Chub Cay Realty LLC v Richard and Pamela Escobar

• Jurisdiction: Bahamas
• Judge: Mr. Justice Jon Isaacs, JA,Mr. Justice Evans, JA,Sir Michael Barnett, P
• Judgment Date: 15 February 2024
• Neutral Citation: BS 2024 CA 12
• Docket Number: SCCivApp & CAIS No. 100 of 2022
• Court: Court of Appeal (Bahamas)

IN THE MATTER OF a Grant of Easement by deed dated 22 July 2004 between Chub Cay Resorts Limited of the first part, Chub Cay Associates Limited of the second part AND Cynthia S Brouwer et al (collectively called the Grantees) of the third part, recorded in the Registry of Records in book 11394 at pp. 435 to 454.

BETWEEN

Chub Cay Realty LLC

Applicant/Intended Appellant

and

Richard and Pamela Escobar

Charles Vose JR

Msairnsea LLC

Intended Respondents

BEFORE:

The Honourable Sir Michael Barnett, P

The Honourable Mr. Justice Isaacs JA

The Honourable Mr. Justice Evans, JA

SCCivApp & CAIS No. 100 of 2022

IN THE COURT OF APPEAL

Civil Appeal — Application for leave to appeal to the Privy Council — Whether appeal “as of right” — Section 23(1) Court of Appeal Act — Whether appeal involves a point of law? — whether appeal involves general or public importance? — Interpretation of “property in dispute” in Section 23

The application is for leave to appeal to the Privy Council from a judgment rendered by the Court of Appeal on July 20, 2023. This appeal primarily revolves around the interpretation of a clause within a deed, granting the appellants specific rights concerning property and amenities owned by the respondent on Chub Cay in the Berry Islands. The appellants possess lots on Chub Cay, while the respondent, Chub Cay Realty LLC, holds ownership of the Chub Cay Club premises, encompassing the clubhouse, hotel, restaurant, and facilities utilized by lot owners, members, guests, and visitors. Following the Court's decision to grant the appeal and adjust the second declaration to outline the appellants' entitlement to utilize various facilities on par with other property owners and non-members of the club, the applicant seeks leave to appeal this ruling, a move contested by the intended respondents. After hearing submissions on the application the Court reserved its decision

Held: (Barnett, P dissenting) Application for leave to appeal to the Privy Council is refused. The applicant is to pay the costs of the application to be taxed if not agreed.

per Isaacs, JA:

Section 23 of the Court of Appeal Act does not explicitly define “property in dispute.” Unlike the broader term “property dispute,” which encompasses various land-related conflicts, including those concerning titles, ownership, restrictive covenants, easements, or usage limitations, “property in dispute” implies contested claims over a specific property. It typically pertains to disputes under specific laws like the Quieting Titles Act or cases involving trespass, boundary disputes, or adverse possession. I disagree with the President's interpretation suggesting that “property in dispute” extends to encompass disputes over the scope of an easement. Such an interpretation would constitute judicial overreach, as Parliament deliberately opted for a narrower term. In alignment with Lord Nolan's stance in Zuliani, which advocates for a strict interpretation of legislative provisions, I believe that “property in dispute” should be strictly construed to involve conflicting property claims, excluding broader disputes like easements or licenses. Consequently, I do not consider the current application an appeal as of right. Although I concur with the President's judgment on other matters, I see no need to further elaborate on the application. Therefore, I decline to grant leave for the application, as it fails to meet the criteria outlined in Section 23 of the COA Act and does not raise any issues of general public importance. However, despite my refusal, the applicant retains the option to directly apply to the Privy Council for special leave.

Jacpot Ltd (Appellant) v Gambling Regulatory Authority (Respondent) (Mauritius) [2018] UKPC 16 considered

Meghji Lakhamshi & Brothers v Furniture Workshop [1954] AC 80 mentioned Zuliani and others v. Viera, [1994] 2 LRC 705 considered

per Evans, JA:

The applicant argues that the proposed appeal raises the important issue as to recreational easements and that this issue has not yet been considered in The Bahamas. There are two points to be made. Firstly, at the hearing in the Court of Appeal the applicant /intended appellant conceded that the trial judge was correct in law with respect to recreational easements. The issue in this case was simply the proper construction of the 2004 Grant. That does not involve any point of law of general or public importance. Secondly, the issue of recreational easements has already been considered by a higher court in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57. The law in this regard has been decided and there is no basis for this court to consider that the issue needs to be revisited. In my judgement, whilst the proper construction of the 2004 Grant is important to the parties, this court having made its determination on that issue, it does not raise a point of law of general or public importance that warrants the attention of the apex court, therefore I would refuse leave on the third limb of section 23 also.

Ashley Dawson-Damer v Grampian Trust Company Limited (2) Lyndhurst Limited SCCivApp. No. 30 of 2022 considered

Jacpot Ltd (Appellant) v Gambling Regulatory Authority (Respondent) (Mauritius) [2018] UKPC 16 considered

Paul F. Major v First Caribbean International Bank SCCivApp 77 of 2021 considered Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57 considered Responsible Development for Abaco v Attorney General SCCivApp No. 248 of 2017; considered

per Barnett, P (Dissenting):

Section 23 does not define the meaning of the expression “property in dispute”. It is to be noted that the section does not say “property dispute”. That in my judgment is a much wider term and can encompass any dispute relating to land. It is not limited to disputes as to title or ownership. It certainly can include disputes as to restrictive covenants, easements or limitation on use. It includes any dispute which involves directly or indirectly a question relating to real property. The only limitation is that the land itself must exceed four thousand dollars in value. If section 23 contained the words “property dispute” it would not be difficult to construe it as including the dispute in this action. This would be consistent with the language used in other jurisdictions which refer to ‘disputes involving directly or indirectly a claim to or question respecting property’. This is a dispute concerning the scope of “recreational easements” granted by a deed dated 20th July, 2004. In my view, this falls within section 23 as ‘a property in dispute’. That is to say the value of the property which is the subject matter of this dispute. It is land valued in excess of $4000.00. In the result, in my view the applicant/intended appellant is entitled to appeal as of right. This appeal is not about the proper construction of section 23, which I accept is a point of law of general and public importance. The appeal is about the proper construction of the 2004 Grant. In the circumstances, although the construction of section 23 is not free from doubt, for the reasons set out in this judgment, I would accede to the application and grant leave on the usual terms as to the bond and the preparation and dispatch of the record of appeal.

Armbrister v Lightbourn [2012] UKPC 40 mentioned

Bannerman Town, Millars and John Millars Eleuthera Association v Eleuthera Properties Ltd [2018] UKPC 27 mentioned

Finlayson v Caterpillar SCCivApp. No. 99 of 2022 considered

Meghji Lakhamshi & Brothers v Furniture Workshop [1954] AC 80 considered

Ocean Estates v Pinder [1969] 2 A.C. 19 mentioned

Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57 mentioned

Renaissance Ventures Ltd v Comodo Holdings [2018] ECSC J1008-3 considered

Zuliani and others v. Viera [1994] 2 LRC 705 considered

APPEARANCES:

Mr. Carlson Shurland, KC with Ms. Asha Lewis, Counsel for the Applicant/ Intended Appellant

Mr. John Delaney, KC with Ms. Lena Bonaby, Counsel for the Intended Respondents

Judgment delivered by the Hon . Mr. Justice Jon Isaacs, JA

1 Before us is an application for leave to appeal to His Majesty in Council (“the Privy Council”) from a judgment of this Court delivered on 20 ^th July, 2023 (“the Judgment”) wherein the Court allowed the appeal of the intended respondents and dismissed the appeal of the intended appellant. The intended appellant is the unsuccessful party making the application.

2 I have read the judgment of my brother, the President, allowing the application for leave to appeal to the Privy Council. For reasons set out below, I am unable to travel the path he has chosen to take. In other words, I do not accede to the application to grant leave as, in my view, the proposed appeal is not an appeal as of right and nor does it raise a question of general public importance.

3 I agree with him that if the appeal was of right then it should not be refused as being an abuse of process.

4 The history of the dispute between the parties was rehearsed in paragraphs 4 through 21 of the Court's judgment.

5 Suffice it to say that the dispute stems from what the Court identified in paragraph 1 of our judgment where we said that the appeal:

“… concerns the proper construction of a provision in a deed granting the appellants certain rights with respect to property and facilities owned by the respondent on Chub Cay in the Berry Islands”.

6 We heard and allowed the intended respondents' appeal and made the following order:

“ In the result, the appeal is allowed by varying the second declaration to read:

“ DECLARED that pursuant to clause 2 (a) of the 2004 Grant of Easements, the Plaintiffs are entitled to use that portion of the Club (as defined in the 2004 Grant of Easements) and other facilities which are open to non-members of the Club and to guests of the Club including the bar, restaurant, club, hotel,...