…for design of head office
Local financial institution – New Building Society Ltd (NBS) – was on Friday ordered by the Caribbean Court of Justice (CCJ) to pay over G$15 million to a local architect for works done on its new head office building located on Avenue of the Republic and North Road, Georgetown.
The CCJ discharged a stay of execution that had been granted in a lower court, thus enabling the company, Rodrigues Architects Ltd, to recover the balance of monies due.
In 2015, High Court Judge, Justice Rishi Persaud ordered the building society to pay Rodrigues Architects Ltd the sum of GY$15,897,625, plus six per cent interest per annum from November 27, 2008 to September 29, 2015, and thereafter at the rate of four per cent per annum until fully paid. Additionally, the court had ordered G$100,000 for costs. He further ordered that there be a stay of execution for a period of six months from the date of the order.
No judgment, however, has yet been delivered to provide reasons for the order.
New Building Society Ltd applied for a stay of execution of the judgment pending the appeal.
Justice of Appeal BS Roy granted the stay until the determination of the appeal but ordered that the judgment sum due to Rodrigues Architects Ltd be deposited with the Registrar to be put in an interest-bearing account to await the outcome of the appeal. Rodrigues Architects Ltd failed to get Guyana’s Court of Appeal to overturn Justice Roy’s decision. The company then applied to the CCJ to discharge the stay of execution and obtain the deposited sum.
The CCJ, after reviewing the affidavit evidence, found that Justice Roy had erred in making his orders and the Court of Appeal had erred in reviewing those orders and letting them stand.
“No stay should have been granted because it had not been shown that there was a good prospect of the appeal succeeding nor that there was no reasonable probability that the company would be able to repay the money received from the building society if the latter’s appeal succeeded,” the CCJ said in a statement on Friday.
Further to that, Rodrigues, a Director of the company who has been in business for over 35 years, had been prepared to guarantee that he would personally repay the judgment sum paid to Rodrigues Architects Ltd if the society’s appeal succeeded.
As security, he agreed that he would not encumber or dispose of a particular property of his worth over G$50 million.
In explaining the principles to be considered when a stay of execution of a judgment involving money is sought, the CCJ emphasised that a stay of execution is the exception rather than the rule and that the onus is on the applicant to make out a case for a stay which required the court to answer the “essential question whether, in all the circumstances, there was a risk of injustice to one party or the other of the parties if it grants or refuses a stay”.
In answering this question, the Court required four issues to be considered. First, whether the defendant applying for a stay can satisfy the court that the appeal has a good prospect of success. Second, whether the defendant could establish that he would be ruined or his appeal stifled if forced to pay out the judgment sum immediately, instead of after an unsuccessful appeal. Third, whether there was no reasonable probability, if an appeal was successful, that the claimant would be in a position to repay the monies paid by the defendant to satisfy the judgment. Fourth, as a last resort, whether there is a risk that the claimant will be unable to enforce the judgment if a stay is granted and the defendant’s appeal fails, when a payment of all or part of the judgment sum into court may be appropriate. For ease of reference, a checklist was added to the judgment which explained how the question about stay of execution should be dealt with where there is a money judgment.
The CCJ, with the consent of both parties at the end of the hearing, made various orders discharging the stay of execution, enabling the sum deposited with the court in Guyana to be released to Rodrigues Architects Ltd and enabling it to execute the judgment against New Building Society Ltd for the balance of monies remaining due under the judgment.
