Massander Reid v Bentley Rose and Cynthia Rose
| Jurisdiction | Jamaica |
| Judge | HARRIS JA , McINTOSH JA , BROOKS JA (Ag) |
| Judgment Date | 20 December 2011 |
| Neutral Citation | JM 2011 CA 127 |
| Docket Number | RESIDENT MAGISTRATE CIVIL APPEAL NO 1/2010 |
| Court | Court of Appeal (Jamaica) |
| Date | 20 December 2011 |
[2011] JMCA Civ 48
JAMAICA
IN THE COURT OF APPEAL
THE HON MRS JUSTICE HARRIS JA
THE HON MRS JUSTICE MCINTOSH JA (Ag)
THE HON MR JUSTICE BROOKS J (Ag)
RESIDENT MAGISTRATE CIVIL APPEAL NO 1/2010
Mrs Kayann Balli for the appellant
Leighton Miller for the respondents
LANDLORD AND TENANT - Rental - Recovery of outstanding rental - Capacity - Breach of contract - Economic loss - Misrepresentation
This is an appeal from a decision of Her Honour Mrs Marcia Dunbar Green in favour of the respondents in which she ordered that the appellant pay to them the sum of $150,000.00 for arrears of rental.
The appellant was the tenant of the respondents, he having rented property known as 10 Woodburn Place in the parish of Saint Catherine, together with certain equipment therein for the purpose of conducting business. The property is owned by a company called Macro Finance Corporation Limited of which the 1 st respondent is a director, and at the hearing on 8 November 2007 Macro Finance Corporation was added as a claimant. A contract for the lease of the property was prepared and sent to the appellant but it was never executed by the parties. The appellant, on 30 August 2004, paid the sum of $120,000.00 to the respondents for two months' rent and one month's security deposit for which he received a temporary receipt from the 2 nd respondent, the contents of which are as follows:
‘Received from Mr Massander G Reid, box 402 Old Harbour St Catherine [sic]. The sum of One Hundred and Twenty Thousand Dollars ($120,000) being two months advance on rental of commercial property inclusive of building and equipments [sic] therein of which agreed rental is Forty Thousand Dollars ($40,0000) monthly.
An understanding is agreed upon by both landlord and tenant that efforts are to be pursued to arrive at a rental purchase agreement amicable to both parties.’
Appellant's Case
The appellant was introduced to the 1 st respondent by Oniel Carter o/c David. The property was rented for the purpose of manufacturing grills. It was orally agreed that the appellant would pay the sum of $40,000.00 monthly, commencing with an initial payment of $80,000.00 for one month's rent and one month's security deposit. However, at the request of the 2 nd respondent, he paid $120,000.00 to cover a further month's rent. After making the payment to the 2 nd respondent, he gained access to the premises by obtaining the keys from the respondents' agent David, who was then in possession of them.
The appellant stated that he received the keys on 19 September 2004 at which time he entered into possession. He stated that he paid rent on the 19 th day of each month. In March 2005 he requested that the 1 st respondent reduce the rent by $10,000.00 monthly. The 1 st respondent agreed to this proposal. He made a payment of $30,000.00 in March 2005 and was given a receipt. This payment, he asserted, covered the rental for 19 March to 18 April 2005.
Prior to 18 April 2005 an extraordinary rainfall caused the grounds of the property as well as the floor of the building to flood. The rainfall also caused the roof in the working area of the building to collapse. These conditions, the appellant asserted, prevented him from using the building, it being uninhabitable.
He further related that he made a report to the 1 st respondent about the deplorable conditions of the property and informed him that if repairs were not carried out he would be vacating it. During this period he said that he had certain business contracts which he lost due to the poor state of the property. However, at the time he entered into the agreement to lease the property, he did not inform the respondents that he had these contracts which were dependent on the property being kept in a particular state.
He then requested the return of the security deposit but it was not given to him, so he remained in the premises for another month, until 16 May 2005 to ensure that the amount paid as security deposit was applied to that month's rent.
He related that he had notified the 1 st respondent of his intention to quit the demised premises and this was orally given over the telephone but that during this conversation he did not give a specific time for ending the tenancy. He further stated that on 16 May he told the 1 st respondent that he had left the property and he never went back there.
He purchased zinc costing $200,000.00 for the roof but did not communicate this to the respondents.
Oniel Carter testified on behalf of the appellant. He stated that he introduced the appellant to the respondents but he was not the respondents' agent. He was an employee of the respondents' former tenant and he remained on the property engaging in the manufacture of furniture after that tenant vacated the property.
He related that he told the 1 st respondent that the keys were given to him by the appellant but was told that he should get a letter from him. He further asserted that on 18 June 2005 he attempted to deliver the keys to the 2 nd respondent who refused to accept them for the reason that there was no letter from the appellant.
Miss Jennifer Crosby also testified on the appellant's behalf. She said she worked for the appellant on a “part time” basis as a quality control supervisor. The appellant, she said, conducted business on the respondents' property for between three and four months, and he left on 16 May in 2004 or 2005. She further stated that, one day, heavy rains caused the property to flood and ‘apart from the pit breaking out inside the building flooded. Housing furniture and steel. All of that flooded out. I was there. We lift some equipment to higher ground; not to damage by water’.
Respondents' Case
The respondents stated that the rental fell into arrears and the appellant was owing rental of $10,000.00 for March and $40,000.00 monthly from April to September 2005 as he remained on the property until September. The appellant made payments regularly until 18 March 2005 when he paid $30,000.00 instead of $40,000.00. Attempts to obtain the outstanding sum were unsuccessful.
The building which was rented to the appellant was a concrete structure designed and built as a factory. The 1 st respondent said that the appellant did not inform him that the roof was damaged nor that the property had flooded nor did he tell him that he would be leaving the premises nor that he had left it on 16 May 2005. The 2 nd respondent stated that she visited the premises in June 2005 and saw grills in the yard.
The 1 st respondent stated that no one acted as an overseer while the premises were rented to the appellant and although David introduced the appellant as a tenant, he had no authority over the property. David, he said, was neither their agent nor representative. David did not occupy any part of the property; neither did he have the keys to the property. The 1 st respondent said his wife acted on his behalf to collect the keys and to write receipts during the tenancy. Both respondents denied that David had made any attempt to deliver the keys to either of them.
On 4 July 2005 the respondents brought a claim against the appellant for the recovery of $130,000.00 for three months' rental from 19 April to 19 June 2005 and continuing. The appellant filed a defence and counterclaim. In the defence he denied owing rent and he averred that the property was flooded by reason of a heavy down-pour of rain which caused it to become unfit for its intended purpose. The counter-claim stated as follows:
‘1. By way of Counter claim the Defendant says that he entered into possession in expectation of obtaining a lease from the Plaintiffs which lease the Plaintiffs held themselves out as having the capacity to grant.
2. At all material times the Defendants [sic] well knew that the Plaintiff [sic] as an engineer required the premises to be fitted up as a workshop for the conduct of his business and in particular manufacture of grills for orders received from customers including the Government Inner City Initiative.
3. In the events that happened the Defendant discovered that the Plaintiffs had no capacity to grant the lease.
4. Further the premises was not watertight, the floor was uneven and unable to accommodate the Defendants [sic] machinery.
5. The Plaintiffs promised to rectify the defects and/or give the Defendant opportunity so to do but never did so.
6. In the premises the said premises became useless and worthless to the Defendant who lost the benefit of present and future contracts.
7. Wherefore the Defendant Counterclaims [sic] damages for breach of contract, misrepresentations and economic loss in the sum of $250,000.00.’
The learned Resident Magistrate found that the appellant was liable to pay rent from April to September 2005 and found that the counterclaim was not proved. She said at page 13 of her judgment:
‘The court finds that the rent amount had been reduced as at March 2005. This was evidenced by a receipt for rent in the sum of Thirty Thousand Dollars ($30,000.00) without any acknowledged balance. In the circumstances, the plaintiffs are entitled to rent for April to September at $30,000 per month less the security deposit of $40,000.
The claim for payment of utilities fails for the reason that it was not proved.’
The appellant's grounds of appeal are as follows:
‘a. That the finding of the Learned Resident Magistrate that the Plaintiffs were unaware of the fact that the Defendant had vacated the premises was against the weight of evidence in the case
b. The Learned Resident Magistrate erred in law in that having found that the 2 nd Plaintiff was aware of...
To continue reading
Request your trial
-
Tikal Ltd (T/A Super Plus Food Stores) v Tewani Ltd
...behalf of the respondent. In support of this argument, he placed reliance on the case of Massander Reid v Bentley Rose and Cynthia Rose [2011] JMCA Civ 48. 27 Counsel for the respondent, Mr Jonathan Morgan, in response to Mr Chen's arguments, pointed out that the appellant did not terminate......