[2011] JMCA Civ 15

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO. 101/2009

BEFORE: THE HON. MR JUSTICE PANTON P

THE HON. MRS JUSTICE HARRIS JA
THE HON. MRS JUSTICE MCINTOSH JA

BETWEEN DOROTHY VENDRYES APPELLANT

AND DR RICHARD KEANE 1ST RESPONDENT

AND KARENE KEANE 2ND RESPONDENT

Andre Earle and Miss Anna Gracie instructed by Rattray Patterson Rattray
for the appellant

Nigel Jones instructed by Nigel Jones & Co. for the respondents

26, 27 October; 20 December 2010 and 15 April 2011

HARRIS JA

[1] This is an appeal against the decision of Sykes J contained in an

order made on 17 July 2009, where he ordered as follows:

“Default judgment is set aside;

1. In exercise of the Case Management

Conference powers, Judgment entered on
Claim Form filed on July 16, 2007.
 2. Leave to Appeal granted;

3. Costs of the applications to the Claimants;

4. Application for a Stay of Proceedings denied.”

[2] On 20 December 2011 we made the following order:

“Appeal allowed. The decision of the Honourable

Mr Justice Sykes on 17 July 2009 is set aside. The
counter notice of appeal is dismissed. Costs
below and here to the appellant.”

It is further ordered that the counter notice to the counter notice of

appeal is allowed. We promised to put our reasons in writing. This

obligation we now honour.

[3] On 26 September 2003, the appellant and the respondents entered

into a lease agreement in respect of land part of Unity Hall in the parish of

Saint James, comprised in Certificate of Title registered at Volume 1056

Folio 390 of the Register Book of Titles. With the respondents still in

possession as tenants, on 31 December 2004 the parties executed two

agreements, one for the sale of chattels and the other for the sale of the

property, to the respondents, for the sum of US$300,000.00. It was agreed

that both agreements should be read and construed as one. The

respondents were required to pay a deposit of US$30,000.00 and a further

payment of US$95,000.00 upon execution of the agreement and the

balance payable on completion. The time for completion was stated to

be as follows:
 “On or before the expiry of Ninety (90) days from
the date of execution hereof and upon payment
of the Purchase Price and all fees and costs, in
exchange for the Duplicate Certificate of Title in
registerable form subject to the provisions of
Special Condition 7 hereof.”

[4] It was also a term of the agreement that possession would be

subject to the existing tenancy. Completion was subject to the

respondents obtaining a mortgage. Clause 6 of the special conditions of

the agreement was expressed to be as follows:

“This Agreement is subject to the Purchasers

obtaining a loan to be secured by a legal
mortgage over the said property for an amount
of not less than TWO HUNDRED AND SIXTY
THOUSAND DOLLARS UNITED STATES CURRENCY
(US$260,000.00) OR THE Jamaican dollar
equivalent thereof from a recognized financial
institution and shall be on such terms and
conditions as are usually granted by that
institution. The Purchasers shall deliver to the
Vendor’s Attorneys-at-Law a letter of
commitment for such loan within forty-five (45)
days of the date hereof; in the event of the
Purchasers failing so to do the Vendor shall be
entitled to rescind this Agreement within fourteen
(14) days thereof and deposit shall be refunded
to the Purchaser free of interest and free from
deductions.”

[5] At the time the parties entered into the agreement for sale, the

property was subject to a mortgage to the Jamaica Redevelopment

Foundation. There was no evidence that the mortgagees had consented

to the sale to the respondents. Significantly, on 8 September 2004 a

Receiver was appointed in respect of the property and the respondents

ceased to pay rent after that time.

[6] By letter dated 9 March 2005, the respondents’ attorneys-at-law

wrote the appellant’s attorneys-at-law advising them that there were

defects in the title. On 22 April 2005, Messrs Livingston Alexander and

Levy, acting on behalf of Scotia Building Society from which the

respondents had secured a mortgage undertaking, wrote to the

appellant’s attorneys-at-law informing them that it required a perfect title

prior to releasing the balance of the purchase money. The appellant was

unable to complete the transaction for two reasons, namely, a defect in

the title and the acquisition of the land by the government for the building

of a highway.

[7] A notice to complete was served on the appellant on 4 May 2007.

The appellant being unable to effect transfer of the said lands by

producing the document of title, impelled the respondents, on 17 July

2007, to bring an action against her by way of a claim form accompanied

by particulars of claim, claiming specific performance of the contract.

There was also a claim for damages “in excess of JA$4,368,338.85” as well

as the sum of US$110,000.00 being the fees and expenses incurred by

them because of the appellant’s breach of the contract. The appellant

was served with the claim form and the particulars of claim. However, the
prescribed notes for defendants (form 1A), the form of acknowledgement

of service (form 3) and the form of defence (form 5) were not served. The

appellant did not file an acknowledgement of service.

[8] On 18 October 2007, the respondents filed a request for judgment in

default of acknowledgment of service. On 29 October 2007, the

respondents filed an amended claim form and particulars of claim,

adding Jamaica Redevelopment Foundation as a defendant. Included in

the amended pleadings were additional averments as well as a claim for

an injunction. The amended documents were served on the Jamaica

Redevelopment Foundation but not on the appellant. The claim against

the Jamaica Redevelopment Foundation was discontinued on 20

November 2007. On 26 November 2007 the appellant was served with a

copy of the default judgment. The Jamaica Redevelopment Foundation,

in the exercise of its power of sale as a mortgagee, sold the property to

Postroad Ltd to which it was transferred on 3 December 2008.

[9] The appellant, on 30 November 2007, filed a notice of application

for court orders with an affidavit in support thereof seeking to have the

default judgment obtained by the respondents set aside and to have an

extension of time to file her defence. The appellant sought to have the

default judgment set aside on the ground that the judgment was wrongly
entered due to the respondents’ failure to comply with rule 8.16 (1) of the

Civil Procedure Rules (“CPR”).

[10] In dealing with the question of the setting aside of the judgment in

default, the learned judge took into consideration rule 8.16 (1) which

prescribes as follows:

“8.16 (1) When a claim form is served on a

defendant, it must be accompanied by –

a. a form of acknowledgement of
service (form 3 or 4);

b. a form of defence (form 5);

c. the prescribed notes for defendants

(form 1A or 2A);

d. a copy of any order made under

rules 8.2 or 13; and

e. if the claim is for money and the

defendant is an individual, a form of
application to pay by installments
(form 6);

(2) There must be inserted on each form –

a. the address of the registry to which

the defendant is to return the forms;

b. the title of the claim; and

c. the reference number of the claim.

(3) Where there is a standard defence form

appropriate to the particular case set out
in a practice direction, the form sent to the
defendant must be in a standard form of
 that type.”

[11] He noted that the forms to which reference is made under (a), (b)

and (c) of the rule were not served on the appellant. He then went on to

examine and analyze the contents of the relevant forms. He did not fail to

acknowledge that their contents comprise important information which

makes service of these forms mandatory. Thereafter, he, concluding that

service of the documents was a mandatory requirement, set aside the

default judgment on the ground that it had been irregularly entered.

[12] Rule 8.16 (1) expressly specifies that, at the time of service, the

requisite forms must accompany the claim form. The language of the rule

is plain and precise. The word “must’, as used in the context of the rule is

absolute. It places on a claimant a strict and an unqualified duty to

adhere to its conformity. Failure to comply with the rule as mandated,

offends the rule and clearly amounts to an irregularity which demands

that, in keeping with the dictates of rule 13.2, the default judgment must

be set aside. The learned judge was correct in so doing.

[13] The learned judge, having set aside the judgment, heard further

submissions, then proceeded to conduct a case management

conference and entered summary judgment on the ground that the

appellant did not have any real prospect of successfully defending the

claim.
[14] The appellant filed nine grounds of appeal. Eight of these grounds

can be considered simultaneously. They are as follows:

“(a) That the Learned Judge erred as a matter of

law, In that, he failed to apply and/or
misapplied the correct principles of law and
the proper considerations relevant to the effects
of an amendment on the statement of case as
originally filed (see Warner v Sampson (1959) 1 All
ER 120);

(b) That the Learned Judge failed to appreciate that

there was no or no valid claim before the Court
owing to the Respondents/Claimant’s failure to
serve the amended Claim Form filed on the 29th
October 2007 on the Appellant/Defendant (see:
CPR 8.14).

(c) That the Learned Judge erred when he failed to

consider on the evidence before him that the
Appellant/Defendant had established a real
prospect of successfully defending the claim
based on the existence of the mortgage (i.e.
encumberance) which was registered on the
property and known to all parties;

(d) That the Learned Judge erred in fact when he

found that the Respondents/Claimants had
discontinued the amended claim against the
Appellant/Defendant as the same was only
discontinued against the 2nd Defendant,
Jamaica Redevelopment Foundation Inc. on the
20th day of November 2007;

(e) That the Learned Judge erred when he failed to

consider on the evidence that the
Respondents’ (sic) Claimants were unable to
purchase the property from the Mortgagee,
Jamaica Redevelopment Foundation Inc., due
to its lack of consent and the effect of that failure
on the Respondents/Claimants’ ability to
conclude the Agreement for Sale due to the
continued existence of the encumberance;
 (f) The Learned Judge erred when he failed to
consider that there was no obligation on the
Appellant/Defendant to file a Defence as the
amended claim had not been served as at 17th
day of July 2009;

(g) …

(h) That the Learned Judge erred when he failed to

afford the Appellant/Defendant the opportunity
to produce evidence of a Defence as the
Judgment in Default having been set aside as of
right (due to irregularity) was reinstated
immediately; and

(i) The Learned Judge erred when he failed to

appreciate that there was no application before
the Court for Summary Judgment or to Strike out
the Defence as disclosing no reasonable
prospect of succeeding.”

[15] The following counter notice of appeal was filed by the

respondents:

“(a) That the Learned Judge in Chambers erred when

he failed to consider the fact that the categories
of irregularities warranting the automatic setting
aside of a Default Judgment has been
significantly narrowed by the new Civil
Procedure Rules

(b) That the learned judge erred in finding that the

failure to file the prescribed notes etc. was
amongst the categories of items listed at Rule
12.4 of the CPR, which were prerequisites for the
entry of a valid judgment

(c) That the learned judge erred in failing to have

regard to the fact that the consequence of the
failure to comply with a rule requiring service of a
prescribed notes, etc, was not specified
 (d) That the learned judge erred in failing to consider
and give effect to CPR r. 26.9(2) and the
overriding objectives by refusing to recognize
that the failure to comply with a rule, practice
direction or court order does not automatically
invalidate any step taken in the proceedings.

(e) That the learned judge erred in failing to give

effect to CPR r. 26.9(3) and the overriding
objectives which empowered the court in the
circumstances outlined at (c) above to make an
order to put matters right.

(f) That the learned judge failed to recognize that in

circumstances where the Appellant/Defendant
had admitted in Affidavit evidence that she has
not been prejudiced by the omission of the
prescribed notes, etc., this was an appropriate
case to give effect to CPR r. 26.9 and the Court’s
case Management powers generally

(g) That the effect of the Learned Judge’s ruling is to

equate the failure to serve Prescribed Notes, etc
with the failure to file a Claim Form.

(h) That the learned judge erred in not finding that

the regularly entered default judgment should
stand in circumstances where he was of the view
that the Defendant has no real prospect of
successfully defending the claim.”

[16] The appellant filed a counter notice to the counter notice of

appeal which was couched in the following terms:

“(a) The Learned (sic) was correct in finding that the

Judgement in Default entered on the 20th day of
October 2007 in favour of the Respondents
(hereafter referred to as “the Keanes”) was
irregular as the usual undertaking given upon
obtaining an injunction is to file pleadings, in this
case amended pleadings.
 (b) The Learned (sic) was correct in finding that the
Judgment in Default entered on the 29th day of
October 2007 was irregular in light of the fact
that on or around 18th October 2007, the Keanes
filed for interlocutory Judgement in Default of an
Acknowledgement of Service in circumstances
where they were going to amend their
pleadings.

(c) The Learned Judge was correct in finding that

the Judgement in Default entered on the 29th
October 2007 was irregular as on the 29th
October 2007, the Keanes filed an Amended
Claim Form and Particulars of claim, wherein they
sought to add Jamaica Redevelopment
Foundation Inc. as the 2nd Defendant to the
proceedings and include a prayer for injunctive
relief and that the said claim was filed on the
same day the Judgement in Default was
entered against Dorothy Vendryes.

(d) That the Learned Judge was correct in finding

that the Judgement in Default entered on the
29th October 2007 was irregular as the principles
of law establish that the effects of an
amendment on the statement of case is that the
amendment replaces the claim as originally filed
and relates back to the date of filing (see Warner
v Sampson [1959] 1 All ER 120). Accordingly the
Judgement in Default entered on the 29th
October 2007 was premature, as the amended
claim had not been served.”

[17] Mr Earle argued that the judgment in default is a nullity, as, at the

time of the entry of the judgment, the original claim had ceased to exist.

The original claim, he submitted, being not in existence would no longer

define the issues between the parties to be resolved at a trial and as a

consequence, it could not have properly formed the foundation upon

which a default judgment could have been entered. The amended claim

related back to the date of the filing of the original claim and this, the

learned judge failed to appreciate, he argued. He cited the case of

Warner v Sampson & Anor [1959] 1 All ER 120 in support of these

submissions. The learned judge, he argued, erred when he determined

that the respondents had discontinued the amended claim and that the

appellant had no real prospect of successfully defending the claim. He

further submitted that the learned judge failed to give consideration to

the evidence that the appellant was unable to purchase the property

from the mortgagee due to lack of consent which effectively affected

the respondents’ ability to complete the contract of sale. In any event,

he argued, on the date of hearing of the application the appellant

having not been served with the amended claim form and particulars of

claim was under no obligation to file an acknowledgement of service or

defence.

[18] It was Mr Jones’ submission that the case of Warner v Sampson is

inapplicable, in that the amendment to the claim was made after the

entry of the default judgment and the amended particulars of claim was

irrelevant so far as the appellant was concerned. The learned judge,

having determined that the default judgment had been irregularly

entered was not obliged to hold a case management conference as

there was no filed defence before him and the respondents’ amended

claim had not been served, he argued. Accordingly, the learned judge

recognized the necessity of applying rule 1.2 of the C.P.R. and correctly

proceeded to utilize his powers under rule 15.2, he submitted. He further

submitted that the defence is unsound, legally and factually. He argued

that the fact that the property was sold by the mortgagee does not mean

that there was no consent and there was no condition in the agreement

that the sale should be made subject to the mortgagee’s consent as the

matter of the consent was never an issue. He argued, however, that the

evidence before the learned judge suggested that there was consent.

The appellant placed reliance on a breach of the rental contract as a

reason for not proceeding with the agreement when there is nothing in

the agreement supporting this contention, he argued. There was no duty

on the part of the respondents to have inquired into the title prior to the

contract and the deficiencies in the title were not caused by any

intervening circumstances as alleged by the appellant.

[19] Before embarking upon a review of the appeal and counter notices

of appeal, it is necessary to address an issue as to whether the default

judgment was extracted prior to or after the filing of the amended

pleadings. Mr Earle submitted that on 29 October 2007 the respondents

sought an injunction and in paragraph 9 of the affidavit in support of their

application they stated that they “were on the verge of obtaining a

default judgment” against the appellant. This, he argued, shows that the

judgment was extracted after the filing of the amended pleadings. We

are in agreement with Mr Earle that at the time of entry of the default

judgment the amended pleadings had already been filed.

[20] The appellant had not denied that she was served with a copy of

the claim form and the particulars of claim filed on 17 July 2010. Her

complaint, however, was that she had not been served with a copy of

the prescribed notes for defendants, and the requisite documents which

ought to have accompanied the claim form. As the learned judge rightly

appreciated, these were essential documents of which the appellant

ought to have notice.

[21] It is perfectly true, as submitted by Mr Earle, that the application to

set aside the judgment was under rule 13.2. The application was not

under rule 13.2(3) which provides for the setting aside of a regularly

entered judgment. Rule 13.3(6) permits a judge to embark upon a case

management conference where a judgment has been regularly entered.

The setting aside in this case would be confined to rule 13.2(2) which

reads:

“13 (1) …

(2) The court may set aside judgment under

this rule on or without an application.”
Having set aside the judgment, the critical question is whether the learned

judge was empowered to have conducted a case management

conference and to have granted summary judgment in favour of the

respondent.

[22] Before entering summary judgment, the learned judge recounted

the allegations as disclosed in the original claim. He went on to state at

paragraphs 22, 23, 24, 25, 26, 27, 28, 29 and 30, the following:

“22. At the time of the agreement, it was common

ground that the property was encumbered and
Mrs. Vendryes was seeking to realize the property
so that she could pay off the mortgage.

23. It turned out that Mrs. Vendryes was not able to

pass good title to Dr. and Mrs. Keane. Also the
mortgagee eventually sold the property to a
third party. The claimants have sued Mrs.
Vendryes for breach of contract.

24. Mrs. Vendryes’s defence, reduced to its core, is

that it was a condition precedent to completion
of the sale agreement that the Keanes were to
honour their lease agreement by making
payment as and when the rent became due
and that failure by them meant that the sale
agreement could not be completed.

25. She also adds that she could not complete the
sale because of supervening activities by the
Government. By this she was referring to the
compulsory acquisition of the property by the
Government of Jamaica for the North Coast
Highway Project.

26. For good measure, Mrs. Vendryes counter claims

for what she alleges is the outstanding rent. This
counter claim is not part of my deliberation.
 27. The claimant’s response was direct. They say
that there is no such term in the sale agreement
and there was no such understanding between
the parties.

28. It is common ground that none of the sale

agreements reflect such an understanding.

29. The crucial paragraph on the completion point in

the proposed defence reads:

Paragraph 11 of the Particulars of Claim is

denied. The Defendant avers and states
that there are two concurrent agreements
which governed the parties. The Claimants
have failed to perform the terms of the
lease agreement which is a condition
precedent to the completion of the
Agreement for sale.

30. The proposed defence at paragraph 13, refers to

supervening events over which she had no
control.”

[23] Then, at paragraphs 41 and 42, he arrived at the following

conclusion:

“41 … It is my view that the defendant does not

have any real prospect of successfully
defending the claim. It is simply incredible to
believe that through all this negotiation, if the
parties really intended to make payment of
rent a condition of completion of the sale, they
would have failed to make provision for it or even
mention before now.

42 There is no substance to the defendant’s case.

The reference to supervening events which
prevented the defendant from acting in
accordance with the terms of the contract may
be a reference to the doctrine of frustration.
I am not saying that it is, but simply to say that
supervening events prevented completion of the
 contract, in the context of this case, cannot avail
the defendant. The Government acquiring the
land is not an extraordinary or unusual event.
The vendor could have managed this risk by
including an appropriately drafted term of the
contract. She decided not to do so and so must
live with the consequences.”

[24] It was his view that he was permitted to exercise case management

powers and to enter summary judgment against the appellant under rule

15.2 of the CPR. He declared that at any stage of the proceedings, a

judge is not precluded from exercising case management powers and

award summary judgment, if, at the time of setting aside a default

judgment and after being acquainted with the contents of a defence,

the question as to a reasonable prospect of success arises.

[25] The amended claim form and amended particulars of claim were

not served on the appellant. These pleadings formed part and parcel of

the court’s record and were before the learned judge. He erroneously

found that the amended claim form was discontinued against the

appellant. Obviously, in so doing, he failed to recognize that the

amended claim form was discontinued against the Jamaica

Redevelopment Foundation only. Surprisingly, he ignored the fact that

the amended claim form and amended particulars of claim were the

effective pleadings before him.

[26] In Warner v Sampson and Anor [1959] 2 WLR 128 an action was

brought by the landlord for possession of demised property, specifying

breaches of certain covenants in a lease. The defendant Sampson

allowed a judgment to proceed by default but a defence was filed by

the other defendant, a Miss Gandy. The judgment was set aside and an

amended defence was delivered by Miss Gandy admitting the lease and

the landlord’s title but counter claiming for relief from forfeiture. Hodson

LJ in speaking to the effect of the amended defence said at page 128:

”The defence in question is a pleading which is

capable of amendment like any other pleading.
Once it is amended it takes the place on record
as part of the pleadings setting out the issues
upon which the action will be tried.”

[27] The claim form upon which the learned judge proceeded lacked

validity, in that it was not in compliance with rule 8.16(1). It would have

been a nullity and ought not to have been acted upon. The averments in

the amended claim form and the particulars of claim related back to the

date of the filing of the original claim. They raised issues which had not

been pleaded in the original claim and most importantly they were not

served on the appellant. These pleadings, not having been served, the

leaned judge would not have been in a position to have conducted a

case management conference or even to have considered the efficacy

of the proposed defence and counter claim.

[28] The respondents raise a number of issues in the amended pleadings

which had not been included in the original claim as well as a claim for

an injunction. These amended documents stood as substitutes for the

invalid original pleadings. The appellant would not have been required to

defend the averments outlined in the amended pleadings until she was

served. Accordingly, the application for an extension of time by the

appellant to file a defence was premature. In the circumstances, no

leave would have been required by her to file a defence as the time for

so doing would not have expired.

[29] The learned judge having set aside the judgment could not have

invoked rule 13.3(6). He had an obligation to have taken into account

the non service of the respondents’ amended pleadings. The appellant‘s

right to defend would only arise after service. Consequently, subsequent

to the service of these pleadings, the appellant would, then and only

then, be required to file a defence. She may do so within 42 days after

the date of service as prescribed by rule 10.3 (1) of the CPR.

[30] It follows therefore, that the learned judge would not have been

entitled to embark upon any assessment of the proposed defence nor a

case management conference at the time he set aside the default

judgment.
[31] Although a judge, under rule 26. 2, is clothed with authority to make

orders on his own initiative, the procedure adopted by the leaned judge

would not have accorded him a right to have proceeded as he had

done. He would not have been authorized to employ case management

powers at the time. It cannot be denied that rule 15.2 of the CPR

empowers the court to award summary judgment where a defendant has

no real prospect of successfully defending a claim. However, the

circumstances of this case did not allow the learned judge to have

invoked his powers under that rule. He properly set aside the irregularly

entered default judgment and having done so ought not to have

proceeded along the path which he pursued. There is clearly want of

jurisdiction, on his part, in granting summary judgment to the respondents.

[32] The counter notice of appeal is clearly without merit. The learned

judge applied the correct rule in setting aside the judgment. Compliance

with rule 8.16 (1) was mandatory. The default judgment was set aside

under rule 13. 2 (1) which compelled the learned judge to do so, it being

wrongly entered.

[33] Rule 26. 9(1), (2) and (3) is inapplicable to this case. The rule reads:

“(1) This rule applies only where the consequence of

failure to comply with a rule practice direction or
court order has not been specified by any rule,
practice direction or court order.
 (2) An error of procedure or failure to comply with a
rule, practice direction or court order does not
invalidate any step taken in the proceedings,
unless the court so orders.

3) Where there has been an error of procedure or

failure to comply with a rule or practice direction
the court may make an order to put matters
right.”

[34] The general words of rule 26.9 cannot be extended to allow the

learned judge to do that which would not have been possible. A judge

can only apply a rule so far as he is permitted. The claim form was a

nullity. It cannot be restored by an order of the court. The service of the

requisite documents accompanying the claim form is a mandatory

requirement. The amended pleadings must be served before any further

steps can be taken in the proceedings.

[35] The irregularly entered default judgment is defective and no order

could have been made to rectify it. Curiously, the claim is for specific

performance as well as for damages. The claim for damages, obviously,

would be a claim in lieu of specific performance. The request for

judgment was couched in the following terms: “The claim is for an

unspecified sum of money and there should be judgment for the payment

of an amount to be decided by the court”. The judgment states

“Judgment to be assessed by the court”. The claim for specific

performance was not sought as an alternative to damages. The judgment

therefore would be of no effect and being a matter of substance could

not have been rectified by any order of the learned judge. Neither could

the defects in the procedure be cured by the making of any order by

applying rule 26. 9.

Ground (g)

“The Learned Judge erred when having found

that the Judgment in Default was irregular failed
to award the costs of the application to the
Appellant/Defendant.”

[36] Under rule 64.6(1) of the CPR a court may order costs. The rule

reads:

“If the court decides to make an order about the

costs of any proceedings, the general rule is that
it must order the unsuccessful party to pay the
costs of the unsuccessful party.
(Rule 65.8(3) (a) contains special rules where a separate
application is made which could have been made at a
case management conference or pre-trial review.)”

[37] Mr Earle argued that the appellant succeeded on her application

to set aside the irregularly entered default judgment. Accordingly she

ought properly to have been awarded costs. Although an order of costs

is discretionary, where the judge wrongly exercises his or her discretion this

court will intervene. The appellant succeeded on her application

touching the irregularity of the entry of the default judgment and we are

in agreement with Mr Earle that she should be awarded her costs.

[38] For the foregoing reasons we allowed the appeal and counter

notice to counter notice of appeal and dismissed the counter notice of

appeal.