Burgess, Dudley v Exton Wynter

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. CL. B 055 OF 1997

BETWEEN

AND

DUDLEY BURGESS

EXTON WY NTER

CLAIMANT

DEFENDANT

IN CHAMBERS

Mr. Laurence Jones instructed by DunnCox for the claimant

Miss Tashia McDonald instructed by Lyn-Cook, Golding and Company for the

C defendant

November 18, December 13,2005 and January 26,2006

Sykes J

SECTIONS 70 AND 451 OF THE CIVIL PROCEDURE CODE, PARTS 12,42 AND 73 OF

THE CIVIL PROCEDURE RULES, 2002

1. This is a preliminary point that has arisen on an application to set aside judgment in

default of defence. The question is whether the claim was still in existence after December

31, 2003, so that a judgment could be entered in February 2004.

2. The claimant, Dudley Burgess, sued the defendant, Exton Wynter, to recover one

million, two hundred and seventy nine thousand, eight hundred dollars (JA$l, 279, 800).

This was to recover money outstanding for work done and material used in respect of a

construction of a house at Retreat in the parish of St. Thomas. The suit was launched, in

1997, by way of writ of summons endorsed with a claim for the sum already mentioned. The

writ was served out of jurisdiction pursuant to an order made on April 21, 1997. Appearance,

to use the terminology of the then extant Civil Procedure Code (CPC), was entered on May

21, 1998. Notice of change of attorney for the defendant was filed on July 3, 1998. On

January 10, 2000, the claimant filed a notice of intention to proceed. Thereafter a number of

documents and applications was filed which is best set out in chronological order.