Watersports Enterprises Ltd v Jamaica Grande Ltd

• Jurisdiction: Jamaica
• Judge: Harris JA,DUKHARAN JA,HIBBERT JA (Ag)
• Judgment Date: 20 December 2012
• Neutral Citation: JM 2012 CA 125
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 110/2008 APPLICATION NO 239/2011 Consolidated With Claim No. 2005hcv02189
• Date: 20 December 2012

[2012] JMCA App 35

JAMAICA

Before:

The Hon Mrs Justice Harris P (Ag)

The Hon Mr Justice Dukharan JA

The Hon Mr Justice Hibbert JA (Ag)

SUPREME COURT CIVIL APPEAL NO 110/2008

APPLICATION NO 239/2011

Consolidated With Claim No. 2005hcv02189

Between

Watersports Enterprises Limited

Applicant

and

Jamaica Grande Limited

Respondent

Between

Watersports Enterprises Limited

Applicant

and

Jamaica Grande Limited

1st Respondent

Grande Resort Limited

2nd Respondent

Urban Development Corp (Added Pursuant to Rule 19.2 Of the Civil Procedure Rules)

3rd Respondent

Dr Lloyd Barnett and Keith Bishop instructed by Bishop & Partners for the applicant

Gavin Goffe instructed by Stephen Shelton of Myers , Fletcher & Gordon for the 1 ^st respondent

Christopher Samuda instructed by Samuda & Johnson for the 2 ^nd respondent

John Givans instructed by Vaccianna & Whittingham for the 3 ^rd respondent

CONTRACT - Breach of contract - Recovery of possession - Termination of contract to enjoy exclusive rights to offer water sports services - Claim for damages

Harris JA

1 Jamaica Grande was the proprietor and operator of a hotel in Ocho Rios which adjoins a beach. The property on which the hotel is situated was formerly owned by Urban Development Corporation and another party. Watersports had been on the land for over 40 years offering watersports services through contracts with parties other than Jamaica Grande. The beach land was leased by Jamaica Grande from the Urban Development Corporation. In December 2002, a contract was made between Watersports and Jamaica Grande in which Watersports would enjoy exclusive rights to offer watersport services to Jamaica Grande's guests until 31 December 2005. However, in August 2004, the hotel and its operations were purchased by Grande Resort Limited. Jamaica Grande having carried out the sale, terminated the contract with Watersports and sought the removal of Watersports from the hotel property as well as from the beach.

2 As a consequence, Watersports lodged caveats against the title for the property owned by the hotel in addition to that of the beach land. It also brought a claim against Jamaica Grande for breach of contract and conspiracy to breach the contract against Jamaica Grande and Grande Resort for damages and also sought declarations as to its interest in the respective parcels of land. Following this, Jamaica Grande and the Urban Development Corporation initiated proceedings against Watersports in which they sought a declaration that Watersports had no interest in the disputed lands. Both claims were consolidated and tried at the same time.

3 On 25 September 2008 Brooks, J (as he then was) made the following orders:

It is further ordered that:

• ‘1. Watersports Enterprises Limited does not have any estate or interest in any of the lands comprised in Certificates of Title registered at Volume 1211 Folio 653, Volume 1094 Folio 240 and Volume 1094 Folio 241 of the Register Book of Titles;

• 2. Watersports Enterprises Limited does not have any estate or interest in either of the lands comprised in Certificates of Title registered at Volume 1236 Folio 249 or Volume 1059 Folio 240 of the Register Book of Titles;’

• ‘1. Judgement for the Defendants against the Claimant in Claim No. 2004 HCV 02189;

• 2. The injunctions granted in Claim No. 2004 HCV 02189 are hereby discharged;

• 3. The Registrar of Titles shall forthwith remove Caveat No. 1317519 from affecting Certificates of Title registered at Volume 1211 Folio 653, Volume 1094 Folio 240, Volume 1094 Folio 241, Volume 1236 Folio 249 and Volume 1059 Folio 240 of the Register Book of Titles;

• 4. A case management conference be held on the 7 ^th of October 2008 at 9:00 am for 45 minutes in respect of Fixed Date Claim Form No. 2004 HCV 2364 to provide directions concerning an enquiry as to damages allegedly suffered by Jamaica Grande Limited as a result of Watersports Enterprises Limited having lodged Caveat No. 1317519;

• 5. Watersports Enterprises Limited shall quit and deliver up on or before the 31 ^st day of October 2008, to Grande Resorts Limited and/or The Urban Development Corporation, all those parcels of land forming parts of the lands comprised in Certificates of Title registered at Volume 1236 Folio 249, Volume 1059 Folio 240, Volume 1211 Folio 653, Volume 1094 Folio 240 and Volume 1094 Folio 241 of the Register Book of Titles;

• 6. Costs of all other parties to be paid by Watersports Enterprises Limited, such costs to be taxed if not agreed;

• 7. Certificate for two counsel granted in respect of each claim.’

4 On 27 October 2008, Watersports Enterprises Limited, filed an appeal against Jamaica Grande Limited (Jamaica Grande), Grande Resort Limited and Urban Development Corporation. On 20 December 2011, the appeal was struck out for want of prosecution. On 10 January 2012, by way of an amended notice of application for court orders, the applicant sought the following reliefs:

• ‘1. That the Appeal be reinstated;

• 2. [That] time be extended to file Record of Appeal;

• 3. That the Record of Appeal filed on the 22 ^nd December 2011 to stand; and

• 4. [That an] injunction granted by the Hon. Justice Harrison to continue until the hearing of the appeal.’

5 On 4 February 2009, Watersports sought and obtained a stay of execution of the judgment pending the hearing of the appeal.

6 On 13 May 2011, the registrar wrote to the applicant's attorney-at-law, notifying him, of the availability of the transcript of evidence as required by rule 2.5(1) of the Court of Appeal Rules (CAR). By that notice, he was also informed that rule 2.7(3) requires the filing of the record of appeal within 28 days of the receipt of the notice. He was also advised of the necessity of filing skeleton arguments in accordance with rule 2.6(4) and the filing of written chronology of events pursuant to rule 2.6(5) within 21 days of the notice. A further notification and a subsequent reminder were sent. The applicant's failure to comply with the requisite rules within the specified periods resulted in the appeal being struck out for want of prosecution.

7 The grounds filed on which the applicant relies are:

• ‘1. That the Record of Appeal could not be filed before the judge's notes were in hand and these notes were only in hand recently.

• 2. That the Record of Appeal is very voluminous and that despite the best efforts, it was difficult to file the Record within the time prescribed by the Rules.

• 3. That due to the voluminous nature of the Record a private Company was engaged to do the Record but there were challenges in completing the Record within the required time.

• 4. That due to the fact that the Record of Appeal was not filed the Appeal filed by the Appellant was struck out but at the time that the Appeal was struck out the preparation of the Record was in an advanced state and they have now been filed.

• 5. That with the Appeal being struck out the Appellant is now exposed and is likely to be evicted without notice by Respondents.

• 6. That the Appellant continues to occupy and operate its business on the peninsula and if evicted before the appeal is heard it is likely to ruin its business.

• 7. That if the Orders prayed for are granted, there would be no prejudice to the Respondents.

• 8. That it is unlikely that the Appellant would cause any further delay or will not comply with Rules with respect to the timely filing of all documents required for the hearing of the Appeal.

• 9. That if the matter is not dealt with URGENTLY it is very likely that the Respondents will use the opportunity to immediately evict the Appellant.

• 10. Pursuant to Part 2.17 of the Court of Appeal Rules, 2002.’

8 An affidavit, sworn by Mr Irvin Wade, an accountant employed to Watersports, was filed on its behalf in support of its application. In paragraphs 9 to 17 he states:

‘9. That I am advised by the Appellant's Attorney-at-Law and do verily believe that the Record of Appeal could not be filed before the judge's notes were in hand and I am further advised by the Appellant's Attorney-at-Law and do verily believe that these notes came to the attention of the Appellant's Attorney-at-Law in recent months.

10. That I have been advised by the Appellant's Attorney-at-Law and do verily believe that the Record of Appeal is very voluminous and that despite his best effort he was unable to file the bundle within the time prescribed by the Rules.

11. That I have been further advised by the Attorney-at-Law for the Appellant that due to the voluminous nature of the Record a private Company was engaged to do the bundles but there were challenges in completing the bundles within the required time.

12. That I have been advised by the Attorney-at-Law for the Appellant and I do verily that on the 20 ^th December 2011 due to the fact that the Record of Appeal was not filed the appeal filed by the Appellant was struck out.

13. That it was also my advice from the Attorney-at-Law for the Appellant and I do verily believe that at the time that the Appeal was struck out the preparation of the Record was in an advanced state and they have now been filed.

14. That with the Appeal being struck out the Appellant is now exposed and is likely to be evicted without notice by Respondents.

15. That the Appellant continues to occupy and operate its business on the peninsula and if evicted before the appeal is heard it is likely to ruin its business.

16. That if the Orders prayed for are granted, there would be no prejudice to the Respondents.

17. That it is unlikely that the Appellant would cause any further delay or will not comply with Rules with respect to the timely filing of all documents required for the hearing of the Appeal.’

9 An affidavit was also filed by Mr Bishop on 23 January 2012, in which he stated that after filing the appeal on 27...