Alrick Wright v Donna Farquharson
| Jurisdiction | Jamaica |
| Judge | Palmer Hamilton, J |
| Judgment Date | 24 February 2021 |
| Neutral Citation | [2021] JMSC Civ 39 |
| Docket Number | CLAIM NO. SU2019CV04837 |
| Year | 2021 |
| Court | Supreme Court (Jamaica) |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. SU2019CV04837
Mr. Ashford Washington Meikle for the Claimant/Respondent
Mr. Neco Pagon instructed by Peter C. Champagnie Q.C. for the Defendant/Applicant
Civil practice and procedure — Interlocutory injunction — Whether there is a serious issue to be tried — Balance of inconvenience — Whether damages is an adequate remedy
This application emanates from a sale of property situate at Shop No. 2 Hotel Street, Compton House, Mandeville in the parish of Manchester. The facts giving rise to the application are aptly set out by Learned Counsel for the defendant (hereinafter referred to as “the applicant”) and I will adopt them in an effort to preserve precision and render the proceedings intelligible.
The applicant owned and operated a retail store trading under the business name “Sharon's Meat”. The business location is leased from the Jamaica Agricultural Society (hereinafter “JAS”).
The applicant contemplated migrating to the United States of America which resulted in her decision to sell the business. The applicant and the claimant (hereinafter “the respondent”) met in or around 2019 and subsequently entered into an oral agreement for the sale of the business which included the sale of the business name and/or goodwill, the inventories, business fixtures, chattels and a HiAce bus.
There is a disparity between the parties as to the consideration for the sale of the business and the amount in part payment that was received towards the sale price. What is not in dispute is that a part payment was received and the applicant handed over the business operations to the respondent on the understanding that the remainder would be paid while she was overseas. The applicant maintained that as security for the payment for the balance of the purchase price, the title to the HiAce bus was not handed over to the respondent nor did the applicant reassign the Jamaica Public Service contract and lease to the respondent.
The relationship subsequently disintegrated, the crucial reasons for this being the alleged indebtedness of the business to JAS, Jamaica Public Service and to various suppliers. This amidst other factors led the respondent to institute legal proceedings in the civil division of this Court claiming a reimbursement of the sum of Four Million Five Hundred and Sixty-Four Thousand Three Hundred and Fifty — Four Dollars ($4,564,354.00) with interest for monies paid to the applicant for the purchase of the business. The applicant counterclaimed for the following: -
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1. The sums of Two Million Five Hundred and Fifty-One Thousand and Sixty-Three Hundred Dollars and Twelve Cents ($2,551,063.12) being the outstanding balance due on the purchase price;
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2. Five Hundred and Sixty Thousand Dollars ($560,000.00) being the outstanding amount due on the rental payable for the period of September 2019 to January 2020; and
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3. Four Hundred and Twenty Thousand Dollars ($420,000.00) being the outstanding rental due and payable for the period of January 1, 2020 to April 1, 2020 and continuing.
By way of Notice of Application for Court Orders filed on the 11 th day of June 2020, the applicant sought the following orders: -
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“1. This claim be transferred to the Commercial List pursuant to the Supreme Court Civil Procedure Rules (“CPR”) Rule 71.6.
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2. The parties be referred to mediation within 90 days from the date of this Order pursuant to CPR Rule 74.3(2).
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3. The hearing of a Case Management Conference be fixed in this matter.
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4. An interim injunction to restrain the Claimant, whether by himself, servants and/or agents or otherwise from continuing to enter upon property situate at Shop No.2, Hotel Street, Compton House, Mandeville in the parish of Manchester (hereinafter referred to as the “leased premises”).
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5. The Defendant be indemnified by the Claimant against all liabilities, claims, loss, damages, costs, interests, demands, legal fees, whether now apparent or not in relation to the Claimant's use and or occupation of the leased premises.
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6. Costs.
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7. Such Further and other relief as this Honourable Court deems fit.
When the matter came before me for hearing on the 23 rd day of July and on the 5 th day of August 2020, I made the following Orders: -
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“1. This claim is transferred to the Commercial List pursuant to the Supreme Court Civil Procedure Rules (“CPR”) Rule 71.6.
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2. The parties are referred to mediation to be completed within Ninety (90) days from the date of this Order pursuant CPR Rule 74.3(2).
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3. Fees attached to the granting of this transfer are to be paid by the Applicant/Defendant.
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4. By consent, the Applicant/Defendant is indemnified by the Claimant against all liabilities pertaining to rent due and owing to the Jamaica Agricultural Society and in respect of the Claimant's use and occupation of the leased premises being Shop No. 2, Hotel Street, Compton House, Mandeville in the parish of Manchester.
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5. Costs to the Applicant/Defendant to be costs in the claim.
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6. Case Management Conference is fixed in the Commercial Division on the 24 th day of November 2020 at 10:00am for two (2) hours.
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7. The inter partes hearing on the interim injunction is adjourned to the 24 th day of November 2020 at 10:00am for two (2) hours.
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8. Skeleton submissions and list of authorities pertaining to the application for interim injunction are to be filed and exchanged by 13 November 2020.
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9. The Applicant's/Defendant's Attorney-at-Law to prepare, file and serve the Orders made herein.”
What is now left to be determined from this application is the hearing of the interim injunction which was subsequently traversed to the 19 th day of January 2021. I thank Counsel for their submissions and the supporting authorities which provided great assistance to the Court. I do not believe it is necessary to address all the submissions and authorities throughout my judgment but will refer to them to the extent that they affect my findings.
Learned Counsel for the applicant Mr. Pagon in summary made the following submissions: -
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1. The interim injunction
The application is made pursuant to section 49 (h) of the Judicature Supreme Court) Act. An injunction may be granted where in the circumstances it appears to the Court to be just or convenient. The practice and procedure are set out in part 17 of the CPR. The case of American Cyanamid Co. v Ethicon [1975] AC 396 sets out the guidelines upon which a Court should exercise its discretion to grant or refuse an interim injunction.
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2. There are serious issues to be tried between the parties as set out in the pleadings.
The claim by the respondent is for reimbursement of monies advanced for the purchase of the applicant's commercial enterprise. The counterclaim by the applicant is to specifically enforce the terms of the contract for the purchase of her commercial enterprise to the respondent and other relief to include payment for outstanding debt. The claim therefore amounts to a breach of contract.
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3. The applicant satisfies the balance of convenience test.
Learned Counsel averred that on the question of whether the applicant would be adequately compensated by damages, the answer is no. The applicant stands to suffer embarrassment and loss of reputation as a responsible business owner and tenant. That loss may not be quantifiable. The applicant is also exposed to litigation. On the other hand, the respondent has already quantified his loss by making a claim for reimbursement for monies advanced for the purchase of the applicant's commercial enterprise. In essence, the respondent seeks rescission.
The applicant is prepared to abide by any order of this Honourable Court in the form of an undertaking and the respondent would be adequately protected by the applicant's undertaking in damages.
The orders sought by the applicant are necessary to preserve the status quo.
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4. Special circumstances
The applicant complains that she is exposed to litigation by the landowners for the business premises for which she still holds the tenancy. The respondent's occupation of the property is based on the purchase of the applicant's commercial enterprise of the applicant. The respondent has not paid any rent since his occupation and he now seeks rescission whilst the applicant is exposed to rent arrears and litigation. The status quo would therefore be preserved by issuing the injunction. the case of Azzuro Coast Limited v Dennis Atkinson et al [2016] JMCC Comm 36 was cited in support of this submission.
Mr. Pagon concluded his submissions by submitting that in all the circumstances of the case this Honourable Court should exercise its discretion in granting the applicant relief as sought in the application.
Learned Counsel for the respondent Mr. Ashford Meikle adumbrated his submissions by commending to the Court the cases of American Cyanamid Company v Ethicon Limited (supra) and National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) [2009] UKPC 16 as setting out the test governing the granting of interlocutory injunctions.
On the issue of whether there is a serious issue to be tried Mr. Meikle submitted that the applicant's prayer for injunctive relief must fail because it was frivolous and vexatious for the following reasons: -
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1. It is an abuse of process caused by her vindictiveness and an attempt to unjust enrichment. The applicant engaged in a campaign of harassment against the respondent. She held out herself as a representative of JAS delivering a letter to the respondent, written by her, in which she claimed JAS needed the premises and that he should quit the premises. The...
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