Willowood Lakes Ltd v Board of Trustees of the Kingston Port Workers Superannuation Fund

• Jurisdiction: Jamaica
• Judge: Brooks, J.
• Judgment Date: 07 August 2007
• Judgment citation (vLex): [2007] 8 JJC 0701
• Date: 07 August 2007
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2007/HCV00427

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2007/HCV00427

IN THE MATTER OF AN Arbitration Award dated the 17 ^th May, 2006

IN THE MATTER OF all those parcels of land comprised in Certificate of Title registered at Volume 962 Folio 49 of the Register Book of Titles

BETWEEN

WILLOWOOD LAKES LIMITED

CLAIMANT

AND

THE BOARD OF TRUSTEES OF THE KINGSTON PORT WORKERS SUPERANNUATION FUND

DEFENDANT

ARBITRATION - Statement of case - Application to strike out - Challenge of award by arbitor

Brooks, J

1 Willowood Lakes Limited is unhappy with an arbitration award which it views as having been improperly made. It has brought this claim to have the court set aside the award on the basis that the arbitrator has erred. In its Claim Form, Willowood also requests that the court make certain declarations, in place of the arbitrator's award.

2 The other party to the reference to the arbitrator is The Board of Trustees of the Kingston Port Workers Superannuation Fund. The Trustees have brought the present application to have Willowood's statement of case struck out. The Trustees assert, firstly, that the Arbitration Act restricts the types of challenge which may be made to an arbitration award and that Willowood has not disclosed any challenge, which falls within that restriction. Secondly, say the Trustees, even if the court disagrees with the award, it has no authority to substitute its own view as to what the award should be.

3 In assessing this application, the court has to bear in mind that it is not, strictly speaking, considering the question of whether there is, or is not, any misconduct or error on the part of the arbitrator, which would justify setting aside his award. That would amount to a trial of the claim. The question is, instead, whether it is so clear that there has been no such error or misconduct which would allow a court to set aside the award, that Willowood's claim is certain to fail and so, to allow the claim to continue would be a waste of the court's resources, if not an abuse of the process of the court.

4 In assessing the matter, it will be necessary to examine the law concerning striking out statements of case, and how that law applies to awards made by an arbitrator. Thereafter, an examination of the award has to be made to determine whether the claim breaches the rules concerning challenging awards.

5 Background

6 The dispute giving rise to the reference to the arbitrator, concerns Willowood's attempt to purchase real estate from its landlord, the Trustees. The leased land, which is situated in Negril, Westmorland, is the subject of the proposed sale. When Willowood initially leased the property, it carried out certain works on the land to make the land 'buildable'. It has also constructed structures on the land.

7 The lease agreement stipulated, in part, that in the event that the Trustees retook possession of the land, they would pay compensation to Willowood, "equivalent to the market value of such facilities and amenities".

8 A dispute about a renewal of the lease arose between the parties and they sought to resolve the matter by arbitration. Subsequent to the start of hearings, the parties informed the arbitrator, the Honourable Dr. Lloyd Barnett, O.J., that the initial dispute had been abandoned and that instead, they wished for him, among other things, to stipulate the appropriate price for which the legal estate in the property should be sold to Willowood.

9 The terms of reference to the arbitrator:

10 The amended terms of reference were delivered to the learned arbitrator by joint letter, signed by the parties and dated March 3, 2006. I admitted the letter into evidence, despite an objection by Mr. Wilkinson, who appeared for Willowood. Even in the absence of the letter, Willowood seems to accept (by virtue of paragraph 28 of the affidavit of Mr. Elworth Williams filed in support of the claim) the learned arbitrator's interpretation of those terms. The learned arbitrator stated at paragraph 5 of the award that he had been asked to:

• "(1) determine and fix the sale price of the said property based on my interpretation of the Valuation Reports prepared by D.C. Tavares & Finson Realty Company Limited for the purpose of establishing the market price of the property;

• (2) award that the Respondent is to pay the said sale price within a stated period, failing which the Claimant will be entitled to re-enter and take possession of the property, and the Respondent will surrender the said property to the Claimant without any further claim against the Claimant, save and except for any entitlement arising under sub-paragraph 3 hereof;

• (3) determine whether the Claimant is to be required to compensate the Respondent for the value of its improvement to the aforesaid property upon its surrender under sub-paragraph (2) above, and if so to make a finding as to the amount of such compensation to be paid to the Respondent upon surrender of the said property to the Claimant in the event the Respondent fails to pay the sale price fixed by the Arbitrator within the period stated by the Arbitrator, as provided under sub-paragraph (2), above; and also

• (4) determine whether the improvements/works done by the Respondent on the property should be taken into...