Barbro Anna Pilch v Daniel Edward Fancher

JurisdictionBahamas
CourtSupreme Court (Bahamas)
JudgeWinder, J
Judgment Date02 December 2021
Docket Number2016/CLE/gen/01225

IN THE SUPREME COURT

Before Hon. Mr. Justice Ian R. Winder

2016/CLE/gen/01225

Between
Barbro Anna Pilch
Plaintiff
and
Daniel Edward Fancher
Defendant
Appearances:

Ashley Williams for the Plaintiff

Defendant pro se

Winder, J

This is the claim of the Plaintiff (Pilch) seeking to sue upon the judgment made in the District Court, Pitkin County, Colorado against the Defendant (Fancher) on 13 August 2014.

1

On 24 February 2021 the Court ordered that unless the Defendant complied with the case management directions (given since 6 February 2020) by 31 March 2021, the Defence would be struck out. The Defendant failed to comply with the directions as ordered resulting in the Defence being stuck out.

2

The matter came on for trial following the striking out of the Defence of Fancher who was represented by Alexander Maillis at the time.

3

Pilch's claim is set out in her Amended Statement of Claim, which provided, in part as follows:

3. On or about the 1 st June 2007, the Plaintiff and the Defendant orally agreed to form a general Partnership (‘the Partnership’) for the purposes of purchasing, owning, improving, and maintaining, using, renting, and/or re-selling for a profit real property located at Lot No. 20, Dorris Cove, Elbow Cay, Abaco, Commonwealth of the Bahamas (‘the subject property’).

4. At the time of the information of the Partnership, the Plaintiff and Defendant were involved in a romantic relationship.

5. Pursuant to the Partnership, the Plaintiff agreed to provide all of the money necessary to acquire the subject property and to construct a manufactured residence. To date, the Plaintiff has paid for the subject property, the carrying costs associated with it, and the costs to prepare the same for construction including the costs of construction materials, shipping, duties, customs taxes, costs of labour, the purchase of appliances, and other costs associated with the development of the subject property. It was a term of the verbal Partnership agreement concluded between the parties that all amounts paid by the Plaintiff were to be credited to her capital account.

6. Pursuant to the Partnership, the Defendant agreed to render all services reasonably necessary to provide for the construction of the manufactured residence to be placed on the subject property. These services included the selection and oversight of the subcontractors required to complete the work the Defendant could not perform such as pouring a concrete foundation, electrical and plumbing work. The parties orally agreed that the Defendant's services would be credited towards his capital account at a rate of US$65.00 per hour.

7. Further, it was a term of the Partnership that the parties would split the net profits of the sale of the subject property in proportion to their capital contribution. The parties did not address in their verbal Partnership agreement how net losses would be proportioned in the event that the subject property did not sell at a price sufficient to result in a net profit.

8. The subject property was purchased by the parties in or around the 6 th September 2006. The Conveyance illustrating the purchase of the same was duly recorded in the Registry of Records of the aforesaid Commonwealth in Volume 9962 at pages 397 to 404.

9. After the subject property was purchased, the parties hereto proceeded with construction of a residence. The parties contracted with Topsider Homes, a company incorporated under the laws of the United States of America, for the purchase of a pre-fabricated home. Rather than paying Topsider Homes an additional US$45,000.00 to erect the home on the subject property, the Defendant, as part of his agreed contribution to the Partnership was to perform the work. The Defendant determined that construction of the residence would take approximately three months. The works to be performed by the Defendant in the three month period was to include erecting the pre-fab home, completing the interior and exterior finish work, concrete work, and the installation of a septic system.

10. In breach of the said Partnership, the Defendant failed and/or refused to complete the construction of the home.

11. After two years, Mr. Fancher had completed only minimal work on the residence despite repeated requests made to him by the Plaintiff to do so.

12. Due to the Defendant's breach of the Partnership, the Plaintiff was forced to hire an experienced contractor, Mr. Marty Cash (‘Mr. Cash’), to complete the construction project. At the time, Mr. Cash was hired by the Plaintiff, he had determined that the value of the services rendered by the Defendant at the time of him being contracted for the construction of the residence did not exceed the amount of US$30,000.00.

13. Further, Mr. Cash determined that the home was approximately only 25% complete at the time he was hired to complete the said construction.

14. …Previously, the Defendant warranted to the Plaintiff that he had spent 2500 hours on the construction of the residence located on the subject property. Pursuant to the parties' Partnership agreement this would equate to a total of US$162,500.00 for the Defendant's services which was to be applied to his capital account. Notwithstanding the same, the Defendant by an email to the Defendant valued his services as US$100,000. 00 or 1538 hours of work.

15. To date the Plaintiff has incurred costs in connection with the subject property totaling US$826,803.00; which should be credited to the Plaintiff's capital account pursuant to the terms of the Partnership. …the Partnership has a negative value.”

16. The parties subsequently ended their romantic relationship and the Defendant has become increasingly hostile towards the Plaintiff. As such, the parties can no longer be in a Partnership.

17. Further, during the course of the romantic relationship between the parties, the Plaintiff advanced the sum of US$231,231.00 to the Defendant for the payment of his personal expenses pursuant to an oral agreement concluded between them. It was a term of this verbal agreement that the Defendant would reimburse the Plaintiff all of the advanced sums.

18. Since the advancement of the sum of US$231,231.00 to the Defendant, he has only repaid the Plaintiff the sum of US$33,997.00, in breach of their verbal agreement. The Defendant has been unjustly enriched due to the breach of the said verbal agreement.

19. The amount which remains outstanding and owing to the Plaintiff under the verbal agreement relating to the payment of the Defendant's personal expenses is US$168,498.00. The said figure is calculated utilizing an equitable set-of of the following amounts:

  • (1) The amount of US$28,736.00 which the Plaintiff owes the Defendant for his interest in the Partnership; and

  • (2) The amount of US$33,997.00 which was paid to the Plaintiff by the Defendant in part payment of the debt incurred by reason of the verbal agreement concluded between the parties as it related to the payment of the Defendant's personal expenses.

20. By Complaint filed by the Plaintiff on the 19 th September 2012, before the District Court of Pitkin County, Colorado, USA, the Plaintiff made application before the District Court of Colorado to have the Partnership dissolved and for reimbursement from the Defendant on an unjust enrichment claim pursuant to the verbal agreement concluded between them for the payment of the Defendant's personal expenses.

21. The hearing of the Complaint before the District Court of Pitkin County, Colorado, USA occurred on the 13 th April 2014 and the following Orders were made:

  • (1) The Partnership is hereby judicially dissolved and a Judicial Decree dissolving the Partnership is hereby entered.

  • (2) A constructive trust on Mr. Fancher's interest in the subject property is hereby imposed in favor of Ms. Pilch.

  • (3) Mr. Fancher shall sign and return a deed transferring his ownership interest in the subject property within 10 days of delivery of the form of the deed to Mr. Fancher.

  • (4) Ms. Pilch may deliver the form of the deed to Mr. Fancher by email at billfish45@msn.com which is the only address for delivery that Mr. Fancher had provided the Court and Ms. Pilch.

  • (5) Pursuant to C.R.C.P. 70, if Mr. Fancher fails to sign and/or return the deed to Ms. Pilch within 10 days of delivery of the deed to him, Clerk of the District Court may sign the deed required to effectuate this Order without further notice to Mr. Fancher. Any deed executed by the Clerk of this Court shall carry the same force, effect and validity as if Mr. Fancher had specifically executed said document as called for by this Order.

  • (6) Ms. Pilch is awarded damages against Mr. Fancher, after set-off, in the amount of US$168,498.00. Judgment hereby enters in favor of Plaintiff Barbro Pilch and against Defendant Daniel Fancher in the amount of...

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