Gibbons & Heyrana v DeSilva

• Jurisdiction: Bermuda
• Judgment Date: 06 October 2020
• Docket Number: Civil Jurisdiction 2019 No 449
• Court: Supreme Court (Bermuda)

[2020] Bda LR 61

In The Supreme Court of Bermuda

Civil Jurisdiction 2019 No 449

Between:

Adam John Gibbons

Ryan Heyrana

Plaintiffs

and

Sean Desilva

Defendant

Mr B McCosker for the Plaintiffs

Mr R Horseman for the Defendant

The following cases were referred to in the judgment:

The Moorcock (1889) 14 PD 64

ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472

Andrew Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537

Application to set aside default judgment — Test to be applied — Purchase of boat — Implied terms — Burden of proof

JUDGMENT of Hargun CJ

Introduction

1. This is an application by Sean DeSilva, the Defendant, to set aside a default judgment dated 18 February 2020. The default judgment was obtained by Adam Gibbons and Ryan Heyrana, the Plaintiffs, on the ground that the Defendant had failed to file and serve the Defence in this action as required by the Rules of the Supreme Court. By that Judgment, the Court ordered that the Defendant pay to the Plaintiffs $39, 590 and pre-judgment interest pursuant to the Interest and Credit Charges (Regulation) Act of 1975 in the sum of $364.44 together with costs of the proceedings.

Procedural Background

2. The Plaintiffs commenced these proceedings by Specially Endorsed Writ of Summons filed on 7 November 2019. In the Statement of Claim, the Plaintiffs relied upon a binding agreement between the Plaintiffs and the Defendant, in September 2018, whereby the Defendant agreed to purchase in Florida a 20 ft. Aqua Sport Centre Console built in 1979 (the “Vessel”), import it to Bermuda and thereafter to refurbish it so that it could be used for recreational purposes in Bermuda's harbours and littoral waters. The Statement of Claim alleges that the Defendant agreed that he would sell the refurbished Vessel to the Plaintiffs for an “all inclusive” price of $15,000.

3. In the Statement of Claim, the Plaintiffs assert that it was an implied term of the agreement that the Vessel would be structurally and mechanically sound; and that it would be delivered in a safe and seaworthy condition, suitable for recreational use in Bermuda's harbours and littoral waters. The implied term is said to be necessary in order to give “business efficacy” in accordance with the principle in the The Moorcock(1889) 14 PD 64 and section 14 of the Sale of Goods Act of 1978.

4. The Plaintiffs further allege in the Statement of a Claim that in about May 2019, the Defendant announced that the refurbishment and remedial work on the Vessel was complete and it was ready for sea trials. The Plaintiffs arranged for the Vessel to be inspected by a qualified marine surveyor, Mr Tyrone Sampson, to confirm the seaworthiness and insurability. The seaworthiness inspection was carried out by Mr Sampson on 9 May 2019. Mr Sampson's report identified, inter alia, the following issues with the Vessel which, the Plaintiff alleged, compromised its seaworthiness:

• i. The core of the cockpit sole had delaminated, comprising the cockpit sole and making it impossible to permanently secure the centre console of the Vessel;

• ii. The engine bilge was not watertight;

• iii. The fuel tank filler hose had deteriorated and needed to be replaced with an approved type; and

• iv. The low-lying water line and soft cockpit sole required an additional bilge pump together with a redundant electrical supply.

5. In his report, Mr Sampson concluded that the Vessel had been cosmetically overhauled but that the sole was compromised to the point where the Vessel was a poor marine risk:

“The above vessel at this inspection had the transom replaced and deck, hulls, bottom and sides nicely painted. The bottom appeared structurally sound and in good condition. However, it is not a good marine risk in its present condition.”

6. Following the seaworthiness inspection and the delivery of Mr Sampson's report, the Plaintiffs allege that they asked the Defendant to undertake further remedial work to ensure that the Vessel could be delivered in accordance with the terms of the agreement. The Plaintiffs further allege that the Defendant stated that he would not undertake the further remedial work required to ensure the seaworthiness of the Vessel unless the Plaintiffs pay a further sum of US$10,000.

7. As at the date of the Statement of Claim, the Defendant remains in possession of the Vessel and the US$39,500 which has been paid to the Defendant by the Plaintiffs.

8. In accordance with RSC Order 18, rule 2, the Defendant was required to serve his Defence within 14 days after latter of the time limited for appearing or after the Statement of a Claim had been served upon him. In either case the Defendant's Defence was therefore due to be served by no later than Monday 9 December 2019. On 4 December 2019, Mr Charles Richardson of Compass Law Chambers filed a Memorandum of Appearance on behalf of the Defendant but failed to file the Defence by the required date of 9 December 2019.

9. Counsel for the Plaintiffs sent an email to Mr Richardson on the 20 January 2020 putting him on notice that the Plaintiffs intended to enter a default judgment...