Pearce -v- Treasurer of the States [2015] JRC 009 (15 January 2015)

judgment the bailiff: 1. The applicant applies for leave to appeal against two judgments of the Petty Debts Court dated 22 nd October, 2014. On receipt of the Notice of Appeal dated 28 th October, I asked for the court file as the facts did not emerge very clearly from the Notice of Appeal. On my behalf the Judicial Secretary informed the parties that I would be happy to receive written submissions on behalf of the Attorney General with a written response thereto from the applicant. I indicated that, following receipt of these documents, I would decide the matter on the papers. I am grateful to both Advocate White and to the applicant for their written submissions and I now give my decision. The background 2. The background appears from the judgment of the Master of the Royal Court dated 22 nd October, 2013, (reported at States Treasurer-v-Pearce [2013] (2) JLR 420) and the judgment of the Royal Court delivered by William Bailhache, Deputy Bailiff, on 2nd July 2014, Pearce-v-Treasurer of the States [2014] JRC 139B , in which the applicant's appeal against the Master's decision was dismissed.

3. The applicant leased a unit in the Central Market in St Helier. The lease was entered into in 2005 between the applicant's father and the Environment and Public Services Committee of the States of Jersey. It was assigned to the applicant in 2009. The lease provided that the lessee was obliged to pay all existing and future taxes which were payable or which might later become payable in respect of the unit.

4. GST applied to the lease in question from December 2012 and invoices issued to the applicant in respect of the rental periods 21 st December, 2012, to 24 th March, 2013, and 25 th March, 2013, to 24 th June, 2013, included a 5% charge in respect of GST in addition to the rent payable. The GST was £134.10 for each period. The applicant disputed that GST was payable and refused to pay it. The Treasurer therefore brought proceedings in the Petty Debts Court (which were transferred to the Royal Court) to recover the outstanding amount, namely £268.20.

5. The applicant's answer contended, on a number of grounds, that GST was not chargeable on the rent. The Treasurer applied to strike out the answer and to obtain summary judgment.

6. In his judgment of 22 nd October, 2013, the Master held that GST was payable on the rental and rejected the arguments put forward by the applicant. He therefore granted summary judgment in respect of the two quarters claimed for in those proceedings, namely £268.20.

7. The applicant subsequently appealed to the Royal Court. In the judgment dated 2 nd July, 2014, the Royal Court dismissed the appeal against the summary judgment granted by the Master.

8. The applicant wished to appeal the decision of the Royal Court and submitted a Notice of Appeal. However he had not sought leave to appeal from the Royal Court or the Court of Appeal. There then followed various correspondence and discussions with officers of the Judicial Greffe responsible for the Court of Appeal and on 8 th September the applicant emailed the Assistant Greffier confirming that he accepted that the appeal was interlocutory and that he was therefore required to seek leave to appeal. The Greffier explained how the applicant should seek leave and offered to place any application for leave before one of the judges of the Court of Appeal who was sitting in September. However the applicant did not pursue the matter and eventually on 24 th September, 2014, the Assistant Greffier emailed the applicant to say that if he was going to continue with his application for leave to appeal, he should file it by close of business on 2 nd October. The applicant did not respond to this, nor did he file an application. On 9 th October, the Assistant Greffier emailed the applicant to say that she had closed the file.

9. In the meantime, the Treasurer had issued a summons in the Petty Debts Court claiming £134.10 in respect of GST on the rental for the quarter from 25 th June, 2013, to 25 th September, 2013. This had come before that court on 28 th August, 2013, but had been adjourned because at that stage it seemed the applicant would be appealing the original case to the Court of Appeal.

10. Following the failure of the applicant to pursue his application for leave to appeal to the Court of Appeal, Advocate White of the Law Officers' Department gave notice to the applicant by email dated 3 rd October that he would be bringing the adjourned summons back before the Petty Debts Court on 15 th October. On that occasion, the matter was adjourned for a further week at the applicant's request to 22 nd October.

11. Separately, a further summons was issued in the Petty Debts Court with a return date of 22 nd October for the sum of £134.10 in respect of GST chargeable on the rental for the quarter 25 th September to 24 th December, 2013.

12. These two matters came before the Petty Debts Court on 22 nd October. The Treasurer was represented by Mr Eric Tricot and the applicant appeared in person. The Magistrate granted judgment on the basis that there could be no defence having regard to the judgment of the Royal Court in respect of the earlier quarters. She therefore granted judgment of £134.10 plus fixed costs in respect of each of the two summons. It is against those two decisions that the applicant seeks leave to appeal. Grounds of Appeal 13. I would summarise the grounds contained in the notice of appeal as follows:- (i) Natural justice was denied to the applicant. (ii) Advocate White had acted with malice and breached the applicant's rights under the European Convention on Human Rights 2000 (ECHR) by bringing back the first summons to the Petty Debts Court on the day appointed for the elections to the States, where the applicant was a candidate. (iii) The Magistrate misdirected herself in refusing to review the full facts of the previous decisions of the Royal Court and refusing to hear any previously unheard defence or to allow the applicant to lodge a counterclaim. (iv) The applicant had reached an agreement with the Inspector of Markets to make full payment of the amounts outstanding 'despite the injustice and immorality of such payments' upon confirmation of the total amount to be paid and it was

premature therefore to seek judgment. (v) The Treasurer had not demonstrated that the applicant was bound to reimburse any GST, the previous proceedings having merely demonstrated that GST would be charged on the rentals collected in respect of the lease of the unit in the Central Market. (vi) In his written submissions in response to those of the Treasurer, the applicant raised the new submission that Advocate White had been acting without authority. (vii) Finally in those written submissions, the applicant states that he paid the sum in full on 6 th November, 2014, and that there is therefore no reason not to lift the judgment of the Petty Debts Court. Decision 14. In my judgment none of these grounds amounts to a seriously arguable point. The fact is that the question of whether GST is chargeable on the rental of the unit leased by the applicant and whether the applicant is liable to reimburse that sum has been decided by the previous decision of the Royal Court. The applicant may not agree with that decision but that is now the legal position. There can therefore be no defence to the present action, which is for exactly similar amounts of GST based on exactly the same facts; the only difference is that they relate to subsequent quarters.

15. Dealing briefly with the specific grounds raised:- (i) I do not see that natural justice has been denied to the applicant. He was present at the hearing before the Magistrate and had the opportunity of putting forward any points which he wished to. (ii) I accept that the first summons was brought back to the Petty Debts Court on the day fixed for the elections and that the applicant was a candidate. I agree that it might have been unfair to have sought to take judgment on that day knowing that he was such a candidate. But the summons was adjourned for a further week until 22 nd October. The applicant attended on that date and therefore had the opportunity of addressing the Magistrate. (iii) In my judgment the Magistrate was absolutely correct to hold that there could be no defence given the decision of the Royal Court on the identical issue concerning the earlier quarters. No indication has been given by the applicant as to the grounds of any alleged counterclaim. (iv) There is no very clear evidence as to the nature of any conversations between the applicant and the Inspector of Markets but the fact is that these amounts are due and have been due for over a year. The exact figure is known as it is the same each quarter. The applicant had not paid the sums due despite the decision of the Royal Court and the Treasurer was therefore entitled to judgment. (v) Advocate White

has referred to the relevant provision of the lease which provides that the lessee will pay and discharge "all existing and future ... taxes... which are now or may hereafter become payable in respect of the demise premises whether by the owner or the occupier thereof which payments to be made by the lessee hereunder shall be payable by the lessee on demand...". Furthermore, this was a point which, if it had any validity, could and should have been taken before the Royal Court previously but it is clear that that Court was satisfied that there was an obligation on the Applicant to reimburse any GST chargeable. (a) The law is clear that it is not normally for the Court to cross-examine an advocate as to whether he does or does not have specific authority from his client. An advocate has ostensible authority which the Court will accept in the absence of clear evidence to the contrary. There is no such evidence in this case. (vi) The fact that the applicant has now paid the sums due does not entitle him to have the judgment set aside. The question is whether the sums were due and whether he had paid them at the date of the judgment. He had not and therefore the Treasurer was entitled to judgment. The Court may not re-write history by cancelling a judgment which was properly issued simply because a defendant has subsequently complied with the judgment.

16. For these reasons, there is no arguable ground of appeal and I refuse leave to appeal. Authorities States Treasurer-v-Pearce [2013] (2) JLR 420. Pearce-v-Treasurer of the States [2014] JRC 139B . European Convention on Human Rights 2000. Page Last Updated: 27 Sep 2016 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII