Barbara Kiddell v Windjammer Landing Company Ltd

• Jurisdiction: St Lucia
• Judge: EDWARDS J
• Judgment Date: 14 February 2007
• Judgment citation (vLex): [2007] ECSC J0214-1
• Court: High Court (Saint Lucia)
• Docket Number: CLAIM NO. SLUHCV 007 OF 1994
• Date: 14 February 2007

[2007] ECSC J0214-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO. SLUHCV 007 OF 1994

CLAIM NO. SLUHCV 0778 OF 1997

Between:

Barbara Kiddell

Claimant

and

Windjammer Landing Company Limited

Defendant

Between:

1. Hugh Brian Macnicol Robert Knowles Macnicol David Alexander Macnicol William Scott Macnicol (Executors of Estate Barbara I. Kiddell)

2. George B. Kiddell

3. David Macnicol

4. James E. Delaney

5. Patsy Delaney

6. Kaino Hamu

Claimants

and

1. Windjammer Landing Company Limited

2. Windjammer Landing Company St. Lucia (1992) Limited

3. Elgin Holdings Limited

Defendants

Appearances:

Mr. Andy George for Mr. George Kiddell, Mr. James Delaney and Mrs. Patsy Delaney

Ms. Brenda Floissac Flemming for Defendants

JUDGMENT ON ASSESSMENT OF DAMAGES

CONSOLIDATED WITH

EDWARDS J

1 The Claimants were found to have proven their individual claims against Windjammer for breaches of their Maintenance and Rental Pool Agreements in the Judgment delivered on 15^th July 2005. Before embarking on the assessment of damages it is prudent to summarize my findings in that Judgment.

2 Mrs. Barbara Kiddell's Maintenance Agreement existed from 1^st January 1989 to 25^th June 1994. Her Rental Pool Master Agreement existed from 30^th June 1990 to October 1993. She proved that Windjammer failed to provide her or provided her in an untimely manner with the following documents mandated under the Agreements—

• (a) Quarterly statements in an untimely manner for 4 quarters in the years 1991 and 1992, pursuant to her Maintenance Agreement.

• (b) Quarterly Service Account Statements for the quarters ending 30/6/91,30/9/91, 31/3/92, 30/6/92, 31/12/92 pursuant to her Rental Pool Master Agreement.

• (c) Unaudited quarterly Rental Pool Statements in an untimely manner for the quarters 30/6/91,30/9/91,31/12/91.

• (d) Audited Statements of the Rental Pool Operations for 1991.

• (e) Audited Statements for 1992 in an untimely manner.

• (f) A notice in writing 3 months prior to the end of the operating year, giving details of the reason for the increase in maintenance fees for the ensuring operating year ending 31/12/93.

3 Mr. George Kiddell's Maintenance Agreement existed from 1^st January 1989 to 5^th March 1995. His Rental Pool Master Agreement existed from 30^th June 1990 to 14^th April 1994. He proved that Windjammer failed to provide him with or provided him in an untimely manner with the following documents mandated under the Agreements—

• (a) Quarterly Statements in an untimely manner for the 4 quarters in the years 1991 and 1992, and the quarter ending March 31, 1994 pursuant to the Maintenance Agreement.

• (b) A notice in writing 3 months prior to the end of the operating year, giving details of the reason for the increase in maintenance fees for the ensuring operating years ending 31^st December 1993, 1994 and 1995.

• (c) Quarterly Maintenance Statements for the quarters ending 30/6/94, 30/9/94, 31/12/94 in an untimely manner.

• (d) Unaudited quarterly Rental Pool Statements in an untimely for the quarters 30/6/91, 30/9/91, 31/12/91.

• (e) Unaudited quarterly Rental Pool Statements for the quarters ending 30^th June, 30^th September and 31^st December for the years 1994 to 2002, in an untimely manner.

• (g) Quarterly Service Account Statements for the quarters ending 30/6/91,30/9/91, 31/3/92, 30/6/92, 31/12/92 pursuant to the Rental Pool Master Agreement.

• (h) An Audited Statement of the Rental Pool Operations for 1991.

• (i) Audited Statements in an untimely manner for 1992.

4 Mr. David MacNicol's Maintenance Agreement Services commenced on 1^st January 1989 and there has been no interruption in services. His Rental Pool Agreement existed in 1991 up until 2002. He proved that Windjammer failed to provide him with or provided him in an untimely manner with the following documents mandated under his Agreements—

• (a) Quarterly Statements in an untimely manner for the 4 quarters in the years 1991 and 1992, and the quarter ending March 31, 1994 pursuant to the Maintenance Agreement.

• (b) A notice in writing 3 months prior to the end of the operating year, giving details of the reason for the increase in maintenance fees for the ensuing operating years ending 31^st December 1993, 1994 and 1995, 1996

• (c) Quarterly Maintenance Statements in an untimely manner for the quarters ending 30/6/94, 30/9/94, 31/12/94

• (d) Quarterly Maintenance Statements for the quarters ending 31/12/ 99, and 31^st March, 30^th June, 30^th September and 31^st December for the years 2000 to 2002.

• (e) Unaudited quarterly Rental Pool Statements in an untimely manner for the quarters 30/6/91, 30/9/91, 31/12/91.

• (f) Unaudited quarterly Rental Pool Statements in an untimely manner for the quarters ending 30^th June, 30^th September, 31^st December for the years 1994 to 2002.

• (g) Quarterly Service Account Statements for the quarters ending 30/6/91, 30/9/91, 31/12/91 and the 4 quarters for 1992, 1994, 1996 to 2002.

• (h) An Audited Statement of the Rental Pool Operations for 1991.

• (i) Audited Statements for 1992 and 1998 in an untimely manner.

5 Mr and Mrs. Delaney's Maintenance Agreement commenced on the 1^st June 1989 and the Maintenance services have been uninterrupted up to 2002. The Rental Pool Maintenance Agreement appeared to have been in existence from 1991 up to 2002. The Delaney's proved that Windjammer failed to provide or provided them in an untimely manner with the following documents under the Agreement—

• (a) Quarterly Statements in an untimely manner for the 4 quarters in the years 1991 and 1992 and the quarter ending 31/3/94 under the Maintenance Agreement.

• (b) A notice in writing 3 months prior to the end of the operating year, giving details of the reason for the increase in maintenance fees for the ensuing operating years ending 31^st December 1993, 1994, 1995 and 1996.

• (c) Quarterly Maintenance Statements in an untimely manner for the quarters ending 30/6/94, 30/9/94, 31/12/94.

• (d) Quarterly Maintenance Statements for the quarters ending 31/12/ 99 and 31^st March, 30^th June, 30^th September and 31^st December for the years 2000 to 2002.

• (e) Unaudited quarterly Rental Pool Statements in an untimely manner for the quarters 30/6/91, 30/9/91, 31/12/91.

• (f) Unaudited quarterly Rental Pool Statements in an untimely manner for the quarters ending 30^th June, 30^th September, and 31^st December for the years 1994 to 2002.

• (g) Quarterly Service Account Statements for the quarters ending 30/6/91, 30/9/91, 31/12/91 and the 4 quarters for 1992, 1994, and 1996 to 2002.

• (h) An Audited Statement for the Rental Pool Operations for 1991.

• (i) Audited Statements for 1992 and 1998 in an untimely manner.

6 Mr. Kaino Hamu's Maintenance Agreement existed prior to 1991, and it was terminated in October 1997. His Rental Pool Master Agreement commenced in 1990 and it came to end on 7^th June 1994. Mr. Hamu proved that Windjammer failed to provide him with, or provided him in an untimely manner with the following documents under his 2 Agreements—

• (a) Unaudited quarterly Rental Pool Statements in an untimely manner for the quarters 30/6/91, 30/9/91, 31/12/91.

• (b) Unaudited quarterly Rental Pool Statements in an untimely manner for the quarters 30^th June, 30^th September, and 31^st December for the years 1994 to 2002.

• (c) Quarterly Rental Pool Statements in an untimely manner for the quarters ending 31/3/94 (upon termination of his Agreement) the period 1^st April to 7^th June 1994 (after reinstatement of his Agreement), the period 1^st December to 31^st December 1995 and subsequent quarters ending 31^st March, 30^th June, 30^th September, 31^st December 1995, the quarters ending 31^st March, 30^th September and 30^th June 1996, (and upon termination of the reinstated agreement at the end of August) the period 1^st July to 31^st August 1996.

• (d) Quarterly Service Account Statements for the quarters ending 30/6/91, 30/9/91, 31/12/91 and the 4 quarters in 1992.

• (e) Quarterly Service Account Statements for the quarters ending 31/3/94 (upon termination of the Agreement) for the period 1^st April to 7^th June 1994, (upon re-instatement of the Agreement) for the period 1^st to 31^st December 1994, the 4 quarters in 1995, the quarters 31/3/96, 30/6/96, (an upon termination of the agreement) the period 1^st July to 31^st August 1996.

• (f) An Audited Statement of the Rental Pool Operations for 1991

• (g) Audited Statements for 1992 in an untimely manner

7 I also found that Windjammer's calculations and allocations of Maintenance fees to the Claimants were unreasonable and too high. I concluded that the Front Office Costs to the Villa Owners contemplated by the Maintenance Agreement would bemore probable in the region of 25% for the years 1993 to 2002, and that a reasonable percentage allocation for Security Costs is more probable 60% to the 116 Villa Owners for the years 1993 to 2002. I directed further that all the other percentage allocations should be reduced by 5% for the years 1993 to 2002.

8 I found in addition, that Windjammer had failed to pay the Claimants the income they were entitled to for the duration of their respective Rental Pool Agreements by wrongfully deducting Travel Agents Commission, Kimonos, Taxi Shuttle Golf and Managers Cocktail Party Expenses from the Gross Rental Revenue earned for Rental Pool Operations prior to reporting it in the Rental Pool Profit Distribution Statements for the Claimants for the years 1991 to 2002.

9 Regarding the Counter claim of Windjammer, I found that Mrs. Kiddell and Mr. Hamu were owing Maintenance Fees which sums would have to be recalculated and adjusted downwards based on my findings at paragraphs 7 and 8 above.

10 Mr. Kiddell was found to be successful in his claim against Windjammer for Wrongful termination of his Maintenance Agreement, having regard to my findings at paragraph 7 and 8 abov...