The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Court of Appeal yesterday blasted a law firm, whose partners include an ex-Cabinet minister and retired Supreme Court justice, for its "unacceptable" failure to take responsibility for not prosecuting its own appeal.

Appeal Justice John Isaacs, in a verdict backed by his fellow judges, said "no reasonable explanation" was given by Nottage, Miller & Co for not pursuing its bid to restore an appeal against Commonwealth Bank that had already been dismissed twice.

Rejecting the law firm's bid to reinstate its 'extension of time' to appeal, Justice Isaacs also found its prospects of success - if the action was restored - to be slim to non-existent.

He added that he was "at a loss" when it came the defence of Nottage, Miller & Co and its principals, especially given that they had failed to include the relevant Supreme Court verdict in their appeal papers.

Besides the law firm, its principals were listed in the action as defendants. They include former Cabinet minister, Kendall Nottage, and his wife, retired Supreme Court justice, Rubie Nottage, along with fellow partner, Jethro Miller.

Only Mr Miller appears to have been actively involved in the case, which revolved around the security for loans extended to Freeport's Pub on the Mall restaurant, a well-known business that closed around a decade ago.

Nottage, Miller & Co alleged that a debenture securing Lowenmill Construction Company's interest in the Pub on the Mall was "improperly removed" from its offices and registered at the Registry of Records.

It then claimed that Commonwealth Bank executives interfered with its efforts to resolve the matter, and that in so doing the BISX-listed institution was able to secure "a vehicle for double recovery" of its loan to Pub on the Mall.

Appeal Justice Isaacs, though, said the law firm's failure to supply him with the previous Supreme Court judgment left him totally unable to understand its grounds of appeal.

His judgment noted how the Court of Appeal had already dismissed Nottage, Miller & Co's 'extension of time' application twice - on May 17, 2016, and June 14, 2016, - prior to Mr Miller's November 24 effort last year to have it reinstated.

The law firm had failed to appear to prosecute its own action on both occasions, and Appeal Justice Isaacs noted: "Persons who have filed appeals or made applications to the Court of Appeal are expected to be vigilant and attentive to their own interests, and check the court's Cause List daily, if not more frequently, to ensure that they know when their matters will come on for hearing.

"This is their sole responsibility regardless of any gratuitous assistance Court officials may have traditionally proffered. It being their [Nottage, Miller & Co's] application, they ought to have been present to make their case."

Mr Miller, though, in a June 15, 2016, affidavit alleged he was told by Court of Appeal officials that they would inform him when the case was due for hearing.

And he accused Commonwealth Bank's attorney, Edward Marshall, of Graham, Thompson & Co, of calling him on May 18, 2016, "with a sense of glee" to tell him the matter had been dismissed.

"It is readily apparent from Mr Miller's affidavit that he does not take responsibility for his failure to appear on the date scheduled for the hearing of his application, but rather seeks to blame counsel opposite and unidentified staff of the court," Appeal Justice Isaacs wrote.

"This is unacceptable and cannot absolve the appellants of their failure to appear. In my view, no reasonable or acceptable explanation for their non-appearance has been given."

Nottage, Miller & Co's appeal was founded on alleged "deceit" committed by Lowenmill Construction Company, as a debenture in its favour, "which was not intended to be completed or perfected, was improperly removed from the appellants' firm and placed on record with the Registry of Records".

The law firm alleged that Commonwealth Bank and its attorneys had initially agreed to accept a Deed of Subrogation, which placed the bank at the top of Pub on the Mall's creditors queue, as a remedy to the disputed debenture.

However, it claimed that Walter Wells, a Commonwealth Bank executive, "personally intervened to discourage and prevent the principal owner of Lowenmill from executing the deed of Subrogation, and therefore was guilty of compounding the prior deceit of Lowenmill".

Nottage, Miller & Co also claimed there was "unchallenged evidence" showing Pub on the Mall was still making its loan payments to the bank. It alleged that this was not considered by the Supreme Court, allowing Commonwealth Bank "a vehicle for double recovery".

Given that its appeal did not progress that far, there is nothing to suggest that Mr Wells or Commonwealth Bank, or Lowenmill and its principals, did anything wrong in relation to the Pub on the Mall or this case.

"The gist of the 'intended appellants'' defence appears to have been that a person or persons unknown had improperly removed a debenture in favour of Lowenmill Construction Company from their firm, which was not intended to be completed or perfected, and registered it at the Registry of Records," Appeal Justice Isaacs found.

"It is unclear what consequence arose due to this registration. Further, as I have not had sight of [the Supreme Court's] decision...... the court is at a loss as to the defence of the 'intended appellants'."