Barbican Heights Ltd v Seafood and Ting International Ltd

• Jurisdiction: Jamaica
• Judge: Brooks JA,Sinclair-Haynes JA,Straw JA (AG)
• Judgment Date: 18 January 2019
• Neutral Citation: JM 2019 CA 1
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 84/2016
• Date: 18 January 2019

BETWEEN:

Barbican Heights Limited

Appellant

and

Seafood and Ting International Limited

Respondent

BEFORE:

THE HON Mr Justice Brooks JA

THE HON Mrs Justice Sinclair Haynes JA

THE HON Miss Justice Straw JA (AG)

SUPREME COURT CIVIL APPEAL NO 84/2016

IN THE COURT OF APPEAL

Mrs Sandra Minott-Phillips QC and Miss Rachel Mclarty instructed by Myers Fletcher and Gordon for the appellant

Miss Gillian Burgess, Counsel for respondent

Brooks JA

1 I have had the privilege of reading in draft, the judgment of Sinclair-Haynes JA and agree with her reasoning and conclusion. I have nothing to add.

Sinclair-Haynes JA

2 This is an appeal from Master Stephanie Jackson-Haisley's (as she then was) refusal to accede to Barbican Heights Limited's (BHL) (the appellant) application for summary judgment.

The background

3 Both BHL and Seafood and Ting International Limited (S&TL) are duly incorporated companies. On 1 August 2004 the parties entered into an agreement whereby S&TL leased from BHL property situate at 22 Millsborough Avenue, Kingston 6 in the parish of Saint Andrew for a period of five years. Ms Donna Roberts, S&TL's managing director, occupied the property with her child's father, Mr Frank Cox, who was the managing director of DYC Fishing Ltd (DYC).

4 Upon the termination of the lease on 31 July 2009, Ms Roberts vacated the premises in August 2009. Mr Cox however remained and continued paying the rent which BHL accepted. He subsequently defaulted in his payments. BHL consequently instituted proceedings against ST&L on 8 February 2014 for the outstanding rental in the sum of US$241,500.00 and continuing with interest at the commercial rate.

The application for summary judgment

5 On 5 May 2016 applications for summary judgment and for mediation to be dispensed with in relation to its claim were filed on BHL's behalf on the following grounds:

• “1. Good faith efforts to settle have been made and were not successful;

• 2. The defendant has failed to co-operate in having mediation convened; and

• 3. The defendant has no real prospect of successfully defending the claim.”

BHL also sought the court's consideration of the following issues:

• “1 The contractual relationship was between the Claimant and Defendant only under a Lease Agreement dated August 1, 2009 for premises located at 22 Millsborough Avenue, Kingston 6;

• 2 The claim is one for outstanding rent and utilities due to the Claimant from the Defendant;

• 3 The following facts namely that:

  • a. The Defendant agreed to pay rent under the lease (para 3 of the Lease);

  • b. The Defendant breached its covenant to pay when it ceased making payments in May, 2012;

  • c. There was no written notice to the Claimant to terminate the lease (para 5.8 of the Lease);

  • d. The Claimant did not provide written permission for the defendant to assign, sublet or otherwise part with the premises (para 3.7 of the Lease),

establish that the defendant remains indebted to the claimant for rent and utilities owed.”

BHL's case

6 BHL contended that the parties signed a second lease agreement dated 1 August 2009 for the said premises at a rental of US$11,500.00 per month. It was a term of that agreement that S&TL, would not assign, sublet or part with possession of the rented premises without BHL's written consent. In breach of that agreement, S&TL discontinued paying the rent.

S&TL's case

7 S&TL denied signing or entering into a second lease with BHL. It denied owing the sums claimed by BHL. It contended that in October 2009, its lease agreement with BHL ended by reason of effluxion of time. Consequently it gave up possession of the property to BHL.

8 Another entity, DYC took possession of the property and paid rent to BHL, which rent BHL accepted. BHL had notice of the change of occupancy prior to and during ST&L's relocation and there was no complaint about its lease agreement. In the circumstances BHL is estopped from resiling from its acceptance of DYC as its tenant or from claiming any breach of its expired lease agreement with ST&L.

BHL's evidence

Ms Sheryl Thompson's evidence

9 Ms Sheryl Thompson, the general manager for legal affairs for the Guardsman Group, of which BHL is a member, referred to the lease agreement dated 1 August 2009 which was appended to the particulars of claim on which BHL relied. She averred that the rent was to be paid on a quarterly basis. S&TL had been in default since 2012 and BHL has been unsuccessful in its effort to collect the rent owed.

10 It was also her evidence that BHL had never given any permission in writing for S&TL to assign, sublet or otherwise part with the leased premises. BHL only became aware of S&TL's arrangement with DYC when it commenced proceedings for recovery of possession in May 2013.

11 She further deponed that at no point in time did BHL receive any written notice of termination of the lease agreement or any notice at all from S&TL. BHL commenced an action against S&TL for recovery of possession and it recovered possession on 12 March 2014.

12 In respect of ST&L's application for mediation, she deponed that all efforts to convene mediation with S&TL had failed. It was her view that S&TL had no real prospect of successfully defending the claim which derived from its indebtedness to BHL.

S&TL's response

Mr Solomon Wentworth

13 By way of affidavit, Mr Solomon Wentworth, a director of S&TL averred that pursuant to a written agreement dated 1 August, 2004, S&TL's then managing director, Donna Roberts, had entered into a five year lease with the BHL. That lease was determined on 31 July 2009.

14 He averred that S&TL did not assign or sublet the premises to DYC and that there is no deed of assignment nor any agreement, formal or informal between S&TL and DYC in respect of the use and occupation of the premises.

15 Ms Roberts lived at the premises from at least 2004 to about October 2009 with Mr Cox, with whom she had a child. Their relationship broke down and she left. Mr Cox however continued to live there.

16 BHL was aware that Ms Roberts had left the premises yet it did not seek to collect rent from S&TL until sometime in 2012. Mr Wentworth denied BHL's assertion that the first time BHL became aware of the change in occupancy was 30 May, 2013.

17 Mr Kenneth Benjamin, the managing director, and the person with whom S&TL was in contact in respect to the rented premises, was aware that S&TL had, by October 2009, given up possession of the property. Ms Roberts had informed Mr Benjamin that she had vacated the property. He pointed out that between October 2009 and 2012 there was no demand for rent from S&TL by BHL.

18 It is his evidence that he is in the process of scrutinizing S&TL's records and there is no record of it paying rent to BHL between October 2009 and 2012, the period that it was not in occupation of the property.

19 He was unable to speak to the authenticity of the lease of 1 August 2009 which purports to bear Donna Roberts' signature because Ms Roberts is now deceased and she had denied signing the document. S&TL, he deponed, desired an opportunity at the trial to have the original documents forensically examined and to cross-examine the witnesses who allege that the lease agreement is authentic.

20 S&TL was disadvantaged because, although the relevant issues had arisen from 2012, BHL failed to institute proceedings until 2014 and made no effort to set the matter down for mediation until a year after the pleadings were closed. He further asserted that S&TL was ignorant of any effort made by BHL to convene mediation with it. He averred that the letters exhibited do not show a lack of co-operation by S&TL as alleged. The first letter, he pointed out, was a request for mediation and that letter was dated 28 May 2015. It was addressed to Livingston Alexander & Levy which firm does not represent S&TL in this matter.

21 The issues which have arisen are very serious and deserving of a full and proper investigation by the court to determine which party is speaking the truth. He opined that S&TL has a real chance of successfully defending the claim.

Mr Roger Chuck's evidence

22 Mr Roger Chuck deponed that he was a casual director of S&TL and the brother of Ms Roberts. Whilst in the process of checking BHL's records, he discovered bank drafts belonging to DYC which were payable to BHL for the period 2004 to 2009. Nine bank drafts were exhibited to his affidavit.

Decision of the court below

23 In deliberating upon the application for summary judgment, the learned Master in Chambers examined Part 15 of the Civil Procedure Rules (CPR) and the cases Celador Production Limited v Melville and another [2004] EWHC 2362 (Ch) and Taylor-Wright (Marvalyn) v Sagicor Bank Jamaica Ltd [2016] JMCA Civ 38. In considering whether S&TL had a real prospect of successfully defending the claim she deemed it necessary to resolve the following issues:

The learned Master, having examined both claims, resolved the issues in S&TL's favour and thus rejected BHL's contention that S&TL had no real prospect of successfully defending the claim.

• “1. Whether the defence constitutes a bare denial;

• 2. Whether the defendant is deemed to admit the authenticity of the lease because of its noncompliance with CPR 28.19; and

• 3. Whether the issue of estoppel arises.

24 Having so found, she opined that in dealing with the matter, she was confronted with two decisions: whether to grant summary judgment; and if not, whether mediation ought to be dispensed with.

The appeal

25 Displeased with the learned Master's refusal to grant its request for summary judgment, BHL filed the following grounds of appeal.

Grounds of appeal

• “(1) The learned Master in chambers erred in finding that the claimant ought to have pleaded the circumstances surrounding the execution by the defendant of the 2009 lease;

• (2) The learned Master erred in failing to hold the defendant to...