[1] Anison Rabess [2] Joyce Rabess Appellants v National Bank of Dominica Respondent [ECSC]

• Jurisdiction: Dominica
• Judge: Mitchell JA [AG.],Don Mitchell,Justice of Appeal [Ag.]
• Judgment Date: 13 July 2012
• Judgment citation (vLex): [2012] ECSC J0713-3
• Court: Court of Appeal (Dominica)
• Docket Number: HCVAP 2011/030
• Date: 13 July 2012

[2012] ECSC J0713-3

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]

HCVAP 2011/030

Between:

[1] Anison Rabess

[2] Joyce Rabess

Appellants

and

National Bank of Dominica

Respondent

Civil appeal — Judgment in default — Judgment not served — Judgment alleged to be in wrong amount — Master dismissing application to set aside default judgment on the basis that the application was not timely nor was a draft defence exhibited — Whether master right to apply CPR 13.3 and 13.4

The Bank brought a claim against Mr. and Mrs. Rabess for a certain sum with interest and costs. Mr. and Mrs. Rabess filed an acknowledgment of service admitting part of the debt but indicating they intended to defend the claim. They filed no defence. The Bank applied to the Registrar for and obtained a default judgment in a different sum from that claimed. The Bank did not file an affidavit of service of the judgment, nor did it at any time assert that it had served the judgment on Mr. or Mrs. Rabess. The Bank applied to sell a mortgaged property in satisfaction of the judgment debt. Mr. and Mrs. Rabess applied for the judgment in default to be set aside on the basis that it had been entered for an excessive amount and it was the duty of the judgment creditor, not the judgment debtor, to apply to correct a judgment entered for an excessive amount. The master, in dismissing the application of Mr. and Mrs. Rabess and ordering they give up vacant possession of the property held that the court was not satisfied that the criteria in CPR 13.3 and 13.4 had been met, given CPR 12.13.

Held: allowing the appeal and quashing the order of the master and awarding costs in the court below and in the Court of Appeal to the applicants, that:

• 1. If a default judgment is to be capable of being enforced it must be personally served on the defendants: CPR 42.6 applies. There being no evidence that the default judgment in this case had been served on the defendants, it was not capable of being enforced by an order for the sale of property.

• 2. If it is alleged by a defendant that a default judgment has been entered against him for an excessive amount and that the judgment ought to be set aside, CPR 13.3 and 13.4 do not apply to limit the discretion of the master. CPR 13.3 limits a defendant's right to set aside a default judgment when it is intended to file a defence. CPR 13.4 requires a draft of the proposed defence to be filed with the application.

• 3. A claimant who observes that he has obtained a default judgment in an excessive amount has the principal duty to apply to set it aside and to enter in its place a corrected judgment. A defendant who has not had the default judgment served on him is entitled ex debito justitiae to apply at any time up to and including an application for the enforcement of the judgment, to have the judgment set aside on the basis that it has been entered for an excessive amount.

Muir v Jenks [1913] 2 KB 412 as cited by Edwards J in Anthony Eugene v Joseph Jn Pierre and Joseph Jn Pierre (No.1) et al v The Attorney General et al Saint Lucia High Court Claim Nos. SLUHCV 2004/0097 and SLUHCV 2006/0708 (delivered 21^st February 2007) applied.

Mitchell JA [AG.]

1 On 20^th April 2006, the National Bank of Dominica filed a claim in the High Court against Anison and Joyce Rabess for the sum of $99,066.17, contractual interest at the rate of 10% per annum from 1^st March 2006 to the date of satisfaction, and costs, to a total of $102,380.09. On 12^th May 2006 Mr. and Mrs. Rabess filed an acknowledgment of service admitting part of the claim. They filed no defence, nor offered to pay any part of the debt. On 4^th July 2006 the Bank applied to the Registrar of the High Court for a default judgment to be entered against Mr. and Mrs. Rabess in the sum of $99,066.17 together with court fees on filing the claim of $220.00, solicitor's fixed cost on issue of $2,000.00, interest from 1^st March 2006 to date in the sum of $8,518.40, court fees on entering judgment of $20.00, and solicitor's fixed costs on entering judgment of $400.00 to a total of $110,224.57. On 13^th July 2006 the requested judgment in default of defence in the sum of $110,224.57 was entered on the file by the Registrar. There is on file no affidavit of service at any time of this judgment on Mr. and Mrs. Rabess or on anyone else.

2 On 21^st September 2007, the Bank made an application to the Court, supported by an affidavit, to have articles of sale of Mr. and Mrs. Rabess' property settled and for vacant possession. The grounds of the application included the obtaining by the Bank of the default judgment, the conversion of an equitable mortgage held by the Bank into a legal mortgage pursuant to section 66 of the Title by Registration Act,1 and the service on Mr. and Mrs. Rabess of a Notice to Pay off and Act of Seizure. This application was served on Mr. and Mrs. Rabess, who on 25^th October 2007, swore and filed an affidavit in reply. They protested that the Bank had kept its judgment for over a year without informing them of it and that to that date they had never been served with a copy of the alleged judgment.

3 On 18^th July 2008, the master settled the articles of sale and ordered the land to be sold by public auction at an upset price of $32,830.00. The attempt to get the property sold appears not to have been successful, because on 20^th March 2009 the Bank filed another application to fix a new date of sale and to reduce the upset price to the level of $16,660.00 which was the value their expert had set. On 13^th May 2009 the master gave new directions accordingly. On 4^th June 2009, an affidavit was filed exhibiting the notices for sale published in the local paper as ordered. No successful bid having been received, the Bank next applied on 24^th March 2010, for permission to sell the property by private treaty at the same price. The master granted the necessary order on 7^th May 2010.

4 On 18^th May 2011, Mr. and Mrs. Rabess began the proceedings that culminate in this appeal. They filed an "(Ex parte) Notice of Application", supported by two affidavits, for a stay of proceedings and to set aside the default judgment. Now, the term "Ex parte" is an obsolete term meaning "without notice", which conflicts with the meaning of the following three words "Notice of Application". Notice is

given of an application when it is served on the other side, which suggests that this application was intended to be served...