Ian Lunan v Rohan Sudine

• Jurisdiction: Jamaica
• Judge: Hon. K. Anderson, J.
• Judgment Date: 23 October 2015
• Neutral Citation: [2015] JMSC Civ 260-1
• Court: Supreme Court (Jamaica)
• Docket Number: IN THE CIVIL DIVISION CLAIM NO. 2010 HCV 00041
• Date: 23 October 2015

[2015] JMSC Civ 260

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Anderson, K. J

IN THE CIVIL DIVISION CLAIM NO. 2010 HCV 00041

Between

Ian Lunan

Claimant

and

Rohan Sudine

Defendant

Michael G. Howell , instructed by Knight , Junor and Samuels , for the Claimant

Kent Gammon instructed by Kent Gammon and Company for the Defendant

LANDLORD AND TENANT - Tenancy agreement - Periodic tenancy - Notice to quit - Re-entry by landlord unto leased premises - Failure of tenant to end occupation of leased premises - Claim for damages for breach of contract and damages for lost opportunity - Whether there was a breach of contract by the parties - Failure by defendant to comply with terms of lease - Proof of special damages

1 This matter concerns a claim for breach of contract and loss of an opportunity and a counterclaim for damage to and loss of, equipment, in the context of a lease agreement which was entered into, between the parties. The lease in question, dated October 31, 2013, should have and could have been much more particular as to the terms agreed between the claimant and the defendant, so as to clearly state the parties' intentions. Furthermore, special arrangements had been made for the renovation of the leased premises and this was not mentioned in the lease. In addition, the parties should have reduced a subsequent lease which they had entered into writing, having regard to the fact that the premises leased was a commercial premises leased with fixtures.

2 During the course of the trial, both parties, in support of their respective cases, gave evidence through their witness statements, which stood as their examination-in-chief and through viva voce evidence adduced primarily upon cross-examination. The defendant's witness statement was amplified, where necessary. Only the claimant and the defendant testified respectively, in support of their statements of case.

The Background

3 This matter came before the court by claim form and particulars of claim both filed January 8, 2010. The acknowledgment of service of claim form filed January 14, 2010 disclosed that service was effected on the defendant on January 13, 2010. A defence and counterclaim was filed by the defendant on February 26, 2010. There was an order of this court, which was made at pre-trial review, permitting the defendant to rely on an amended defence and counterclaim, which was to have been filed and served by or before April 11, 2013. Same was so filed and served.

4 The following remedies are being sought by the claimant:

1

) Damages for breach of contract; 2) Damages for lost opportunity; 3) Interest at the commercial rate or pursuant to the Law Reform (Miscellaneous Provisions) Act or at such rate as this Honourable Court shall think fit; 4) Costs; 5) Attorneys costs; 6) Any other such order as the court sees fit.

5 The particulars of claim indicate as follows: The claimant and the defendant entered into a three (3) year agreement for the lease of part of 41 Dunrobin Avenue, Kingston 10 (hereinafter described “as the premises”). The date of commencement of the lease was October 31, 2003 for a section of a building at the front of the premises and a machine shop, together with certain equipment and machinery therein, for the purpose of conducting business. Prior to the lease agreement (which is hereinafter referred to as “the 2003 agreement”) there was a fire at the premises, which became the subject of the lease, and the premises had not been fully repaired. It was therefore agreed between the parties that the claimant — being the tenant, would renovate the front section of the premises and that the defendant being the landlord, would compensate the claimant for those renovations by monthly deductions of fifteen thousand dollars ($15,000.00) from the sum due for rent. The claimant contends that he was to receive additional space and to date the defendant has not provided to the claimant, the additional space that was promised.

6 The defendant, by means of his defence and counterclaim, has claimed compensation for damage to and loss of equipment and material in the sum of $578,000.00 along with interest at 20% of the sum claimed. The defendant put forth in his defence that there was a written agreement subsequent to the 2003 lease and that additional space was afforded to the claimant for no further rent. On September 22, 2009, the claimant served the defendant with a notice to quit the premises.

7 In the defendant's statement of case, it was alleged that the defendant took out a civil suit against the claimant, in an effort to remove the claimant from the additional space behind the workshop and to recover monies owing in early 2008. No allegation was made in the defendant's statement of case, as to what the outcome of that civil suit was and also, there was no allegation as to any criminal complaint having been made by the defendant against the claimant in respect of any matter pertaining to the lease and/or usage of the relevant premises, by the claimant.

8 The claimant filed neither a reply, nor a defence to counter-claim. What this court has done though, is to treat with the claimant's particulars of claim, as though it is the equivalent of the claimant's defence to counter-claim. If this court had done otherwise, it would have had to have required the defendant to seek, through the registrar, entry of default judgment, against the claimant, in respect of the ancillary claim. Even if that were to be granted, in the defendant's favour, it could thereafter have been set aside, based on the claimant's allegations as set out in the claimant's particulars of claim, since essentially, those allegations could not, to my mind, properly be deemed by a court as having no realistic prospect of success, in response to the defendant's counter-claim. The days of this court being more concerned with form than substance, are over, as also, are this court's engaging in permitting its proceedings to be used in a manner which wastes either time or costs, much less, both time and costs.

9 What this court has found itself wholly unable to do though, is to treat in any way whatsoever, with the allegation in the defendant's statement of case, that a civil suit was instituted by the defendant against the claimant, in the magistrate's court, in an effort to remove the claimant from an additional space behind the workshop and to recover monies allegedly then owed by the claimant, to the defendant — that being in early 2008. Equally, this court has also been unable to treat with the evidence given at trial, of the claimant having been convicted in the magistrate's court, of the criminal offence of malicious destruction of property. That evidence was given at trial, by the defendant.

10 The former allegation takes this matter no further, as far as rendering of judgment is concerned, because the mere filing of a civil suit in court, as the defendant has alleged that he did, cannot enable this court to conclude, one way or the other, that said suit was justifiably pursued, or successfully pursued. Parties must set out their statement of case with sufficient detail and clarity, so as to properly enable an opposing party to know the case which he has to meet. See rules 8.9, 8.9A, 10.5 and 10.7 , of the Civil Procedure Rules (CPR), in that regard.

11 Those rules of court, referred to immediately above, considered collectively, require the parties to set out in their claim, particulars of claim, or defence (as the case may be) a statement of all the facts being relied on and expressly preclude a party from relying on any allegation or factual argument which is not so set out, but which could have been set out there, unless the court gives permission. No such permission was ever sought by the defendant and thus, none such was ever granted. In the circumstances, this court has paid no attention to the evidence of the claimant having been criminally convicted in the magistrate's court, for the purpose of rendering its judgment herein, other than to the very limited extent as has been referred to in paras. 9–11 hereof.

12 The parties agreed a bundle of documents as set out below and accordingly, all of these documents were entered as exhibits:

• a) Letter from defendant to the claimant, dated October 2, 2005;

• b) Letter from defendant to the claimant, dated July 31, 2006;

• c) Letter from defendant to the claimant, dated October 31, 2008;

• d) Letter from defendant to the claimant dated June 24, 2009;

• e) Notice to Quit dated September 22, 2009 and served on the claimant;

• f) Lease dated October 31, 2003, between the defendant and the claimant;

• g) Letter from claimant to the defendant, dated July 1, 2009;

• h) Letter from defendant to the claimant, dated July 7, 2009;

• i) Machinery, equipment and accessories listing owned by the defendant and rented by the claimant;

• j) Photographs of the state of the extended office and of work being done on the building in 2003; and

• k) Expert report from quantity surveyor prepared by Ryon Edwards dated June 18, 2013.

13 Essential to the issues in this case, is the credibility of the parties. The court is not obliged to accept all of the evidence of any witness, or of any part thereof, but has the discretion to accept a part of the evidence if it deems same to be credible. The court does not wholly accept the evidence of either the claimant or the defendant. This court accepts however, that parts of their evidence are credible and truthful.

14 The ordinary civil standard of proof is on a balance of probabilities and the claimant has the burden of proof, to prove his claim, while the defendant has the burden of proof, to prove what he claims, by means of his counterclaim.

15 For his part though, in his amended defence and counter-claim, the defendant asserted that the claimant was...