Sunday, October 28, 2018

Attorney Sarah Cox introduces new “Fresh Start” Flexible Payment Plans for all New Clients

Attorney Sarah Cox introduces new “Fresh Start” Flexible Payment Plans for all New Clients

Part of a growing trend, South Florida law firm of Sarah E. Cox offers flexible payments for clients with financial constraints

Many people who need legal help hesitate to contact a lawyer because they think they cannot afford it. Some law firms and solo legal practitioners now offer more flexible payment arrangements.

“Affording a lawyer can be difficult and stressful in many circumstances. The Law Offices of Sarah Cox, Esq., however, wants to assist as many people as possible, so flexible payment plans, individually tailored installment payments, flat-fee cases, retainers, and even success-based fee options are available under certain circumstances …” says Sarah E. Cox, Attorney at Law in Fort Myers, Florida. 

“That’s the driving force behind our new ‘Fresh-Start’ Payment Plans. As everyone’s legal case is different and requires an individually-tailored strategy, so does their financial situation and circumstances; and our new Payment Plans offer our clients exactly that.”  The amount of the “flat-fee” and/or any hourly billing will vary depending on the case and client.  

However, the Law Offices of Sarah Cox aims to be competitive and just with their legal service pricing. “We here at our Law Practice aim to do just that.  I fully understand that not all clients are going to be able to pay all fees up front, therefore flexible payment arrangements may be made.”  

These will vary depending upon what is agreed to by both Parties, whether it is a lump sum and then small payments after that or monthly/weekly arrangements.  A Retainer Fee is a “lump sum” payment charged to commence legal services which retains the lawyer’s services and creates the underlying Attorney-Client relationship.  

Part of the philosophy of Ms. Cox is that the South Florida community has given so much to this office and its success, therefore, our goal is to give back …” Ms. Cox added.  “Not everyone will qualify elsewhere but our Law Office is willing to work with our Clients.”  Some cases may even be handled on a “Success-Basis.”   This essentially means that the potential Client is not required to pay any fees to the Law Firm at the outset to commence services.  The Cox Law Office will determine when this possible Payment Plan applies. This may be an option for a potential client when specifically agreed upon and authorized by the Firm.

As to Initial Consultations, in most cases the Law Office does not charge for the Initial Consultation (depending on the case type), however, in those cases where a Consultation Fee is charged, once retained, the Initial Consultation Fee is thereafter applied and fully credited to the Client’s Case Account.   

About Sarah E. Cox

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.


*** 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: Attorney Profile at: Blog at:

Real Estate Attorney Sarah Cox publishes Second Issue of Law Instruction Series

Real Estate Attorney Sarah Cox publishes Second Issue of Law Instruction Series, Seminar 2 Business & Real Estate Law
Florida Lawyer Sarah E. Cox is publishing series of instructional articles, all of which will be available on her Blog; second part now available.
The second part in Sarah Cox's series of instructional articles is now available on her Blog. The second article on Business & Real Estate addresses the case of Belize Social Development Ltd. v. Government of Belize, No. 14-7002 (D.C. Cir.).

Ms. Cox summarizes the case. In action to enforce arbitral award against Belize, District of Columbia Circuit rejects Belize’s claims of immunity because transactions at issue were essentially the sale of real estate and thus commercial in nature; New York Convention’s definition of “commercial” is not the same as the FSIA’s definition.

To go into more detail, in 2005, Belize Telemedia Limited (“Telemedia”), Belize’s largest private telecommunications company, and the Government of Belize (“Belize”), acting under the direction of then-Prime Minister Said Musa, entered into an agreement styled “The Accommodation Agreement” to purchase properties from Belize which the country desired to sell in order to better accommodate the Government’s communication needs. According to this agreement, Telemedia was to obtain relief from tax and regulatory burdens otherwise applicable to the company, and receive other significant benefits. The parties also agreed on the following arbitration clause: "Any dispute arising out of or in connection with this Agreement including any question regarding its existence, validity or termination, which cannot be resolved amicably between the parties shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (LCIA) Rules which Rules are deemed to be incorporated by reference under this Section."
In November 2009, pursuant to section 207 of the Federal Arbitration Act (“FAA”), BSDL brought suit in the District Court for the District of Columbia to confirm the arbitral award. Belize moved to stay confirmation of the award pending resolution of related litigation in Belize, which the district court granted. BSDL then appealed. 

The United States Court of Appeals for the District of Columbia Circuit reversed, noting that under the FAA, the stay order was not in conformity with federal law and international commitments. The Court remanded and instructed the district court to review and grant BSDL’s petition to confirm the Final Award absent a finding that an enumerated exception to enforcement applied. On remand, Belize argued that the Prime Minister at the time of the entry of the agreement lacked authority to enter either the contract or the arbitration agreement, and that the district court lacked subject matter jurisdiction over the dispute claiming its sovereign immunity under the Foreign Sovereign Immunities Act (“FSIA”). Because Belize had not provided support for its claim with respect to the arbitration agreement, the district court held that jurisdiction was proper under the arbitration exception to the FSIA, and granted BSDL’s petition to confirm the award. Belize appealed. 

The United States Court of Appeals for the District of Columbia Circuit affirms the judgment of the District Court. The key issue here is whether and under what circumstances the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(6), arbitration exception applies to a case in which the action was brought to confirm an award made pursuant to an agreement to arbitrate. 

Sarah Cox notes that the court comes to the conclusion that: "(1) the Convention’s purpose was to ‘encourage the recognition and enforcement of commercial arbitration agreements in international contracts,’ TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 933 (D.C. Cir. 2007); (2) the word ‘commercial’ is a ‘term of art’; and (3) in implementing the Convention, Congress intended that word to have the meaning generally attached to that term in the international commercial arbitration context. As we discussed above, ‘commercial’ in the context of international arbitration refers to matters which have a connection to commerce. Belize’s argument to the contrary will not sell.”
The Court thus affirms the District Court’s decision. 

The Case Citation is Belize Social Development Ltd. v. Government of Belize, No. 14-7002 (D.C. Cir.). The article will be published in full on the Blog of Sarah Cox at

About Sarah E. Cox

Sarah E. Cox is a Personal Injury & Real Estate Attorney in Fort Myers, Florida.

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.

*** 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: Attorney Profile at: Blog at:

Lawyer Sarah E. Cox is publishing series of instructional articles, all of which will be published on her Blog

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.


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.



*** 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: Attorney Profile at: Blog at: