The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A judge has found “something went terribly wrong” with the Supreme Court’s handling of a near-$400,000 loan dispute involving Sir Franklyn Wilson’s finance company and his wife’s law firm.

Justice Simone Fitzcharles, in a July 15, 2024, verdict voiced displeasure with how the claim brought against Sunshine Finance and Sharon Wilson & Company by a Royal Bahamas Defence Force officer had been allowed to drag on for nine years with the latter changing attorneys no less than six times.

She dismissed the bid by Wilton Livingston Saunders and his company, Nivron Ltd, to obtain summary judgment against Sunshine Finance and Lady Sharon Wilson’s law firm by finding that both have presented a “sufficiently vigorous” defence to the accusations made against them.

And, in setting a pre-trial review for September 19, 2024, Justice Fitzcharles ruled that the document demands at the centre of Mr Saunders’ separate attempt to strike-out the two companies’ respective defences “may be perceived as the claimants’ fishing expedition”.

She then shredded the “11th hour” effort by the Defence Force officer and his attorneys, Craig Butler and Alton McKenzie, to introduce new claims of “fraud, conversion and/or conspiracy to defraud” by branding this “a fanciful claim founded on speculative accusations which cannot be supported by one scintilla of evidence”.

Justice Fitzcharles’ verdict, which dismissed Mr Saunders’ effort to secure an early victory, disclosed that the dispute also involves Frank Smith, the ex-MP and former Public Hospitals Authority (PHA) chairman, in his capacity as Sunshine Finance’s president when the loan was extended to Mr Saunders.

His wife, Sharlyn Smith, who is Sir Franklyn’s daughter and works as an attorney at her mother’s law firm, was described as “a witness to the proceedings” while her husband has been subpoenaed to give evidence in the upcoming trial. 

Justice Fitzcharles, in her 36-page ruling, asserted that “something went terribly wrong” with the Supreme Court’s management of a legal claim initiated almost exactly nine years ago on August 28, 2015. She added that the case - involving a disputed mortgage loan for an eastern New Providence condo project - should have been brought to trial some years ago but it “was not managed with due expedition”.

Mr Saunders and Nivron Ltd had approached Sunshine Finance in 2010 to obtain financing for the two-storey development in Strachan’s subdivision and purchase the necessary land from Kevin Brown. They were ultimately approved for mortgage loan facilities valued collectively at $397,252 that were secured on the property.

However, Mr Saunders alleged that he never received the loan proceeds even though Sunshine Finance had taken a lien over his salary and was deducting monies to repay the facility. He also claimed that Sharon Wilson & Company “insisted” on acting as his attorney in the loan transaction even though it was also representing Sunshine Finance.

The law firm, according to Mr Saunders, pronounced that he had good, clear and marketable title to the land only for it to be later discovered that the property was “encumbered”. He alleged that Sharon Wilson & Company said this could be solved via the Quieting Titles Act process, which it purportedly promised to complete at no cost, but this was never done and the condo never built.

This resulted in Mr Saunders and Nivron Ltd launching legal action over alleged “negligence and/or breach of fiduciary duty”, with demands that the mortgage be “nullified” and that they receive damages and lost profits. They also claimed that the mortgage documents contained a clause allowing Sunshine Finance “to levy charges against the mortgage” without Mr Saunders’ prior approval.

All these claims were vehemently denied and refuted by Sunshine Finance and Sharon Wilson & Company. They rejected the assertion that the latter ever acted as Mr Saunders’ legal representative, adding instead that the Defence Force officer and his company were represented by V. Alfred Gray & Company.

The duo also denied that Sharon Wilson & Company ever pledged to cure the title defects at no cost, and instead asserted that the loan was a standard mortgage transaction. However, Mr Saunders and his attorneys sought to argue they had no realistic or sustainable defence on the grounds that they knew of the title defects associated with the property when they extended the loan.

They also claimed that V. Alfred Gray & Co were “barred” from representing Mr Saunders by Sunshine Finance, and that both the latter and Sharon Wilson & Company knew they had to conduct their own title search as the conveyance to Nivron Ltd was unstamped and unrecorded.

They added that Sharon Wilson & Company, in a December 15, 2011, letter acknowledged that one apartment unit had extended beyond the property’s boundaries yet continued to pronounce that title was good and marketable, which led to the mortgage loan being increased.

Mr Saunders and his attorneys alleged that, due to the title defects, summary judgment in his favour was appropriate because there was no valid collateral for the loan facilities. However, Gail Lockhart-Charles KC, acting for Sunshine Finance and Sharon Wilson & Company, argued that the defences filed by her clients are “not merely arguable” but “compelling”.

She added that Mr Saunders and his guarantor agreed to, and signed-off on, paying the costs incurred by Sunshine Finance in using Sharon Wilson & Company while also accepting the mortgage terms. The loan proceeds were also properly disbursed.

And Mrs Lockhart-Charles also asserted that Mr Saunders’ case was “unarguable and doomed for failure”. Her assessment was backed by Justice Fitzcharles, who found: “In my view, the defence filed by the defendants presents more than an arguable or fanciful defence. In fact, it is sufficiently vigorous to rise above any engulfing tide of summary judgment.”

However, Mr Saunders and his attorneys countered with the argument that the defences should be struck out because Sunshine Finance and Sharon Wilson & Company were non-compliant with a case management order requiring the disclosure of multiple documents including the identities of persons who cashed specific cheques.

Mrs Lockhart-Charles, though, branded this move as “confused and ill-conceived” while asserting that her clients had complied with all disclosure obligations. Justice Fitzcharles again agreed, describing the strike-out demand as “misguided” because the case management order was for general and not specific document disclosure.

Satisfied that there had been adequate disclosure by the defendants to-date, the judge added: “The requested documents are speculative and the exercise may be perceived as the claimants’ fishing expedition.”

She reserved her harshest words, though, for the attempt by Mr Saunders and his attorneys to re-cast their claim around fraud allegations. It was noted that Mr Smith’s testimony was being sought to clarify “why his signature is on certain cheques made out in” Mr Saunders’ name as well as whether the loan proceeds were fully disbursed.

However, Sunshine Finance and Sharon Wilson & Company argued that the claims of “fraud, conversion, breach of fiduciary duty, gross negligence and conspiracy” were all being introduced “on the eve of trial” in a case they “have had hanging over their heads for nine years”. And they pointed out that bringing these claims was legally barred because the relevant limitation period had already expired.

Mrs Lockhart-Charles argued that her clients “have been harassed by vexatious litigation” and “have suffered long enough” from Mr Saunders and Nivron Ltd “dragging their heels” and failing to advance their claim. 

Justice Fitzcharles agreed, finding that the claimants “are the authors of their own misfortune” by failing to properly plead their case earlier. She added: “The claimants’ proposed re-amendment, if allowed, would present a fanciful claim founded on speculative accusations which cannot be supported by one scintilla of evidence presented in these proceedings thus far....

“Litigation must have an end. Parties should not be dragged into fathomless litigation, being made to suffer the unduly onerous financial burden of defending themselves in such proceedings. In the present claim, some nine years have elapsed. Enough of the court’s valuable judicial time and resources have been expended as a result of the mismanagement of this claim.”

Hanna, Kellman & Associates; V. Alfred Gray & Company and Temple Law Chamber; Martin, Martin & Company; Outten IP; Bowleg McKenzie Associates; and Mr Butler are the attorneys employed by Mr Saunders to fight his legal battle.