Business Ventures & Solutions Inc. v Anthony Tharpe
| Jurisdiction | Jamaica |
| Judge | Sonia Bertram Linton, J |
| Judgment Date | 01 February 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU2021CV01393 |
[2022] JMSC Civ. 15
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. SU2021CV01393
Mrs. Alexis Robinson and Mr. James Earle Kirkland instructed by Myers Fletcher & Gordon for the Claimant
Mr. Anthony Tharpe the Defendant in person
Interim injunction — Factors to consider in granting an interim injunction — Whether there is a serious issue to be tried — Whether damages are adequate — Balance of convenience — Civil Procedure Rules — Section 49 (h) of the Judicature (Supreme Court) Act
The Claimant, says that Business Ventures & Solutions, Inc (hereinafter “BVS”) is a company duly incorporated under the laws of New York, United States of America. Its registered office is at Capitol Services, Inc., 1218 Central Ave. Suites 100, Albany, New York, 12205, USA and that the Defendant, Mr. Tharpe is the former sole owner of BVS.
On March 25, 2021 the Claimant filed an action seeking an injunction to restrain Mr. Tharpe, whether by himself or his servants and or agents from entering and dealing with the parcels of land registered at Volume 665 Folio 10 and Volume 665 Folio 11 and Volume 650 Folio 65 in the Register Book of Titles in Palm Beach, Montego Bay in the parish of St. James. Together all properties were known as 15 Queens Drive, Montego Bay in the parish of St. James referred to as “the Property”. The Claimant also sought damages for trespass and loss of use and profits and interest at 6% pursuant to the Law Reform (Miscellaneous Provisions) Act, costs, and any other relief the Court deems just.
The Property was previously owned by Alexander Burnham and was governed by the Alexander Burnham Trust (the Burnham Trust) prior to it being transferred to the BVS on April 6, 2006. However, on February 2 nd 2016 the Burnham Trust sought an injunction against BVS to restrain its agents and or servants from transferring, mortgaging, charging or encumbering or otherwise dealing with or disposing of the property. This injunction was granted for a period of twenty-eight days. The Defendant, Mr. Tharpe who was a former director and principal owner of 100% interest in BVS filed for bankruptcy on February 22, 2017. A trustee was appointed by the United States Bankruptcy Court (hereinafter “the US Court”) for Mr. Tharpe's estate in bankruptcy. On September 26, 2017 the US Court approved the sale of 100% of the Defendant's Interest in BVS and on October 6, 2017 the bankruptcy trustee transferred the 100% ownership from BVS to the Burnham Trust who became the legal and beneficial owner.
The US Court then ordered that the Defendant no longer had ownership, interest in or control over BVS. The US Court also sanctioned the Defendant for continuing to purport to act on behalf of BVS, including but not limited to pursuing any claims on behalf of BVS. As a result, on May 6, 2019 Mr. Tharpe was remove as the director and principal of BVS and Mr. Steve Rapier was appointed as the sole director and president of BVS.
On December 3, 2020 the Burnham Trust wanted to sell the property to an interested purchaser and so they applied to have the injunction against BVS, which it now owned, discharged. However, they allege that it was brought to their attention, and subject to checks, it was confirmed that the Defendant, Mr. Tharpe was trespassing on the property. The Claimant informed the Police, and their Attorney wrote a letter requiring Mr. Tharpe to cease and desist from trespassing on the Property. However, he continued his actions.
The Defendant continued to enter and erect numerous structures on the Property without the Claimant's permission. The Particulars of Claim also outlined that Mr. Tharpe removed the Claimant's servants and agents from the property resulting in them suffering loss and damage and incurring expenses.
The claim also alleges that BVS has been and continue to be deprived of any use of the property since the injunction was discharged. They are having difficulty selling the property and they have had to contract private security services to secure the property.
By way of Notice of Application for Court Orders file on March 25, 2021 the Claimant sought the following orders:
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1. The Defendant is restrained until the determination of this claim, whether by himself, his servants, agents, or any of them or otherwise howsoever from entering, altering or otherwise dealing with:
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a. ALL THAT parcel of land part of Palm Beach situate in the Town of Montego Bay in the parish of Saint James containing by survey twenty-four thousand seven hundred and nine square feet and thirty-five hundredths of a square foot of the shape and dimensions and butting as appears by the plan thereof and being part of the land comprised in Certificate of Title Registered at Volume 665 Folio 10 in the Register Book of Titles;
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b. ALL THAT parcel of land part of Palm Beach situate in the Town of Montego Bay in the parish of Saint James containing by survey forty-four thousand one hundred and forty-eight square feet and seventy-seven hundredths of a square foot of the shape and dimensions and butting as appears by the plan thereof and being part of the land comprised in Certificate of Title Registered at Volume 665 Folio 11 in the Register book of Titles;
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c. ALL THAT parcel of land part of Palm Beach situate in the Town of Montego Bay in the parish of Saint James containing by survey fifty-nine thousand five hundred and ten square feet of the shape and dimensions and butting as appears by the plan thereof and being comprised in Certificate of Title Registered at Volume 650 Folio 65 in the Register book of Titles;
together known as 15 Queens Drive, Montego Bay St. James. (“the Property”)
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2. The costs of this application are costs in the Claim.
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3. Such other relief as this honourable Court deems fit.
What is now before this Court is the inter parties hearing of the interim injunction. Counsel for the claimant and the Defendant, who represented himself, both submitted written submissions. I will not address all the submissions and authorities but will refer to those that are applicable to the instant case.
The Claimant submits that the main issue is whether it is just and convenient under the circumstances for the Defendant to be restrained from his trespass on their land. The application is made pursuant to section 49 (h) of the Judicature (Supreme Court) Act as a statutory basis for the grant of the interlocutory injunction. In addition, Part 17 of the Civil Procedure Rules (hereinafter CPR) provides the procedural context of the application for an interim injunction.
The cases of American Cyanamid v Ethicon Limited [1975] 1 ALL ER 504 at pp 510–11 and National Commercial Bank (NCB) v Olint Corporation [2009] UKPC 16 outlined the guidelines the Court should consider when determining whether to grant an interlocutory injunction. These are:
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i. The claim is not frivolous nor vexatious; that there is a serious issue to be tried
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ii. Damages are not an adequate remedy; and that
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iii. The balance of convenience generally lies in favour of granting the interim injunction.
In support of the point that there is a serious issue to be tried the Claimant says that the Certificates of Title exhibited in the Affidavit of Steve Rapier shows that the property is owned by them. They also referred to documents before the Court which demonstrated that Mr. Tharpe's interest in BVS was assigned pursuant to the Florida Bankruptcy Court Order. Therefore, Mr. Tharpe has no legal or equitable right to the Property. Without BVS' authorization Mr. Tharpe is trespassing and defacing the property and prejudicing the Claimant's commercial interests. On the face of the pleadings there is evidence before the Court that there is a serious issue to be tried because the Defendant has no lawful excuse to interfere with the Claimant's right to exclusive possession and their right to dispose of their interest in the Property.
In support of the point that damages are not an adequate remedy the Claimant referred to American Cyanamid (supra) to emphasize that the court, before granting an injunction should consider whether damages would be adequate as compensation for any the loss. The case emphasizes that where damages would be adequate, no injunction should be granted however, credible the Claimant's case is. The Claimant is concerned that Mr Tharpe would not be in a financial position to pay the damages as he has proven and...
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