The Defendant’s Case. 90 The court next turns its attention to the Defendant’s case which was presented through Xxxx’x testimony. The court will first look at Xxxx’x AEIC before turning to his cross-examination testimony. 91 Unsurprisingly, Xxxx’x testimony gave a different take on the Settlement Agreement when compared with the Plaintiff’s version. 92 In his AEIC,51 Xxxx claimed that although the parties had agreed on the key points of the settlement in principle by 11pm on 26 June 2018, the specific terms of the tenancy agreement between the parties and the possible renewal of the existing tenancies were not discussed. More so such issues as subletting, 50 Chew’s AEIC, Exhibit CHK–1. 51 Xxxx’x AEIC at para 37. indemnitors and security deposit.52 Third, the Settlement Agreement did not cover a scenario where the Plaintiff was unable to obtain approval for change of use of the Defendant’s property to a hotel. In such a case, Xxxx deposed that the parties would have to discuss and agree on alternate terms on the five year renewal, discounted rent and contribution to renovation costs – all of which were only in the context of hotel usage of the Defendant Property (this third assertion was disputed by the Plaintiff). 93 Under cross-examination, however, Xxxx conceded that the Settlement Agreement was signed with the underlying understanding that there was only a possibility of obtaining a hotel licence, but no guarantee of the same.53 Contrary to the denial in the Defence, Xxxx admitted that the draft amended SOC for the 2016 Suit was indeed sent to his former solicitors on 20 June 2018. 94 Xxxx’x AEIC disclosed an event which neither Xxxxxxx nor Xxxxxxx referred to in their respective AEICS. He deposed54 that Chew in a WhatsApp message to him on 11 July 201855 told him that there was a potential Japanese buyer who was interested in purchasing both the Plaintiff’s and the Defendant’s Properties. Chew requested to market the Defendant’s property on an “as is” basis for $10x. Xxxx proposed an asking price of $13m as he believed $10m was below the market price. However, no sale materialised. I should add that during mediation the subject of selling the Defendant’s Property was discussed 52 Xxxx’x AEIC at para 43. 53 2/4/2020 NE 51, 52. 54 Xxxx’x AEIC at paras 50–52. 55 AB1167. but not pursued because the Defendant’s asking price of $17m was well above the market price (according to Xxxxxxx).56 95 In relation to the draft tenancy agreement, Xxxx deposed he felt (which sentiment he cla...
The Defendant’s Case. The Defendant’s testimony
The Defendant’s Case. 24. In her submissions, counsel for the defendant relied on the following case:
The Defendant’s Case. 11 The defendant’s case is that Xx Xx did not have its authority to seek loans from anyone let alone to enter into any loan agreements on its behalf with anyone.14 The defendant is therefore not bound by any loan agreements which Xx Xx may have purported to enter into with the plaintiff on the defendant’s behalf.
The Defendant’s Case. The defendant denies that the sums claimed in the outstanding invoices are due and owing to the claimant.
The Defendant’s Case. [10] The Defendant position is that notwithstanding the terms of the Notice of Assignment and the “acceptance and willingness to pay unconditionally the full amount stated when due and payable...” its liability under the assignment could not exceed its liability to Sure and to the extent that it did not sell the Drink supplied pursuant to the Consignment Agreement (save for 36 cases), a debt or liability to Sure in the amount of $1,657,000.00 did not arise and could not therefore be the subject of a cause of action by the Claimant based on an assignment. [11] Xxxxxxx, The Law of Contract 12 Ed para 15-001 describes an assignment as follows: [12] A chose in action can also be assigned. A chose in action describes all personal rights of property which can only be claimed or enforced by action and not by taking physical possession. According to Cheshire, Fifoot and Furmston’s Law of Contract 15th Ed. at pg 643; [13] There is no prescribed formulation for an equitable assignment. Where there is a contract between the owner of a chose in action and another person which shows a clear intention that such person is to have the benefit of the chose, there is without more a sufficient equitable assignment. [14] Section 49(f) of the Judicature (Supreme Court) Act provides for a statutory assignment as follows: [15] In New Falmouth Resorts Limited v International Hotels Jamaica Limited SCCA No 32/2009 delivered April 20, 2011, the Court of Appeal in examining the law in relation to assignments in Jamaica stated as follows:
The Defendant’s Case. Having failed to file a defence, the defendants were unable to adduce any evidence in defence of the claim against them. According to CPR Part 12.11, “unless he obtains an order for judgment to be set aside, the only matters on which a defendant against whom a default judgment has been entered may
The Defendant’s Case. The Defendants have advanced the following arguments in support of their claim to protection of the Act:
The Defendant’s Case. Xx is Readymix’s case that there was an implied term of the contract which entitled them to terminate with immediate effect if the claimant carried pitrun past Readymix’s Checker without first stopping, presenting and having the same verified. Readymix asserted in their pleadings that on the 26th March 2015, 10th April 2015 and 27th April 20151 the claimant’s trucks exited the quarry after the removal of pitrun without being checked and without being issued any verification documents. This breach of procedure amounted to a “Theft of [Readymix’s] pitrun supply”, an expressed reason for termination. Therefore, despite the Notice of Termination’s failure to connote this reason for termination, they were nonetheless entitled to terminate Xxxxxxxx’x contract.
The Defendant’s Case. There is no dispute as to the publication of the offending article in the Gleaner as alleged by the Claimant. The Defendant however denies that the natural and ordinary meaning of the words complained of by the Claimant is as suggested by the Claimant. It is also refuted that by innuendo the words would bear the meaning argued for by the Claimant. It was accepted that the there was the exchange of correspondence referred to above. Further, it was submitted by counsel for the Defendant that after the letter of March 8, 2004 from the Gleaner’s Legal Advisor to the Claimant’s counsel, a letter from the Claimant’s then counsel, dated March 24, 2004 which enclosed a draft apology. The letter demanded that the draft apology with the suggested headline intact, be published on page 1 of the Daily Gleaner.
