Lawyer Sarah E. Cox is publishing series of instructional
articles, all of which will be published on her Blog. First article on Business
& Real Estate has now been published.
The First Case to be Analyzed by Ms.
Cox shall be the matter of:
Citation: Walker v. Lundborg, WL 576820 (Privy Council No.
79).
U. K. Privy Counsel
reviews judgment of Bahamas Court of Appeal and disapproves failure of Florida
bankruptcy judge to observe international comity when it entered orders that
purported to cancel orders of Bahamas court pertaining to sale of Bahamas real
estate
Attorney Sarah Cox summarizes
the case as follows. This unnecessarily complicated case before the Privy
Council deals with a sale of Bahamas real property under a court order. The
property in question is a one‑story residence on a plot of land known as Lot
32, North Cat Cay. Though in a desirable location, the house is in a poor state
of repair and seems to have been empty for long periods.
Part of the difficulty is
that although the litigation has so far produced seven orders (some
interlocutory and some final) made by Bahamas first instance Judge Lyons, it
was only at the hearing leading up to Order (6) that the judge heard oral
evidence from deponents followed by cross‑examination.
Another complication has been
the concurrent Florida bankruptcy litigation involving Mr. James F. Walker, one
of the Petitioners, initially with questionable regard to the principles of
international comity.
The first 5 orders include
Order (1) of September 3, 2002 for the sale of Lot 32 (then owned by the
bankrupt and his wife) to Susan Lundborg (Respondent); Order (2) of July 7,
2003 that the parties complete the sale within 14 days; Order (3) of July 21,
2003 (not in the record) embodying an undertaking that Respondent would not
proceed pending an application for a stay of the order for sale made by Mr.
Walker’s Florida trustee in bankruptcy; Order (4) of March 23, 2004 allowing
Respondent’s intervention and rejecting the trustee’s application for a stay;
and Order (5) dated July 26, 2004 and applied for by Mrs. Walker which stayed
the order for sale until the court could resolve the disputed issues by cross‑examining
the deponents.
Two more orders need
consideration: Order (6) of December 7, 2004 (after the lower court had heard
some oral evidence) setting aside the order for sale; and Order (7) dated
February 28, 2005 setting aside a money judgment which a bankruptcy Plaintiff,
Eleanor C. Cole, had obtained against Mr. Walker in the Supreme Court of the
Bahamas on December 3, 1996, which purported to enforce an earlier Florida
judgment against the bankrupt.
The Petitioners’ appeal to
the Judicial Board of the Privy Council is from a November 15, 2005 order of
the Bahamas’ Court of Appeal It set aside Orders (6) and (7). The Board has to
resolve the appeal based on the points at issue, and, incomplete as they are,
on Judge Lyons findings of fact.
Attorney Sarah E. Cox
explains. Plaintiff, the Petitioners and the Respondent are all U.S. citizens
living in Florida. The Petitioners, however, at one time did reside in the
Bahamas. In 1983, they bought Lot 32 as joint tenants. They immediately
mortgaged it back to the previous owners and have since paid off that mortgage.
In October 1990, Plaintiff
sued Mr. Walker in the Bahamas’ court to enforce a November 1989 Florida
judgment for about $300,000 which she had gotten against him. Mr. Walker had
entered an unconditional appearance and the court had given summary judgment
against him in April 1991. A month later, however, he got an order setting
aside the judgment on the ground that he was challenging the original Florida
judgment. Five years went by but the Florida judgment technically remained in
effect. On December 3, 1996, Plaintiff again obtained summary judgment in her
enforcement proceedings in the Bahamas.
Under Section 63 of the
Supreme Court Act, this judgment placed an enforceable equitable charge on Mr.
Walker’s interest in Lot 32. The charge did not affect Mrs. Walker’s interest,
but it did enable Plaintiff to apply to the court under Order 31 of the Supreme
Court Rules for an order to sell all the interests in Lot 32. This charging
order severed the joint tenancy. Half the net proceeds would go to Mrs. Walker and
the court would have applied the other half to satisfy Plaintiff’s judgment
debt.
There was then a further
delay before Plaintiff’s attorneys, Callenders & Co. of Nassau, took steps
to enforce the equitable charge. Plaintiff’s attorneys obtained a professional
appraisal in June 1997 that valued Lot 32 at $326,250. On June 18, 1999 they
finally sought an order for sale. Those are the proceedings in which the lower
court made all but the last of the seven orders; the court issued Order (7) in
Proceedings 1355 of 1990.
When the Court exercises its
power to order a sale, the usual course is to make an order in general terms,
entrusting the conduct of the sale to a specified party, and giving general
directions as to the manner of sale (e.g. by public auction or private treaty),
the minimum price, and so on. That was the relief Plaintiff sought by the
originating summons with Petitioners as the original defendants, and former
owner Mrs. Krafft Keims, now a widow, added as a third defendant in June 1999.
On August 18, 1999, Sidney
Collie, a Nassau attorney, entered an appearance for Petitioners through Gary
Rotella, a Florida attorney, whom Mr. Walker had instructed; the three of them
met at Rotella’s office in Fort Lauderdale on August 14, 1999. Mr. Walker asked
Collie to act for both Petitioners. Collie’s evidence, which the judge
accepted, was that his only contact was with Mr. Walker (and not his wife) and
even those contacts were few and far between.
The rest of 1999, the whole
of 2000 and most of 2001 went by without any progress. Plaintiff’s Nassau
attorney, a Mr. Turnquest of the Callenders firm, wrote to her on July 31, 2001
apologising for the delay. His letter stated that he did not think that another
appraisal of the property was necessary.
Plaintiff (who was by this
time an elderly lady in poor health) finally swore her first affidavit in
support of the originating summons on January 9, 2002. Plaintiff’s affidavit
averred that Respondent, who lived in Florida, had gotten in touch with her and
said she was interested in buying Lot 32. On January 27, 2002, Respondent sent
Plaintiff a document described as a “letter of intent” for the sale and
purchase of the property for $400,000. Plaintiff seemed, initially at least, to
have been grateful to Respondent for her intervention.
During the summer of 2002,
there was renewed contact between the bankrupt and Collie. The bankrupt seems
to have found out about Respondent’s interest in the property and about the
prospect of the originating summons eventually coming before the court. The
trial court heard the originating summons on the afternoon of September 3,
2002. That morning, Saunders, a Nassau attorney, swore out an affidavit
exhibiting the five‑year‑old appraisal. In his first affidavit, he asked the
court to set a reserve price of $326,250.
Mr. Saunders then swore to a
second affidavit, the text of which in part was as follows: “1. I am authorised
by the Plaintiff ... [to present] to this Honourable Court ... a bona fide
offer to purchase [Lot 32 by “private contract”], the Plaintiff being resident
out of the Bahamas in the State of Florida. There is now produced and shown to
be marked ‘JMS 1’ a true copy of a written offer dated September 3, 2002 made
by [Respondent] a U.S. Citizen, to buy Lot 32 for $400,000. ... In the premises
I pray that this Honourable Court authorise a sale of the subject property to
the said [Respondent] at the price indicated.”
Neither Saunders nor
Turnquest has since explained how this offer had providentially arrived at
their firm’s office on the very morning of the hearing, or how he had obtained
Plaintiff’s authority to present the offer to the Court. Respondent swore an
affidavit on May 22, 2003 deposing that Turnquest “represents Plaintiff
generally but myself as well for the purposes of this transaction.”
Against that, Plaintiff’s
daughter, Caroline, deposed on July 26, 2004: “I also assisted my mother in
communicating with her then lawyer, Stephen Turnquest. Mr. Turnquest was not
authorised to represent to this Court on September 3, 2002, that my mother
consented to the $400,000 offer, which she had rejected on numerous occasions
over the course of the previous eight months.”
Judge Lyons (as to Order (6))
accepted Petitioners’ and Collie’s evidence about this: “ ... I have had the
opportunity of observing Petitioners. What they both said was that they never
gave Collie express instruction to accept the $400,000 offer from Respondent.”
“It seems therefore that ...
Collie came to court full of good intentions. On November 3, he had ... general
instructions to do what he could to help Bankrupt’s predicament. But he accepts
he never had express instructions to bind the Petitioners to Respondent’s
$400,000 offer ...” Judge Lyons then ordered the sale of Lot 32 ... to Respondent
within the terms of her offer.
Turnquest, whose evidence in
Florida was that he had started to act for Respondent at Plaintiff’s express
request but found himself in the awkward position of having two clients with
sharply conflicting interests.
Mr. Walker’s bankruptcy in
Florida had a great influence on the U.S. parties’ conduct in the Bahamas
litigation. In retrospect, it had only a marginal relevance to the issues that
the Board has to decide. Nor has the Board heard any argument about any issues
of private international law.
“In the Bahamas, there are no
statutory provisions for cross‑border assistance in insolvency with an
international element involving the U.S. Under general principles of private
international law, one country will usually recognise the status of a trustee
in bankruptcy (or similar officer) appointed by another country, and will also
recognise his title to moveable (but not to immoveable) property situated in
the recognising country.”
“Mr. Walker’s interest
constituted immoveable property. Even if, under Florida bankruptcy law, Mr.
Walker’s world‑wide estate, moveable and immoveable, vested in his bankruptcy
trustee, courts in the Bahamas would not recognise the trustee’s title to
immoveable property within its jurisdiction.” [¶ 25]
On January 10, 2003 a Florida
bankruptcy judge (FBJ) appointed Linda Walden as receiver for Plaintiff to get
hold of Mr. Walker’s assets. During February, the FBJ subpoenaed Respondent to
produce documents for the purposes of the receivership. On April 25, 2003, Mr.
Walker (through his Florida attorney, Rotella) filed for Chapter 7 bankruptcy.
Plaintiff proved in the
bankruptcy and proposed Ms. Walden as trustee, an appointment the FBJ confirmed
on July 9, 2003. On July 17, (as a direct result of the Walkers finally finding
out about the sale order), the FBJ held an emergency hearing at which he took
it upon himself to declare that “the orders issued on or about July 7 2003 by
the Commonwealth of the Bahamas” were null and void. The FBJ ordered that there
should be no sale of the property without his authority.
Ms. Walden faxed a copy of
the Florida order directly to Judge Lyons, who was “understandably affronted.”
On May 5, 2004, the FBJ withdrew his declaratory order after a hearing.
Although Plaintiff had proved
in the bankruptcy, she seems to have become increasingly disillusioned about
legal processes both in the Bahamas and in Florida. At some point, the Florida
court removed Ms. Walden from office. Plaintiff herself ceased to take part
(either personally or by a legal representative) in either branch of the
litigations.
The FBJ discharged Mr. Walker
from bankruptcy on September 21, 2005. On November 20, 2007, there was a
further order setting aside the original Florida judgment of November 14, 1989.
Meanwhile, back in the
Bahamas, Turnquest found himself with two clients, Plaintiff and Respondent
with conflicting interests. Plaintiff was telling him (through Ms. Gwynn, her
Florida attorney,) not to deal with Respondent. Her later evidence to Judge
Lyons (which he accepted) was that, in the course of giving the deposition, she
became aware of a sale of the property, to which she was not a party.
Petitioners both claimed persuasively that they only became aware of the full
facts on July 25, 2003, when an associate of Collie passed the information to
Rotella.
Shortly before this,
Turnquest had obtained Order (2) of July 7, 2003. This order raised a number of
puzzling questions. It still listed Turnquest as appearing on behalf of
Plaintiff although the relief he applied for was contrary to her instructions.
Petitioners knew nothing about it either.
On or about July 11, 2003,
Respondent deposited $402,000 with the Callenders firm. According to
Turnquest’s evidence to the FBJ on May 5, 2004, the above sum about equaled the
full purchase price. Turnquest deducted about $44,000 for professional fees due
to him from Plaintiff – but without telling her. He ceased to act for her on
July 21, 2003. Mr. Knox, QC for Petitioners, told the Board that the balance of
the $402,000 has since been repaid to Respondent.
The Florida bankruptcy now
began to directly impact the Bahamas litigation. Ms. Walden, the then trustee,
faxed the nullifying declaratory order to Judge Lyons on July 17, 2003. Ms.
Walden arrived in Nassau soon after. She hoped to have the local court vacate
the Lot 32 sale order. On July 21, 2003, there was a hearing before Judge Lyons
attended by Turnquest (for Respondent), Moxey (for the trustee), Collie (for
the Petitioners) and Ms. Gwynn and another Florida attorney (for Plaintiff).
Turnquest agreed on behalf of
Respondent not to go ahead with the sale pending resolution of Ms. Walden’s
formal application to intervene and seek a stay. On the same day, the
Callenders firm gave notice of their appointment as attorneys for Respondent,
although she was not yet a party to the proceedings. She moved to intervene on
January 14. 2004.
In March 2004, Respondent
deposed that she was fairly experienced in, and knowledgeable about, business
matters, including property values, and she did not look upon Lot 32 as worth
even $326,000. Plaintiff’s daughter Caroline (who lived with her), however,
contradicted this evidence. She deposed that her mother was not willing to sell
for $400,000 and that Respondent “persisted in harassing my mother by calling
at our house until I obtained a restraining order prohibiting her from
contacting my mother.”
Only Petitioners and Collie
have been cross‑examined on their affidavits in these proceedings. On March 23,
2004, Judge Lyons heard the applications by Ms. Walden and Respondent together,
Order (4). Turnquest, Moxey and Collie were present. Judge Lyons gave a short
judgment which suggests that he was still annoyed about the FBJ having
purported to nullify his sale order. He concluded that there was “absolutely no
doubt in my mind that there is a binding contract for purchase/sale between
Respondent and Petitioners.”
On April 27, 2004, Plaintiff
made an affidavit in the bankruptcy proceedings averring that she had never met
Saunders and had never given him authority to make his affidavit dated
September 3, 2002. She also made an affidavit sworn on June 15, 2004 in the
Board’s proceedings. It deposed that Turnquest had been acting contrary to
Plaintiff’s instructions when the first and second orders were made.
In June of 2004, Mrs. Walker,
acting through new attorneys, Lockhart & Munroe of Nassau, applied for an
order staying the sale to Respondent under Orders (1) and (2) on the grounds
(1) that the attorneys’ representations to the court on her behalf lacked her
knowledge or authority; (2) that the orders had first come to her attention
long after they were made; and (3) that Respondent’s offer was far below the
true value of the property. She added that she would rely on affidavits by
herself, her husband and Rotella. There were also affidavits from Collie, Miss
Cole, and the local appraiser, a Mr. Lowe of HG Christie Real Estate.
Mr. Lowe valued Lot 32 at
$950,000 as of June 16, 2004, with a retrospective valuation of $640,000 as of
September 3, 2002. Mrs. Walker made her application eleven months after she had
learned the full facts and just under three months after the rejection of the
trustee in bankruptcy’s application.
Finally, on February 28,
2005, Judge Lyons set aside Order (7) dated December 3, 1996 made in the
proceedings 1355 of 1990. The judge based his decision on the fact that Mr.
Walker was not a resident in the Bahamas at the time of service but Plaintiff
had not obtained leave to serve him out of the jurisdiction.
At the hearing on Order (6),
Mr. Lockhart’s skeleton arguments relied on two main points: first, that
Plaintiff had no cause of action against Mrs. Walker, since the charging order
did not bind her share; and second, that Mr. Collie had no authority, actual or
ostensible, to agree or consent to the sale order on behalf of Mrs. Walker.
Mr. Turnquest’s skeleton
arguments relied on four main points: first, that the court had no jurisdiction
to set aside the first and second orders because there had been no “new
occurrence” within Order 45 rule 11; second, that Mr. Collie had implied or
ostensible authority to bind Mrs. Walker; third, that the first order had been
perfected for more than two years; and fourth, that the order was not
impeachable, as against Respondent under Section 57 of the Conveyancing and Law
of Property Act.
“... [T]he only oral evidence
was from Collie, Mr. Walker and Mrs. Walker. The judge accepted their evidence.
In his heavily edited “extempore” judgment , the judge held that he must set
aside Order (1) because Collie had no authority to bind Mrs. Walker to it. That
was effectively the only surviving ground of Mr. Lockhart’s application. Mr.
Turnquest clung to the four main points in his skeleton argument. The judge ...
seems to have forgotten, or not to have accepted, Mr. Lockhart’s concession
about Order 31. ...” That was an error because, although Plaintiff’s security
extended only to Mr. Walker’s share in the property, Order 31 enabled the court
to authorise a sale of the property as a whole. An undivided share of a
residential property is not a marketable asset. ...”
“Their Lordships consider
that the judge made a further error in his analysis ... of Order (1) He treated
the order not as a judicial exercise of the court’s inherent and statutory
jurisdiction, but essentially as a contractual document. This led to his making
contradictory findings: that Turnquest initialled the order ... on behalf of
Respondent as well as Plaintiff and later that he was acting for Respondent and
not Plaintiff. ... [T]hey were simply not an issue before the judge.”
“Judge Lyons did consider the
issue of delay, but he did so ... exclusively on behalf of Mr. Walker. He
referred to Mr. Walker’s bankruptcy and to his having taken the ‘reasonable
step’ of approaching the Florida court for a stay of the sale order ... He
concluded that Mr. Walker’s delay in coming to his court was ‘explainable’.”
Respondent lodged separate
appeals against Orders (6) and (7). The Court of Appeal allowed both appeals.
“We pause here to comment
briefly on these grounds in the context of Order 31 which gives the court an
unqualified power to order a sale of land. Petitioners had retained Collie to
represent both Petitioners. He entered an appearance on behalf of both. His instruction
was to agree on a sale of the property. He now says he had no specific
instruction from Mrs. Walker to accept a sale to the intervener with whom he
had no dealings. As Order 31 makes clear, there is no need for there to be a
contract of sale or a consent by the owners to a sale.”
“Once a buyer has been
identified who is prepared to pay the best price to the satisfaction of the
Court, the procedural provisions for the sale can be invoked. Collie’s attempt
to resile from the terms of the order which he consented to, and in which the
purchaser’s name is mentioned, cannot be a ground for setting the order aside.
Relying on Collie’s representation that the offer of the Respondent was
acceptable to Petitioners; the Court was satisfied that the price offered was
the best one in the circumstances, so as to properly make an order of sale
disposing of Mr. Walker’s beneficial half interest, which must necessarily
involve a sale of the property.”
“Furthermore, the purchaser
had partly conformed or complied with the order by paying over the purchase
price to the persons appointed to conduct the judicial sale. Liberty to apply
could not, in our view, give the Court a jurisdiction to set aside the order in
the circumstances of this case when all the requirements of a judicial sale had
been satisfied.”
“ ... But in concluding that
all the requirements of a judicial sale had been complied with, the Court of
Appeal was paying insufficient regard to the judge’s findings of fact ...and
other credible evidence. Collie had gone beyond his instructions from Mr.
Walker, and had no instructions whatsoever from Mrs. Walker. The sale had not
been completed either by a conveyance or by payment of half of the net proceeds
to Mrs. Walker. The $402,000 must have been held by Turnquest as Respondent’s
attorney since he apparently repaid most of it to her without the authority of
the court. Turnquest was plainly not an appropriate person to have conduct of
the sale. On the occasion of Order (3), Respondent had, through Turnquest, given
an undertaking not to proceed with the sale, and that undertaking remained in
force until it was overtaken by Order (5).”
The Court of Appeal pointed
out that, in making Order (7), Judge Lyons had been wrong in supposing that, in
the proceedings 1355 of 1990, Plaintiff needed leave to serve process out of
the jurisdiction. “At the material time, Mr. Walker had a residence in the
Bahamas and voluntarily submitted to the jurisdiction. The judge fell into
error in setting aside a regularly obtained summary judgment to which Plaintiff
was entitled on the pleadings.”
Counsel agreed that there are
two main issues in the appeal to the Board relating to Order (6): (1) did the
judge have jurisdiction to make the order? and (2) if so, was he right to
exercise his discretion in favour of Mrs. Walker? The first issue raises, apart
from common law and procedural issues as to jurisdiction, a point of statutory
construction on Section 57 of the Conveyancing and Law of Property Act.
“Mr. Dingemans QC (for
Respondent) contended that there was no jurisdiction to set aside Order (6). He
pointed out that neither Petitioner had appealed against Orders (1), (2) or
(4). In reply, Mr. Knox contended that an appeal would have been inappropriate
in a case like this.”
Order (1) was based on
consent. ... “An order made by consent can be set aside at common law if
sufficient grounds are shown, subject to the well‑known principles which always
constrain the court in granting discretionary relief.”
“Their Lordships are
satisfied that Judge Lyons did have jurisdiction, at common law, to set aside
the first order on the ground of a mistake, ... as to Collie’s authority to act
for Mrs. Walker. None of [the precedents] permits a first‑instance judge to set
aside a final order, ... without some special reason, usually involving a
material change of circumstances. But a change of circumstances is not, in this
context, to be interpreted narrowly. It can include the discovery of new
information, even if that information was, in a sense, always available.”
“As a separate and ...
conclusive point, Mr. Dingemans relied on Section 57 of the Conveyancing and
Law of Property Act . ...The judge’s omission to refer to it was probably
because he analysed the order for sale as essentially a contract which happened
to be embodied in an order. ...”
“Section 57(1) is in the
following terms: ‘An order of the Court under any statutory or other
jurisdiction shall not, as against a purchaser, be invalidated on the ground of
want of jurisdiction, or of want of any concurrence, consent, notice, or
service, whether the purchaser has notice of any such want or not.’”
“In all the English
authorities, ... there was unquestionably a contract, sometimes completed by
conveyance, sometimes still uncompleted (hence the reference to .. intending
purchaser). Where the contract remained uncompleted , the purchaser was
questioning whether the statutory provisions were wide enough to ensure that he
would get a good title ...”
If, on the other hand, the
contract had been completed, the purchaser or his successor in title would be
relying on the statutory provisions to defend his title. Whether they did
provide protection depended, in short, on whether the alleged defect in title
was in the court order (or the way in which it was obtained) on the one hand or
was anterior to the order, on the other hand. But in either case there was no
doubt about the party’s status as a purchaser.
“In the present case, there
is real doubt about Respondent’s status as a purchaser. It is the central issue
in the case. Respondent is seeking to use Section 57 to confer on herself the
status of purchaser or intending purchaser which is the precondition of
obtaining protection under Section 57. That is a circular and question‑begging
process of reasoning which their Lordships do not accept.”
“Mr. Dingemans’ strongest
resistance to the appeal was on the issue of discretion. He relied on seven
[overlapping] points ...: [1] the need for finality in litigation; [2] the
submission that Collie had ostensible authority to agree to a compromise on
behalf of Mrs. Walker; [3] the Respondent’s failure to appeal against any of
the Orders (1), (2) or (4); [4] Mrs. Walker’s delay in making her application
to set aside Orders (1) and (2); [5] the prejudice to third‑party rights (those
of Respondent), [6] the part‑performance of the transaction by Respondent and
[7] the absence of notice to Respondent of the alleged deficiencies in the sale
order.”
“The need for finality in
litigation is an important general principle. [Cite]. But it has to be balanced
against the need to remedy injustice wherever possible. The need for finality
means that the court starts with a disinclination to reopen concluded
transactions. But it cannot by itself be decisive. There is a balancing exercise
to be performed.”
“Once the Court of Appeal
recognised that the transaction was essentially a judicial sale, albeit under a
consent order, the crucial questions were whether a mistake had been made, and
whether (as a matter of discretion) the mistake should be put right. An
attorney’s consent given with ostensible but not actual authority would still
be a mistaken consent, although one which the court would be less ready to
correct at the expense of third‑party rights.”
“The failure of Petitioners to
appeal Orders (1) and (2) was excusable, since (as the judge found) they knew
nothing about them until long after the time for appealing had expired. In any
event, it is doubtful whether an appeal against those orders would have been
more appropriate than the course that Mrs. Walker eventually took. Order (4) is
more problematical, because by then Petitioners did know the facts but were
still apparently represented ... by Collie.”
“As to delay, their Lordships
have already noted that in dealing with the issue of delay the judge focussed
on Mr. Walker to the exclusion of his wife. That was an error ... His share was
subject to the charging order but hers was not. He was made bankrupt but she
was not. He instructed Collie ... but she never actually instructed him. The
application made by Mr. Lockhart on June 15, 2004 was her application, and it
is Mrs. Walker who had the burden of explaining and excusing her delay. ...
[T]here is still a period of eleven months’ delay to be accounted for.”
“The only explanation given
by Mrs. Walker was in her affidavit sworn on June 15, 2004. Almost the whole of
that affidavit is concerned with emphasising the absence of instructions and
communications between herself and Collie. By contrast she said little about
the period after she learned about the sale order. ... It would be remarkable
if her husband had not kept her informed about his financial problems,
including his bankruptcy, and the steps which his trustee in bankruptcy was
taking in the Bahamas. Mr. Rotella, who was acting as Mr. Walkers U.S.
attorney, was also acting for Mrs. Walker. But in her affidavit she gave no
explanation for her inactivity after July 2003.”
“Mrs. Walker seems to have
done nothing for eight months after learning the facts to stop Collie from
continuing to claim to act for her. The most likely inference is that Mrs.
Walker stood back, from July 2003 until March 2004, to see whether the trustee
in bankruptcy would be successful in her application, and that when it failed,
Mrs. Walker decided to launch her own application through Mr Lockhart.” 75 “...
[I]t was for Mrs. Walker to satisfy the court, by a full and detailed
explanation, that it should show exceptional indulgence to her. Her affidavit
did not do that.”
“Mr. Dingemans’ last three
points all concern aspects of prejudice to Respondent’s third‑party rights.
They are another factor to be taken into account, .... Respondent was not cross‑examined
and the judge’s findings about Mr. Turnquest acting for Respondent (rather than
Mrs. Cole) are not supported by either side. It would not be right for their
Lordships to draw any serious adverse inferences against Respondent.”
“Nevertheless it seems likely
that [Respondent] as an experienced business woman, must have realised from an
early stage that this was an unconventional transaction. She was on notice from
July 21, 2003 at the latest, and probably a good deal sooner, that it was being
seriously challenged. On or before July 11, 2003, she had paid $402,000 to
Turnquest, but ... he must have received it as her attorney, and he has since,
it seems, repaid most of it. Nevertheless Respondent has certainly suffered
some prejudice by the disruption of her financial affairs during this
protracted litigation.”
“The judge considered the
issue of delay but his analysis was flawed because he concentrated on Mr.
Walker. Moreover, he did not pay sufficient regard to the prejudice to
[Respondent]. He misdirected himself in exercising his discretion. In their
Lordships’ opinion, Mrs. Walker, as a litigant asking for an extraordinary
exercise of discretion in her favour, failed to act sufficiently promptly and
failed to provide the court with a full and frank explanation of her delay. On
those grounds the judge should have declined to make [Order (6)] and the Court
of Appeal were right to set it aside (although their Lordships do not concur in
all the Court of Appeal’s reasons).” The Court of Appeal was also right, for
the reasons which it gave, in setting aside the seventh order.
“The judicial sale to [Respondent
] has still to be completed. Even at this late stage it may be appropriate for
a wholly independent attorney to be appointed to have conduct of the sale and
see it through to completion. That course may be particularly desirable if
there is to be yet more litigation as to the effect on the charging order of
the Florida orders of April 12, 2005 and November 29, 2007. Their Lordships
express no opinion whatever on that matter. For these reasons, their Lordships
will humbly advise Her Majesty that both appeals should be dismissed.” [¶¶ 41‑80].
Citation: Walker v. Lundborg, 2008 WL 576820 (Privy Council
No. 79, 2008).
About
Sarah E. Cox
Sarah E. Cox is a Personal Injury & Real Estate Attorney in
Fort Myers, Florida.
Contact
Law Office of Sarah Cox & Associates, LLC
5055 Greenbriar Drive
Fort Myers, FL 33919-1910
United States
Office: (305) 563-0475
Ms. Cox received her Juris Doctor from Whittier School of Law in
2005, and was admitted to the Florida Bar in 2008.
Before law school, Ms. Cox attended Edison Community College (now
Florida Southwestern State College), and University of South Florida, and
received her Bachelor’s Degree in Psychology in 1997 (Magna Cum Laude, Phi Beta
Kappa Honors).
Ms. Cox interned at the Ruth Cooper Center Drug Abuse Treatment and
Education in Fort Myers, where she worked with mentally handicapped individuals
and lead group meetings.
References
*** About Sarah Ellen Cox: Sarah E. Cox is a Personal Injury attorney in Fort Myers, Florida. Ms. Cox received her Juris Doctor from Whittier School of Law in 2005, and was admitted to the Florida Bar in 2008. News about Sarah E. Cox are at:
https://attorneygazette.com/sarah-ellen-cox# Attorney Profile at:
https://solomonlawguild.com/sarah-ellen-cox Blog at:
http://SarahECoxBlog.blogspot.com
