Shawn Dillon Dawson v Teresita Marie Moody
| Jurisdiction | Belize |
| Judge | Alexander, J. |
| Judgment Date | 18 September 2023 |
| Court | Supreme Court (Belize) |
| Year | 2023 |
| Docket Number | CLAIM No. CV 169 of 2023 |
CLAIM No. CV 169 of 2023
IN THE SENIOR COURTS OF BELIZE
IN THE HIGH COURT OF BELIZE
Ms. Tiffany Cadle for the Claimants
Mr. Orson J. Elrington for the Defendants
I find wholly against the defendants' application for security for costs dated 18 th July 2023 and I dismiss it. After weighing all relevant considerations, I am unconvinced on the evidence that it would be just in this case to grant an order for security for costs.
The claimants (“the Dawsons”) brought a claim against the defendants (together “Teresita Moody”) as administrators of the estate of Frank Answorth Dawson, their deceased father (“the deceased Dawson father”). This gave rise to the present application where Teresita Moody is seeking an order for security for costs against the Dawsons (“the application”).
Teresita Moody brings her application against the Dawsons purportedly in their personal capacities, and not as administrators of the estate of the deceased Dawson father. In her application, she states that the Dawsons are not ordinarily resident in Belize and do not have any known assets locally to ensure that if their claim fails, they will be able to satisfy any costs order against them. She also states that the Dawsons have not disclosed any reasonable grounds for success in their claim. Her affidavit evidence is very thin in details.
In arriving at my decision, I considered first that the Dawsons are not ordinarily resident in Belize, a fact not in dispute between the parties. The non-residency is an important factor to consider in the context of the rules on security for costs. Second, I considered whether this fact alone would suffice to obtain a security for costs order. No. In my judgment, non-residency is a critical factor that can be determinative of the issue, but other factors ought to be weighed in the balance to arrive at a just disposal of the application. Pivotal to the determination is whether Teresita Moody has shown, on her evidence, a real risk of being unable to enforce any costs order made in her favour. Third, I considered the argument of Mr. Orson J. Elrington, counsel for Teresita Moody, that the application is not against the Dawsons, as the administrators of the estate of the deceased Dawson father (the capacity in which they have sued Teresita Moody) but against them personally. The Dawsons, therefore, cannot rely on the assets of the deceased Dawson father's estate.
Having brought into the mix all the circumstances of the present case, the evidence before me and the relevant legal principles, I find it will not be just to make the order for the reasons set out below. The risk of enforcement has not been shown to be such as to attract this order.
I believe a short history is necessary to give some context to the matter. The Dawsons are involved in a family dispute with Teresita Moody over the estate of their deceased Dawson father. On 2 nd March 2023, the Dawsons obtained a Grant of Administration of the estate of their deceased Dawson father. By Notice of Application filed on 21 st March 2023 they sought, and subsequently obtained, an injunction to restrain Teresita Moody from interfering with the estate of the deceased Dawson father; from dissipating and/or disposing of its assets; from unlawfully removing survey markers and from taking possession of disputed properties. They were permitted to file a fixed date claim, which they did on the grounds of proprietary estoppel. They filed the claim in their representative capacity, as administrators of the estate of the deceased Dawson father.
Central to the Dawsons' claim is a parcel of land (“the disputed property”) that the deceased Dawson father was gifted and/or put into possession of by his aunt Olga Mae Ingram nee Jones (“the deceased Ingram”) who was the mother of Teresita Moody. Teresita Moody was sued both as the administratrix of the estate of the deceased Ingram and in her personal capacity. The deceased Dawson father had lived with the deceased Ingram since the age of 13 years, after the death of his mother who was the sister of the deceased Ingram. In her lifetime, the deceased Ingram gifted the deceased Dawson father and Teresita Moody separate parcels of land, which bounded and abutted each other. The deceased Dawson father, in reliance of the promises and assurances of the deceased Ingram, took possession of and was in occupation of the disputed property until his demise. Over the course of ten years, he made significant investments into the construction of his home on the disputed property. The evidence of his investments into the disputed property is not in dispute.
During her lifetime, the deceased Ingram made attempts to transfer the disputed property to the deceased Dawson father, including the conduct of a survey and placement of boundary markers to separate the properties. She died in 2018 without completing the process. Since 2005, the deceased Dawson father has treated the disputed property as his own, erecting a chain link fence, constructing his home and remaining in peaceful possession until his death on 4 th January 2022. After his death, Teresita Moody, in concert with workmen, moved onto the disputed property, causing damage to the dwelling house and its contents; removing existing fences and boundary lines and began new construction on the land.
Teresita Moody, in her defence, denies that the disputed property was meant to be anything other than a family home, with financial investments purportedly also being made to its construction by the deceased Ingram and herself. She asserts that while the deceased Dawson father had made substantial investments in the disputed property, he did that only so that he could have the use of it for ‘vacation purposes’ while he was alive. She states also that the deceased Dawson father had no promise to have the disputed property transferred to him. The disputed property is now lawfully transferred into her name in accordance with the deceased Ingram's wishes. As she holds good legal title for all of the land on which the disputed house stands, she questions the Dawsons’ prospect of success. She states further that a 2005 Toyota Camry vehicle, owned by the deceased Dawson father, was fraudulently transferred to the Dawsons after his death.
The issues are:
-
(1) Whether Teresita Moody has satisfied the tests and conditions to obtain an order for security for costs?
-
(2) Whether there exists a real risk of enforceability in defending these proceedings?
-
(3) Whether bringing the application against the Dawsons in their personal capacities (and not as administrators) blocks them from relying on the assets in the estate?
Mr. Elrington made heavy weather about the alleged personal inability of the Dawsons to pay costs should they not be successful in the claim. Mr. Elrington argues that there was limited, if any, evidence of the Dawsons' assets in the jurisdiction. He states that with no assets in the jurisdiction and not being ordinarily resident in Belize, the Dawsons should be made to pay security for costs to Teresita Moody. They could not rely on the assets in the estate since if their claim is dismissed, these would not be available to them to meet a costs order. He argues, too, about the lack of reasonable grounds provided by the Dawsons that they could succeed in their claim.
Ms. Tiffany Cadle, counsel for the Dawsons, argues that the application is misconceived and doomed to fail. The estate has assets (other than the disputed property) and Teresita Moody has also shown no real risk of being unable to enforce any costs order made in her favour.
The Supreme Court ( Civil Procedure) Rules, 2005 provide that a defendant may apply for a claimant to give security for costs for proceedings. The application is to be made, where practicable, at a Case Management Conference (“CMC”) or a Pre-Trial Hearing (“PTR”): see rule 24.2(2) of the CPR.
I find it convenient to set out the requirements to get a security for costs order. Rule 24.3 of the CPR reads:
The court may make an order for security for costs under Rule 24.2 against a claimant only if it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order, and that -
(a) the claimant is ordinarily resident out of jurisdiction; or
(b) the claimant is an external company; or
(c) the claimant –
(i) failed to give his address in the claim form; or
(ii) gave an incorrect address in the claim form; or
(iii) has changed his address since the claim was commenced, with a view to evading the consequences of the litigation; or
(d) the claimant is acting as a nominal claimant, other than as a representative claimant under Part 21 and there is reason to believe that the claimant will be unable to pay the defendant's costs if ordered to do so; or
(e) […]
(f) some person other than the claimant has contributed or agreed to contribute to the claimant's costs in return for a share of any money or property which the claimant may recover; or
(g) the claimant has taken steps with a view to placing the claimant's assets beyond the jurisdiction of the court.
Security for costs is only available to a defendant to a litigated claim. The application enables the defendant to require a claimant to pay money into court to ensure that if successful, the defendant can recover his legal costs at the conclusion of the proceedings.
The rules give a court the general jurisdiction to order security for costs. On a clear reading of the...
To continue reading
Request your trial