Singer Sewing Machine Company v Montego Bay Co-operative Credit Union Ltd

• Jurisdiction: Jamaica
• Judge: Campbell, J.
• Judgment Date: 18 November 2005
• Judgment citation (vLex): [2005] 11 JJC 1804
• Date: 18 November 2005
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN EQUITY

BETWEEN

SINGER SEWING MACHINE COMPANY

APPLICANT

AND

MONTEGO BAY CO-OPERATIVE CREDIT UNION LIMITED

RESPONDENT

LANDLORD AND TENANT - Lease agreement

Campbell, J

1 Lease Agreement - Annual Increment-No Demand - What Constitutes Waiver

2 1. In 1993 Singer applied for declarations against their Landlord, Montego Bay Cooperative Credit Union Ltd. (Co-op), that a lease for a duration of ten years existed between the parties. Singer also sought an injunction restraining the Co-op from taking any steps to forcibly eject them from premises at Sam Sharpe Square, Montego Bay. The applications were refused in the Supreme Court, however, Singer was successful on appeal. An attempt by Co-op to appeal to the Privy Council was rescinded on 9 ^th October 2000 for failure to prosecute the appeal.

3 2. On the 10 ^th April 2001 Singer wrote the Co-op requesting "that our present lease be renewed as of 1 ^st October 2001 for a period of ten years." The Co-op refused the request and stated that they expected Singer to "peacefully relinquish possession of the premises." In a subsequent letter, the Co-op identified the reasons for their refusal. The letter stated, inter alia;

• 1. With regards to the commencement date for the lease, we would suggest a careful reading of the decision by the Court of Appeal.

• 2. There was never an agreement for renewal for another ten years.

• 3. The clause in the lease to which you refer is unenforceable.

4 3. The Clause of the lease in dispute was Clause 3(b). In their letter of 27 ^th April 2001, Singer offered their construction of that clause.

"Clause 3(b) provides that if the Lessor makes a written request that the lease be extended for a further ten years, provided such request is made at least three months before the expiration of the lease, the Lessee will grant a lease for a further term of ten years, at a rental to be agreed or, failing agreement, to be decided by an arbitrator"

5 And concluded their letter dated 28 ^th May 2001 in these terms:

"The Court of Appeal was unanimous that (a) there was a binding lease and (b) that its terms were to be found in the documents described in the (amended) Originating Summons, which included a term for renewal.

The Court of Appeal held that the term for renewal of the lease which was in the letter of July 10, 1991 was accepted by the Credit Union, appeared in the lease drafted by the Credit Union and the lease drafted by Singer, and was therefore a contractual term."

6 4. In October 2001, the Co-op filed Plaints in the Montego Bay Resident Magistrate Court seeking to recover rent totaling $3,163,166.92 as arrears for the period 1 ^st September 1995 to 31 ^st August 2001.

7 5. The Co-op's claim for arrears of rental had consequences for Singer's application for the renewal of lease; as the affidavit of Ornell Bedasse, General Manager of the Co-op, dated 15 ^th January 2002, illustrates at paragraph 5;

"That I am reliably informed by the attorneys-at-law for M.C.C.U.... that on a proper interpretation of the judgment

• ....a)..........

• b)..........

• c) ..lease agreement includes a clause giving the applicant a conditional option to renew, inter alia....

It was unnecessary for the Court of Appeal to decide on whether or not the Applicant, having an option to renew, is legally entitled to enforce that right at this time.... The Court did not consider or decide on whether the Applicant had breached the lease agreement... and thereby lost its right to enforce the option to renew, or had retained that right despite its breach because of conduct on the part of M.C.C.U.... (Emphasis mine)

8 6. Singer in answer contended that:

• 1. that the original rental of $34,666.66 remained unchanged until January 1993, when it was increased to $37,040.00;

• 2. that ever since January 1993 Singer had continued to pay, and Mo-bay...