Fergs Air Ltd v Rufus Ferguson

JurisdictionBahamas
CourtSupreme Court (Bahamas)
JudgeWinder, J
Judgment Date01 December 2021
Docket Number2020/CLE/gen/00354

IN THE SUPREME COURT

Before Hon. Mr. Justice Ian R. Winder

2020/CLE/gen/00354

Between
Fergs Air Ltd.
First Plaintiff
and
Rufus Ferguson (t/a Fergs Air Charter Services)
Second Plaintiff

and

Odyssey Aviation Bahamas Limited
Defendant
Appearances:

Joseph Moxey for the Plaintiffs

Christina Davis-Justin for the Defendant

Adrian Hunt on a watching brief for Phoenix Aviation Ltd.

DECISION
Winder, J

On 1 December 2021, after hearing the submissions of the parties, I acceded to the application of the Defendant for an order that it be removed as a party to the proceedings and that the Plaintiff's claim be struck out as against it. These are the promised, brief reasons for my decision.

1

The action was brought by specially indorsed Writ of Summons seeking damages in negligence, specifically for occupiers liability in the following manner:

8. The Defendant knew or ought to have known that it had an obligation to remove standing water and repair any and all potholes in and around the General Aviation Area in which failing to do so would creates (sic) a hazard for air crafts operating in the area.

  • (a) Failure to repair potholes

  • (b) Failure to provide proper drainage and run off for standing water

  • (c) Failure to provide warning signs of the danger pose by the potholes

  • (d) Failure to provide warning signs of the danger of the water

  • (e) Failure to provide a marshal to direct air crafts around the potholes

(a)

Loss of Aircraft

$ 72,953.00

(b)

Los (sic) Revenue ($1500 per day x 96 days)

$144,000.00

(c)

Removal of Salvage Aircraft

$ 3,000.00

(d)

Storage of Aircraft ($15.00x30 days)

$ 450.00

(e)

Difference for Replacement Aircraft

$ 36,497.00

Total:

$256,900.00

2

The Defendant filed a Defence, which was settled, in part, as follows:

  • 1. This Defence is served without prejudice to the Defendant's right to apply to have the specially endorsed Writ of Summons filed herein 9 March 2020 (“the Writ”) struck out and the claims dismissed, on the grounds that the Defendant is not a proper or necessary party to the claims made herein, and the Plaintiffs' conduct in commencing and pursuing these proceedings against the Defendant is frivolous or vexatious.

  • 2. The Defendant can neither admit nor deny the matters pleaded in paragraph 1 of the Statement of Claim endorsed on the Writ, as the Defendant has no knowledge of the matters therein contained. The Plaintiffs are required to prove the same.

  • 3. Save that it is admitted that the Defendant is a company incorporated under the laws of the Commonwealth of The Bahamas, paragraph 2 of the Writ is denied. The Defendant avers that it neither holds any licenses to carry on business as a Fixed Base Aviation Operator nor provides Aircraft Services to the public as alleged in paragraph 2 of the Writ or at all. The Plaintiffs are put to strict proof of these allegations.

  • 4. The Defendant further avers that it does not carry on any commercial business activity whatsoever in the Commonwealth of the Bahamas. Moreover, the Defendant neither employs, nor exercises any control, power, or authority over any persons employed in connection with Aircraft services provided to the public nor owns, leases, or occupies any premises from which a Fixed Base Aviation business is operated or Aircraft services provided to the public. The Defendant therefore puts the Plaintiffs to strict proof of the allegation that the Defendant carries on business as alleged in Paragraph 2 of the Writ.

  • 5. The Defendant can neither admit nor deny the allegations contained in paragraph 3 of the Writ as the matters pleaded therein are not within its knowledge, and are predicated on a reference to “Odyssey Aviation” which is not defined in the Writ as the Defendant, or otherwise. Further, the Defendant did not at the material time or at any point trade as or otherwise hold itself out as “Odyssey Aviation”. The Defendant repeats the above paragraphs 3 and 4 of this Defence.

3

The application was brought by Summons filed on 24 November 2021 and supported by the affidavit of Gabriel Brown. The Summons was settled in the following terms:

LET ALL PARTIES CONCERNED attend before the Honourable Mr. Justice Ian Winder of the Supreme Court of the Commonwealth of The Bahamas, on Wednesday, the 1 st day of December, A.D., 2021 at 9:00 o'clock in the forenoon on an application by the above-named Defendant pursuant to Orders 15 Rule 6(2)(a), 18 rule 19 (1)(b) and (d), and 31A rule 18 (2) (d) and (s) of the Rules of the Supreme Court 1978 (“the RSC”), and the inherent jurisdiction of the Court for an ORDER THAT:

  • (1) The Defendant be removed as a party to these proceedings and/or the Plaintiffs' claims herein be struck out and this Action dismissed as against the Defendant

  • (2) All further proceedings herein be stayed pending the determination of this application.

  • (3) The costs of this application be paid by the Plaintiffs to the Defendant, to be taxed if not agreed; and

  • (4) The Court grant such further or other relief and directions as may be deemed fitting and appropriate.

AND TAKE NOTICE THAT the grounds of this application are that the Defendant is neither a proper nor necessary party to this Action, and the maintenance of this Action against it is conduct that is frivolous, vexatious, and/or an abuse of the Court's process.

4

The Affidavit of Gabriel Brown provided in part as follows:

3. I have read the specially indorsed Writ of Summons and the Statement of Claim filed on 9 March 2020 (“the Writ”), in which the Plaintiffs allege that [Odyssey Aviation Bahamas Limited] carries on business as a Fixed Base Aviation Operator providing “Aircraft Services” to the public. The Plaintiffs further allege that on 15 May 2019, the Second Plaintiff was...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT