New Providence Development Company Ltd v Windsor Field Development Ltd

• Jurisdiction: Bahamas
• Judge: Winder, CJ
• Judgment Date: 21 July 2023
• Docket Number: 2018/CLE/gen/00451
• Court: Supreme Court (Bahamas)

Between

New Providence Development Company Limited

Plaintiff

and

(1) Windsor Field Development Ltd.

(2) Windsor Place Ltd.

Defendants

Before:

The Honourable Chief Justice Sir Ian R. Winder

2018/CLE/gen/00451

IN THE SUPREME COURT

Common Law and Equity Division

Appearances:

Gail Lockhart Charles K.C with Tracey Wells and Candice Knowles for the Plaintiff

Leif Farquharson K.C with John Minns and Christina Davis-Justin for the First Defendant

Damian Gomez KC with Marilyn Meeres and Paula Adderley for the Second Defendant

Winder, CJ

Introduction

1 This is an action between the Plaintiff, New Providence Development Company Limited (“NPDC”), and the Defendants, Windsor Field Development Ltd (“WFD”), and Windsor Place Ltd (“WPL”). This action concerns the development of the “One West Business Park”, or “One West Plaza” (“the OWBP”), on Windsor Field Road in the Western District of New Providence.

Background

2 NPDC is the developer of the Old Fort Bay Town Centre (“the OFBTC”) located south of Windsor Field Road and opposite the Charlotteville subdivision (“Charlotteville”). The OFBTC opened in 2011, when Solomon's Fresh Food Market, a supermarket, opened to the public. The OFBTC has some 20+ stores, offices and restaurants, 30,000 square feet of office space, and seven one-acre “building pads”.

3 The OWBP is a mixed-use retail/office/restaurant/leisure commercial development that competes with the OFBTC. It has been developed by WPL on an approximately 4.79-acre parcel of land on the northern side of Windsor Field Road (“the Site”). It was described in one advertisement placed on www.bettermcrbahamas.com in the following terms:

PRIME COMMERCIAL SPACE — ONE WEST Business Park is a brand new commercial development set to break ground early 2018 as approximately 5 acres of prime development land, strategically located on the busy Windsor Field road.

The road is frequently travelled by many people as it is the main road to access communities such as Lyford Cay, Old Fort Bay and Albany. Within these communities are many banks, offices, restaurants and businesses. This property is also less than a mile of the airport its proximity to the airport provides a lot of potential for business from tourist [sic] arriving to and leaving the island.

Phase 1 of ONE WEST will allow 12 units to be available for purchase or for lease. Each unit will comprise of 2000 or 3000 sq ft of interior space and two levels. Both office and retail space are available. This is a perfect location to attract and capture a large and loyal customer base and the area has been in need of great commercial space for many years. This is an opportunity that you do not want to miss!

With the project being in its initial stages, it is a perfect time to reserve your unit at a pre-construction cost. Reserving a space in the pre-construction stage allow [sic] you to get your unit exactly to your liking. Fully customizable options upon request about fitting out your space.

4 WPL purchased the Site from WFD in 2017. The Site comprises a portion of an approximately 9.7-acre parcel of land which WFD purchased from NPDC between 2004 and 2005 (“the 9.7 Acres”). The purchase of the 9.7 Acres by WFD was part of a joint transaction with Turnberry Developments Ltd (“TDL”). TDL acquired an adjacent 24.44-acre parcel of land (“the 24.44 Acres”) from NPDC.

5 On 30 December 2004, NPDC entered into an agreement for sale with TDL and WFD (the “2004 Agreement”) respecting the 24.44 Acres and the 9.7 Acres. The 24.44 Acres was described in the First Part of the First Schedule of the 2004 Agreement. The 9.7 Acres was described in the Second Part of the First Schedule of the 2004 Agreement. Clause 15 of the 2004 Agreement provided that the two sales were not severable, i.e., neither sale could complete without the other.

6 Clause 19(2) of the 2004 Agreement (“Clause 19(2)”) provided:

The Purchasers hereby severally covenant and agree with the Vendor as follows, the provisions of this covenant to survive completion:-

• …

• (2) Not to develop or permit or suffer to be developed any part of the parcel described in the First part of the First Schedule except as a residential subdivision with such restrictions covenants and conditions and provisions as are comparable with the Declaration of Covenants, Conditions and Restrictions for the adjacent Subdivision called and known as “Charlotteville” established by Charlottevilie Developments Ltd. provided nevertheless that if the approval of the Town Planning Department shall not be granted in respect of such proposed land use of the parcel described in the First part of the First Schedule the Purchaser thereof shall be at liberty to develop the same for light commercial industrial use similar to the adjacent development called and known as “Airport Industrial Park” (with similar restrictive covenants) or in such other manner as the Town Planning Department would approve but subject in such case to the approval of the Vendor and not to develop or permit or suffer to be developed any part of the parcel described in the Second part except either as a similar residential subdivision or light commercial industrial use similar to the said “Airport Industrial Park” (with similar restrictive covenants) the Purchaser in each case submitting the standard form of conveyance for any lots or parcels forming part of either parcels for the approval of the Vendor and the Purchasers will enforce all of the material terms and conditions thereof and not materially waive the same or any material breach thereof without the consent of the Vendor to the intent that any lot or parcel forming part of such parcels described in either the First or the Second Parts of the First Schedule hereto shall remain subject at all times to the provisions of the same any approval or consent of the Vendor in this sub-clause not to be unreasonably withheld or delayed.

In this sub-clause “Vendor” shall include its assigns to any of the rights herein contained.

7 Clause 14 of the 2004 Agreement provided:

The said hereditaments and premises are sold and will be conveyed subject to the restrictions and stipulations contained in the Second Schedule hereto for the benefit and protection of the adjoining or neighbouring property of the Vendor and the assurances shall contain such provisions and covenants (which shall be so framed that the burden thereof shall run with and be binding upon the said hereditaments and premises into whose hands soever the same may come) as may be necessary for giving effect to the same but so that neither the Purchaser thereof nor those deriving title under it shall be liable for a breach of the said restrictions and stipulations so far as they are negative in character which may occur on or in respect of the said hereditaments and premises or any part thereof after it or they shall have parted with all interest therein.

8 The Second Schedule to the 2004 Agreement contained the following restrictive covenants:

• 1. Not to allow any dangerous poisonous or objectionable effluent to be discharged on or about the said hereditaments and premises of a kind calculated to or that does in fact contaminate or pollute any water lying upon or below the surface of the same or any adjoining or adjacent property and to take all such measures as may be necessary to ensure that any effluent so discharged will not be corrosive or otherwise harmful to otherwise affect the condition of such water or cause the same to be less potable than would otherwise be the case and (but as a separate stipulation) the Purchasers at their own expense to the satisfaction of the Vendor or its assigns of such right and in a proper manner to remove and otherwise dispose of any effluent.

• 2. No hoarding, road sign, billboard or other erection shall at any time be erected or placed or suffered to be upon any part of the said hereditaments and premises for the purposes of exhibiting any advertisement or notice relating to any business operated thereon otherwise except with the consent in writing of the Vendor or other assigns of such right.

• 3. No building or other structure shall be created within Fifty (50) feet of the adjoining public road called and known as Windsor Field Road.

• 4. Not to do or permit or suffer to be done in or upon the said hereditaments and premises anything which may be or become a nuisance or annoyance or cause damage to the neighbouring owners or occupiers.

9 By two separate conveyances dated 21 February 2005 (“the 2005 Conveyances”), NPDC conveyed the 24.44 Acres to TDL and conveyed the 9.70 Acres to WFD. The 2005 Conveyances bound TDL, WFD, and their respective successors in title to observe the restrictions and stipulations in the schedules to the respective 2005 Conveyances. Those schedules contained restrictions in the same terms as those contained in the Second Schedule to the 2004 Agreement.

10 By two conveyances dated 29 June 2010, WFD conveyed two separate 2.41-acre portions of the 9.7 Acres to Benaly Holdings Limited (“Benaly”) and Mobro Ltd (“Mobro”). WFD retained the Site, located to the west of the 2.41-acre parcels respectively conveyed by WFD to Benaly and Mobro. In the conveyances from WFD to Benaly and Mobro, the restrictive covenants contained in the 2005 Conveyances were referred to and incorporated by reference as “the said Restrictions”. NPDC's prior consent to these conveyances was not sought or obtained by WFD.

11 Benaly and Mobro were companies affiliated with Anthony Myers (“Myers”) and James Mosko (“Mosko”). Myers and Mosko were beneficial co-owners of WFD with Dana Wells (“Wells”) up to 2010.

12 In December 2016, Benaly and Mobro entered into a joint venture with NPDC to develop their 2.41-acre parcels and a 4.82-acre parcel on the southern side of Windsor Field Road into the “Windsor Professional Centre”, a light commercial industrial subdivision with some...