Fletcher _Franz_ V Jamaican Redevelopment Foundation.pdf

edeem the mortgage. In his view, “it is not a request with an expectation that themortgagee will say no. In fact consent is usually granted as a matter of course”.[14] Miss Janet Farrow merely exhibited to her brief affidavit the instruments ofguarantee executed by Ruby Fletcher on 23 June 1987 and 7 June 1989.Shespecifically referred to and relied on clause 9 of the guarantee which she said protectedthe respondent. She deposed that Mr Fletcher was the person who negotiated therestructured debt agreement, and so “as the party who negotiated the agreement andas the personal representative of the estate Ruby Fletcher, Mr Franz Fletcher knew andconsented at all material times to the terms of that conditional agreement”.Theagreement was not however executed by the applicant in his capacity as executor ofthe estate, as the applicant was only appointed as executor by a grant of probate 3years after the date of the agreement, as mentioned, (nor as her personalrepresentative she having been deceased at the time). Miss Farrow also indicated thatthe respondent relied on section 33 of the Limitation of Actions Act as it provided “thatany payment of principal or interest or a written acknowledgment of the debt given bythe debtor to the creditor or his agent keeps the debt alive.” Further she had beenadvised by her attorneys that “there is no statutory defence of limitation to theenforcement of the guarantee or the mortgage”.[15] With that factual background the Honourable judge refused the interlocutoryinjunction but as indicated maintained the status quo, giving the claimants anopportunity to file an appeal which they did, and so the status quo has continued.