Apollon Metaxides v Swart and Others (The Bahamas)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Toulson |
| Judgment Date | 14 July 2015 |
| Neutral Citation | [2015] UKPC 32 |
| Date | 14 July 2015 |
| Docket Number | Appeal No 0062 of 2013 and 0073 of 2013 |
| Court | Privy Council |
[2015] UKPC 32
From the Court of Appeal of the Commonwealth of The Bahamas
Privy Council
Lord Neuberger
Lord Clarke
Lord Carnwath
Lord Toulson
Lord Hodge
Appeal No 0062 of 2013 and 0073 of 2013
Appellant (Apollon Metaxides)
Christopher Maynard Edwin Knowles
(Instructed by Wragge Lawrence Graham LLP)
Respondents
Frederick Smith QC Ruth Jordan
(Instructed by Simons Muirhead & Burton)
Appellant (Silver Point Condominium Apartments)
Gail Lockhart Charles Rhyan Elliott Sharanna Bodie
(Instructed by Harcus Sinclair)
Heard on 25 June 2015
The protagonists in this case are two groups of owners of apartments in a multi-unit condominium ("the condominium") and the body corporate which is responsible for its management and maintenance. The warring groups of owners are the Metaxides group and the Swart group. The body corporate is styled Silver Point Condominium Apartments (" SPCA"). The condominium is known as Silver Point Condominium Apartments and is situated in Freeport, Grand Bahama.
On 11 January 2006 Mr Metaxides began proceedings, on behalf of himself and other members of the Metaxides group, by an originating summons ("the Metaxides action") to which the Swart group were not parties. That action led to a settlement agreement between Mr Metaxides and SPCA embodied in a consent order dated 19 June 2009, which was followed by an amended agreement and amended consent order dated 19 March 2010.
On 25 November 2010 the members of the Swart group began proceedings against Mr Metaxides, on behalf of himself and other members of the Metaxides group, and against SPCA ("the Swart action"), seeking a declaration that the amended consent order in the Metaxides action was invalid and an order setting it aside. After a four day hearing, Longley SJ delivered a reserved judgment on 16 March 2012 dismissing the claim. One of the Swart group's arguments was that the purported consent orders were in law a nullity because the originating summons in the Metaxides action had been issued against a non-existent defendant (Silver Point Limited) and had never been properly amended to join SPCA. The judge made short shrift of this point, saying that the action had proceeded on the basis that the proper parties were before the court, that an application to set aside an irregularity should be made within a reasonable time and that there was no merit in the submission advanced.
The Swart group appealed on numerous grounds. It is questionable whether their notice of appeal embraced the point that the Metaxides action was invalidly constituted, but the argument was advanced at the hearing of the appeal before the Court of Appeal of the Commonwealth of The Bahamas (Allen, President, and Blackman and John, JJA) without objection by the respondents to the appeal.
The Court of Appeal dealt with the matter as a preliminary issue and overruled the decision of Longley SJ for reasons given in a judgment delivered by John, JA on 2 May 2013. After citing Lazard Brothers and Company v Midland Bank Ltd [1933] AC 289 and cases on the correction of misnomers (such as Davies v Elsby Brothers Ltd [1961] 1 WLR 170 and Mitchell v Harris Engineering Company Ltd [1967] 2 QB 703), John JA held that the entire proceedings in the Metaxides action were a nullity, because the defendant originally named did not exist and "you cannot amend what never existed"; moreover there was no evidence of leave to amend having been granted in the lower court.
The question before the Board is whether the Court of Appeal was correct in its ruling; it is not concerned with any other aspects of the dispute (about which there has been no decision by the Court of Appeal). To answer that question it is necessary, first, to understand how SPCA fits into the picture and, secondly, to identify the key procedural events.
Under the Law of Property and Conveyancing (Condominium) Act 1965 a condominium may be established by an instrument termed a "declaration", which must be lodged with the Registry of Records of The Bahamas. The declaration must contain, or have annexed to it, a number of documents including byelaws applicable to the property. Section 13 provides:
"(1) The operation of the property shall be vested in a body corporate constituted in the manner provided by this section and such body corporate shall have the powers and duties prescribed by this Act and the relevant byelaws.
(2) [The first part of the sub-section is immaterial.] In any other case as from the date of the recording of a Declaration all the owners from time to time of the units in the property to which the Declaration relates shall constitute a body corporate by virtue of this Act under such style and title as is prescribed in the Declaration."
The operation of the property is defined as the control, management and administration of the property, including the maintenance, repair, replacement and improvement of the common property.
Under section 14 the body corporate has extensive duties and powers. Section 14(3) provides:
"All agreements, decisions and determinations lawfully made by the body corporate in accordance with this Act, the relevant Declaration and the byelaws shall be deemed to be binding on all unit owners."
The condominium was established by a declaration dated 22 January 1968. The declarant was Silver Point Limited, which had developed the site. Clause 13 of the declaration provided:
"The owner for the time being of every unit in the condominium to which this Declaration relates shall ipso facto be a member of the body corporate which from the date this Declaration is recorded in the Registry shall have the style and title of the "Silver Point Condominium Apartments" and which shall be charged with the operation of the property by virtue of Section Thirteen (13) of the Act."
The declarant, Silver Point Limited, had no responsibility for, or control over, the operation of the condominium and it had ceased to exist by the time that the Metaxides action was commenced.
The background to the litigation was that the Metaxides group had fallen out with some other unit owners and the board over a number of issues, including whether unit owners should be permitted to replace the original windows and doors with others which did not match...
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