Water Sports Enterprises Ltd v Drakulich (Michael)
| Jurisdiction | Jamaica |
| Judge | HARRISON, J.A.: |
| Judgment Date | 03 April 2003 |
| Judgment citation (vLex) | [2003] 4 JJC 0301 |
| Date | 03 April 2003 |
| Court | Court of Appeal (Jamaica) |
DAMAGES - Inducement for breach of contract - Interlocutory injunction - Enquiry and assessment of damages as a result of injunction - Whether Master had jurisdiction to order enquiry - Whether judgment of Supreme Court can be executed after 6 years without leave - Whether loss was proven - Whether interest rate award excessive - Whether delay in delivering judgment created unfairness to appellant - Award of damages varied
This is an appeal against the enquiry and assessment of damages by Theobalds, J. on July 28, 2000, in the sum of U.S.$847,362.00 with interest at the rate of 10% and costs to be taxed or agreed, consequent on the interlocutory injunction granted by Chambers, J. on March 14, 1980.
The relevant facts are, that both the appellant and the respondent were engaged in offering water sports recreational activities in the resort areas of the north coast parish of St. Ann. They both carried out their operations in competition at various hotels in the said parish. As a result of an altercation between one Ernest Smatt, the managing director of the appellant, and the respondent, the appellant filed a writ against the respondent on December 18, 1979. He claimed damages for the inducement of a breach of contract and sought an injunction restraining the respondent from interfering with the performance of the appellant's contract "... either to the premises of Ocho Rios International Hotel or Mallard Beach Hyatt Hotel or wheresoever the performance of the said contract may take place ..". As a consequence, the appellant obtained an interlocutory injunction against the respondent granted by Chambers, J. on March 14, 1980, in the following terms:
" 1. ... the interim injunction which is granted in this joint hearing is that Smatt Water Sports interest shall be confined to the use of a portion of the shores and hotel facilities at the National Hotels & Properties Ltd. as is mentioned in the suit and Mr. Michael Drakulich confined to the use of the shore and hotel facilities, at the other portion, such portions to be agreed now between the parties, approved by Mr. Justice Chambers or Mr. Justice Chambers shall arbitrarily set out which portion apply to each.
2. An injunction is further granted that neither of these two parties, namely, the Smatt interest or Mr. Drakulich interest shall in any way restrict or interfere with the other in such limited performance, and the hotel interests are also required to allow both parties to carry out such portion of the contract and/or the supposed other contract in accordance with the proper regard to this order.
3. This order to remain in force until the determination of the trial or until or till further order.
4. Each party namely, Mr. Michael Drakulich and the Smatt Enterprises undertake to pay such damages as the other may have suffered as a result of this order.
5. Court orders that the Smatt Enterprise interest to operate for and on behalf of the Intercontinental and Mr. Drakulich to operate from the Mallards Beach Hyatt and each to have the joint use of the water sports center at the Intercontinental without interference one from the other."
The substantive action filed by the appellant on December 18, 1979, resulting in the said injunction restraining the respondent, was heard by Theobalds, J. on July 14, 1989, and determined in favour of the respondent. Judgment was entered for the respondent on the claim with costs and on his counterclaim in the sum of $2,000.00 with costs, to be paid by the appellant.
On August 2, 1989, the respondent filed a summons seeking an order for an inquiry as to the damages sustained by the said respondent as a result of the said injunction granted on March 14, 1980 on the basis of the undertaking given by the said appellant to pay such damages. The injunction had been ordered to remain in force until the termination of the trial of the action.
On December 20 1989, the Master ordered:
"That there be an inquiry as to what damages have been sustained by the defendant by reason of the interim injunction granted by this Honourable Court in favour of the plaintiff in an Order dated the 14 th day of March 1980, which the plaintiff ought to pay according to its undertaking contained in the said Order."
Thereafter, a series of events resulted in an extended delay in the matter. Appeals by the appellant were finally dismissed in 1993, for want of prosecution. The file was displaced in the registry of the Supreme Court for two successive one-year periods. Objections by the appellant to the Deputy Registrar of the Supreme Court conducting the enquiry and requests that the matter be heard by Theobalds, J. spanned a period from 1993 to 1997. On February 16, 1998, a notice of inquiry was filed for the hearing, which commenced before Theobalds, J. on November 17, 1998. After several days of hearing, the said order was made on July 28, 2000. The latter is the subject of the current appeal.
The appellant filed the eighteen (18) grounds of appeal following:
" 1. That the learned trial judge misdirected himself when he rejected the plaintiff's/appellant's preliminary submission which was repeated at the end of the assessment, that a judgment of the Supreme Court which was pronounced more than six (6) years cannot be executed after the expiration of that period, unless before proceeding to such execution leave is granted by that said court to do so.
2. That the learned judge in evaluating the evidence took into account evidence which was not before him in the assessment of damages which said evidence actually relates to the trial of the action which was in fact conducted by him and which he had already used to arrive at his conclusion that the plaintiff-appellant had in fact assaulted the defendant/respondent by slapping him with a newspaper and which had no relevance to the question as to whether the defendant/respondent was able to prove that he suffered loss.
3. That the learned judge having correctly stated on page 6 of his judgment as follows:
"As a feature of Michael Drakulich claim which initially caused me some concern was the well recognized principle of law that both actual loss and the quantum thereof fall in the category of special damages and require strict proof before they can be recovered" which statement properly represents the law went on to make findings on behalf of the defendant/respondent which were quite contrary to that correct statement of the law and relied on the case of Biggin vs Permanite 1951 which authority does not have any relevance to the principle neither did it enable His Lordship to do what he did namely ignore the proper statement of the law and went on to assess damages without proper proof.
4. The learned judge having come to the conclusion that he formed a favourable impression of the late Mr. Leo Wyman and Mr. Lionel Reid went on to describe the evidence of those witnesses as being given on behalf of Mr. Michael Drakulich when it is a matter of record that both the late Mr. Wyman and Mr. Reid's evidence were given on the behalf of the plaintiff/appellant.
5. The learned judge misdirected himself when he held that Mr. Drakulich was entitled to assessment of damages against Water Sports Enterpises Limited when Drakulich up to the time of assessment, has never made any claim against Water Sports Enterprises with regard to any contract that Water Sports has interfered with thus causing him injury.
6. The learned judge clearly misdirected himself when he awarded the defendant/respondent sums of US$343,128.00, US$102,256.00, and US$60,000.00 as set out in terms 2–4 of his judgment when even if the defendant/respondent could be said to have lost those earnings, those earnings had nothing to do with the grant of the injunction for the plaintiff/appellant to operate at the Intercontinental Hotel.
7. The learned judge misdirected himself when he held that there m evidence before him upon which he could have properly found that the defendant/respondent has suffered loss in the amount of US$361,978.00.
8. The learned judge clearly misdirected himself when he awarded sums in U.S. currency when in 1980–1981 it was unlawful to make payment of debts in U.S. currency under the Exchange Control Act.
9. The learned judge erred in awarding damages to the defendant/respondent which were not caused by the interim injunction granted in favour of the plaintiff/appellant in Order dated the 14 th day of March 1980.
10. The learned judge erred in treating the inquiry as to damages which commenced on the 16 th March 1998, as a continuation of the trial which was concluded by the final judgment dated 14 th day of July 1998.
11. The learned judge erred in treating the inquiry as to damages as "an inquiry as to damages suffered by the defendant Michael Drakulich arising from a long standing feud between the plaintiff company Water Sports Enterprise Ltd. ... and the defendant" and then proceeding to award damages allegedly suffered in the long standing feud excluding only the damages awarded at the trial for "assault only".
12. The learned judge erred in castigating the appellant for introducing evidence at the trial as to the "altercation on the beach" although the evidence was not part of the evidence introduced at the inquiry as to damages.
13. The learned...
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