Anthony Jonathon Nunns v Howard Mark Rotherham
| Jurisdiction | Montserrat |
| Judge | Morley J |
| Judgment Date | 16 July 2021 |
| Neutral Citation | MS 2021 HC 12 |
| Docket Number | CASE MNIHCV2020/0041 |
| Court | High Court (Montserrat) |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CASE MNIHCV2020/0041
In the Estate of Patricia Lynn Cummings deceased;
And in the matter of claim for breach of contract on a promissory note/money lent/a balance due under an agreement for sale and for damages for breach of warranty/contract /misrepresentation concerning a motorhome; And in the matter of an application for summary judgment, or in the alternative for striking out of the claim and abuse of process for fraud and illegality of contract.
As the sole Executor of the Will of Patricia Lynn Cummings deceased
Mr Jean Kelsick for the claimant.
Mr David Dorsett for the defendant.
On application for summary judgment concerning an unstamped promissory note and on application to strike out for abuse of process and illegality
Anthony Nunns wants money from Howard Rotherham owing under an agreement with Rotherham's wife Patricia Cummings 1 who died on 22.08.19, where Rotherham is executor of her estate by her Will of 25.04.16. The sum is £ 25000 under a promissory note, with a further £ 10000 for misrepresenting the value of a motorhome. Claim was filed on 30.11.20. As yet there has been no filing of a formal defence. Instead on 22.02.21 Counsel Dorsett for Rotherham filed for summary judgement, owing to relevant documents being unstamped, and in submissions in support on 09.03.21 also argued any agreement was illegal and should not be enforced begging whether the claim should be struck out. There have been several hearings, leading to further legal submissions, the last hearing being on 11.06.21, with ruling today 16.07.21 on the issues raised.
In support of his claim, and as the legal arguments developed, Nunns has filed three affidavits, dated 18.11.20, 15.03.21 and 06.04.21, plus exhibited UK solicitors' letters dated 04.12.19 and 14.01.20, there being no evidence from Rotherham. Distilling all this material, the claim and history appears as follows:
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a. On 02.07.18, Nunns sold ‘Lime Tree House’ on Montserrat to Cummings at parcel 12/7/54, along with furnishings and a Suzuki car said valued at £ 30000. The sale was recorded in two documents:
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i. By a document entitled ‘Agreement for Sale’, prepared in June 2018 by the conveyancer on Montserrat 2, signed by Nunns and Cummings, (the first page appearing as a scan at annex as document 1), it appears the ‘property sale’ (being for the land and house) was declared to the government to be for $150000us, (about £110000), being it seems a deliberate undervalue of the true sale price.
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ii. However on 03.07.18, there was a handwritten document obtained by Nunns visiting Cummings in France, signed by both, not prepared by a lawyer, entitled ‘Confirmation of Agreement’, which reads (and appears as a scan at annex as document 2):
The buyer has contracted to purchase from the seller the property known as Lime
Tree House, Old Town, Montserrat at the agreed price of £260000.
Of this £ 25000 has been paid by allowance for title of a 2006 Hymer 614 motorhome.
A further £ 25000 is by short term loan from the seller to be repaid as soon as possible. If within 12 months of the date below this will be free of interest. If a longer period interest will be paid at 5% per annum.
The balance of £210000 is due forthwith. Every effort will be made by the buyer to pay this within three days of the date below and at the very latest by July 11 th 2018.
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iii. Then it seems later the government valued the land and house at $200000us, independently of the June 2018 sale agreement.
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iv. On its face concerning the document of 03.07.18, for the land, house, and contents plus car ( ‘the overall sale’), it appears Cummings was to pay £210000, plus give Nunns a motorhome valued at £ 25000. In his suit Nunns says it turns out the motorhome was only worth £ 15000, having been an insurance write off, hence the claim for £ 10000. From the way the document is drawn up, not professionally, the £25000 ‘loan’ may be part of the overall sale or may be separate, there may never have been an actual loan but merely a delay in paying the overall sale sum, it is not clear, the figures therefore being possibly in combination the overall sale for £235000, plus the ‘loan’ or ‘delayed payment’ of £ 25000, making a total owing of £260000.
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b. On 12.10.18, Cummings signed a promissory note, unconditional on its face, not referring to the overall sale, specifically pleaded to be effective on Montserrat, to pay back the loan of £ 25000 from Nunns within the period of 03.07.18 to 03.07.19 or thereafter pay interest at 5%pa, to date the sum not being paid. A scan of the promissory note appears at annex as document 3.
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c. On 22.08.19 sadly Cummings died.
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d. On 04.12.19, in response to Nunns chasing the monies from Cummings' estate via UK solicitors, his being ‘Lanyon Bowdler’, ‘Howells’ for Rotherham said monies sought by Nunns should be set off against a counterclaim for the cost of repair works to the house he did not perform as promised. On 14.01.20, in reply Lanyon Bowdler said the loan was separate from the overall sale, independent of any arrangements pertaining to the house.
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e. On 30.11.20, the claim was filed by Counsel Kelsick, and there was some difficulty contacting Rotherham, who it seems has been in France.
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f. On 14.12.20, an ex parte injunction was granted to prevent further sale of 12/7/54 until the claim is resolved.
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g. On 15.01.21, Counsel Dorsett acknowledged service on behalf of Rotherham.
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h. On 22.02.21, Counsel Dorsett applied for summary judgment, using his law clerk Annie Bowen to file an affidavit claiming the promissory note was unstamped under s22 Stamp Act, being therefore inadmissible, so that Nunns claim on it must fail as he is not permitted to offer the note into evidence to found his claim.
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i. On 09.03.21, Counsel Dorsett filed detailed argument for summary judgment because:
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i. the promissory note was unstamped;
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ii. and further argued the April 2016 Will, June 2018 agreement, and by implication the 03.07.18 agreement, are also inadmissible as unstamped, or as unregistered under s4 and s5 Registration and Records Act;
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iii. and at para 20 he further argued the claim was founded in fraud on the revenue and so should be struck out as illegal, as the June 2018 agreement declared a value for property sale as $150000us (about £110000), being at least half the true value in the 03.07.18 agreement, seemingly to avoid or reduce taxes payable of perhaps 7.75% on the sale price, which led to further submissions being filed, the court then wondering proprio motu during oral argument on 26.03.21 if the claim might be an abuse of process.
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j. In sum, applying counsels' initials, submissions have been filed ten times on this preliminary point at para 2(i) over the following dates: DD 09.03.21; JK 16.03.21; DD 24.03.21; JK 12.04.21; DD 06.05.21; DD 17.05.21; JK 27.05.21; DD 27.05.21; JK 07.06.21; and DD 08.06.21.
The present conundrum is whether to give summary judgment or in the alternative to strike out the claim. Though no defence has been offered, adding it up Counsel Dorsett has filed 614 pages of cases, and Counsel Kelsick 176. Through the ten filings of skeleton arguments, the following 47 cases and two textbooks have been specifically cited by counsel:
Didier v Royal Caribbean Cruises Ltd (2016) 89 WIR 277
Westpac Banking Corporation v M M Kembla New Zealand Ltd [2001] 2 NZLR 298
Sagicor Bank Jamaica Ltd v Taylor-Wright [2018] UKPC 12, [2018] 3 All ER 1039
Commissioners of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22
King's Casino Ltd v Pizza House Ltd ANU HCVAP 2005/0005
Fengl v Fengl [1914] P 274
Venkata Sveta (Rajah of Boobbili) v Inuganti Bhavayyammi Garu [1899] UKPC 45
Robert Edward Jones v Her Majesty's Attorney-General [2003] UKPC 48
The Attorney General's Reference 2018 ECSC Reports
Graham Ferguson Lacey v Abraham Zion5 2006 ECSC Reports
Marble Point Energy Ltd v Multiperils International Ltd BVIHCV 2006/0238, [2007] ECSCJ No. 56
Alfa Telecom Turkey Ltd v Cukurova Finance International Ltd BVI HCVAP 2009/001
Attorney General of the Turks and Caicos Islands v Misick [2020] UKPC 30
George W. Bennett Bryson's & Co. Ltd. v Bryson's Shipping1 (2018) ECSC Reports
Myrna Norde v Jacqueline Mannix 2015 ECSC Reports
Fairclough Homes Limited v Summers [2010] EWCA Civ 1300
Summers v Fairclough Homes Ltd [2012] UKSC 26, [2012] 1 WLR 2004
The Treasure Island Company v Audubon Holdings Limited5 2003 ECSC Reports
Danzie v Cecil Anthony 2015 ECSC Reports
Fuller v The Attorney General of Belize [2011] UKPC 23
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Takhar v Gracefield Developments Ltd [2019] UKSC 13, [2020] AC 450
King-Emperor v Benoari Lal Sarma [1945] AC 14
St. Lucia Motor & General Insurance Co. Ltd v Peterson Modeste 2010 ECSC Reports
Patel v Mirza (2016) UKSC 42
Tinsley v Milligan [1994] 1 AC 340
Chettiar v Chettiar [1962] AC 294
DD Growth Premium v RMF Market
Neutral Strategies (Master) Limited [2017] UKPC 36
Waugh v Morris (1873) LR 8 QB 202
Hounga v Allen [2014] 1 WLR 289
Vita Food Products Inc. v Unus Shipping Co Ltd [1939] AC 277
St John Shipping Corpn v Joseph Rank Ltd [1957] 1 QB 267
Saunders v Edwards [1987] 1 WLR 1116
Ambrose v Bacon (1993) 33WIR
Vincent McDonald v Lawrence Dubriel 2004 ECSC Reports
Morrell v Workers Savings & Loan Bank [2007] UKPC 3
Bilta (UK) Ltd v Nazir (No 2) [2015] UKSC 23, [2016] AC 1
Langton v Hughes (1813) 1 M & S 593, 105 ER 222.
Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65
Grondona v Stoffel & Co [2020] UKSC 42, [2020] 3 WLR 1156
Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC...
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