FBS Markets Inc. v Dorian Gryffyn
| Jurisdiction | Belize |
| Judge | Hafiz Bertram P,Woodstock-Riley, JA,Foster, JA |
| Judgment Date | 20 May 2022 |
| Neutral Citation | BZ 2022 CA 19 |
| Court | Court of Appeal (Belize) |
| Year | 2022 |
| Docket Number | CIVIL APPLICATION NO 5 OF 2021 |
The Hon Madam Justice Minnet Hafiz-Bertram — President (Ag.)
The Hon Madam Justice Marguerite Woodstock-Riley — Justice of Appeal
The Hon Mr Justice Peter Foster — Justice of Appeal
CIVIL APPLICATION NO 5 OF 2021
IN THE COURT OF APPEAL OF BELIZE AD 2022
I Swift for the applicant.
A Arthurs Martin with E Quiros for the respondent.
Hafiz Bertram P (Ag)
I have read in draft the reasons given for judgment, by my learned sister Woodstock-Riley JA, for refusing leave to appeal the decision of the trial judge. I agree with those reasons.
_____________________
HAFIZ BERTRAM P (Ag.)
FBS Markets Inc. (“the Applicant”) by Notice of Motion dated 2 December 2021 applied for:
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(1) An Order pursuant to Section 16 of the Court of Appeal Act and Order II Rule 2 of the Court of Appeal Rules and/or the inherent jurisdiction of this Honourable Court that the Applicant be granted leave to appeal the decision of Court in Claim No. 42 of 2020 – Dorian Gryffyn v FBS Markets Inc. made on 7 June 2021 and that proceedings be stayed pending the determination of the appeal; and
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(2) An Order that the costs of the application be costs in the cause; and
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(3) Such further or other relief that the court deems just.
The Grounds of the Application for leave were stated as:
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(1) On 7 June 2021, the Court dismissed FBS Markets Inc's (FBS) Application for Security for Costs.
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(2) On 11 November 2021, the learned trial Judge refused FBS' application for leave to appeal and stay of proceedings.
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(3) This Honourable Court is empowered pursuant to Section 16 of the Court of Appeal Act and Order II Rule 2 of the Court of Appeal Rules and/or the inherent jurisdiction to grant an order for leave to appeal and stay of proceedings.
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(4) There is a prima facie case that an error has been made in the judgment and therefore leave to appeal should be granted.
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(5) The learned Judge's decision was informed by a wrong principle.
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(6) The learned Judge took into account irrelevant matters so that the ultimate decision is so aberrant that no reasonable judge could have reached it.
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(7) Should leave be granted to appeal and these proceedings are not stayed, the appeal will be rendered nugatory.
The Application was supported by an Affidavit of Marissa Jorgensen, Legal Assistant of the Applicant's attorneys, sworn on 2 December 2021 and which recited simply the Trial Judge's decision on dismissing the application for security as:
“ Decision of this court is that I have conducted such a balancing exercise and that the Defendant's relevant factor as argued ably by Counsel does not outweigh the relevant factor which has been argued for the Claimant. I find that the Claimant would be stifled in his ability to put forward his claim and that that in these particular circumstances outweighs the other relevant factor and therefore that in these circumstances, it would not be just to order security for costs and I therefore decline to exercise the discretion in order to order security for costs”.
The Applicant's contention is that
“ ….the learned Judge erred in law in failing to properly balance the rights of the Claimant against the Defendant in light of the residence of the Claimant and his lack of assets and the learned Judge erred in law in failing to have due regard to the relevant considerations for determining an application for security for costs”.
Further, that without a stay the appeal will be rendered nugatory.
At the hearing of the Application before this Court on 28 March 2022, the Applicant indicated it would not be relying on grounds 5 and 6. The Court having heard the application denied leave to appeal the decision of the trial judge. There was no order as to costs. We promised written reasons and do so now.
By notice of Application dated 5 May 2020, FBS sought security for costs in Claim No, 42 of 2020 – Dorian Gryffyn v FBS Markets Inc. The Application for security for costs was heard on 7 June 2021 and the learned Trial Judge dismissed the application.
By notice of Application dated 28 June 2021, FBS applied for leave to appeal and a stay of proceedings. The said application was refused by the learned Judge on 11 November 2021. FBS then sought from this Court an order for leave to appeal and a stay of proceedings.
The Trial Judge noted both parties agreed on the applicable test for Security for Costs; and the point of departure is how that test is to be applied and in particular, how it is applied to this case in which the Applicant is asking for the Claimant/Respondent, an individual, to pay security for its costs in these courts prior to any further proceedings.
There is also no dispute on the law relating to the grant of leave to appeal. Both counsel acknowledged several cases guided by the principles set out by the Belizean Court of Appeal in James Wang v. Atlantic Insurance Co Ltd (Action No. 114 of 1988) (Wang), and which the Trial Judge noted as “the Wang Test” (as it is sometimes referred to in Belize)” which sets out the circumstances in which a Court will grant leave to appeal to an Applicant,
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(a) Where they see a prima facie case that an error has been made;
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(b) Where the question is one of general principle, decided for the first time; and
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(c) Where the question is one of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage.
The reliance on Wang was affirmed by the Court of Appeal in Belize Offshore Centre et al v Worldwide Property Management Limited et al (Civil Appeal No 28 of 2010), adopted in Worldwide Property Management Limited v Belize Offshore Centre Limited et al, Claim No. 354 of 2009. Considerations for leave to appeal were reviewed in Karina Enterprises Ltd. v China Tobacco Zhejiang Industrial Co Ltd including the importance of the appeal having a realistic prospect of success, and the principles from those decisions enunciated in Kevin Millien v BT Trading Ltd, Claim No. 325 of 2014.
In particular, the additional considerations that arise in appeals from interlocutory orders were noted in Belize Telemedia Limited v The Attorney General et al (Civil Appeal No. 23 of 2008):
“ (a) the point may not be of sufficient significance to justify the costs of an appeal;
(b) the procedural consequences of an appeal (e.g. loss of trial date) may outweigh the significance of the interlocutory issue;
(c) it may be more convenient to determine the point at or after the trial. In all such cases leave to appeal should be refused.”
The Applicant acknowledges that the...
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