Louis Campbell v Ambiance Resort Properties Inc.
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA,F Williams JA,Simmons JA |
| Judgment Date | 31 January 2022 |
| Neutral Citation | JM 2022 CA 12 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 2/2017 APPLICATION NO COA2020APP00104 SUPREME COURT CIVIL APPEAL NO 3/2017 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Civ 4
IN THE COURT OF APPEAL
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mr Justice F Williams JA
THE HON Miss Justice Simmons JA (AG)
SUPREME COURT CIVIL APPEAL NO 2/2017
AND
APPLICATION NO COA2020APP00104
SUPREME COURT CIVIL APPEAL NO 3/2017
Consolidated with
and
Patrick Foster QC and Francois McKnight instructed by Nunes, Scholefield, DeLeon & Co for Louis Campbell
Miss Carlene Larmond instructed by Chancellor & Co for Ambiance Resort Properties Inc
Michael Thomas for Alex Oostenbrink
Before the court for determination in these proceedings are two separate but interrelated appeals from the decision of Sykes J (as he then was) made in the Commercial Division of the Supreme Court on 2 December 2016. In the first appeal (SCCA No 2/2017), Mr Louis Campbell (‘Mr Campbell’) is the appellant. He is challenging the decision of the learned judge made in favour of Ambiance Resort Properties Inc (‘ARPI’), the respondent in that appeal. In the second appeal (SCCA No 3/2017), ARPI is the appellant and has appealed the learned judge's decision made in favour of the 1 st respondent, Alex Oostenbrink (‘Mr Oostenbrink’), and the 2 nd respondent, Mr Campbell. By order of a single judge of this court, made on 17 January 2017, the two appeals were consolidated and two separate interim injunctions were granted, restraining ARPI and Mr Oostenbrink from taking specified sums from the jurisdiction until the determination of the appeal.
Since the hearing of the appeal, there had also been an application for fresh evidence brought by Mr Campbell, which is also disposed of in these proceedings (Application No COA2020APP00104).
The appeals arose from the same set of facts and are, therefore, treated together in keeping with the order for consolidation. Although each will be dealt with in turn by my sister Simmons JA (Ag) (as she then was) and me in separate judgments, it is necessary to provide the common background to the appeals and fresh evidence application to ensure a better understanding of the issues that have arisen for determination by this court.
However, before providing a synopsis of the relevant factual background, I must first, on behalf of the court, extend my profound apologies for the delay in handing down the court's decisions. Regrettably, the delay was not avoided, despite strenuous effort to expedite the disposal of the matter. I am mindful that no apology will be sufficient to remedy the inconvenience and anxiety caused by the delay, but I still consider it right to proffer one.
ARPI is a company duly incorporated under the laws of Delaware in the United States of America (‘USA’) and registered in Jamaica as an overseas company. Up to 2012, it owned and operated a hotel in Runaway Bay in the parish of Saint Ann, which traded under the name, Club Ambiance (and will be referred to interchangeably as ‘the hotel’ or ‘Club Ambiance’). The hotel was eventually sold in 2012.
Mr George Gardner was a businessman from Pennsylvania, USA, and chairman of ARPI. He was also the director of the hotel. According to him, in or around 1995, while the hotel was owned and operated by ARPI, it was not doing well. It encountered stiff competition from other hotels that started offering all-inclusive vacation plans. This led to a decline in revenue. Despite changing managers, the hotel continued downhill in a financially precarious position and almost ceased to be viable. Mr Gardner desired to engage a person or an entity in the management of the hotel to restore its viability. The decision was taken that the hotel would offer its version of an all-inclusive plan.
As a consequence, Mr Gardner met and entered into discussions with Mr Oostenbrink regarding marketing the hotel so that it could compete effectively in the all-inclusive market. At the time, Mr Oostenbrink was the general manager of another property, Club Caribbean. He was also the principal of Jemara Resorts NV (‘Jemara’), a company registered in Aruba. This discussion between ARPI and Mr Oostenbrink led to a written agreement in July 1995, between Jemara and ARPI, for Jemara to manage the hotel. These discussions with Mr Oostenbrink, acting for and on behalf of Jemara, were conducted through another company, Waymaker, which Mr Gardner owned. Waymaker was a management company that provided management services for companies owned by Mr Gardner. Mr Lee Sandifer was its chief financial officer. Two agreements emerged from these discussions. The first was what had been styled a Letter of Agreement dated 4 July 1995 (‘the 4 July 1995 agreement’), and the second was a Management Agreement dated 16 February 1996 (‘the February 1996 management agreement’).
Mr Campbell was working with Club Caribbean at the time of the discussions between Mr Gardner and Mr Oostenbrink in or around July 1995. Messrs Campbell and Oostenbrink had worked together at Club Caribbean before 1995 with what seemed to have been a resounding success. They reportedly restored the viability of that hotel, and Mr Oostenbrink was of the view that he and Mr Campbell could replicate that success at Club Ambiance. Mr Oostenbrink recommended to Mr Gardner that Mr Campbell should be a part of the restoration process. Mr Campbell was not a part of those discussions between Mr Oostenbrink/Jemara and ARPI.
In July 1995, Mr Oostenbrink approached Mr Campbell about teaming up with him to manage and restore Club Ambiance as they had done at Club Caribbean. Mr Campbell did not object. Mr Gardner also accepted the involvement of Mr Campbell. According to Mr Oostenbrink, Mr Campbell was engaged “to implement new systems and train the accounting staff”.
Mr Campbell subsequently met with Messrs Gardner, Sandifer and Oostenbrink in July 1995 when Messrs Gardner and Sandifer asked him about himself. Mr Sandifer then held discussions with him regarding the services he was required to provide.
Mr Campbell started working part-time at Club Ambiance in July 1995, while he retained his job at Club Caribbean. However, it was not until 25 June 1998 that he entered into a written contract for 10 years regarding his engagement with Club Ambiance. Mr Oostenbrink signed the agreement on behalf of Jemara and ARPI.
A further contract, dated 7 April 2006, was purportedly entered into between ARPI, Mr Oostenbrink, Jemara Resort and Jemara Property (as “the operator”) all trading as Club Ambiance (called the “employer”), on the one hand, and Mr Campbell (called “the employee”), on the other hand. Mr Oostenbrink signed for and on behalf of the “employer” for Mr Campbell to provide services at Club Ambiance for 15 years at US$1500.00 per month. On 22 July 2007, a supplemental agreement was entered into purportedly between ARPI (as “owner”) and Jemara (“the operator”), both trading as Club Ambiance (“the employer”), on the one hand, and Verona Campbell and Mr Campbell (called the lessee and employee, respectively), on the other hand. This agreement was supplemental to a lease agreement entered into on 22 July 2007 between Club Ambiance and Verona Campbell and the 25 June 1998 agreement between Club Ambiance and Mr Campbell. This agreement provided, among other things, for rent owed to the hotel by Mr Campbell's wife for two shops she had rented to be set off against fees owed to Mr Campbell by ARPI. Mr Campbell alleged that the total sum owed to him by the date of the filing of his further amended claim form was US$223,294.56 after the sums set-off for his wife's rental were deducted.
According to Mr Campbell, his engagement with Club Ambiance ended in 2012 when the hotel was sold. He was not paid monies he claimed are due and owing to him for his services at Club Ambiance under the contracts. His contention is that he was entitled to be paid outstanding sums under what he alleged to have been a contract of employment with ARPI. ARPI rejected his assertions that he was directly employed to it, leading to the initiation of the claim in the Supreme Court.
For the determination of the issues on the appeal, it is vital to have a proper appreciation of not only the evidence provided in the Supreme Court but also the pleadings on which the parties' respective cases were based. Accordingly, a brief insight into the relevant parties' statements of case is provided.
On 16 July 2013, by way of a further amended claim form, Mr Campbell pursued his claim against four defendants jointly and severally. The defendants were ARPI (1 st defendant), Jemara (2 nd defendant), Jemara Properties Companies Limited (‘Jemara Properties’) (3 rd defendant), and Alex Oostenbrink (4 th defendant).
By that further amended claim form, Mr Campbell advanced his claim against the four defendants in these terms as summarised for convenience:
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(i) Damages for breach of contract in the aggregate sum of US$108,000.00, being monies due and owed under a contract between Mr Campbell and all four defendants dated 7 April 2006 with interest at 1% above the commercial rate, compounded monthly on the amounts due from the date the payment had become due to the date of judgment.
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(ii) The sum of US$115,294.56, being the balance of the sum of US$140,800.00, that ARPI had acknowledged in an agreement dated 22 July 2007, with interest at 1% above the commercial rate, compounded monthly on the amount due from the date such payment had become due to the date of judgment.
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(iii) Specific performance of the agreement dated 7 April 2006 for the sum of US$162,000.00, being the balance of the contract price payable under that...
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