Zavia Mayne v Radhika Sankar Rothery

• Jurisdiction: Jamaica
• Judge: Brooks JA,McDonald-Bishop JA,P Williams JA
• Judgment Date: 17 March 2017
• Neutral Citation: [2017] JMCA Civ 8
• Docket Number: SUPREME COURT CIVIL APPEAL NO 107/2016
• Date: 17 March 2017
• Court: Court of Appeal (Jamaica)

[2017] JMCA Civ 8

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice McDonald-Bishop JA

The Hon Miss Justice P Williams JA

SUPREME COURT CIVIL APPEAL NO 107/2016

Between

Zavia Mayne

Appellant

and

Radhika Sankar Rothery

1st Respondent

and

Nandcare Pharmacy Limited

2nd Respondent

Philip Bernard and Ms Rishille Brown instructed by Bernard & Co for the appellant

Jalil Dabdoub instructed by Dabdoub Dabdoub & Co for the respondent

Brooks JA

1 This is an appeal arising from the decision of Tie J refusing an application by Mr Zavia Mayne for summary judgment in a claim that he had brought against Ms Radhika Rothery and Nandcare Pharmacy Limited (the respondents). Mr Mayne is aggrieved by the learned judge's ruling. He wishes for it to be set aside and for summary judgment to be awarded to him.

2 In the claim, Mr Mayne sought to recover $3,092,026.50 as representing rental owed by the respondents for commercial premises that he had leased to them or one of them. The respondents' defence to the claim denied owing any rental. The learned judge identified the issues raised in the defence as, (a) who was the party to be damnified by a judgment, and (b) whether the rental charged for years two and three of the lease was in excess of the standard rental and was, therefore, not recoverable. The respondents also counterclaimed against Mr Mayne for loss suffered from the fact that he had failed to provide invoices that were compliant with the provisions of the General Consumption Tax Act.

3 The learned judge found that there was a conflict as regards the proper defendant to the proceedings, which could only be resolved at a trial. On the issue of the annual increase, she ruled that that issue required an interpretation of the provisions of the Rent Restriction Act and the regulations thereunder. She found that the issues required adjudication because the authorities suggested that Mr Mayne's claim to be entitled to an annual increase in rental was incongruous with the Act. She also found that there was uncertainty as to the sum claimed. She further concluded that the issue raised in relation to the General Consumption Tax Act was “inextricably connected” to the issue of the monthly rental.

4 Before this court Mr Bernard, on behalf of Mr Mayne, argued that the learned judge was wrong in her assessment of the case before her. In a very interesting argument he contended that the proviso to section 17(1) (at paragraph (b)) of the Rent Restriction Act allows a landlord to increase rental to any amount within the maximum permitted by a rental agreement which specified a progressive rent. The increase could be imposed even if the standard rental for the premises had not been assessed by an Rent Assessment Officer, and there is no application to an Assessment Officer for assessment of the standard rental. He submitted that the standard rental in such a case was the highest rental provided for by the agreement.

5 Mr Bernard, on the issue of the sum for which judgment should be entered, argued that that should be a matter for assessment after judgment.

6 Mr Dabdoub, for the respondents, submitted that Mr Bernard's interpretation was contrary to the provisions of section 18 of the Rent Restriction Act which required every landlord to apply to a Rent Assessment Officer for the determination of the standard rent. He submitted that the section clearly provides that it is only when an application for standard rental is pending before the Rent Assessment Officer, or where the Officer has assessed the standard rental that a landlord may apply the annual increase allowed by the relevant regulation made under the Act. Mr Dabdoub argued that Mr Bernard's interpretation of the proviso, at paragraph (b), to section 17(1) of the Rent Restriction Act...