James et Al v Windjammer Landing Company Ltd

• Jurisdiction: St Lucia
• Judge: Phillips, J.
• Judgment Date: 10 June 1998
• Neutral Citation: LC 1998 HC 16
• Docket Number: 1901 of 1996
• Court: High Court (Saint Lucia)
• Date: 10 June 1998

High Court

Phillips, J.

1901 of 1996

James et al

and

Windjammer Landing Co. Ltd.

Appearances:

Petra Nelson for the plaintiffs

Brenda Floissac-Flemming and Anthony Bristol for the defendant

Practice and procedure - Striking our judgment entered by plaintiffs in default of defence — Defendant company was liable to compensate plaintiff for lease of its land after the company ceased to use it — Plaintiff registered judgment before defendant went into receivership — Defendant came to court with unclean hands — Defendant's application refused.

Phillips, J.

1 (In Chambers) This is an application made by summons dated the 2nd April, 1998 to set aside or strike out or cancel a judgment entered by the plaintiffs in default of defence and dated the 2nd June, 1997 for damages to be assessed, interest and costs.

HISTORY

2 The writ was issued on the 12th December 1996 indorsed with the following claims:

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An order of the removal of the container, the wooden shed, and concrete shed. 2. A mandatory injunction restraining the defendant from any further use of the Helicopter pad. 3. Damages for trespass. 4. Damages for loss of use and occupation. 5. Further or other relief. 6. The costs hereof.

3 A statement of claim was served with the writ and on the 9th January, 1997, the defendant entered an appearance. The defendant did not file a defence and on the 2nd June, 1997 the plaintiff entered judgment in default as herein before mentioned. A copy of this judgment was served upon this defendant on the 16th October, 1997. Nothing further happened until the 19th March 1998 when the plaintiff applied for assessment of damages by which time the defendant was in receivership. This application was served upon the defendant on the 31st March, 1998. It is at this point that the defendant bestirred itself and filed its summons dated 2nd April, 1998 on the same day. On the 6th April, 1998 an identical summons dated 3rd April, 1998 was filed and I could only conjecture that this was by inadevertence as no explanation was given at the hearing.

THE SUBMISSIONS

4 The summons of the 2nd April is supported by an affidavit of Donald Richard Smith who deposed that at all material times he was a director of the defendant. By paragraphs 2–10, 13–14 and 16-17 the deponent stated:

• “2. In the month of January 1991, myself and Mr. David Cram (the Managing Director of the defendant company at the time) arranged to meet and did meet an elderly gentleman who introduced himself to us as Mr. Ambroise James, one of the heirs of Auguste James. I met Mr. Ambroise James on the site in question namely Block 1054B 116 measuring 3.21 acres.

• 3. At the time of the meeting referred to in paragraph (2) above, the construction team on the Windjammer site was in the process of building the island condominiums and required access to the site. At the said meeting Mr. James, myself and Mr. Cram agreed that in exchange for the defendant company clearing the bush on the site (Block 1054B 116) levelling off the slope of the land and back filling the site, Mr. James would give the defendant company at no costs to the defendant company, the use of the site: (i) as an access road during the construction phase, (ii) for storage and (iii) other purposes. Mr. James intimated that his family had no use for the site and accordingly that the defendant company could use the side as aforementioned.

• 4. In pursuance of the said agreement the defendant company engaged its workmen to clear the bush and undergrowth on the site, engaged its excavators and backhoes, to grade the site, to back fill, compact the soil to level off the site. This exercise cost the defendant company approximately $4550.00 E.C.C. in clearing, $7227.00 E.C.C. in excavation works for the removal of the top soil and $57,776.00 E.C.C. in cutting, filling and compacting the site.

• 5. As a result of the works carried out by the defendant company on the plaintiffs' site, the plaintiffs's site was rendered more suitable for construction, planting and for development in general.

• 6. In pursuance to the agreement, the defendant company placed a storage shed on the property and constructed a helicopter pad thereon. At no time did Mr. James or the other plaintiffs object to this use.

• 7. The defendant company continued to use the said land without interruption or complaint by the plaintiffs their servants or agents for 5 years from 1991 to 1996.

• 8. I further state that no notice of trespass or otherwise has ever been served by the plaintiffs on the defendant.

• 9. I further deny that the defendant company ever received any letter dated the 17th October 1994 and put the plaintiffs to proof thereof.

• 10. It was not until January 1997 when the plaintiffs served on the defendant company the writ and statement of claim in this matter was the defendant company aware of any objection by the plaintiffs of the use and occupation of these lands by the defendant company.

• 13. On or about the 1st day of October 1997 the defendant company defaulted on its commitments to Smith Windjammer Holdings Ltd. and Windjammer Bahamas Ltd. the holder of the debenture appointed a receiver to carry out the obligations of the defendant company. To date the defendant company is still under receivership.

• 14. At present the defendant company has ceased to use the plaintiffs' land for any purpose whatsoever.

• 16. In the light of the plaintiffs' acquiescence in the use of these lands by the defendant company and as a result of the agreement between the plaintiffs and the defendant company wherein the plaintiffs specifically granted the defendant company the use of the land, the defendant company denies that it has trespassed on the said land.

• 17. In the circumstances, I verily believe that the defendant company has an arguable defence in this matter. The defendant company is desirous of pursuing its defence in this matter and I respectfully urge this Honourable court, to set aside the judgment entered herein to grant the defendant leave to file and serve its defence herein which is attached hereto as exhibit D.R.S.I.”

5 On the 16th April, 1998 the said Donald Richard Smith filed a supplemental affidavit in which he deposed that the date of the meeting with Ambroise James was the autumn of 1989 and not January, 1991 and that Ambroise James had agreed that some of the excavation materials and debris from the defendant's lands could be used in the levelling process on the lands of the plaintiffs and that this work would be completed in a time frame convenient to the defendant.

6 The summons came on for hearing on the 15th May, 1998 and the first point taken by counsel for the defendant was that the judgment was irregularly entered as the plaintiffs' claim fell within that described in order 19 rule 7 of the Rules of Court and accordingly an application to the court for judgment was necessary. Counsel for the plaintiffs contended that the plaintiffs have the right to elect by entering judgment only for such claims as fall outside of rule 7 and abandoning those which do not. It was pointed out to the defendant's counsel that the rubric to the order 19 rule 7 in the White Book supported the contention of counsel for the plaintiffs and the objection was withdrawn.

7 Counsel for the defendant next proceeded to contend that the judgment though regular should nevertheless be set aside and the defendant granted liberty to defend on the merits. Counsel relied upon paragraphs 3-8 of the affidavit in support of summons and made the following submissions:

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That the defendant's case is based upon the fact that Ambroise James did give permission for the defendant to occupy the land and carry out works thereon. Whether Ambroise had...