National Housing Trust v Treebros Holdings Ltd

• Jurisdiction: Jamaica
• Judge: Morrison P,Brooks JA,Mcdonald-Bishop JA
• Judgment Date: 27 July 2018
• Neutral Citation: JM 2018 CA 35
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 14/2018
• Date: 27 July 2018

[2018] JMCA App 21

IN THE COURT OF APPEAL

BEFORE:

THE HON Mr Justice Morrison P

THE HON Mr Justice Brooks JA

THE HON Mrs Justice Mcdonald-Bishop JA

SUPREME COURT CIVIL APPEAL NO 14/2018

BETWEEN:

National Housing Trust

Applicant

and

Treebros Holdings Limited

Respondent

Lord Anthony Gifford QC, Manley Nicholson and Marlon Gregory instructed by Nicholson Phillips for the applicant

André Earle, Peter Mais and Ms Keisha Young-Shand instructed by Earle and Wilson for the respondent

Civil practice and procedure - Order — Application to discharge or vary order of single judge of appeal — Whether judge took matters into account that he was precluded from considering or failed to consider relevant matters.

Morrison P

1 I have read the draft judgment of Brooks JA. His reasoning and conclusions accord with my reasons for agreeing to the orders that were made. I also agree with his view as to the order for costs.

Brooks JA

2 We heard this application on 4, 5 and 6 June 2018. On 15 June 2018 we made the following orders:

• “1. The application to set aside the order of [the single judge of appeal] handed down herein on 22 March 2018 is granted.

• 2. The judgment and orders of [the single judge of appeal] are hereby discharged.

• 3. It is ordered that:

  • a. The order for an injunction imposed by the Supreme Court, restraining the [applicant] from permitting the discharge and/or flow of water onto the respondent's land or onto the roadway adjoining the respondent's property, is stayed pending the hearing of the appeal or further order of this court.

  • b. The order for an injunction imposed by the Supreme Court restraining the [applicant] from entering onto or remaining on the respondent's property is stayed, pending the hearing of the appeal, to the extent that it is necessary for the [applicant] to enter the respondent's land for the lawful discharge of its duties under the Flood Water Control Act.

  • c. The order of the Supreme Court for costs to the respondent is stayed pending the hearing of the appeal or further order of the court.

• 4. The question of the costs of this application is reserved for consideration on paper, for which purpose:

  • a. the respondent shall file and serve written submissions in respect of costs within seven days of the date hereof; and

  • b. the applicant shall file and serve written submissions in reply within seven days of being served with the respondent's written submissions.

• 5. The respondent's counsel is relieved of the undertaking given to the court on 6 June 2018.

3 We promised, at that time to put our reasons for our decision in writing. We now fulfil that promise, and make the award in respect of the costs of this application.

The background to the application

4 In carrying out its mandate to assist in providing housing stock for Jamaicans, the National Housing Trust (NHT) acquired, and sought to develop, a large area of land at Creighton Hall in the parish of Saint Thomas (the NHT land). It produced a subdivision plan to the Municipal Corporation for that parish (then called the Parish Council), wherein it proposed to have the NHT land subdivided into 146 lots. NHT also carried out some infrastructural works for the proposed subdivision.

5 That infrastructure included a culvert to drain storm water from the NHT land. The culvert was designed to channel the storm water, through a large drain pipe which ran under the parochial road that was adjacent to the NHT land. The drain pipe led to the opposite side of the road where the water would exit the drain pipe unto other land (lot 8). All the land in that section of Creighton Hall generally slopes downward to the sea, which is not far away. The NHT land is, therefore, higher than the parochial road, which is itself higher than lot 8. Other lands lie between lot 8 and the sea.

6 NHT also did work along the parochial road. It constructed concrete drains and other water channelling structures. Some of those drains channelled water to the area of lot 8 where the drain pipe exited. NHT also built infrastructure on lands that are downhill from lot 8, with the expectation of channelling the water that exited lot 8.

7 The problem is, NHT does not own or occupy lot 8. It never did. Treebros Limited (Treebros) is the registered proprietor of lot 8.

8 In times of rainfall, water entered lot 8 according to the design of the works. The water caused erosion to lot 8.

9 Treebros sued NHT for damages for trespass, nuisance and negligence. It also sought a permanent injunction preventing NHT from permitting the discharge of water upon lot 8, and from entering itself, or by its agents, unto lot 8.

10 In resisting Treebros' claim, NHT contended, among other things, that Treebros had been in negotiations with it for the construction of a drain through lot 8, as part of the route for the storm water to be taken, through the lands further downhill, to the sea. NHT argued that it had carried out some of its infrastructural work while the negotiations were continuing, and was encouraged, in that regard, by the negotiations and by assurances given by Treebros. NHT contended that although there was no concluded formal agreement, Treebros should not succeed in its claim, because it had agreed for that work to be done. The plan to construct the drain through lot 8 was derailed by a late disagreement over, among other things, the amount of the compensation offered to Treebros, for having the work done on lot 8.

11 The claim was heard in the Supreme Court by Lawrence-Beswick J. In giving judgment for Treebros, the learned trial judge awarded:

• a. damages for nuisance;

• b. damages for negligence;

• c. damages for trespass;

• d. interest on the damages awarded;

• e. an injunction preventing NHT “from permitting the discharge and/or flow of water onto [lot 8] or onto the roadway adjoining [lot 8], where it would exit onto [lot 8]”;

• f. an injunction preventing NHT from entering or remaining on lot 8; and

• g. costs, which included costs on an indemnity basis.

12 NHT has appealed from that decision and wishes this court to stay the injunctions and the order for costs pending the hearing of the appeal. A single judge of this court, heard NHT's application in that regard. On 22 March 2018, he refused the application with costs to Treebros.

13 NHT has now applied to the court to set aside or vary the learned single judge's order. The affidavit in support of the application exhibited, among other things, certain copies of the Jamaica Gazette, which NHT claimed were relevant to the issues to be decided.

The application to discharge or vary the order of the single judge

14 A significant aspect of NHT's application is that it contends that it has been mandated by an order of the relevant Minister of Government (the Minister), under the Flood Water Control Act (the Act), to do the very thing that the injunctions proscribe. NHT contends that the learned single judge was wrong to have refused to grant the stay, especially bearing in mind that legal obligation. NHT did not rely on that legislative authority at the trial, although it did bring its existence to the attention of the learned trial judge. It, however, sought to rely on that authority before the learned single judge of appeal.

15 The question of whether that statutory obligation should be considered and applied, for the purposes of the present application, was a major issue, in submissions before this court.

16 NHT has, for the purposes of this application, placed before this court a full suite of copies of Gazettes concerning various orders made under the Act. The respective Gazettes show that:

The letters “LN” in reference to an LN number, mean “legal notice”.

• a. the Creighton Hall area of Saint Thomas, including lot 8, was declared a flood water control area for the purposes of the Act, and NHT had been appointed as the undertakers of a scheme in respect of that area (Gazette LN 30A dated 16 February 2015 — it will be referred to below as the “declaration order”);

• b. the public was given notice of its right to inspect, and object to, the scheme mentioned in the declaration order (Gazette LN 134 dated 13 August 2015 — it will be referred to below as the “notice order”);

• c. the scheme mentioned in the declaration order was confirmed without modification (Gazette LN 19A dated 25 February 2016 — it will be referred to below as the “confirmation order”);

• d. a clerical error, which was made in the confirmation order, in respect of the LN number of the declaration order, was corrected (Gazette LN 30E dated 25 February 2016 — it will be referred to below as the “correction order”).

The requirements for NHT to succeed

17 In order for NHT to succeed in its application before this court it must first show that the learned single judge of appeal erred in the exercise of his discretion by either taking into account matters which he was precluded from considering or failing to consider matters that he was obliged to take into account. Phillips JA explained in Peter Hargitay v Ricco Gartmann [2015] JMCA App 44, at paragraphs [44]-[48], the principles which this court should take into account in considering applications such as this. These may be summarised as follows:

• a. the relevant rule is rule 2.11(2) of the Court of Appeal Rules (CAR);

• b. the principles, dealing with the appellate court's respect for the exercise of a discretion by previous judges examining the point in issue, set out in the well known cases of Hadmor Productions Ltd and Others v Hamilton and Others [1982] 1 All ER 1042 and The Attorney General of Jamaica v John MacKay [2012] JMCA App 1, are applicable;

• c. evidence which was not before the learned trial judge or the learned single judge, but has become available by the time of the hearing of the application, may justify the variation or discharge of the learned single judge's order ( Elita...