suggests a positive intention to defend the Claim.

Good explanation:

[27] As to the requirements of this head, the following learning is useful:

“An explanation that connotes real or substantial fault on the part of the person

seeking relief cannot amount to a good explanation for the breach. Further, a good

explanation does not mean the complete absence of fault: see Mendonca J.A. in

Rawti Roopnarine and another v Harripersad Kissoo and others Civil Appeal No.

52 of 2012, paragraph 33. What is required is a good explanation not an infallible

one. Mendonca J.A. went on to observe that when considering the explanation for

the breach, it must not be subjected to such scrutiny as to require a standard of

perfection”5

4 At paragraph 42. 5 Rajnauth-Lee in Trincan supra

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In my opinion, the explanation given by Mr Murray is properly justified. He deposed that

the First Defendant was only referred to him on the 26th October, 2017 and that at that

meeting, he was without his documents. In fact, he only received the pertinent documents

i.e. the Claim on the 9th November, 2017. Thus, at the time of the deadline for filing the

Defence, Mr Murray had not yet even been retained as the First Defendant’s attorney. In

those circumstances, I find that he has provided a good explanation.

[28] It follows from this analysis that the failure to file the Defence on time was not the fault

of the attorney, Mr Murray.

General Compliance and the Administration of Justice:

[29] There is no evidence of non-compliance with any of the Court’s other orders or with the

Rules.

[30] Further, as between the parties, the interests of the administration of justice would favour

the grant of the application to extend time. Failure to grant an application for an extension

of time filed prior to the deadline would simply be disproportionate and unjust.

Timely Remedy & Trial Date:

[31] Mr Murray has not attached a draft of the Defence to his application presumably because

he was still in the process of taking instructions. Nonetheless, the Court can gauge with

reasonable accuracy the timeframe in which this non-compliance can be remedied, i.e.

within a matter of days since by now Mr Murray should have had his full instructions and

a draft of the Defence in the event that the Court decides in his client’s favour.

[32] However, no trial date has yet been set for this matter and thus, no significant delays in

these proceeding are foreseeable.

Conclusion:

[33] Given my analysis above of the Part 26.7 factors and more importantly, given (i) the

lack of any submissions opposing the application for an extension of time and (ii) the fact

that the application was filed prior to the expiry of the deadline, I am minded to grant the

First Defendant’s Application for an Extension of Time to file the Defence only.

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Costs:

[34] The Claimant’s Application for Default Judgment was not challenged nor was it yet

granted and as such, it does not fall for entitlement on costs. In any event, by this Court’s

calculations, this application was premature as the deadline had not yet passed. Thus, any

costs attributable to it or thrown away would have to be borne by the Claimant.

However, determining the winner of the First Defendant’s Application, which formed the

subject of this judgment, requires some consideration. In this regard, the Claimant has

succeeded for dismissal of the Orders for (i) removal of the First Defendant as a party to

the proceedings; (ii) dismissal of the Claim under Part 26.1; and (iii) striking out of the

Claim under Part 26.2, which amounts, in my opinion, to a dismissal of the substantive

reliefs sought in the application.

However, the First Defendant was successful on its application for an extension of time.

What is noteworthy however, is that the Claimant did not opt to challenge the application

for an extension and therefore, ought not to be penalized on that aspect.

In this regard, I find that the First Defendant, having lost the substantive reliefs/issues

sought in his Application, be ordered to pay 75% of the Claimant’s costs of the

Application filed on the 23rd November, 2017.

III. Disposition:

[35] Accordingly, in light of the foregoing analyses, the order of the Court is follows:

ORDER:

1. That the Claimant’s Application for Judgment in Default of a Defence filed on

the 16th October, 2017 be and is hereby dismissed with no order as to costs.

2. That the First Defendant’s Application to have the Claim dismissed/struck out

or to have the First Defendant removed as a party to these proceedings filed

on 23rd November, 2017 be and is hereby dismissed.

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3. That the First Defendant be and is hereby appointed the Legal Personal

Representative of the estate of Edward Garcia.

4. That the First Defendant is permitted an extension of time to file his Defence

on or before the 31st January, 2019.

5. That the First Defendant shall pay 75% of the Claimant’s costs of the

Application filed on the 23rd November, 2017 to be assessed in accordance with

Part 67.11 of the CPR 1998 in default of agreement.

6. In the event that there is no agreement, the Claimants to file and serve a

statement of costs for assessment on or before the 28th February, 2019.

7. Upon service of such statement of costs, the First Defendant to file and serve

objections thereto within 21 days thereafter.

8. The matter is adjourned to the 26th March, 2019 at 9:45 am in courtroom

POS22.

___________________

Robin N. Mohammed

Judge

republic of trinidad and tobago in the high court of justice claim no. cv2017...

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