Phelps v Smith

• Jurisdiction: Trinidad & Tobago
• Judge: Margaret Y Mohammed
• Judgment Date: 07 March 2017
• Neutral Citation: TT 2017 HC 96
• Docket Number: Claim No. CV 2016-01115
• Court: High Court (Trinidad and Tobago)
• Date: 07 March 2017

IN THE HIGH COURT OF JUSTICE

Before

The Honourable Madame Justice Margaret Y Mohammed

Claim No. CV 2016-01115

Between

Justin Phelps

Claimant

and

Annalisa Smith

Defendant

Appearances:

Mr Rikki Harnanan instructed by Mr Chase Pegus Attorneys at law for the Claimant

Mr Gregory Delzin and Mr Shane Kingston instructed by Ms Dianne Mano Attorney at law for the Defendant

Civil Practice and Procedure - Application by the defendant for the matter to be stayed until the final determination of the defendant's Maintenance Order Application — Whether it would have been an abuse of process to permit the matter to continue — Whether the prejudice suffered by the defendant if the stay was not granted would have been greater than the prejudice suffered by the claimant if it was granted.

RULING—STAY OF PROCEEDINGS

1 This is the Defendant's application filed on the 19 ^th October 2016 (“the application”) for the instant matter to be stayed until the final determination of the Defendant's Maintenance Order Application filed on the 24 ^th August 2015 in the Family Court in the matter of Petition No FH 836 of 2015 Annalisa Smith v Justin Phelps (“the Family Court matter”). The Claimant and the Defendant are the parents of a child and at the time of the institution of the instant action they have been engaged in family proceedings concerning maintenance payment for the said child.

2 In support of the application, there are the Defendant's affidavit filed on the 19 ^th October 2016 (“the Defendant's affidavit”) and a supplemental affidavit filed on the 10 ^th November 2016 (“the Defendant's supplemental affidavit”). The Claimant's affidavit in opposition was filed on the 6 ^th January 2017 (“the Claimant's affidavit”).

3 The grounds of the application can be summarized as:

• i. The same issue is being tried in the Family Court matter and the instant matter. In the instant matter the Claimant is seeking to recover the sum of $250,000.00 (“the money”) from the Defendant and in light of the pleadings the central issue for determination is whether the Claimant is entitled to recover the full amount of the said sum or any part therefore. In the Family Court matter the Claimant stated that he had given to the Defendant the money which the Defendant has failed and/or refused to return to him. In the Family Court matter the issue is whether the Claimant is entitled to the money as his own and not subject to any conditions or whether the sum should be set off against any order for maintenance against the Claimant;

• ii. the pending result in the Family Court matter has a direct bearing on the instant matter;

• iii. the Claimant would suffer very little or no prejudice or hardship if a stay is granted which cannot be said for the Defendant;

• iv. to grant the relief sought is consistent with the overriding objective since the Claimant is an attorney at law and the Defendant has limited financial resources;

• v. there was significant delay by the Claimant bringing the instant action; and vi. it would save expense, the Courts resources and place the parties on an equal footing.

4 In support of the application Counsel for the Defendant repeated the aforesaid grounds and also submitted that: paragraphs 5,6 and 8 of the Defendant's affidavit, paragraph 33, 50 and 51 in exhibit “AS2” of the Defendant's affidavit, paragraph 18 of exhibit “AS 3” of the Defendant's affidavit clearly demonstrated that both parties were aware in the Family Court matter that the nature and ownership of the money are in issue; and that paragraphs 5, 6, 8 and 9 of the Claimant's affidavit demonstrated that he lacked credibility in the position he has put forward. Although not included in the application, Counsel for the Defendant also urged the Court in exercising its discretion to grant the stay to take into account that the Claimant has failed to comply with a Court order of the 13 ^th June 2016 where he was ordered to pay the Defendant's costs in the sum of $8,700.00 and to date the said sum remains unpaid even though a request for payment was made on the 4 ^th November 2016. Alternatively, Counsel argued that if the Court is not minded to grant the stay, then he requested that the Court exercise its powers under under Rule 26.1(b) to transfer the instant matter to the Family Court. In support of the application Counsel for the Defendant referred to the Court to three authorities namely: Dallas Corporation et al v Alnando Corporation et al1, Society of Lloyd's v Jaffray2 and Atlantic Star (Owners) v Bona Spes (Owner)3.

5 In response Counsel for the Claimant objected to Counsel for the Defendant's reference to exhibits “AS 2” and “AS3” on the basis that the those exhibits were documents in sealed proceedings and which the Defendant by notice filed on the 4 ^th November 2016 withdrew the said exhibits. He also argued that the Court should limit its determination of the application to the Defendant's evidence which do not refer to the information contained in the documents which were withdrawn on the 4 ^th November 2016 (“the Notice”). In any event he argued that the Claimant's affidavit stated clearly that his response was without prejudice to an application on his behalf to strike out those parts of the Defendant's affidavit. He also asked for the documents withdrawn by the notice of the 4 ^th November 2016 to be expunged.

6 Counsel for the Claimant did not dispute that the Court has a discretion to grant a stay of proceedings. He argued that it was for the Court to make this determination based on the evidence. He submitted that the Claimant is the party who is oppressed since he is kept

out of his money. The issue before this Court is whether the Defendant owes the Claimant the money which was given to her by him for a particular purpose which was not realized and whether she is duty bound to return it since she has not. On the other hand the Family Court is to the determine the amount of maintenance the Claimant should pay the Defendant for the child of the parties and that there is no claim in the Family Court matter by the Claimant for the return of the money which is the subject of the instant proceedings.

7 Before I deal with the substance of the application I will deal with the preliminary objection raised by Counsel for the Claimant on the evidence to be used to determine the application. I agree with Counsel for the Claimant that the Defendant having withdrawn the exhibits “AS 1”, “AS2” and “AS 3” of the Defendant's affidavit by the Notice, she cannot rely on them. In my view the purpose of the Defendant's supplemental affidavit was to cure this oversight of filing the said exhibits in the first place. In this regard I have no difficulty in ordering that the said exhibits be expunged from the records since it was not in dispute that the said exhibits are documents in the Family Court matter which is a sealed file. That being so, I would not exclude any other parts of the Defendant's affidavit since the Claimant's affidavit addressed matters raised in it and to exclude any additional material would be prejudicial to the Defendant.

8 The onus was on the Defendant to demonstrate by cogent evidence that there are sound reasons for the Court granting the stay.

9 The Court's power to stay proceedings lies in the statutory provisions of Section 18 (2) of the Supreme Court of Judicature Act, Chap 4:01), Rule 26.1(f) Civil Proceedings Rules (“CPR”) and under its inherent jurisdiction. The effect of the stay of proceedings would halt the conduct of the instant matter unless lifted by an order of the Court.

10 In Dallas Corporation et al v Alnando Corporation et al CV 2011-04466, Justice Jones (as she then was) cited the cases of St. Pierre v South American Stores (Gath and Chaves) Ltd [1936] 1 KB 382 and the Atlantic Star [1974] AC 436. From these cases, she extracted the following principles of law:

“In order to justify a stay two conditions must be satisfied, one positive and the other negative: (a) the defendant must satisfy the court that the continuation of the action would work an injustice because it would be oppressive, or vexatious to him, or would be an abuse of the process of the court in some other way; and (b) the stay must not cause an injustice to the plaintiff.”: per Scott LJ in the St....