[1] Carosello Establishment (Appeal dismissed by the Full Court of Appeal on the 31 October 2007) [2] David Alan Pollock [3] Kelly Iverson Pollock Appellants/Applicants v [1] Caribbean Ventures International Ltd ((in Liquidation)) [2] Marcus A. Wide, Liquidator of Caribbean Ventures International Ltd Respondents [ECSC]

• Jurisdiction: St Lucia
• Judge: EDWARDS, J.A. [AG.]:,EDWARDS, J.A. [AG.],Ola Mae Edwards,Justice of Appeal [Ag.]
• Judgment Date: 27 October 2008
• Judgment citation (vLex): [2008] ECSC J1027-1
• Court: Court of Appeal (Saint Lucia)
• Docket Number: HCVAP 2007/035
• Date: 27 October 2008

[2008] ECSC J1027-1

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal [Ag.]

HCVAP 2007/035

HCVAP 2008/033

IN THE MATTER OF the winding up order of Caribbean Ventures International Ltd. (In Liquidation) by the High Court of Justice of Dominica on the 29^th day of July, 2005.

AND IN THE MATTER OF the compulsory Liquidation Order of Bank Caribe Limited (In Liquidation) by the High Court of Justice of Dominica on the 2^nd of July, 2004.

Between:

[1] Carosello Establishment (Appeal dismissed by the Full Court of Appeal on the 31^st October 2007)

[2] David Alan Pollock

[3] Kelly Iverson Pollock

Appellants/Applicants

and

[1] Caribbean Ventures International Ltd. (In Liquidation)

[2] Marcus A. Wide, Liquidator of Caribbean Ventures International Ltd.

Respondents

IN THE MATTER OF the winding up order of Caribbean Ventures International Ltd. (In Liquidation) by the High Court of Justice of Dominica on the 29^th day of July, 2005.

AND IN THE MATTER OF the compulsory Liquidation Order of Bank Caribe Limited (In Liquidation) by the High Court of Justice of Dominica on the 2^nd of July, 2004.

Between:

[1] Carosello Establishment

[2] David Alan Pollock

[3] Kelly Iverson Pollock

Appellants/Applicants

and

[1] CARIBBEAN VENTURES INTERNATIONAL LTD. (In Liquidation)

[2] MARCUS A. WIDE, Liquidator of Caribbean Ventures International Ltd.

Respondents

Appearances:

Mr. Marcus Foster for the Appellants/Applicants

Mr. Bota McNamara for the Respondents

Civil Appeal — Civil Procedure — application for stay of execution pending appeal — application for stay of execution of receiver's order

The respondents (CVIL) and Mr. Marcus A. Wide Liquidator of CVIL instituted proceedings against the first appellant ("Carosello") and the second and third appellants ("Pollocks") alleging, among other things, conspiracy, fraud, misappropriation and conversion by the appellants of a sum in excess of US$3.4 million over a three year period. Central to this dispute is the dwelling house ("Villa Caribe") situated at Seagrape Crescent where the Pollocks have resided. The respondents allege that Mr. Pollock caused CVIL to discharge Carosello's indebtedness to a bank in Dominica through a series of loans for the acquisition of the Seagrape property and the construction of Villa Caribe. The Pollocks have denied any wrongdoing. Multiple claims, applications and appeals have been filed in these proceedings. In his judgment delivered 13^th August 2007 in claim No. SLUHCV 0293 of 2006 the judge ordered the Pollocks to repay to CVIL the sum of US$3.4 million and costs. At a hearing of the consolidated claims SLUHCV 0293/2006 and SLUHCV 0209/2007 on 23^rd April, 2008, the judge ordered that the appellants pay to CVIL and the Liquidator (Mr. Marcus Wide) the sum of US$3.4million with interest and costs. By order of 16^th July, 2008, the judge appointed Mr. Marcus Wide as Receiver and ordered that the Pollocks give up vacant possession of the Seagrape property. The Pollocks were evicted on 4^th October, 2008. The appellants have applied for stay of execution of these orders and have sought the permission of the court to return to the Seagrape property.

Held: granting the applications with conditions and directing that costs shall be costs on the appeal:

• (1) A stay of execution should only be granted if the appellant would face ruin without the stay, provided that the appeal had some prospect of success. The appellants satisfied the evidential burden of proving that they would be ruined if the stay was not granted and that the appeal against the receiver's order was arguable.

• (2) Having regard to the affidavit evidence, the order, the law and submissions of counsel, and having taken into account the uncertainty as to when the transcripts of both proceedings will be available, the circumstances of the appellants and the grounds of the appeals cumulatively take the appellants' case outside the ordinary. Special circumstances have therefore been disclosed which should serve to prevent the ordinary rule not to grant a stay from applying.

  Linotype-Hell Finance Ltd. v Baker [1993] 1 WLR 321 , Turkey v Awadh [2004] EWCA Civ 1471 and Winchester Cigarette Machinery Ltd. v Michael John Payne and another (unreported) (QBD), No. FC3 93/6788/C Royal Court of Justice, 10^th December 1993 applied.

1 EDWARDS, J.A. [AG.]: There are 2 applications for a stay of execution before me pending 2 different appeals. The first application was filed on the 8^th October 2008 in appeal No. 35 of 2007 filed on the 5^th September 2007. This application is seeking to stay the judgment of Cottle J. delivered on the 13^th August 2007. The learned judge after a 2 day trial found that the 2^nd and 3^rd appellants ("the Pollocks") have been unjustly enriched and ordered that they repay to the 1^st respondent ("CVIL") the sum of US$3.4 million. He awarded the respondents costs and fixed the value of the claim at approximately EC$9.2 million. The amount of prescribed costs was fixed at EC$162,500.00.

EDWARDS, J.A. [AG.]

2 The second application was filed on the 23^rd October 2008 in appeal No. 33 of 2008. The notice of appeal also filed on this date is against an order made by Cottle J. on the 16^th July 2008, wherein he appointed, without security, the 2^nd respondent as receiver and manager of the assets of Carosello Establishment Ltd. Paragraph 6 of this order states:

"That any and all occupants of all that parcel of land registered in the Land Registry of Saint Lucia as Block 1255B 441 and 442 together with the building erected thereon and all the fixtures, fittings and furniture of all and every kind found therein being the property commonly known as Villa Caribe located on Seagrape Crescent, Rodney Bay served with this Order are to give up vacant possession of the said property within fourteen…days of service of the Order. Upon failure to comply with this Order Members of Her Royal Majesty's Police Force are hereby directed to use whatever force needed to remove any occupants from the said property and hand possession to The Receiver."

3 The application for the appointment of a receiver was made under Part 51 of theCivil Procedure Rules 2000 ("CPR 2000") which deals with appointment of a receiver generally including an appointment to obtain payment of the judgment debt from income or capital assets of the judgment debtor. This application was filed on the 7^th July 2008. There is dispute concerning the service of this application. The Pollocks depose that they were never served. An affidavit by Sally Ann Alfred sworn on the 8^th July 2008 which was filed on the 23^rd October 2008 states that it was served on the Chambers of Counsel Mr. Marcus Foster on Monday the 7^th July, 2008 at 1:35 p.m. by leaving the documents with Christiana Cornibert. The order reflects that the applicants were not present and were unrepresented.

4 The grounds of appeal against the receiver's order are that: (1) The appellants were deprived of their right to be heard challenging the appointment of a receiver as they were never personally served. (2) The order failed to give dates when accounts are going to be filed to comply with a mandatory requirement laid down in CPR 2000, r.51.7(1). (3) The order itself was filed well beyond the time allowed by CPR 2000 for drawing up and filing orders under CPR 2000, r.45.5(2). (4) There was a real likelihood of bias having this application heard by Cottle J. when his judgment is the subject of a pending appeal No. 35 of 2007. (5.) That the effect of the appointment of the receiver was to unfairly eliminate the pending appeal since the property at Seagrape Crescent Rodney Bay is the subject matter of the said appeal, for which security for costs had been put up by the appellants in the sum of EC$267,750.00.

Preliminary Issues

5 There were 2 preliminary issues relating to: (1) whether the proceedings concerning the appointment of the Receiver were interlocutory proceedings requiring the leave of the court; and (2) whether the notice of appeal No. 33 of 2008 was timely. The first issue was resolved by ruling after hearing submissions of counsel by reference to section 26 (2)(g)(ii) of theEastern Caribbean Supreme Court (St Lucia) Act Cap. 2.01 ("the Supreme Court Act") and CPR 2000, r.62.1(2). These provisions exclude an interlocutory order granting or refusing an application for the appointment of a receiver from requiring any leave to appeal and from being treated as a procedural order.

6 The second issue was resolved by reference to previous decisions of this court includingMichael Baptiste v Yoland Bain-Joseph1 which ruled at paragraph 9 as follows:

"Having regard to the definition of "statement of case" under CPR 2.4, and the contents of a statement of case as prescribed by the relevant rules, the contents of the Notice of Appeal and Grounds of Appeal as prescribed by CPR 62.4, are obviously comparable to the statement of case for the purposes of CPR 26.3 (1)(a)."

7 Since CPR 2000, r.3.5 states that during the long vacation period time prescribed by these rules for serving any statement of case other than the statement of claim does not run, I ruled that the notice of appeal in No. 33 of 2008 was timely filed.

Relevant Background Facts

8 The respondents instituted an action SLUHCV 2006/0293 against Carosello Establishment Ltd. ("Carosello"), a corporate entity formed in Vaduz, and existing under the laws of Liechtenstein, and the 2^nd and 3^rd appellants. The statement of case alleged an advance or loan by the respondents to the appellants, breaches of fiduciary duties and trust against Mr. Pollock, and conspiracy, fraud, misappropriation, and conversion by the appellants of a sum in excess of US$3,400,000.00 over the period 2000 to 2003. Mr.

Pollock was employed by the 1^st respondent bank ("CVIL') in Dominica as Managing Director and Chief Financial Officer during...