Idid Investment Company Ltd v Errol McGaw and Nancy McGaw

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Staple, J.
• Judgment Date: 31 July 2025
• Year: 2025
• Docket Number: SU2023CV03457

Idid Investment Company Ltd.

and

Errol McGaw and Nancy McGaw

Staple, J.

SU2023CV03457

Supreme Court

Appearances:

Mr. Gordon Robinson, with Ms. Dayna Nicole Raynor, instructed by Winsome Marsh for the Claimant

Mr. Marc Williams, with Ms. Stevie Spence, instructed by Williams, McKoy & Palmer for the Defendants.

BACKGROUND

Staple, J.

1 The Parties are neighbours, what we in Jamaica would call “line and line” neighbours. The Claimant is the owner of Lot 2, Billy Dunn, together with the undivided shares of common property comprised in Certificate of Title registered at Volume 1304 Folio 474 of the Register Book of Titles. The Defendants own Lot 4.

2 The Claimant asserts that it bought the property in or around 1995 and thereafter constructed a family home on the said property.

3 Sometime in 2017, the Claimant became aware of a legal notice issued on the Defendants' behalf advising of their intention to modify a restrictive covenant on their (the Defendants') title. To allow for subdivision of their lot into lots of less than 20,000 square feet. The Claimant objected.

4 Following negotiations, the parties came to a settlement. The Claimant lifted their objection. According to the pleadings of the Claimant, they were induced by the specific representation by the Defendants that they would construct a retaining wall to prevent any damage to the Claimant's property from the construction/development planned by the Defendants and that the construction would not exceed a certain height.

5 The Claimants allege that the construction of the retaining wall was completed in February of 2017, but asserted that it was not “properly engineered or constructed”.

6 According to the Claim, in early November 2020, significant damage was done to the Claimant's property due to the negligent manner in which the wall was constructed by the Defendants' servants and/or agents. The Claimant also asserts claims in nuisance and/or trespass.

7 The Claimant asserts that the actions of the Defendants undermined their perimeter wall and caused; the creation of a large sinkhole; a split in the original retaining wall between Townhouse Numbers 1 and 2 and also between Townhouses 2 and 3; sinking of the Claimant's backyard levels; sinking of the perimeter fence; interlocking pavers in the Claimant's yard to sink or become uneven and distracted; separation of the concrete steps from the Claimant's house; multiple cracks; and an underground leak.

8 The Claimant further asserted that the Defendants sheared off the land on their (the Defendants') property without any consideration as to the adverse effects of this action on the Claimant's property. The Claimant further claimed that the Defendants did not construct the retaining wall before commencing the shearing off. Other damage was asserted as a consequence of the shearing off.

9 The Claimant, by their Amended Claim, seeks Damages for Negligence, Trespass, Nuisance, Misrepresentation, Unjust Enrichment, etc.

10 The Defendants filed a Defence and Counterclaim on the 15th January 2024.

11 The Defendants counterclaimed against the Claimant that the Claimant, unlawfully (and in breach of their restrictive covenant) the discharged their storm water and sewage onto the Defendants' property. The Defendants relied on paragraphs 6, 10, 11 and 13 of their defence as the factual substratum of their counterclaim.

12 On the 28th June 2024, the Claimant filed an application to strike out the Defendant's counterclaim on the basis that it discloses no reasonable grounds for bringing the Claim. In the alternative, they asked that the Defendants' counterclaim for Breach of the Claimant's Restrictive Covenant be struck out as disclosing no reasonable grounds for being brought.

13 The Claimant asserts that the Defendants' counterclaim is vague, general in nature, and discloses no specific facts to establish any claim against the Claimant. They assert that none of the paragraphs of the Defence expressly relied upon by the Defendants to establish the Counterclaim included any positive averment to support the counterclaim.

14 The Claimant asserted that no particular restrictive covenant was pleaded, and they have failed to plead the basis upon which they claim to be able to benefit from the unspecified covenant or the basis upon which the Claimant is alleged to bear the burden of the unspecified covenant.

15 The Defendants have refuted this application on the basis that (as far as can be gleaned from their written submissions filed on the 30th June 2025 at paragraph 10) their counterclaim is not fanciful, vexatious, or devoid of merit.

THE LAW ON STRIKING OUT

16 The Court's power to strike out a statement of case that discloses no reasonable ground for bringing an action is found under rule 26.3(1)(c). The Court may also strike out a case for failure to comply with a rule, order or practice direction in accordance with rule 26.3(1)(a).

17 Now, striking out is one of the most draconian actions a court may take in relation to the statement of case of a party to a claim. It should therefore be used sparingly and only in the most obvious of cases.

18 Borrowing from the dicta of my sister judge Jackson-Haisley, J. in the case of LOZANE v. BECKFORD [2020] J.M.S.C. Civ. 106 AT PARAS 30 and 31.

• “[30] … in S & T Distributors Limited and S & T Limited v. CIBC Jamaica Limited and Royal & Sun Alliance SCCA 112/04 delivered 31st July, 2007, in which Harris, J.A. stated at page 29: “The striking out of a claim is a severe measure. The discretionary power to strike must be exercised with extreme caution. A court, when considering an application to strike out, is obliged to take into consideration the probable implications of striking out and balance them carefully against the principles as prescribed by the particular cause of action which sought to be struck out. Judicial authorities have shown that the striking out of an action should only be done in plain and obvious cases.”

• [31] Similarly, in the case of Drummond Jackson v. British Medical Association and Others [1970] 1 W.L.R. 688, Lord Pearson opined at page 695 that: “Over a long period of years it has been firmly established by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause of action is a summary power which should be exercised only in plain and obvious cases.” [my emphasis]”

19 In deciding whether to strike out a statement of case on the basis that it discloses no reasonable ground for bringing a claim, the court must consider whether or not the Claimant has pleaded facts supportive of the cause of action he seeks to establish. So, it is not enough for the Claimant to plead the cause of action; there must be a factual basis established on the face of the pleaded case to support the cause of action. There must be a factual basis for going to trial.

20 I agree with the authority of City Properties Limited v. New Era Finance Limited [2013] J.M.S.C. Civ. 23 and the statement of the principle of Batts, J. at paragraphs 9–11 of the judgment.

21 As Batts, J. said, what is required is an examination of the statements of case to ensure that the facts as alleged support the cause of action the Claimant seeks to establish.

THE PLEADINGS

22 As this issue turns on the terms of the pleadings in the counterclaim, I will set out the paragraphs from the Defence upon which the Defendants rely to establish the facts that purportedly support their counterclaim.

23 At the start of the counterclaim, the Defendants said, at paragraph 19, that they repeat paragraphs 6,10, 11 and 13 of the Defence. They then go on to assert that the Claimants have been unlawfully and in breach of their restrictive covenant discharging their storm water and sewage onto the Defendants' property, and that the Claimants continue to trespass on the Defendants' property and/or to be a nuisance.

24 I will set out the contents of paragraph 6 below:

6 Paragraph 10 of the Claimant's Particulars of Claim is denied. The Defendants were not in any way negligent in their construction and did not cause damage to the Claimant's Property. The Defendant further avers that:

• i Upon investigation, the damage alleged to have been caused to the Claimant's property was caused wholly or in part by the poor drainage infrastructure on the Claimant's property, geological impacts (of which the Defendants have no control) and/or acts of God. It was also discovered that there was a leaking pipe which ran through the Claimant's property, causing significant damage, owing to the Claimant's poor drainage infrastructure.

• ii. After commencing construction in 2018, it was observed that the Claimant and, in general, the townhouse development that the Claimant is a part of have been channelling and discharging their storm water inter alia onto the Defendants' property in breach of their restrictive covenant.

• iii. The Defendants (through their engineer and contractor) discovered that the Claimants had serious pre-existing drainage issues, which they clearly tried to mitigate by abusing the Defendants' land. The Claimant's boundary wall had numerous weep holes that constantly dumped a tremendous amount of water onto the Defendants' land.

• iv. The Defendants to date continue to see water/moisture coming through their retaining wall, and from their assessment, the Claimants still have not resolved their drainage issue, which will ultimately impact the integrity of the Defendant's property.

• v. The Defendants have frequently observed that surface drainage and storm water out of the Claimant's property are not effectively intercepted, channelled and disposed of before reaching the roadway and bordering properties, bringing with it soil, marl and other debris, causing damage.

25 I will not repeat paragraphs 10, 11 and 13 here as, based on their contents, they are direct responses to the...