Trincan Oil Ltd v Schnake

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Jamadar, J.A.,P. Jamadar, J. A.
• Judgment Date: 03 February 2010
• Neutral Citation: TT 2010 CA 3
• Docket Number: Civil Appeal No. 91 of 2009
• Date: 03 February 2010

Court of Appeal

Judge (s): Kangaloo, J.A.; Jamadar, J.A.; Bereaux, J.A.

Civil Appeal No. 91 of 2009

Trincan Oil Limited

and

Schnake

Appearances:

Mr. A. Sinanan S.C. for the appellant.

Mr. N. Bisnath for the respondent.

Civil practice and procedure — Extension of time — Delay — Appellant seeking extension of time for amendment of notice of appeal — Civil Procedure Rules, 1998 — Overall objective to deal with cases justly — Whether appellant satisfying conditions of Part 26.7 — Application not made promptly — No good explanation for delay provided — Appeal dismissed.

I have read the judgment of P. Jamadar, J.A. and I agree that the appeal be dismissed with costs to be assessed by this Court.

W. N. Kangaloo

Justice of Appeal

I have also read the judgment of P. Jamadar, J.A. and I agree that the appeal be dismissed with costs to be assessed by this Court

N. Bereaux

Introduction

P. Jamadar, J. A.

1 This is an application to the full Court of Court of Appeal to vary or discharge an order of a single judge of the Court (See Part 64.18( 2), CPR, 1998.) (Yorke-Soo Hon, J.A.) made on the 9th April, 2009.

2 On the 30th July, 2009 Gobin, J. delivered a judgment in favour of the respondent in an oppression action brought by him against the appellant. In that judgment Gobin, J. made several declarations confirming the oppressive conduct and action of the appellant against the respondent and his interests, including those as a director and shareholder in the appellant. As a consequence of these declarations several orders were also made, including orders that the appellant pay the respondent compensation with interest. That compensation was ordered to be the value of the respondent's shareholding, which compensation was to be paid within ninety days of a valuation which was also ordered to be done.

3 The order for the valuation was as follows:

The value of the claimant's shareholding to be determined by an independent valuation to be conducted by a suitably qualified expert to be agreed by the parties on or before August 21st 2008 and in default of agreement between the parties by a valuer nominated within twenty-one (21) days thereafter solely by the claimant.

4 On the 21st August, 2008 the appellant filed an appeal against the judgment of Gobin, J. limited to only one aspect of it, being the order for the valuation stated above. The challenge to the order was specifically to the default power given to the respondent, that is, in default of an agreement as to a suitably qualified expert the respondent could unilaterally nominate a valuer to determine the value of the respondent's shareholding. What was sought on appeal was a variation of this aspect of the order to provide for a Court appointed valuer in the event that there was no agreement.

5 However, on the 3rd October, 2008 the appellant filed an application seeking to substantially amend the Notice of Appeal filed on the 21st August, 2008, effectively seeking permission to challenge the entirety of the judgment of Gobin, J.

6 Permission of the Court was sought because pursuant to Part 64.5 (b), CPR, 1998 an appeal must be filed within 42 days of the date when the judgment was delivered or the orders made. That time expired on the 10th September, 2008. What was presented as an amendment to an existing appeal was in reality the introduction of completely new areas of appeal to previously unchallenged aspects of the judge's judgment and orders. (See Part 64.4(7), which permits amendments to the grounds of appeal only.)

7 The appellant's application of the 3rd October, 2008 sought an extension of time for the amendment of the notice of appeal. On the question of delay, the application on its face stated four things: (i) any delay was not intentional, (ii) there was an explanation for any delay, (iii) any delay “was not due to any failure on the part of the appellant but rather was due to certain failures on the part of the appellant's attorneys at law”, and (iv) any delay would not affect any date of hearing for the appeal. (Notice of Application filed on the 3rd October, 2008, at page 3.) This application was filed 23 days outside of the time within which any appeal against the judgment and orders of Gobin, J. was required to have been filed.

8 On the 28th January, 2009 the appellant filed a further application, this time for relief from sanctions pursuant to Part 26. 7, CPR, 1998, arising out of “the failure of the defendant/appellant to appeal the entire decision of Gobin, J. delivered on the 31st July, 2008 within the time prescribed by CPR 64.5(b).” (Notice of Application filed on the 28th January, 2009, at page 2.)

9 The justification for this second application was explained (in relation to the first application) as follows: “The said (first) Notice of Application, although referring to the matters specified in CPR 26.7, omitted to expressly seek relief from the sanctions which arose from its failure to file its Notice of Appeal within the prescribed time”. (Notice of Application filed on the 28th January, 2009, at page 2.)

10 This application of the 28th January, 2009 sought to specifically address the requirements of Part 26. 7, CPR, 1998, (Notice of Application filed on the 28th January, 2009, at page 3.) by stating that the failure to comply with Part 64.5 (b), CPR, 1998: (i) was not intentional (See Part 26.7(3)(a).) and (ii) was not due to any fault of the appellant “but rather was due to certain failures on the part of its attorneys-at-law” (See Part 26.7(4)(b).) and further (iii) there is an explanation for the failure (See Part 26.7(3)(b).), and that (iv) the appellant “has generally complied with all other relevant rules, practice directions, orders and directions” (See Part 26.7(3)(c).), (v) the interests of justice will not be adversely affected if relief is granted (See Part 26.7(4)(a).), (vi) the failure can be remedied within a reasonable time (See Part 26.7(4)(c).), (vii) the hearing of the appeal will not be affected. (See Part 26.7(4)(d).)

Analysis

11 Justice of Appeal Yorke-Soo Hon dismissed both of these applications in a 29 page judgment in which she identified three issues, as follows:

1

Whether the Court of Appeal has jurisdiction to amend a notice of appeal. 2. Whether the two applications filed by the appellant, namely the application to amend the notice of appeal and the application for relief from sanctions, should be heard together. 3. If the Court of Appeal has jurisdiction and the applications may be heard together what must the Court take into account?

12 There is no challenge to the judge's opinion on the first and second issues, that the Court had jurisdiction to amend a notice of appeal and that both applications should be heard together (as they were). On the second issue the judge concluded that: “both applications ought to be heard together and the Court treats them as one application though filed at different times”. (At page 11 of the judgment, emphasis added.)

Extension of Time/Relief from Sanctions

13 Having identified the issues, Justice of Appeal Yorke – Soo Hon then went on to pose and answer the following questions: (i) Should the Court extend time and grant relief from sanctions? and (ii) What are the considerations? (At page 11 of the judgment.) The judge then proceeded first to accept the approach of the English Court of Appeal in Sayers v. Clark Walker [2002] 3 All E.R. 490, per Brooke, L.J., that the same “check list” prescribed for a relief from sanctions application should also be used for an extension of time application, and concluded that the same approach should be applied here in Trinidad and Tobago. The consequence was that the requirements of Part 26. 7, CPR, 1998 would have to be satisfied on an application for an extension of time. (See pages 11 to 15 of the judgment.)

14 This review has proceeded and been argued on the correctness of this approach by the judge. In my opinion the judge was right in applying the provisions of Part 26. 7, CPR, 1998 in this case, but only because the time had already passed for the filing of an appeal against the judgment and orders of Gobin, J. that had not been challenged in the original appeal.

15 In this case, because the time had already passed for appealing the unchallenged aspects of the judgment of Gobin, J. and because this was due to the failure of the appellant to comply with the provisions of the CPR, 1998 with respect to the time for appealing, (See Part 64.5(b) and Part 26.6( 2), CPR, 1998.) the consequence of that failure and non-compliance was the imposition of an implied sanction – that no appeal on these unchallenged aspects of the judgment of Gobin, J. could be pursued. This in turn resulted in the situation that unless the appellant applied for and obtained relief from this implied sanction these new challenges could not be pursued. (See Parts 26.6(2) and 26.7, CPR, 1998.) The crucial factor in this case is that even though the sanction that triggered the operation of Parts 26.6 and 26. 7, CPR, 1998 is not explicitly “imposed by the rules”, (See Part 26.6( 2), CPR, 1998.) it is necessarily implied because the consequence is the same as if it had been expressly ‘imposed’. That is to say, the same sanction is impliedly ‘imposed’.

16 It is in this context, of implied and expressed ‘imposed’ sanctions having the same consequence, that the requirements of certainty and consistency in the application of the rules of Court and the overriding objective of the CPR, 1998 “to deal with cases justly” (See Part 1.1( 1), CPR, 1998.) demand that the requirements of Part 26. 7, CPR, 1998 are to be applied in a case such as this.

17 However, because of the significant differences in the relief from sanctions provisions in Trinidad and Tobago when compared to England and particularly the threshold requirements provided for at Part 26.7(1) and (3), (See...