THE Caribbean Court of Justice (CCJ) on Friday ordered the New Building Society Ltd (NBS) to pay Rodrigues Architects Limited $15M for consultancy services that the company provided relative to the construction of the Bank’s headquarters located on North Road and Avenue of the Republic, Georgetown.
High Court Judge, Rishi Persaud had made a monetary judgment in the action brought against NBS by Rodrigues Architects, and NBS was ordered to pay the applicant $15, 897,625 together with interest thereon at the rate of six per cent per annum from November 27, 2008 to September 29, 2015, and thereafter at the rate of four per cent per annum until fully paid and costs in the sum of $100,000.
Justice Persaud had also ordered that there be a stay of execution for a period of six months from the date of the order. However, no judgment has been delivered to provide reasons for the order.
As a result, NBS through its attorney Nikhil Ramkarran appealed Justice Persaud’s decision and applied to Justice of Appeal BS Roy in Chambers for a stay of execution of the order, or in the alternative, an order that NBS be allowed to deposit the judgment sum into an interest-bearing account at a commercial bank.
Rodrigues Architects Limited in turn applied to the CCJ for special leave, pursuant to s 8 of the CCJ Act 2004, against a decision of the Full Bench of the Court of Appeal of Guyana given on December 2, 2017.
The stay of execution was granted until the hearing and determination of the appeal and the Justice of Appeal ordered that the judgment sum be lodged by the society with the Registrar and deposited in an interest-bearing account.
Rodrigues Architects then appealed to the Full Bench of the Court of Appeal for a discharge of the stay of execution while requesting that a stay of the order be refused. That application was dismissed.
Meanwhile, when the matter was heard before Justices Wit, Hayton, Anderson, Rajnauth-Lee and Barrow at the CCJ, special leave to appeal to CCJ was granted and the appeal against the judgment of the Court of Appeal allowed.
Director and shareholder of the Rodrigues Architects, Albert Rodrigues guaranteed repayment to NBS of monies received should NBS’ appeal against the award be quashed. Rodrigues had also undertaken to refrain from encumbering or alienating or disposing in any way howsoever his interest, rights and title to the property known as A-126 Robin’s Place, Bel Air Park, Georgetown, Guyana which he owns by way of transport numbered 1579 of 1982, such undertaking to expire if the Society’s said appeal fails.
If however, the appeal succeeds, Rodrigues has leave to encumber, alienate or dispose of his interest, rights and title to the said property for the purpose of enabling him to repay the said guaranteed monies, while once the said monies have been repaid the undertaking shall, in any event, expire.
The CCJ in effect ordered, among other things, that the order made on February 5, 2016 by Justice of Appeal Roy granting a stay of execution be discharged; that the company is at liberty to recover from the Registrar of the Supreme Court, the judgment sum of $15,897,625 to be lodged by NBS with the Registrar for deposit in an interest-bearing bank.
Additionally, it was ordered that the deposited sum with interest thereon paid to the company shall be set off against the aggregate monies due to the company from NBS under the judgment of Justice Persaud, and that Rodrigues Architect is free to execute judgment against NBS to recover the balance of aggregate monies after receipt of the aforementioned deposited sum and interest from the Registrar. NBS was also required to pay costs to the tune of $200,000 to the company.
In arriving at its judgment, the court examined the arguments advanced by NBS in its application for the stay of execution before Roy JA. NBS contended that if the judgment sums were paid out to the company, there was no reasonable prospect of recovery if its appeal was successful. It was found that the modern approach to an application for a stay pending an appeal included not only whether the applicant satisfied the court that if the judgment sum was paid that there was no reasonable probability of its recovery but also, included consideration of whether the applicant would be ruined if the judgment sum was paid out.
After its review of the affidavit evidence, the CCJ found that Justice of Appeal Roy “had in principle erred in granting the stay of execution and the Court of Appeal should have so declared.”
“The Court found that there was no evidence to support the Society’s bald assertion that there was no prospect of recovery, nor as accepted by the Court of Appeal was there any material or notes from the trial upon which the assessment of the prospects of the success of the appeal could have been undertaken,” a summary of the judgment said.
The court noted too that Rodrigues, the company’s director was prepared to guarantee that he would personally repay the judgment sum paid to his company if NBS won its appeal. Rodrigues also undertook not to encumber or alienate property owned by him and valued well over the judgment sum without the court’s leave.
“The Court was of the view that in such circumstances, (Justice of Appeal) JA’s decision went against principle and the weight of the evidence and accordingly granted special leave to prevent a substantial miscarriage of justice and allowed the appeal,” the court stated.
The CCJ also determined the principles to be applied by a court when faced with an application for a stay of execution of a money judgment, along with the factors that should be considered when exercising discretion to grant a stay of execution of a money judgment and found that the exercise of judicial discretion is not an arbitrary one.
Rather, the court determined that it is one that takes place within relevant parameters that enable a judge to determine whether the applicant for a stay has satisfied the court, that having regard to all the circumstances of the case and the risk of injustice, a stay ought to be imposed.
The court also considered how an application for a stay of execution of a money judgment should be approached and emphasised that a stay of execution was the exception rather than the rule, while noting that the onus was on the applicant to make out a case for a stay which required the court to answer the “essential question whether, in all the circumstances, there was a risk of injustice to one party or the other of the parties if it grants or refuses a stay”.
It was determined that to answer this question, the first issue for consideration was whether the applicant for a stay can satisfy the court that the appeal has a good prospect of success or a “good arguable appeal”. If not, then no stay should be granted.
The court cautioned that judges must be alert to defendants who use tactical appeals to try to avoid paying out for the years it may take for the appeal to be heard. Additionally, it was highlighted that judges must also appreciate that making orders without delivering a reasoned judgment will make it very difficult for defendants to obtain a stay by showing a good arguable appeal, except in rare cases where a court order may be regarded as self-evidently revealing a reason against which a good arguable case can be made.
In the judgment delivered by Justice Wit, it was declared that while, ideally, a judge should not make an order without contemporaneously providing a comprehensive written judgment, where due to the judge’s commitments such a judgment cannot be provided for some time, the judge should ensure that brief notes are made to enable the delivery of a short oral judgment which outlines the main reasons for giving a money judgment against the defendant. The judge is also required to state that a comprehensive written judgment will be subsequently provided if an appeal is filed.
The Court said the second issue for examination was whether the defendant could show he would be ruined or his appeal would be stifled if forced to pay out the judgment sum immediately, instead of after an unsuccessful appeal.
“Where this is not the case, the Court is of the view that prima facie, a stay should not be granted unless an affirmative answer is given to the third issue,” the court said while noting that in such circumstances, the onus was on the defendant to provide full, frank and clear details of his financial position.
On the question of whether the defendant could establish there was no reasonable probability that the claimant would be in a position to repay the monies paid to him by the defendant to satisfy the money judgment if the defendant’s appeal succeeds, the court found that where the defendant can establish that no such probability exists, prima facie a stay should be granted.
The onus however falls on the defendant to produce some evidence of the claimant’s financial weakness sufficient to make it necessary for the claimant to rebut it. “No stay should be granted where the claimant’s financial position is sound,” the court reasoned.
Moreover, the CCJ determined that it is not a requirement for the grant of a stay that terms be included that the claimant’s assets of corresponding value are frozen, not to be unencumbered or disposed of in any way without the leave of the court, unless the claimant consents or his connection to the jurisdiction is tenuous or his situation is particularly precarious.
The risk that the claimant will be unable to enforce the judgment if a stay is granted and the defendant’s appeal fails was also considered, and the court was of the view that in such circumstances it might be best for the defendant to pay the sum into court to await the outcome of defendant’s appeal.
However, this should be a last resort so that the claimant can have the monies available for entrepreneurial or investment opportunities. Attorney Timothy Jonas appeared on behalf of Rodrigues Architects Limited.
