Airport Beach Hotel Ltd v Courtney Hamilton

• Jurisdiction: Jamaica
• Judge: Jarrett, J
• Judgment Date: 06 October 2023
• Court: Supreme Court (Jamaica)
• Year: 2023
• Docket Number: CLAIM NO. SU2023CD00446

Between

Airport Beach Hotel Ltd

1 ^st Claimant

and

Ralph Scott

2 ^nd Claimant

and

Marlene Whittingham

3 ^rd Claimant

and

Courtney Hamilton

1 ^st Defendant

and

Tiffany Hamilton

2 ^nd Defendant

[2023] JMCC Comm 44

CORAM:

Jarrett, J

CLAIM NO. SU2023CD00446

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

COMMERCIAL DIVISION

Interpartes hearing of interim injunction — whether there is a serious issue to be tried — whether damages would be an adequate remedy — effect of material non-disclosure by the applicant.

Miss Abigail Henry instructed by Naylor & Mullings for the claimants

Mr Andrew Graham instructed Bishop & Partners for the defendants

IN CHAMBERS

Introduction

1 This is my decision in respect of an amended exparte notice of application filed by the claimants on September 14, 2023, by which the following orders are sought :

Interim injunctions having been granted by Barnaby J on August 28, 2023 and extended by Wint -Blair J on September 14, 2023, what came before me was the further consideration of the application at an interpartes hearing.

• a) “An injunction to restrain the Defendants whether by themselves or their servants and/or agents or otherwise from selling, mortgaging, pledging, assigning constructing or dealing in any way howsoever with the property known as all that parcel of land part of Palm Beach in the parish of St. James of 3435.3515 square meters and being all the land comprised in Certificate of Titles registered at Volume 1512 folio 224 in the Register Book of Titles (hereinafter referred to as ‘the subject property’)

• b) An injunction to restrain the Defendants, until the trial of this matter or further Order in the meantime, from evicting the Claimant from the subject property.

• c) An order to preserve the state of all that parcel of land part of Palm Beach in the parish of St James of 3435.3515 square meters and being all that land comprised in Certificate of Title registered at Volume 1512 folio 224 in the Register Book of Titles of the subject property (sic) until the trial of this matter or further order of the Court.

• d) The Claimant gives the usual undertaking as to damages.

• e) Costs of this application to the Claimant/Applicant

• f) Such further and/or other relief as this Honourable Court deems fit.”

The substantive claim

2 A substantive claim by way of amended claim form and amended particulars of claim, was filed on September 8, 2023. In the amended claim the claimants seek the following relief: -

• 1) “A Declaration that a valid and binding agreement exists between the Claimant and the Defendants in respect of the Agreement for Sale entered into on the 24 ^th day of August 2022 and the Lease /Purchase Agreement dated June 21, 2021.

• 2) An order for Specific Performance of the Agreement for Sale dated August 24, 2022, and the Lease /Purchase Agreement dated June 1, 2023 for all that parcel of land part of Palm Beach in the parish of Saint Janes of 3435.5315 Square Meters and being the lands comprised in Certificate of Title registered at Volume 1512 Folio 224 in the Register Book of Titles (hereinafter referred to as the (sic) “the subject property”).

• 3) In the alternative to (2), Damages in lieu of specific performance and /or for breach of contract.

• 4) In the alternative to (2), Damages for Loss of Opportunity and/or Bargain.

• 5) In the alternative to (2) Special damages in the sum of Ten Million Dollars ($10,000,000.00).

• 6) Interest thereon.

• 7) An injunction to restrain the Defendants whether by themselves or their servants and/or agents or otherwise from selling, mortgaging, pledging, assigning, constructing or dealing in any way howsoever with the subject property.

• 8) An injunction to restrain the Defendants whether by themselves or their servants and/or agents or otherwise from entering or trespassing upon the subject property or in any way disturbing the Claimant's possession of the land.

• 9) Costs and Attorneys Costs

• 10)Such further and/or other relief as this Honourable Court deems fit.”

Factual background

3 The 1 ^st claimant is a limited liability company which operates a hotel. The 2 ^nd and 3 ^rd claimants are its managing directors. The 1 ^st defendant is an attorney-at-law, and the 2 ^nd defendant is his daughter. The 1 ^st claimant practises law out of the chambers Hamilton & Hamilton, Attorneys-at-law. By a Lease dated June 21, 2021, the 2 ^nd and 3 ^rd claimants leased property part of Palm Beach in the parish of Saint James, measuring 3435.5315 square meters and being the lands comprised in Certificate of Title registered at Volume 1512 Folio 224 in the Register Book of Titles (“the property”) from Hamilton and Hamilton, Attorneys-at-law. The registered proprietors for the property are the 1 ^st and 2 ^nd defendants. The lease was for an initial period of two years, with an option to purchase the property within the first year of the lease and a right of first refusal should the option not be exercised. The lease contained a provision for the abatement of rent for a period of time to facilitate the “build out” of the property by the 2 ^nd and 3 ^rd claimants.

4 A purchase and sale agreement dated August 24, 2022, was entered into between the 1 ^st claimant and the 1 ^st and 2 ^nd defendants for the purchase of the property. The purchase price was stated to be US $1,300,000.00 with a deposit of US $100,000.00 on signing. There is a dispute as to when this agreement was signed. The claimants contend that the 1 ^st claimant did not receive a signed agreement from the 1 ^st and 2 ^nd defendants until about March 2023, while the defendants say that the agreement was signed by both sides on August 24, 2022, the date of the Agreement. The purchase and sale agreement exhibited to the affidavit of the 2 ^nd and 3 ^rd claimants, does not reflect stamp duty as having been paid.

5 On March 25, 2023, the 1 ^st defendant sent to the 1 ^st claimant a text message in which he said this: -

“Hi Mas Andy I felt compelled to bring to your attention the passage of Extended time and still no mortgage commitment. While I did not share my obligation time line with you it is now critical that we proceed to close title within the next 90 days. It is untroubled that I have been more than generous in giving you all this time to secure funding but its now affecting my own financial commitments

It is unarguable”

Following on that text, three cheques representing the deposit were sent to the 1 ^st defendant by letter dated May 19, 2023, from the claimants' attorneys-at-law.

6 By letter dated May 24, 2023, the 1 ^st defendant returned the cheques indicating, inter alia, that the property has been sold. The text of that letter is important, and so I reproduce it in full below: -

May 24, 2023

Naylor & Mullings

Attorneys-at-law

34-36 Old Hope Road

Kingston 5

Attention: Ms Gillian Mullings,

Re

Re: Proposed Purchase of land part of Palm Beach in the parish of Saint James registered at Volume 1512 Folio 224

Dear Ms Mullings,

We are in receipt of a letter with enclosures of cheques to our firm totalling US $100,000.00 without any frame of reference. Accordingly these cheques are being returned to you forthwith.

If you are referring to the property your clients occupy, that property has been sold. A Proper Notice under their Lease Agreement was given to them on May 15 pursuant to Paragraph 3 (1) of that Lease.

Please note that your clients had over a year to secure financing through both First Global Bank, National Commercial Bank and other private lenders, Menard Clarke and Patrick Davis, all of which proved for naught in that they were unsuccessful in all their attempts.

We continue to wish them well as Tenants and the Security Deposit we have for them will be returned when they vacate the premises.

Incidentally, I hope they shared with you a reduction in rent we gave to them which will now terminate, so that the original rent will go into effect immediately and will continue until they vacate the premises.

Very truly yours,

HAMILTON & HAMILTON

PER: Courtney Hamilton

7 The claimants say that $10,000,000.00 was spent by the 1 ^st claimant renovating and reconstructing the property. The 1 ^st claimant lodged a caveat on the certificate of title in respect of the property on the basis of having an equitable and legal interest in it. In the statutory declaration given by the 2 ^nd and 3 ^rd claimants in support of the caveat, on behalf of the 1 ^st claimant, they state that the deposit of US $100,000.00, was paid upon the signing of the purchase and sale agreement. The 2 ^nd and 3 ^rd claimants did not disclose that the deposit paid by the 1 ^st claimant was rejected and returned by the 1 ^st and 2 ^nd defendants. In the aftermath of the Registrar of Titles warning the caveat, the substantive claim was filed.

The submissions

8 Miss Henry, counsel for the claimants argued that there is a serious issue to be tried, as the text message from the 1 ^st defendant gave the 1 ^st...