James Fleck v Pittstown Points Landing Ltd
| Jurisdiction | Bahamas |
| Judge | Madam Justice G. Diane Stewart |
| Judgment Date | 21 January 2022 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2018/CLE/gen/00597 |
IN THE SUPREME COURT
The Hon. Madam Justice G. Diane Stewart
2018/CLE/gen/00597
Mr. V. Alfred Gray and Mr. Mario Gray for the Plaintiff
Mr. N. Leroy Smith and Mr. Jonathan Deal for the Defendant
The Defendant, Pittstown Points Landing Limited (the “Defendant”) made an application to strike out the Plaintiffs, James Fleck (the “Plaintiff”) action pursuant to Order 18 rule 19 of the Rules of the Supreme Court.
The Plaintiff and Mr. David Wishneski, who is not a party to the action (“Mr. Wishneski”), purchased Lot No. 71 situate in the Sea Horse Subdivision on the Northern end of Crooked Island, one of the islands of the Commonwealth of The Bahamas (“Lot 71”) as joint tenants.
While Lot 71 was owned by its previous owner, Saraband Ltd. (“Saraband”) Saraband entered into a lease agreement with the Defendant for a lease of a portion of Lot 71 for a period of ninety-nine years (the “Lease Agreement”). At the time of the purchase the land was subject to the Lease Agreement
The Plaintiff, in his writ claims that the Defendant breached specific covenants of the Lease Agreement, namely Clauses 2 (C) (F) and (G) which provide:
“2 (C) To construct the proposed runway extension in accordance with specifications plans and regulations approved by and promulgated by the Department of Civil Aviation of the said Commonwealth or such other Governmental authority of the said Commonwealth as may have jurisdiction in that regard within Three (3) years from the date hereof or such long period as may be agreed between the parties in writing and to keep the proposed runway extension in good repair and condition for the purpose of being used as a runway and at all times during the term hereby created to make good all damage to the land of the Owner occasioned by the construction of or repairs to the proposed runway extension;
2 (F) Not to do or permit or suffer to be done anything in or upon the demised premises or any part thereof which may be or become a nuisance or annoyance or cause damage or inconvenience to the Owner or the tenants of the Owner or the neighborhood or whereby any insurance for the time being effected on the demised premises may be rendered void or voidable or whereby the rate of premium thereon may be increased.
2 (G) To keep the Owner indemnified against all proceedings costs claims demands and expenses whatsoever in any way arising out of the exercise of the rights and liberties hereby granted.” (the “Clauses”)
The Defendant denies that there were any breaches of the covenants in the Lease Agreement but alternatively seeks relief pursuant to section 16 of the Conveyancing and Law of Property Act if it is found that there was any breach or were any breaches of the Lease Agreement.
By Summons filed the 12 th July 2018 the Defendant seeks an order pursuant to Order 18 r. 19 (1) (a), (b) and/or (d) of the Rules of the Supreme Court and/or under the inherent jurisdiction of the Court, that the Plaintiff's Writ of Summons filed the 24 th May 2018 and his Statement of Claim filed the 11 th July 2018 (the “Plaintiff's Writ and SOC”) be struck out for being frivolous or vexatious or an abuse of the process of the Court.
The Defendant also seeks an order that the action be dismissed on the grounds that, inter alia, the Plaintiff's current claims lack merit and/or are demonstrably false and arise from the same or substantially the same facts as those In Pittstown Point Landings Limited v James Fleck and David Wishneski, Supreme Court Action No. 2015/CLE/gen/00747 (the “Initial Action”), in which the claims were finally adjudicated upon by a court of concurrent jurisdiction. A further ground is that the Plaintiff was barred by the doctrine of res judicata and/or the rule in Henderson v. Henderson (the “Strike-Out Application”).
The Plaintiffs Writ with the specially endorsed statement of claim states :
“1. At all material times the Plaintiff (Leasor/Owner) was joint owner of a plot/parcel of land being a portion of Lot No. 71 in the “Sea Shores” Subdivision situate on the Northern end of Crooked Island one of the Islands of the Commonwealth of The Bahamas.
2. At all material times the Defendant (Leasee) was a Bahamian company duly incorporated under the laws of The Bahamas and operated a runway which traverses in part on and over the plot/parcel of land owned by the Plaintiff.
3. One of the Plaintiffs predecessors in title (Saraband Ltd.) entered into a lease agreement on the 2nd May 2002, with the Defendant, for a lease over the said plot/parcel of land (being Lot No, 71), for a period of 99 years.
4. On the 6th July, 2008, the Plaintiff, as joint owner/purchaser, purchased a portion of the said parcel or lot of land being Lot 71, the subject to the Lease Agreement referred to in paragraph 3 hereof and to which both parties hereto are bound by its terms.
5. The said Lease agreement contained various covenants and/or obligations, which several covenants and/or obligations, the Defendant has breached, and those breaches continue to this day by its failing, refusing or neglecting to carry out the terms of the several covenants and/or obligations contained in the said Lease Agreement.
6. Paragraph (2) (C), (F) & (G) of the lease reads as follows.
The Lease hereby covenants with the Owner as follows
“2 (C) To construct the proposed runway extension in accordance with specifications plans and regulations approved by and promulgated by the Department of Civil Aviation of the said Commonwealth or such other Governmental authority of the said Commonwealth as may have jurisdiction in that regard within Three (3) years from the date hereof or such long period as may be agreed between the parties in writing and to keep the proposed runway extension in good repair and condition for the purpose of being used as a runway and at all times during the term hereby created to make good all damage to the land of the Owner occasioned by the construction of or repairs to the proposed runway extension;
2 (F) Not to do or permit or suffer to be done anything in or upon the demised premises or any part thereof which may be or become a nuisance or annoyance or cause damage or inconvenience to the Owner or the tenants of the Owner or the neighborhood or whereby any insurance for the time being effected on the demised premises may be rendered void or voidable or whereby the rate of premium thereon may be increased.
2 (G) To keep the Owner indemnified against all proceedings costs claims demands and expenses whatsoever in any way arising out of the exercise of the rights and liberties hereby granted.”
7. The Defendant by their action and in action has breached those covenants of the Lease Agreement in whole or in part.
PARTICULARS OF BREACH
8. The defendant's have failed or refused to construct the said runway extension in
accordance with specification, plans and regulations approved by and promulgated by the Department of Civil Aviation of the Commonwealth of The Bahamas or such other governmental authority within the 3 year time period or at all and have failed to obtain any written extension from the plaintiff as is contemplated by the Lease.
9. The defendant has permitted the continuous landing of aircrafts on the substandard runway which may cause damage or create a liability for the plaintiff as well as result in the plaintiffs insurance on the premises being rendered void or voidable or the rate of premiums increased.
10. The defendants have failed or referred to indemnify the Plaintiff (Owner) against all proceedings, costs, claims or demands and expenses whatsoever in any way arising out of the exercise of the rights and liberties granted under the said lease.
11. As a result of the breaches of the express terms of the lease set out above the plaintiff has suffered loss and damage, both liquidated and unliquidated.
THEREFORE THE PLAINTIFF CLAIMS
Affidavit of Christopher I. Higgs filed 7 th October 2019
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1) Damages for breach of contract (Liquidated and Unliquidated to be assessed)
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2) Interest pursuant to section 3 of the Civil Procedure, (Award of Interest) Act 1992) on any sum found to be due at such rate and for such period as the court may think fit.
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3) Further or other relief
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4) Costs
The Defendant filed the Affidavit of Christopher I. Higgs in support of its application. The deponent (“Mr. Higgs”), an employee of the Defendant was the General Manager of the Crooked Island Lodge, which is situate on Crooked Island (the “Lodge”) sought to give the Court insight on the Initial Action. He avers that the Defendant had commenced the Initial Action in order to seek orders that would prohibit the Plaintiff and Mr. Wishneski from trespassing on its runway, which was a privately owned runway at Pittstown Point Landings, Crooked Island, The Bahamas.
The Defendant had begun developing and expanding the Lodge including extending the western end of the runway and establishing a perimeter road around the precincts of the runway. The extension would require bisecting fourteen contiguous, parallel undeveloped lots immediately adjacent to the runway's western boundary.
The Defendant had entered into separate agreements with the surrounding lot owners to facilitate the same and became the freehold and/or leasehold owner in respect of portions of the lots. One of the agreements included the Lease Agreement over Lot 71. The runway project was completed.
Saraband Ltd. subsequently conveyed Lot 71 to Stephen Craig Ratchford who in turn conveyed the southern portion of Lot 71, including the leased portion, to the Plaintiff and Mr. Wishneski. The Defendant had drafted a form indemnifying it against any claims or damages that might arise as a result of the Plaintiff and...
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