Old Fort Bay Property Owners Association Ltd v Old Fort Bay Company Ltd, Matthew Chance Hudson v Old Fort Bay Company Ltd, Old Fort Bay Company Ltd v Old Fort Bay Property Owners Association Ltd

• Jurisdiction: Bahamas
• Judge: Charles J
• Judgment Date: 26 January 2022
• Court: Supreme Court (Bahamas)
• Docket Number: 2014/CLE/gen/773 2017/CLE/gen/00014

IN THE SUPREME COURT

COMMON LAW AND EQUITY DIVISION

Before:

The Honourable Madam Justice Indra H. Charles

2014/CLE/gen/773

2014/CLE/gen/0889

2017/CLE/gen/00014

BETWEEN

Old Fort Bay Property Owners Association Limited

Plaintiff

and

Old Fort Bay Company Limited

Defendant

BETWEEN

Matthew Chance Hudson Zsuzsanna Marta Foti

Plaintiffs

and

Old Fort Bay Company Limited New Providence Development Company Limited

Defendants

AND BETWEEN

Old Fort Bay Company Limited

Plaintiff

and

Old Fort Bay Property Owners Association Limited

Defendant

Appearances:

In Action 2014/CLE/gen/773

Mrs. Krystal Rolle QC and Mrs. Vanessa Carlino for the Plaintiff

Mrs. Gail Lockhart-Charles QC and Mrs. Lisa Esfakis for the Defendant

In Action 2014/CLE/gen/0889

Mrs. Krystal Rolle QC for the Plaintiffs

Mrs. Gail Lockhart-Charles QC and Mrs. Lisa Esfakis for the Defendants

In Action 2017/CLE/gen/00014

Mrs. Gail Lockhart-Charles QC and Mrs. Lisa Esfakis for the Plaintiff

Mrs. Krystal Rolle QC and Mrs. Vanessa Carlino for the Defendant

Practice and Procedure – Leave to appeal and stay pending appeal – Judgment delivered – One discrete issue remains undetermined - Whether the Court had jurisdiction to request further evidence before determining issue – Stay of case management order – Case management powers of court – Order 31A of the Rules of the Supreme Court, 1978, as amended – Order 31A r. 18(s) and r.25

Inordinate delay in delivery of Judgment – Whether the inordinate delay in delivering the Judgment affected the Court's understanding of the issues and evidence – Limited circulation of draft Judgment – Amendments made in final Judgment - Whether Judge has power to amend of its Court's own motion before sealing – Re Barrell jurisdiction – Power of Court to review and correct its own judgment

Whether the Defendant required leave of some of the orders to appeal – Section 10 and 11 (f) of Court of Appeal Act – Whether the orders were interlocutory or final orders

The Defendants are the Developer of an upscale gated community known as Old Fort Bay. By Summons filed 18 January 2022, the Developer sought leave of this Court to appeal certain orders made in paragraph 300 (2) —(4) of a final Judgment delivered by this Court on 4 January 2022 where the Court decided that some areas were “common areas” and some were not. The Court also ordered that the Developer transfer the areas which are “common areas” to the Old Fort Bay Property Owners Association (“the POA”). On the issue of the Marina Expansion, the Court opined that it needed further evidence to come to a proper determination and, pursuant to its case management powers, made certain orders which the Developer argued that the Court was wrong to do after the trial and delivery of the Judgment. The Developer also raised a preliminary issue that the inordinate delay in the delivery of the Judgment adversely affected the Court's understanding of the issues and the evidence. The Developer also seeks a stay pending appeal.

The POA and two named Plaintiffs (“the Plaintiffs”) opposed the application and, raised the preliminary issue that all of the orders complained of save for the case management directions relative to the Marina Expansion are final orders for which leave of this Court is not required. The Plaintiffs further asserted that with respect to the Marina Expansion, it was within the Court's case management powers to request further evidence which it deemed necessary to determine the issue.

HELD: Refusing the application for leave to appeal and stay pending appeal with costs to the Plaintiffs to be taxed if not agreed.

• 1. The Final Judgment consisting of 107 pages and over 300 paragraphs was rendered exactly 17 months and 1 week after its conclusion. As noted in paragraph 17 of the Judgment, the Court apologized for the inordinate delay in the delivery of the Judgment and expressed that it was principally due to the complexity of the matter which lasted for about 13 days (inclusive of a site visit) and generated boxes of documents and transcripts. The Court also stated that, notwithstanding the protracted delay, it had the benefit of all the transcripts and its own notes which included the assessment of the demeanour of the witnesses as they gave their evidence. The Court also stated that it clearly recalled the evidence, the demeanour of the witnesses and what transpired during the trial. The Court of Appeal cases of Polymers International Limited v Philip Hepburn SCCIv App No. 8 of 2021 (Judgment delivered on 18 November 2021) and Scotiabank (Bahamas) Limited v Macushla Pinder SCCiv App No. 73 of 2021 (Judgment delivered on 15 December 2021 relied upon. The case of Bond v Dunster Properties Ltd & Or. [2011] EWCA considered.

• 2. A judge need not mention every single argument advanced by Counsel in the ruling but that does not necessarily mean that the judge did not consider it. There is no duty on a judge, in giving his reasons, to deal with every single argument presented by counsel in support of his case. It is sufficient if what the judge says, show the parties, and if need be, the Court of Appeal, the basis upon which he/she acted: Maria Iglesias et al v Juan Jose Sanchez Busnadiego (In his Capacity as Judicial Administrator of the Spanish Estate of Jesus Iglesias Rouco) [2017/ CLE/gen/00937]; Piglowska v Piglowska [1999] 3 All ER 632 and Eagil Trust Co. Ltd. v Pigott-Brown and another [1985] 3 All ER 119 applied.

• 3. A judge retained the power to reconsider a judgment which he/she has delivered before the order consequent upon it has been sealed, but the judge should only exercise this power if there are strong reasons for doing so: Re Barrell Enterprises and others [1972] 3 All ER 631, CA; Re: Petition of Henry Armbrister 2007/CLE/qui/01438 & 2008/CLE/qui/845 and Hong Kong Zhong Development Company Limited v Squadron Holdings SPV016HK, Ltd. 2016/CLE/gen/01295. In the present case, the Court emailed the Judgment and advised the parties not to widely circulate the Judgment as it was a “draft” subject to amendments and typographical corrections. Inaccuracies, typographical and minor factual errors were corrected of the Court's own motion before the issuance of the final Judgment before the order was signed and sealed.

• 4. Leave to appeal is not required for final orders : see Section 11 (f) Supreme Court Act.

• 5. The test for determining whether an order is final or interlocutory is whether the decision finally disposes of the matter in dispute — Salaman v Warner [1891] 1 QB 734 applied; Findeisen and another v The Wahoo Resort foundation and another [2014] 3 BHS J No 62 applied.

• 6. Case management decisions are discretionary and as such, appellate courts will not interfere with those decisions unless the Court has misdirected itself on law, has failed to take relevant factors into account, has taken into account irrelevant factors or has come to a decision that is plainly wrong — Maria Iglesias et al v Juan Jose Sanchez Busnadiego (In his Capacity as Judicial Administrator of the Spanish Estate of Jesus Iglesias Rouco); Wembley National Stadium Limited v Wembley (London) Limited [2000] Lexis Citation 2361 and Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 applied.

• 7. Since the Court has an unfettered discretion to make case management orders and the Defendant cannot point to any error in the order, it has no reasonable prospects of success on appeal. The Defendant has not satisfied the evidentiary basis for a stay pending appeal. The Court however will maintain the status quo in relation to the area near the security gate until the determination of the appeal.

• 8. Where the Court has not yet decided an issue but requests further evidence to facilitate the determination of that issue, that request for evidence is not “fresh evidence” and as such, the principles of Marshall v Ladd do not apply — Ladd v Marshall [1954] 1 WLR 1489 distinguished. The Bahamian case of Carla Anita Cecilia Braynen Turnquest v Water and Sewerage Corporation [ 2018/CLE/gen/2021 and Water and Sewerage Corporation v Carla Anita Cecilia Braynen Turnquest SCCiv App 90 of 2020 applied.

RULING

Charles J

Introduction

1 In a Judgment handed down on 4 January 2022, this Court made the following Orders at paragraph 300:

• 1. A Declaration that Pineapple Grove, Pineapple House and the Old Fort Bay Club are the properties of the Developer and do not fall within the definition of “common areas”.

• 2. A Declaration that the Identified Beach Reserve is “common area” within the OFB Subdivision and ought not to be sold. The POA is entitled to damages for the sale of a portion of the Identified Beach Reserve. Such damages are to be calculated by Counsel.

• 3. With respect to the Marina Expansion:

  • (i) All contiguous property owners must be consulted and be given an opportunity to express their opinion (s) in writing;

  • (ii) A comprehensive Environmental Assessment Report to be prepared by a Qualified Expert to be agreed by all Counsel;

  • (iii) Another site visit to be arranged by all Counsel upon consultation with the Court and to include, if possible, a visit to the marinas at Lyford Cay Club and Albany.

• 4. A Declaration that the Developer transfers forthwith to the POA the properties determined by the Court to be “common areas” including the lands by the security gate. [Emphasis added]

2 By Summons filed on 18 January 2022, Old Fort Bay Company Limited and New Providence Development Company Limited (“the Developer”) sought leave of this Court to appeal to the Court of Appeal paragraph 300 (2) —(4) of the above Order relative to the Beach Reserve, the Marina Expansion and the Declaration that the Developer transfer the areas determined as “common areas” inclusive of the area by the security gate. The Summons also sought an order that enforcement of the orders appealed against be stayed pending the determination of the appeal....