Paulette Newton v Lake Cunningham Estates Common Area Management Company Ltd
| Jurisdiction | Bahamas |
| Judge | Madam Justice G. Diane Stewart |
| Judgment Date | 25 August 2022 |
| Year | 2022 |
| Court | Supreme Court (Bahamas) |
| Docket Number | COMMON LAW AND EQUITY DIVISION 2019/CLE/gen/00133 |
The Hon. Madam Justice G. Diane Stewart
COMMON LAW AND EQUITY DIVISION 2019/CLE/gen/00133
IN THE SUPREME COURT
Mr. Ashley Williams for the Plaintiff
Ms. Lenise Flowers for the Defendant
By an Amended Summons filed 10 th April 2019, the Defendant, Lake Cunningham Estates Common Area Management Company Limited (the “Defendant”) seeks an order setting aside the Plaintiff, Paulette Newton (the “Plaintiff”) originating summons filed 25 th February 2019 (the Plaintiff's OS”) as it is not in conformity with Order 7 rule 2 (1) of the Rules of the Supreme Court (the “Set Aside Application”).
By the Plaintiff's OS, the Plaintiff sought the following reliefs against the Defendant:
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a. A Declaration that the Defendant is not the lawful Homeowners Association for the Lake Cunningham Subdivision;
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b. A Declaration that the Defendant is not the entitled to collect any maintenance charges due and owing to the lawful Homeowners Association for the Lake Cunningham Subdivision;
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c. An Order restraining the Defendant whether by itself, its agents, servants or otherwise, from impeding the entry of the Plaintiff's lawful guests to the Lake Cunningham Subdivision;
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d. An Order requiring the Defendant to return to the Plaintiff all maintenance fees paid to it with interest.
By Ex- Parte Summons filed by the Plaintiff on 5 th February, 2019, the Plaintiff sought an Order to restrain the Defendant whether by itself or by its servants or agents or otherwise from impeding the lawful entry of the Plaintiff's agents, tenants, servants, visitors and licenses into the community and from publishing a document entitled Delinquent List or any similar document until after the trial of this action.
It was ordered on 22 nd March, 2019 by the Court that the Plaintiff and her lawful guests shall have unfettered access to the Lake Cunningham Subdivision until a determination has been made on the Plaintiff's application.
The grounds for the Set Aside Application by the Defendant are that after twenty three years of executing the Indenture of Conveyance dated the 15 th day of May 1996 with Canadian Imperial Bank of Commerce, Westmoor Limited, Skyline Lakes Home Owners Association Limited (the “Conveyance”), the Plaintiff chose to exercise her rights, title or interest derived from the Conveyance.
Such delay, it claims, is unreasonable and prejudices her rights by her acquiescence and estoppel, contrary to large principles of laches and has redounded to the detriment of the Defendant which places a chilling effect on the Defendant's civil, legal and constitutional rights contrary to Articles 25, 26, 27 and 28 of the Constitution.
The Defendant claims that the Plaintiff's OS should be considered statute barred due to the Conveyance being a sealed instrument as section 5 (2) of the Limitation Act provides that no action should be brought after the expiry of twelve years, where a sealed instrument is involved. Section 5 (2) provides:-
“(2) An action upon an instrument under seal shall not be brought after the expiry of twelve years from the date on which the cause of action accrued: Provided that this subsection shall not affect any action for which a shorter period of limitation is prescribed by any other provision of this Act”
Therefore the Plaintiff has missed her opportunity to bring said action within the said twelve year period and the action must, mandatorily, be struck out.
The Defendant further claims that the Plaintiffs OS violates the Defendant's quiet enjoyment of the property involved situate in the Lake Cunningham Subdivision (the “Subdivision”), contrary to principles of equity, justice and/or law. Additionally, that seeking an injunction against the Defendant and its members from preventing the Plaintiff and her lawful guests' access to the Subdivision is an abuse of process and a detriment to the Defendant.
Such an injunction would render the Subdivision unsafe and open to a wave of crime to be perpetrated by those of ill will and super impose a chilling effect on the civil, legal and constitutional rights of the Defendant and its members and disrupt their quiet enjoyment, safety and peaceful co-existence.
In any event, the Defendant denies impeding entry to the Plaintiff and her guests and instead contends that it is merely carrying out the spirit and letter of Clause 6 (2) of the Conveyance for the benefit of all of the residents of the Subdivision inclusive of the Plaintiff and her guests.
By the Amended Summons filed by the Plaintiff, the Plaintiff sought the determination of the following preliminary questions or issues and a stay of the action until the determination of the same:
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(1) Whether or not the Defendant Company is the Association as provided in the Conveyance of the Plaintiff?
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(2) Whether or not the Defendant Company is a local improvement association as provided for in the Subdivisions (Local Improvement Associations) Act, Ch. 258, statute laws of The Bahamas?
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(3) If the Defendant Company is not the Association in accordance with the Conveyance of the Plaintiff nor a local improvement association in accordance with the Act, is it entitled to collect maintenance fees from the Plaintiff?
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(4) Is the Defendant Company being a Company incorporated on the 26 th November 2015, estopped from claiming maintenance fees which it alleges was due and owing to it prior to its incorporation?
Mrs. Paulette Newton, the Plaintiff, made this affidavit in support of an application for interlocutory injunction. By the Conveyance dated 15 th May, 1996 between Canadian Imperial Bank of Commerce, Westmoor Limited and Skyline Lakes Home Owners Association Limited of the one part and Clyde Alex Newton and Paulette Elaine Newton of the other part recorded un Volume 6766 at pages 437 to 459 (“the Conveyance”) became seised with all the parcel or lot of land known as Lot No. 75 situate in the subdivision known as Lake Cunningham.
It is the Plaintiff's position that that the Defendant is not cited in the Conveyance as the Home Owners Association nor did the results of a preliminary title search conducted produce any conclusive evidence that the roadways and verges had been assigned to the Defendant from Skyline Lakes Home Owners Association Limited. The Plaintiff avers that the Certificate of Incorporation for the Defendant Company was not issued until 26 th November, 2015, and which entity had previously operated by an unincorporated association in the name of the “Committee”. Its Memorandum and Articles of Association indicate that the Company was formed by two homeowners of the Lake Cunningham Subdivision and that the Plaintiff and the other home owners within the Lake Cunningham Subdivision were unaware of the Company's incorporation and were not provided with its Memorandum and Articles of Association.
In or around January 2019, the Defendant published and produced a Delinquent List of Residents who are owing the Defendant fees due. The Plaintiff states that she has informed the Defendant that she is not delinquent and has provided them various reasons outlining the rationale for her position and despite these explanations, the Defendant by its agents, servants or otherwise has embarked on a scheme of impeding lawful guests from entry into the Lake Cunningham Subdivision. On a teleconference held on 25 th January, 2019, counsel for the Plaintiff informed the chairman of the Defendant, Mr. Lightbourne that the action taken by the Defendant was unlawful and requested that the Defendant cease the obstruction of any lawful visitors from entering Lake Cunningham Subdivision. The Plaintiff and other alleged delinquents on the list were not given an opportunity to address their concerns.
The Defendant has since stated that unless restrained by the Court, they intend to continue to impede the access of any lawful visitors and to publish the Plaintiff's name on the list for amounts which are due and owing.
The Plaintiff stated that upon completing the purchase of the property, she along with her now deceased husband was issued a share certificate in Skyline Lakes Home Owners Association Limited (“Skyline Lakes Association”) and that is the only Association she knew to be the Home Owners Association for Lake Cunningham. She further evidenced that in or about 2000, herself along with other residents of Lake Cunningham formed an ad-hoc body for maintaining the electronic gate at the entrance of Lake Cunningham. During such time all the residents agreed to pay a flat fee for the maintenance of the gate.
In or about 26 th November, 2015. Mr. Henry Lightboume and Mr. Jayson Sweeting both residents of Lake Cunningham formed the Defendant Company. The Plaintiff avers that she along with the other residents, at the time of incorporation of the company were unaware and not supplied with a share certificate in the Defendant Company as was done by the Skyline Lakes Association. Immediately after the formation of the Defendant Company, the Plaintiff began receiving invoices for maintenance charges which included charges that pre-existed its incorporation and which were only to be payable to the Skyline Lakes Association. The Plaintiff informed the Defendant that she would not pay maintenance charges which existed prior to its incorporation as it had no right to claim such charged and/or because such charges could no longer be claimed due to an effluxion of time.
The Plaintiff contends that she has paid the Defendant Company the requested monthly fee for most months since its incorporation and that such fees were paid to maintain the gate to Lake...
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