Bay View Proprietors Claimant v [1] Phillipe Chalano [2] Nicole Chalano (both of Hophil SA, 11 Rue Biger 97200, Fort de France, Martinique) Defendants [ECSC]
| Jurisdiction | St Lucia |
| Judge | Georges J.,Ephraim Georges |
| Judgment Date | 12 August 2011 |
| Judgment citation (vLex) | [2011] ECSC J0812-3 |
| Court | High Court (Saint Lucia) |
| Date | 12 August 2011 |
| Docket Number | SLUHCV 2009/0592 |
IN THE HIGH COURT OF JUSTICE
SLUHCV 2009/0592
Georges J. [AG.]: On 28th June 2009, the claimant, Bay View Proprietors, through its agent Eldon Mathurin, filed a fixed date claim form and statement of claim claiming against the defendants, Phillipe and Nicole Chalono, an order that the said defendants carry out all structural work required to remove a wall partition subdividing the property known as Unit 13 Bay View Condominiums which is registered as Block 1255 B parcel 243 so that the property is converted back to a single dwelling unit.
The claimant also sought costs and other consequential relief.
The claimant applied for and received an order dated 25th January 2010 extending the validity of the claim form through to 28th June 2010. The order also granted the claimant permission to serve the claim form and related documents outside the jurisdiction by registered post. This was on account of the fact that the defendants were ordinarily resident outside the jurisdiction of St. Lucia as they resided in Martinique.
On 8th March 2010, the defendants filed a defence to the claim in which they admitted being owners of Unit 13 but argued that the terms of the Condominium Declaration and the provisions of the Condominium Act which purported to prevent subdivision of the unit were voidable and unenforceable against them as the contract for the sale of the property and all the related documents were in English whilst their mother tongue and the only language in which they were conversant was French. They also alleged that the said contract was executed without their having the benefit of independent legal advice.
The defendants admitted erecting the partition wall but averred that this did not change the nature of the unit from being a private dwelling. They alleged that because they have not parted possession of the title, occupation or ownership their partition does not and did not amount to a subdivision under theCondominium Act and Condominium Declaration. The defendants also contended that the management authority knew and approved of the alterations made to the unit. This approval, according to the defendants, amounted to a waiver.
Finally, the defendants averred that due to the fact that the breach occurred in 1998, some eleven years before the commencement of the claim, the claim was prescribed in accordance with Article 2121 of theCivil Code of Saint Lucia.
On 17th March 2010 the claimant filed an amended claim form and statement of claim. Essentially the amended claim form sought the same relief as the original claim but it stated in the alternative that if the defendants failed to restore the property to its original state the claimants should be empowered to carry out the restoration free of any liability for any damage that may result to the defendants' property as a consequence.
On 29th March 2010 the defendants filed a defence to the amended statement of claim in which they repeated the substance of their original defence.
The central issue concerns an application by the claimant to strike out the defence filed on 14th April 2010 and a response by the defendants filed on 20th April 2010 to similarly strike out the claimant's claim.
The grounds for striking out the defendants' defence are as follows:
-
1. The defendants have no real prospect of successfully defending the claim and admit that they have erected a wall partition in the property known as Unit 13, Bay View Condominium which has resulted in a sub-division of the unit.
-
2. The defendants obtained independent legal advice in purchasing the property. Furthermore, in accordance with
-
(i) Section 1139 of theCivil Code of Saint Lucia a notarial document if signed by all the parties is authentic,
-
(ii) Section 1141 of theCivil Code of Saint Lucia an authentic writing is complete proof between the parties of the obligations expressed in it.
-
-
3. Article 2121 on prescription in theCivil Code of St. Lucia does not apply in that circumstance due to the fact that the maturity of the commercial transaction had not occurred.
The grounds of the defendants' application are:
-
"(a) The claimant cannot successfully bring and maintain these proceedings against the defendants because the terms of the Condominium Declaration are unenforceable against them.
-
(b) The claim has been prescribed in accordance with Article 2121 of the Civil Code of Saint Lucia.
-
(c) The claim is an abuse of process."
The parties made oral submissions in support of the strike out applications.
Part 26.3(1) of the Civil Procedure Rules (CPR) states that:
"In addition to any other power under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the Court that —
(a) There has been a failure to comply with a rule, practice direction, order or direction given by the Court in the proceedings;
(b) The statement of case or the part to be struck out does not disclose any reasonable ground for bringing or defending the claim;
(c) The statement of case or the part to be struck out is an abuse of the process of the Court or is likely to obstruct the just disposal of the proceedings; or
(d) The statement of case or part to be struck out is prolix or does not comply with the requirements of Part 8 or 10."
Dennis Byron C.J [Ag.] inBaldwin Spencer v The Attorney General of Antigua and Barbuda et al (Civil Appeal No. 20 A 1997) restated the seminal test that should be applied by the court on an application to strike out when he said:
"This summary procedure should only be used in clear obvious cases, when it can be seen on the face of it, that the claim is obviously unsustainable, cannot succeed or in some other way is an abuse of the process of the court"
InHector v Joseph (Dominica Civil Appeal No. 6 of 2003) the Court stated that the reason for this cautious approach is that the exercise of this jurisdiction deprives a party of his right to a trial and the ability to strengthen his case through the process of disclosure and other procedures such as requests for further information.
InHaughton and Haughton Executors of the estate of Alexander Haughton v Yvonne Haughton G476/2001/ and HCV1445/2003 (Consolidated), the Jamaican High Court employed vivid...
To continue reading
Request your trial