National Stadium (grenada) Ltd v Nh International (caribbean) Ltd et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Weekes, J.A. |
| Judgment Date | 09 June 2011 |
| Neutral Citation | TT 2011 CA 18 |
| Docket Number | Civil Appeal No. 48 of 2011; HCA No. 3400 of 1999; CV 1205 of 2006 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 09 June 2011 |
Court of Appeal
Weekes, J.A.
Civil Appeal No. 48 of 2011; HCA No. 3400 of 1999; CV 1205 of 2006
Mr. Seenath Jairam, S.C. for the appellant/second defendant, instructed by Mr. Quamina
Mr. Alvin Fitzpatrick, S.C. for the respondent/claimant, instructed by Ms. Lucky-Samaroo
Civil practice and procedure - Stay of Execution — Judgment entered against appellant — Appellant appealed — Application for stay of execution of judgment — Whether appeal has good prospect of success — Whether there are exceptional circumstances for granting stay — Whether there are reasonable prospects of recovering monies and appeal rendered nugatory if stay not granted.
This is an application for a stay of execution of the judgment of Rajkumar, J. dated 28th January 2011 whereby his Lordship ordered the following:
- A declaration is granted that the sum of EC $7,430,724.70 (“the said EC sum”) was held by the first defendant [CIB] on trust for the sole purpose of applying the same in payment of suppliers and other providers of goods and services in relation to the Project 2. A declaration is granted that (i) the Deposited Amount and (ii) the Additional Sum and (iii) Interest accumulated thereon, are held on trust (for the sole purpose of applying the same in payment of suppliers and other providers of goods and services in relation to the Project). 3. A declaration is granted that the sum of EC $7,430,724.70 (“the said EC sum”) was held on trust for NH by the first defendant [CIB] 4. A declaration is granted that the sum of US$2,682,719.24 (“the Deposit Amount”) paid by the first defendant [CIB] into Account No. 0447657-005 at the Trinidad and Tobago Unit Trust Corporation (UTC) [the Account] pursuant to the order of Mr. Justice Tam dated 23rd July 2004 (made in the High Court Action 3400 of 1999) together with any interest accumulated thereon, is held on trust for NH. 5. A declaration is granted that the sum of US $93,174.54 (“The Additional sum) is held by CIB on trust for NH. 6. It is ordered that the Deposited Amount and all interest accumulated thereon be paid out to NH and that there be payment out to NH of the monies held in the Account 7. It is ordered that CIB do pay to NH the Additional Sum of US$93,174.54 owed by CIB as a result of the 2005 Order together with interest thereon from May 26 2005 at the rate of 12% per annum. 8. It is ordered that interest on the said EC sum from November 30 1999 to April 26 2005 be assessed. 9. It is ordered that CIB do, a. provide, file and serve on all parties within 7 days from today's date complete accounts, records and documentation in its possession in relation to the frozen EC sum from the date of Justice Tam's initial order dated November 30th 1999 to the date of payment to the UTC account pursuant to order dated 23rd July 2004. b. Leave is granted to all parties to this action for (i) the filing, within 14 days from today, of such material, if considered necessary in relation to evidence of relevant interest rates and (ii) Replies if any within 7 days thereafter. 10. It is ordered that the costs of these actions be paid by the Defendants to the claimant/plaintiff on the basis prescribed by the Civil Proceedings Rules as follows — (i) In the case of CIB costs are to be paid on the value of the total of the (a) Additional Sum, (b) Interest thereon, and (c) the interest, when assessed, on the said EC sum from November 30 1999 to April 26 2005. (ii) In the case of NS, costs are to be paid on the basis prescribed for the value of the Deposited Amount (not including the interest which has been accumulating thereon since its deposit into the Unit Trust Account).
It is the orders at (6), (7) and (10) that are the true subject of this application. The application is supported by two affidavits of Colm Imbert dated and filed the 11 th and 31 st of March 2011 respectively. Affidavits in opposition were filed by Emile Elias and Richard Joseph on the 18th of March 2011.
The appellant's grounds for the application are as follows:
- That the appeal has good prospects of success; 2. There are exceptional circumstances for granting the stay; 3. If a stay is not granted, there is no reasonable prospect of recovering the monies and the appeal will be rendered nugatory; 4. The respondent will suffer no prejudice if a stay is granted since the monies are being kept in an interest bearing account at the Unit Trust Corporation in the joint names of attorneys-at-law for the parties; and 5. If a stay is refused, the risk of injustice to the appellant would be far greater than the risk of injustice to the respondent.
CPR Rule 64.18 (1) (b) provides that a single judge may make an order for a stay of execution on any judgment or order against which an appeal has been made pending the determination of the appeal.
The Civil Procedure Rules and Practice Directions 2010 Vol. 1 para. 52.7.1 - 52.7.2 highlights the general principle that a successful litigant is not to be deprived of the fruits of his litigation:
“[…] Under RSC 0.59 (which governed appeals prior to May 2000) the courts had established the principle that a successful litigant should not generally be deprived of the fruits of his litigation pending appeal, unless there was some good reason for this course. This general principle still applies. “The normal rule is for no stay…” per Potter, L.J. in Leicester Circuits Ltd v. Coates Brothers plc [2002] E.W.C.A. Civ 474 at [13]. In DEFRA v. Downs [2009] E.W.C.A. Civ 257 at [8] - 191 Sullivan, L.J. having noted that a stay is the exception rather than the rule, stated that the “solid grounds” which an applicant must put forward are normally “some form of irremediable harm if no stay is granted”.
CPR Rule 64.16 , which is analogous to RSC 0.59, provides:
“Except so far as the court below or the court or a single judge may otherwise direct —
(a) an appeal does not operate as a stay of execution or of proceedings under the decision of the court below; and
(b) no intermediate act or proceeding is invalidated by an appeal.
The test in this jurisdiction for whether a stay of execution should be granted is whether the appeal has good prospects of success and additionally whether there are any special circumstances which would justify exceptionally the grant of a stay: Emmanuel Romain v. W.A.S.A. Civ. App. No. 24 of 1997; Clayton Bruce and Maria Bruce v. The National Insurance Board of Trinidad and Tobago Civ. App. No. 63 of 2005. Additionally, where an appellant can satisfy the court that if a judgment is paid, there would be no reasonable prospect of getting it back in the event of a successful appeal, a stay may be granted: Atkins v. Great Western Railway [1886] 2 T.L.R. 400.
Whether the court should exercise its discretion to grant a stay of execution of a judgment pending the hearing of an appeal against the judgment depends upon all the circumstances of the case, but the essential factor is the risk of injustice Hammond Suddard Solicitors v. Agrichem International Holdings Ltd [2001] All E.R. (D) 258 (Dec) para 22. In weighing the issue of injustice the court must consider, among other matters, if a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? If a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being unable to recover what has been paid to the respondent?: Blackstone's Civil Practice 2005 para. 71.42.
To understand the submissions made before this court, it is necessary to outline the somewhat convoluted facts in this matter. A history of the instant case, extracted from the judgment of Rajkumar, J., is as follows.
In 1996 the government of Grenada was desirous of constructing a sporting complex. Colm Imbert formed a company, Imbert Construction Services Limited (ICSL), in Trinidad and made a proposal to the government of Grenada for ICSL to implement and develop this project, including arranging financing. The monies were to be raised from investors arranged by Clico Investment Bank (CIB). Another company, Imbert Construction Services Grenada (ICS Grenada), was later formed in Grenada for the purpose of the construction aspect of the project. National Stadium (NS) was formed in Grenada to be the “Project Company”. NS was incorporated on Mr. Imbert's instructions and he was a principal of ICSL, ICS Grenada, and NS. Mr. Elias’ company N.H. International (Caribbean) Limited (NH) was awarded a subcontract by ICS Grenada for construction work to be performed, initially of 70% of the value of the initial project cost.
The government of Grenada entered into an agreement with ICSL to award them the contract to build the sporting complex. The agreement was subsequently confirmed in a Memorandum of Understanding between the Government, ICSL and CIB.
On 15th May 1997 two critical agreements were executed in relation to this project. The government of Grenada, ICS Grenada, CIB and NS executed a Development Agreement under which ICS Grenada agreed to undertake the development of the complex in accordance with a contract to be entered into with NS. Clause 6.5 of the agreement contained an undertaking that CIB, under a Facility Agreement, would pay or cause to be paid through the project company (NS) all monies due under the contract documents to the developer (ICS Grenada), consultants, suppliers and other providers of goods and services in relation to the project.
NS and CIB entered into the Facility Agreement whereby CIB agreed to arrange a bond issue on behalf of NS, the proceeds of which were to be used to construct the sporting complex. CIB was to make advances to or on behalf of NS up to a...
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