NBS ordered to pay Rodrigues Architects $15m after CCJ ends stay of judgment

-substantive appeal now has to be heard

Having lost its bid to stay a multi-million dollar judgment against it, the New Building Society (NBS) will now have to pay over to Rodrigues Architects Limited the $15,897,625 and all accrued interest it owed for the construction of its North Road and Avenue of the Republic head office.

This comes as a result of yesterday’s ruling by the Caribbean Court of Justice (CCJ) that former Justice of Appeal B.S. Roy erred in granting a stay of execution of that award to NBS back in 2016, while noting that the Full Bench of the Court of Appeal, before whom the stay was appealed by Rodrigues Architects should have so declared.

Pursuant to the consent of both parties, however, as undertaken by Albert Rodrigues—Director and Shareholder of the Company, the court ordered that, he refrains from encumbering or alienating or disposing in any way howsoever his interest, rights and title to property belonging to him, A-126 Robin’s Place, Bel Air Park, in the event he has to repay NBS should the financial institution succeed in its substantive appeal of Justice Rishi Persaud’s award of the sum.

In 2015, Then High Court Judge, Justice Rishi Persaud, had ordered the NBS to pay to Rodrigues Architects Limited, the sum of $15,897,625.

In addition, the judge ordered the financial institution to pay interest at a rate of 6% per annum from 27th November 2008 to 29th September 2015 and thereafter at the rate of 4% per annum until fully paid and costs in the sum of $100,000.

He further ordered that there be a stay of execution for a period of six months from the date of the order.

The NBS thereafter appealed the decision and thereafter made an in-chamber application before then Justice of Appeal  Roy for a stay of execution of the order. Alternatively, the moneylending institution requested an order that it be allowed to deposit the sum awarded into an interest-bearing account at a commercial bank.

Both of the Society’s requests were granted, with the stay of execution having effect until the hearing and determination of the substantive appeal which is yet to be given a date for hearing before the Court of Appeal.

Rodrigues Architects, however, then appealed to the Full Bench of the Court of Appeal for a discharge of the stay of execution and also made a request that a stay of the order of the 29th—for the payment of interest be refused.

The Guyana Court of Appeal dismissed Rodrigues’ application, pointing out that it only had “reviewable jurisdiction” over orders made by a single judge of the Court of Appeal.

As a result, Rodrigues Architects (the applicant) applied to the CCJ for special leave against the decision of the Full Bench. It asked the court to determine the correct procedure for granting a stay of execution.

Examining what it said were the grounds advanced by the Society (Respondent) in its application for the stay before Justice Roy, the CCJ noted NBS’ contention that if the judgment sums were paid out to the applicants, there would be no reasonable prospect of recovery if its (NBS’) appeal was successful.

Referencing the cases of Linotype-Hell Finance Ltd v Baker [1992] 4 ALL ER 887 and Ramdehol v Ramdehol [2013] CCJ 9 (AJ) the regional court said it 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.

The CCJ said that after reviewing the affidavit evidence, it found that Justice Roy had in principle erred in granting the stay of execution and the Court of Appeal should have so declared.

The court said also, 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.

As a matter of fact the CCJ noted that Albert Rodrigues, a director of the Company, had been prepared to guarantee that he would personally repay the judgment sum paid if the Society’s appeal succeeded and, further, to undertake not to encumber or alienate property owned by him and valued well over the judgment sum without the court’s leave.

In those circumstances, the regional appellate court of last resort said it was of the view that Justice Roy’s decision went against principle and the weight of the evidence.

In adjudicating the matter, the court said the main issue to be decided involved the principles to be applied by a court when faced with an application for a stay of execution of a money judgment.

Discretion

To this end, the CCJ said it examined the factors which should be considered when exercising a 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 said it is one that takes place within relevant parameters that enable the 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 then went on to consider how an application for the particular stay under examination should be approached, and emphasized that a stay of execution was the exception rather than the rule and 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.”

The court reasoned, that to answer such a 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.”

Failing this, the court said “no stay should be granted.”

It was against this backdrop the court warned, that judges must be alert of defendants using tactical appeals to try to avoid paying out for the years it may take for the appeal to be heard.

The court highlighted further, 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.

The Trinidad-based court, as it has had numerous previous cause to do, noted that no judgment had yet been delivered to provide reasons for the stay-order made Justice Persaud.

The court has consistently noted with consternation, the tardiness of some local judges not delivering their written judgments in a timely manner, and in some cases not at all.

In several cases, appeals have gone to the court of last resort without accompanying written decisions of local courts.

The court, however, noted 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 he or she makes brief notes to enable the delivery of a short oral judgment outlining the main reasons for giving a money judgment against the defendant, stating that an amplified, authoritative, comprehensive written judgment will be subsequently provided if an appeal is filed.

The second issue which the court said it examined, was whether the defendant could establish that 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 highlighted that in such circumstances, the onus was on the defendant to provide full, frank and clear details of his financial position.

Regarding the third issue, the CCJ said that it must be considered 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.

To this end, the court was of the view that where the defendant can establish that no such probability exists, prima facie a stay should be granted, with the onus on the defendant to produce some evidence of the claimant’s financial weakness sufficient to make it necessary for the claimant, whose financial position lies within his own knowledge, to rebut it.

“No stay should be granted where the claimant’s financial position is sound.”

The CCJ highlighted that in Rodrigues’ appeal, his personal guarantee and undertaking was volunteered by him as part of a consent order, leading the court to make such order rather than simply discharging the stay of execution.

Noting a fourth and final issue which the court said may arise for consideration is what are the risks that the claimant will be unable to enforce the judgment if a stay is granted and the defendant’s appeal fails?

The court was of the view that in such circumstances the just solution may be for the defendant to pay the sum into court to await the outcome of defendant’s appeal, though “this should be a last resort so that the claimant can have the monies available for entrepreneurial or investment opportunities.”

With the consent of both parties, the court said it made various orders discharging the stay of execution, enabling the monies paid into court to be paid out to Rodrigues Architects and enabling it  to execute judgment against the NBS to recover the balance of monies due to it, though subject to Rodrigues’ personal guarantee of repayment of the Society’s monies if its appeal succeeded, such guarantee being supported by his undertaking not to encumber or alienate particular valuable premises owned by him.

The CCJ ruled that Rodrigues Architects is at liberty to recover from the Registrar of the Supreme Court the judgment sum of $15,897,625 which was ordered by Justice Roy to be lodged by the Society with the Registrar for deposit in an interest-bearing bank account together with the accumulated interest thereon, in partial satisfaction of the Society’s liability under Justice Persaud’s judgment.

The $100,000 court costs awarded by Justice Persaud also has to be paid.

The CCJ noted also, that Rodrigues Architects is at liberty to execute judgment against the NBS to recover the balance of such aggregate monies after receipt of the above deposited sum and interest from the Registrar.

Costs fixed in the sum of $200,000 shall be paid by the Society to the Company.

A date is yet to be fixed for the hearing of the Society’s substantive appeal to Justice Persaud’s ruling before the Guyana Court of Appeal.

The case before the CCJ was heard by Justices Jacob Wit, David Hayton, Winston Anderson, Maureen Rajnauth-Lee and Denys Barrow.

Representing Rodrigues Architects was attorney Timothy Jonas; while NBS was represented by attorney Nikhil Ramkarran.

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