Islander Ltd et Al v Baretta Investors Ltd

• Jurisdiction: Bahamas
• Judge: Blair-Kerr, P.,Duffus, J.A.,Luckhoo, J.A.
• Judgment Date: 13 March 1980
• Neutral Citation: BS 1980 CA 18
• Date: 13 March 1980
• Court: Court of Appeal (Bahamas)
• Docket Number: Civil Side No. of 13 of 1979

Court of Appeal

Blair-Kerr, P.; Duffus, J.A.; Luckhoo, J.A.

Civil Side No. of 13 of 1979

Islander Ltd. et al

and

Baretta Investors Limited

Real property - Possession

Real property - Conveyance

Judgment of the Court:

1 It will be convenient to refer to the first appellant as “the Islander”, the second appellant as “A.C.S.L”, and to the Respondent as “Baretta”. In their statement of claim, Baretta names four defendants (1) Euro American Aviation S.A. (we shall refer to them as E.A.A.” (2) The Islander (3) Channel Realty Limited and (4) A.C.S.L. By their statement of claim, Baretta avers that they are owners and entitled to possession of the Islander Hotel and to the land on which it is built namely 5.174 acres in Freeport which land is shown on a plan attached to a conveyance dated 13th February, 1969 and made between Grand Bahamas Port Authority of the one part and one Walter and one Hipp (now deceased) as joint tenants of the other part.

2 Baretta alleges that by letter dated 1st May, 1979 Walter's attorneys advised A.C.S.L. that the premises had been sold to Baretta; and that by letter dated 4th May, 1979 to the agent of A.C.S.L, Baretta's attorney gave notice to A.C.S.L. of the purchase and requested A.C.S.L. to vacate the premises on or before 14th May, 1979. Baretta alleges that because A.C.S.L. wrongfully continues to remain in the premises, they (Baretta) are deprived of the use and enjoyment of the premises; and they seek (1) a declaration, that A.C.S.L. is not entitled to remain on the premises (2) an injunction to restrain A.C.S.L. from remaining thereon and (3) damages. A defence and counterclaim was filed on behalf of The Islander and A.C.S.L. They deny that Baretta is owner and entitled to possession of the premises; they deny that a letter dated 1st May, 1979 from Walter's attorneys was sent to them advising them that the premises had been sold to Baretta; they admit that one Etienne Farquharson received a letter dated 4th May, 1979 giving notice of the purported sale and requesting vacation of the premises; and they deny that they wrongfully continue to remain on the premises.

3 A.C.S.L. avers that they are equitable owners in possession of the premises under an agreement dated 22nd February, 1978 between Walter and E.A.A.; that under that agreement Walter agreed to sell the premises to E.A.A. for U.S.$922,000, the purchase price to be paid by (a) 48 monthly installments each of $6,000, to be paid on the 22nd day of each month commencing on 22nd March, 1978 and (b) 8 equal semi-annual installments of $25,000 commencing on 22nd July, 1978; that the agreement provided that in the event of default under its terms, Walter would have the option to declare by written notice that the entire unpaid balance outstanding was due and payable; and that if E.A.A. failed to pay within 30 days the agreement would be terminated without further notice. The Islander and A.C.S.L. say that Walter did not give any such notice either to E.A.A. or A.C.S.L. to whom the agreement was assigned on 23rd February, 1978.

4 It is also pleaded that by letter agreement dated 5th May, 1978 Walter granted A.C.S.L. an option to purchase the premises for $400,000 in full settlement of the balance owing under the agreement of 22nd February, 1978; that by letter agreement dated 30th May, 1978, Walter agreed that if the option to purchase was not exercised, he had the right to sell the property to a third party “subject to the said agreement” at a discounted cash price of not less than $400,000; that the option was not exercised by A.C.S.L.; that on 1st May, 1979 Walter purported to sell the premises to Baretta for U.S.$225,000; that at the time of sale Baretta had notice of A.C.S.L.'s possession of an equitable interest in the premises; and it is pleaded that the sale to Baretta was “subject to and with the benefit of” the said agreement of 22nd February, 1978.

5 It is also pleaded that The Islander holds a licence to operate the hotel situated on the premises and that the Islander is tenant at will of A.C.S.L. Moreover, it is averred that Baretta could not occupy the premises without a hotel licence.

6 A.C.S.L. counterclaims for a declaration that they are entitled to occupation and possession of the premises, and for an injunction restraining Baretta from interfering with their right to possession.

7 By their reply Baretta say that their title is deduced through a conveyance dated 1st May, 1979 between Walter and themselves and that this conveyance was recorded in the Registry of Records on 15th May 1979. Reference is made to section 10 of the Registration of Records Act (Ch.193) and it is averred that the conveyance to Baretta “took effect in priority to” the agreement, assignment, tenancy at will and option referred to in the defence, none of which was recorded; and that Baretta's title is good and “not defeated or affected by reason of priority in time of execution” of any of the documents referred to in the defence.

8 In the alternative, Baretta pleads that by letter dated 7th September, 1978, Walter gave notice to A.C.S.L. requiring payment within 28 days of the $25,000 which was due on 22nd July 1978 falling which Walter would cancel the agreement and repossess and resell the property, “time being of the essence”; and that by letter dated 19th October, 1978 Walter gave notice to A.C.S.L. that they were in default under the agreement, that the agreement and supplemental option agreement were null and void, and that he(Walter) was free to deal with the property as from 19th October, 1978 and to exercise his legal rights in relation thereto in such manner as he thought fit.

9 Under 0. 18 r. 19 Baretta sought an order that the defence be struck out on the grounds that:–

• (a) it discloses no reasonable defence; and

• (b) it is frivolous; and

• (c) it will delay the fair trial of the action; and

• (d) it is otherwise an abuse of the process of the court.

10 They also asked for judgment on admissions in the defence (0. 27 r.3)

11 Mr. Wallace-Whitfield far Baretta filed an affidavit dated 19th July, 1979 in support of Baretta's application and Mrs. Nottage for the defendants filed an affidavit dated 2nd August in reply. The learned judge acceded to Baretta's applications. He ordered that the defence be struck out. He gave judgment for the plaintiff, making the declaration and granting the injunction, sought, damages and be assessed by the Registrar.

12 The Islander and A.C.S.L. sought, and were granted leave to I appeal to this court, and were granted a stay of execution. Notice of appeal was filed and Baretta filed a respondent's notice. Subsequently, Baretta took out a summons by which notice was given that they would seek an order that the stay of execution be removed. In support, Mr. Wallace-Whitfield filed an affidavit dated 19th October, 1979 and Ms. Nottage filed an affidavit dated 1 ^st November, 1979 in reply; but, so far as we are aware, the of this summons has been adjourned, presumably because appeal.

13 Order 18 r. 19, so far as relevant reads:

• ““(1) The court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or any endorsement, on the ground that -

  • (a) it discloses no reasonable cause of action or defence, as the case may be; or

  • (b) it is scandalous, frivolous or vexatious; or

  • (c) it may prejudice, embarrass or delay the fair trial of the action; or

  • (d) it is otherwise an abuse of the process of the court and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

• (2) No evidence shall be admissible on an application under paragraph 1(a).

14 Upon the hearing of Baretta's summons, a considerable body of evidence was before the learned judge by virtue of Mr. Wallace-Whitfield's affidavit of 19th July, and Mrs. Nottage's affidavit of 2nd August. There was annexed to Mr. Whitfield's affidavit the conveyance by Walter to Baretta by which Walter declared that he was conveying as “beneficial owner” of the property. There was also exhibited the letters of 7th September, and 19th October, 1978, a1so the letter of 1st May, 1979 notifying the defendants' attorneys that the property had been sold to Baretta and the letter of 4th May, 1979 notifying Mr. Farquharson, manager of the Island Hotel that the property had been sold and requesting him to vacate.

15 Exhibited to Mrs. Nottage's affidavit, there was the agreement of 22nd February, 1978. It is a sale and purchase agreement. Under it Walter agreed to sell the property to E.A.A. for U.S.$922,000. Payment was to be made by installments as alleged in the statement of claim; and, upon final settlement, Walter agreed to give E.A.A. conveyance of the property. Clause 9 reads:–

“In the...