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Summary Judgment in Bahamian Actions for Specific Performance

Posted by M. Margaret Gonsalves-Sabola | Sep 14, 2017 | 0 Comments

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When a plaintiff  brings an action seeking specific performance of a contract for the sale or purchase of any property, Bahamian court rules permit the plaintiff to apply for summary judgment when the defendant presents no defense to the claim. Obtaining summary judgment means a quick resolution of the case and an order requiring the defendant to perform under the contract.

The following requirements must be met to seek this type of relief from the court. The claim made in the action should request specific performance of the terms of a contract, its rescission, or return or forfeiture of a deposit made. Most importantly, the contract must be for the sale, purchase, exchange, or lease of property. If these requirements are met and the plaintiff believes there is no defence to his claim that the defendant breached the contract, the plaintiff may file an application for summary judgment. (Rules of the Supreme Court, O. 75, r. 1.)

The application, once filed, will be set for hearing, at which the judge will determine whether there is an issue or question in dispute that should be tried. The defendant may present evidence or enter an affidavit at the hearing showing that there is an issue to be tried. Further, the court may order a defendant or its officers to produce documents or to testify at the hearing. If the court rules in the plaintiff's favor, the defendant will be ordered to perform his obligations under the contract. If not, the action will proceed in court. (O. 75, r. 3, 4.)

Defendants have a fairly low burden to meet to defeat this type of application. They must convince the court that there is some question in issue as to whether they performed their obligations under the contract, or whether they were required to perform by the contract's terms. They could raise typical defences to contract enforcement such as mistake, duress, or fraud. Importantly, they do not have to prove a defence, just show that there is at least one question to be decided as to their liability.

Plaintiffs considering making an application for summary judgment in a property dispute should know that if the court finds that the application does not follow proper procedure, the plaintiff may be ordered to pay the defendant's costs of defending the summary judgment application. (O. 75, r. 6.) Defendants should know that if they fail to appear at the hearing, summary judgment will likely be entered against them, but the subsequent judgment may be set aside or varied within the discretion of the court. (O. 75, r. 6.)

To find out more about filing a lawsuit requesting specific performance in The Bahamas, engage an attorney familiar with Bahamian law to represent you. To find out more, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.

About the Author

M. Margaret Gonsalves-Sabola

M. Margaret Gonsalves-Sabola is a civil and commercial litigation attorney and an accredited civil and commercial mediator. Margaret has over 21 years' experience in legal practice in the United Kingdom, Jamaica and The Bahamas.

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