Island Resources Ltd v Albert Simpson

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Panton P,Morrison JA,Lawrence — Beswick JA (Ag)
• Judgment Date: 06 December 2013
• Neutral Citation: JM 2013 CA 126
• Docket Number: SUPREME COURT CIVIL APPEAL NO 151/2010 APPLICATION NO 73/2011
• Date: 06 December 2013

[2013] JMCA App 36

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Morrison JA

The Hon Ms Justice Lawrence-Beswick JA (Ag)

SUPREME COURT CIVIL APPEAL NO 151/2010

APPLICATION NO 73/2011

Between

Island Resources Limited

Applicant

and

Albert Simpson

Respondent

Miss Allion Campbell for the applicant

Mrs Melrose Reid for the respondent

DAMAGES - Property damage - Loss of profits and recovery of security deposit - Whether the taking of security deposit was contrary to Rent Restriction Act

Panton P

1 On 19 July 2013, we refused the application for leave to appeal herein and awarded costs to the respondent Simpson to be agreed or taxed. We promised our reasons in writing, and we now fulfill that promise.

2 On 7 May 2010, Frank Williams J entered judgment in favour of the respondent Simpson in the sum of US$4,333.00 with interest in respect of claim 2006 HCV 00512 and for £4,000.00 with interest in respect of claim 2005 HCV 01012.

3 Mr Simpson had rented commercial property in Ocho Rios, St Ann, from the applicant, Island Resources Limited for the purpose of operating a restaurant. He claimed that the premises leaked and resulted in damage to his property. He sued for property damage, loss of profits and the recovery of US$4,333.00 paid by him to the applicant as ‘security deposit’.

4 The learned judge found, among other things, that the taking of a security deposit was contrary to the provisions of the Rent Restriction Act, and that no evidence had been presented to the court to show how that sum had been applied. He also found that water had come through the roof and damaged the property of the respondent as alleged. However, he found that the respondent was contributorily negligent in not exercising ‘due diligence’ which, he felt, would have helped to reduce, if not eliminate entirely, his losses. In this regard, the learned judge ruled that the respondent was liable for 20% of his damage.

5 On 13 October 2010, the applicant filed an application in the Supreme Court seeking leave to appeal, and to stay execution of the final judgment. That application was supported by an affidavit filed by Mr Richard Lake, a director of the applicant. Frank Williams J refused this application in March 2011. He also denied leave to appeal against the refusal.

6 On 31 March 2011, a notice of application for leave to appeal was filed in the Court of Appeal. The grounds for the application were stated thus:

• ‘a) The learned trial Judge gave judgment without having fully reviewed all the evidence in the matter;

• b) The learned Trial Judge gave judgment in the proceedings without having considered the submissions that had been duly filed in the matter on behalf of the Defendant;

• c) The Defendant has an appeal with a good prospect of success.’

Thereafter, several changes took place as regards the representation of the parties. It has been observed that notices of change of attorneys were at times filed in the Supreme Court, but not in the Court of Appeal. At the same time, there were continued hearings before the Supreme Court as regards execution of the judgment. These circumstances, it seems, account for the delay in the hearing of the application for leave to appeal.

7 However, on 21 December 2012, the applicant filed a further amended notice of application for court orders in which it sought leave to appeal the decision of Frank Williams J and a stay of execution of the final judgment entered in respect of claim 2006 HCV 00512, that is, the claim for the sum of US$4,333.00. Leave was also sought to ‘ amend and regularize the Notice of Appeal filed herein’. The grounds for the application were stated thus:

• ‘a. The learned trial Judge gave judgment without having fully reviewed all the evidence in the matter;

• b. The learned trial Judge gave judgment in the proceedings without having considered the submissions that have been duly filed in the matter on behalf of the defendant;

• c. The learned trial Judge gave judgment on a matter that was already finally decided by a Resident Magistrate; and

• d. The Defendant has an appeal with a good prospect of success.’

8 This application was supported by an affidavit filed by Miss Allion Campbell, attorney-at-law, who appeared for the applicant. It purports to state the history of the matter before the court, and refers specifically to an error that had been made in July 2010 when the final judgment of the court was sent to the parties in the form of a consent order. There has been no indication as to the reason for this error. Although this error was corrected in due course, it would have contributed somewhat to the delay in these proceedings while the attorneys-at-law and the registrar were in correspondence.

9 Miss Campbell's affidavit repeats a good portion of the contents of Mr Richard Lake's affidavit which was referred to earlier. Significantly, Miss Campbell's affidavit attaches an affidavit of Mr Kipcho West, attorney-at-law, who had conduct of the matter at trial.

10 The following important points emerge from these affidavits:

• • The applicant was challenging the decision of the learned judge as regards the legality of the ‘security deposit’.

• • The applicant was saying that the learned judge had before him evidence in respect of how the security deposit was applied.

• • The applicant's submissions were presented to the court within the...