James Watlington v Shawn Thomas

• Jurisdiction: Bermuda
• Judge: Mussenden J
• Judgment Date: 25 October 2023
• Court: Supreme Court (Bermuda)
• Year: 2023
• Docket Number: CIVIL JURISDICTION 2022: No. 143

Between:

James Watlington

Plaintiff

and

Shawn Thomas

Defendant

[2023] SC (Bda) 85 Civ.

CIVIL JURISDICTION 2022: No. 143

In The Supreme Court of Bermuda

Appearances:

Paul Harshaw, Canterbury Law Limited, for Plaintiff

Marc Daniels, Marc Geoffrey Ltd, for Defendant

RULING

RULING of Mussenden J

Mussenden J

1 There are 2 applications before me:

• a. A summons to set aside judgment dated 26 October 2022.

• b. A summons to vary judgment to the sum of $32,730 dated 17 May 2023.

2 Mr. Daniels withdrew the summons to set aside judgment. This was foreshadowed by the Order dated 30 March 2023. I grant costs to the Plaintiff for the withdrawn summons on a standard basis.

3 In respect of the summons to vary, Mr. Daniels has applied to amend the summons to a new figure of $38,147.73. This is based on total payments by Mr. Thomas of $33,062.88, a sum which Mr. Harshaw agreed was not in dispute. The new amount of $38,147.73 is based on the affidavit of Chartered Accountant Ms. Nesbitt who had opined that Mr. Thomas had calculated his figure incorrectly. Mr. Harshaw opposes the last-minute application to amend. In my view, I should allow the amendment as (i) it is based on the accountant's calculation; (ii) she has explained how Mr. Thomas calculated his figures incorrectly; and (iii) the corrected amount is for more that the amount on the summons, thus it is to the advantage of the Plaintiff, if I subsequently allow the application to vary the judgment.

4 I note that allowing the amendment to the summons results in the Nesbitt affidavit and the summons to be consistent; and the Thomas affidavit in respect of the payments paid to be consistent with the accountant's calculations. It is not challenged.

5 Mr. Daniels submitted that the judgment sum should be varied based on the accountant's calculations and the documented proof of the 7 payments made to the Plaintiff. In essence, he urges the Court to accept the new amount based on those payments.

6 Mr. Harshaw submitted that the second affidavit of Mr. Thomas admits the Promissory Note, and admits that repayments were made. However, Mr. Harshaw complains of the credibility of Mr. Thomas in that he is acting for an ulterior motive. Thus, the Court should take this into consideration. He referred to the original denials of the Promissory Note and signatures. He also referred to allegations of fraud and dishonesty in counsel's correspondence, which have not been...