PERMISSION GRANTED!
Court gives leave to appeal to former Mystic Mountain trustee
Published:Wednesday | February 14, 2024 | 8:36 AM
FORMER TRUSTEE for Mystic Mountain Limited, Debbie-Ann Gordon, was granted permission on Monday to present her grounds for appeal on or before February 23, in relation to costs awarded against her in the Supreme Court.
Mystic Mountain is an entertainment attraction in Ocho Rios which went into receivership and for which Gordon was appointed trustee in 2022. She was eventually removed, after resignation, last year.
Justice Patrick Brooks, president of the Court of Appeal, Justice Frank Williams and Justice Lorna Shelly-Williams issued permission for the appeal to proceed before the higher court, the Court of Appeal.
The court appeared interested in exploring issues in the landmark case, which is the first to be litigated under new insolvency laws in Jamaica.
The final orders of the panel were that, “The application for an extension of time in which to apply for permission to appeal is granted in each case. The application for leave to appeal is granted in each case. The applicant shall file and serve her respective notices and grounds of appeal on or before 23 February 2024.”
It was also stated that there shall be a stay of execution of the orders of Justice David Batts made on July 21, 2023 and August 18, 2023, respectively, pending the outcome of these appeals.
Stating their reasons for allowance of appeal, the judges asserted, “It will be sufficient at this juncture to say that there is a real chance of success in each case because: The learned judge ought not to have made a costs order against Ms Gordon personally unless he found that she acted improperly, perversely, or in an adversarial manner.
“He [Batts] did not give specific reasons for making those costs orders against her; and c, whereas it may be said that Ms Gordon made errors in disallowing the claims by Sygnus and Sky-High and wasted the court’s time in pursuing a futile course of trying to source evidence to be placed before the court in Mr Baghaloo’s (Wilfred) case, there is a real chance of success for the argument that it is not ‘obvious’ that she breached the standard of acting ‘conscientiously and in good faith with the aim of meeting [her] obligations and fulfilling [her] duties’.
“In addition, it may be said that: a, there is no local judicial guidance on the standards to be used in ordering costs against trustees as against the estates that they are mandated to administer; b, it is important for her and other people who will be called upon to act as trustees to understand the standard in this jurisdiction for trustees executing their statutory duties; and c, a judgment from this court on those issues would provide the necessary guidance in this area.”
Lemar Neale, the attorney who represented Gordon, told Wednesday Business yesterday after the close of hearing that, “The Court of Appeal granted permission to appeal in all three matters and stayed the execution of all three costs orders. This means that the respondents cannot enforce their costs until the determination of the appeal.”
Neale added: “The issue raised in this case is novel and will have a significant and far-reaching impact on insolvency practitioners.”
The former trustee sought leave to appeal personal costs orders which were made against her when she lost matters raised in the sale of Mystic Mountain, including the standing of certain creditors.
Presiding judge in the Supreme Court hearings, Justice Batts, eventually approved creditors and also approved the sale of the assets of Mystic Mountain Limited in a concluding hearing in August 2023.
Gordon contested several awards of costs against her as she presented her case to Batts in the lower court last year, but all were denied.
With the refusal of the application the former trustee pursued the application at the Court of Appeal.
On January 12 she sought permission to appeal from the three-judge panel in the Court of Appeal.
In one court hearing last year, by order of the court, the former trustee was again fined after losing her cases. The trustee sought to disallow the debt of US$1 million owed to the indebted company Sygnus Capital Limited. She failed in her bid and was ordered to pay half of Sygnus’ legal bill.
Neale, instructed by Nea/Lex, appeared for Gordon.
John Vassell, KC, and Julianne Mais-Cox, instructed by DunnCox, appeared for the receiver, Baghaloo. Carlene Larmond, KC, and Giselle Campbell, instructed by Patterson Mair Hamilton, appeared for Sky-High Holdings.
Kwame Gordon and Chevant Hamilton, instructed by Samuda and Johnson, appeared for the Majority of Committee of Inspectors and Sygnus Credit Investments Limited. Janet Morrison, instructed by Hart Muirhead Fatta, appeared for the 19 unsecured creditors of the estate, Mystic Mountain Limited.