Acting Commercial Court Judge Adrian Jack has ruled that there was no need for well-known businessman Philiciano ‘Foxy’ Callwood to apply to the court for ‘relief’ in his lawsuit against his wife Teresa and daughter Justine.
According to Justice Jack’s ruling, which was posted on the Eastern Caribbean Supreme Court’s website, Foxy had two primary complaints.
“The first is that he has been excluded from the management of the three companies (Foxy’s Tamarind Bar Ltd, Foxy Retail and Jost Van Dyke Island Produce Ltd) and that monies have gone missing,” the court document stated.
Foxy had filed the complaint last month.
Ruling on the matter, Justice Jack said: “There is, in my judgment, no need for Foxy to have sought relief, particularly the draconian relief sought, ex parte. For all these reasons, I adjourned consideration of the relief sought.”
The other complaint
The second complaint from Foxy is that his wife and daughter have underwent building works on a portion of his land on Jost Van Dyke without his consent.
“On January 8, 2020, the Planning Authority of the Government of the Virgin Islands issued a compliance notice on Foxy in respect of the works. The nature of the works erected is not entirely clear from the evidence put before me. Three very poor quality photographs attached to the compliance notice suggest the works may comprise a small beach bar. The notice requires that the works be removed ‘forthwith’. Foxy is given 28 days to appeal against the notice. He wants the defendants to remove the structure,” the judgement read.
Justice Jack said an application would only be considered ex parte for some good reason.
Effectively, an ex parte application is a judicial proceeding conducted for the benefit of only one party.
“In the current case, the risk identified is that Teresa and Justine may dissipate the assets of the three companies if they are notified of the application. The evidence of risk of dissipation is in my judgment sparse. Foxy in his evidence, raises issues about the payment of excessive sums by way of holiday pay, but these go back as far as 2015. That hardly shows any urgency,” the judgement read.
Justice Jack further said: “The appointment of a receiver is more intrusive, more expensive, and less reversible that the grant of an injunction … [T]he appointment of a receiver is usually more draconian than issuing a freezing order because of the expenses and inconvenience which often arise with the appointment.”
The Commercial Court Judge added that applying for the ex parte to remove the small beach bar was ‘misconceived’.
He explained: “There is jurisdiction to make a mandatory order on an interlocutory basis, but it would require a very strong case to make such an order without hearing the defence. This is not such an extreme case. Further, it is unclear why Foxy needs such an order. It is his land. He can, at least in principle, knock buildings down on it. He could then recover the cost of demolition as damages. An injunction will generally be refused if damages would be an adequate remedy.”
Hole in evidence
The judge further said, there is a ‘substantial hole in Foxy’s evidence’.
He stated: “On an ex parte application there is a duty of full and frank disclosure. Nowhere does Foxy explain anything about his matrimonial relations with his wife. I assume that they are not good since otherwise, it is unlikely that he would be suing her. However, they clearly get along sufficiently for her to be (as she has always done during the marriage) running the commercial side of Foxy’s businesses. An injunction (or the appointment of receivers) is a discretionary matter. The court needs to know the background in order properly to exercise its discretion.”
Justice Jack noted that a husband and wife are considered ‘one person’.
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