Wallace I. Rolle v The Town Court Management Company

• Jurisdiction: Bahamas
• Judge: Mr. Justice Jones, JA
• Judgment Date: 09 March 2023
• Neutral Citation: BS 2023 CA 36
• Docket Number: SCCivApp. No. 75 of 2022
• Court: Court of Appeal (Bahamas)

Between

Wallace I. Rolle

Krystal D. Rolle

Appellants

and

The Town Court Management Company

Respondent

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

SCCivApp. No. 75 of 2022

IN THE COURT OF APPEAL

Civil Appeal — Sections 14(2) (e) and (g), 14(3) of the Law of Property and Conveyancing (Condominium) Act — Breach of Contract — Breach of Duty — Judge's Finding of Fact — Whether the judge failed to have regard to the legal issues raised — Was the judge in error in failing to grant interest on damages awarded where the claim was part of the case

The appellants purchased Unit No. 5 at Town Court Condominiums. Town Court Ltd and Real Estate International acted together as managers of the condominium complex. The appellants claimed damages against the respondent for breach of contract and breach of duty for failure to maintain the condominium development as required by law. The judge ruled on declarations sought by the claimants/appellants and ordered damages to the claimants/appellants. The appellant's now appeal the decision on eight grounds which this court summarised into three issues “a) Was the judge's finding of “clerical and/or typographical errors” in the respondent's documents unreasonable and unsupported by evidence. b) Did the judge, in refusing the appellant's declarations, give consideration to the factual issues without regard to the legal issues raised in the trial. c) Was the judge in error in failing to grant interest on damages awarded to the appellant where the appellant made this claim as part of his case.”

Held: appeal dismissed, judgment in the court below affirmed; costs to the respondent to be taxed if not agreed.

As to whether the judge's finding of “clerical and/or typographical errors” in the respondent's documents was unreasonable and unsupported by evidence, the court found that the judge, having considered the facts and evidence, and having heard the witnesses at trial, could reasonably arrive at the conclusion which he did.

The appellant's complaint that the judge failed to give consideration to the legal issues raised are essentially a challenge the judge's findings of facts. The judge concluded that the Act and Declaration gave the respondent the power to appoint an agent to manage the day-to-day affairs of the condominium on its behalf. Having found that the names of one party in the Declaration to be a typographical mistake the court cannot say that this interpretation of the documents before the judge was one which was not open to him and that he has erred, in fact or in law.

The appellants made no claim for interest of a specific rate or for a specific period only for us to “ award such interest as the Court deemed just”. Second, it is trite law that the award of interest is discretionary and the fact that the judge did not award interest not claimed is not an error of the judge. Here, the fact that the judge did not award interest as a separate category, does not prevent the appellants from claiming interest at the statutory rate from judgment.

Volpi v Volpi [2002] EWCA Civ 464; applied

APPEARANCES:

Ms. Krystal Rolle, KC, with Ms. Kendrea Demeritte, Counsel for the Appellants

Mr. Kahlil Parker, KC, with Ms. Roberta Quant, Counsel for the Respondent

Mr. Justice Jones, JA

Judgment delivered by the Honourable

Introduction

1 This is an appeal against the decision of Winder J, (as he then was) in the Supreme Court delivered on April 8, 2022, when he ruled on Declarations sought regarding the proper management of the condominium complex known as Town Court Condominiums. He refused all five Declarations sought by Wallace I. Rolle and Krystal D. Rolle (“the appellants”). Winder J, also made orders for Town Court Management Company (“the Respondent”) to prepare a proper accounting of charges and to make payment to the appellants. Finally, he ordered damages in the amount of twenty five thousand, nine hundred, forty six dollars and twenty two cents ($25,946.22) to the appellants.

2 In 2002, the appellants purchased Unit No. 5 at Town Court Condominiums. The developer (“Town Court Ltd”), and Real Estate International (“REI”) (a management company) acted together as managers of the condominium complex. The appellants claimed damages against the respondent for breach of contract and breach of duty under the Declaration of Condominium dated the 8 October, 1979 and Section 14(1)(b) of the Law of Property and Conveyancing (Condominium) Act 1965 for failure to maintain the condominium development as required by law.

Grounds of Appeal

3 The appellants filed a Notice of Appeal on May 20, 2022 with eight grounds of appeal.

• a) The Learned Judge refused the Declarations based solely on facts' without giving any or any proper consideration to the various legal issues attendant to the proper determination of the Declaratory relief that was sought by the Appellants.

• b) The Learned Judge in refusing the Declarations, in directing the “proper accounting”, in ordering payment in accordance therewith and by holding inter alia that, “REI was engaged to provide services on behalf of the Defendant'” and that “REI was clearly the agent of the Defendant and empowered to manage the day to day operations of the condominium complex on behalf of the Defendant…” erred in law by failing to give any or any proper consideration to Section 15(4)(6) of the Condominium Byelaws which provides that “The Board may appoint persons who are – unit – owners (whether or not members of the Board) to hold such offices and to perform such functions as the Board may from time to time determine” [Emphasis Added] AND the acceptance and concession on cross examination of the Respondent's witness, Mr. Terrance Fountain that REI was not a unit owner of the Town Court Condominium.

• c) The Learned Judge in refusing the Declarations, in directing the “proper accounting”, in ordering payment in accordance therewith and by holding inter alia that, “REI was engaged to provide services on behalf of the Defendant” and that “REI was clearly the agent of the Defendant and empowered to manage the day to day operations of the condominium complex on behalf of the Defendant…” erred in law by failing to give any or any proper consideration to the following relevant legal questions, despite the same having been raised and relied upon by the Appellants, namely:-

  • i. Whether the duties, powers and obligations vested in the Respondent by the Declaration of Condominium and by the enabling statute, namely the Law of Property and Conveyancing (Condominium) Act 1965 (“The Act”) are delegable duties, powers and obligations having regard inter alia to the Act and the Interpretation and General Clauses Act.

  • ii. Whether Clause 17 of the Declaration of Condominium which provided, “The Management Company shall also have the power to delegate all or any of its powers and duties to any company firm or person of its choice” is ultra vires the Act and therefore invalid.

  • iii. Whether the “contributions” and/or “common area expenses” payable by unit owners by virtue of the Declaration of Condominium and/or under the Act can properly include fees payable to a third party exercising the statutory powers, duties and obligations of the body corporate having regard inter alia to the fact, which was noted by the Learned Judge in his Judgment,” that both of the Respondent's witnesses confirmed that the charges levied against the Appellants during the Challenged Period included the fees paid to REI.

  • iv. iv. The efficacy and/or validity of the acts done by REI during the Challenged Period consequent upon a determination of the legal questions raised in Paragraph 3(i) through 3 (iii).

• d) The Learned Judge in refusing the Declarations, in directing the “proper accounting”, in ordering payment in accordance therewith and by holding that, “The Defendant is a body corporate and must out of necessity act through the auspices of others” erred in law by failing to give any or any proper consideration to Section 15(4) of the said Bye Laws which confirmed that “The powers and duties of the body corporate shall, subject to any restriction imposed or direction given at a general meeting, be exercised and performed by the Board of the body corporate.”

• e) The Learned Judge in refusing the Declarations, in directing the “proper accounting” and in ordering payment in accordance therewith erred in law by failing to give any or any proper consideration to any of the authorities cited and relied upon by the Appellants including Maillis v. Town Court Ltd, Seaport Construction Co. v. Residential Resort Developments Ltd. (In Liquidation)' Roberts v. Albacore Developments Ltd' and Cannes Resort (Freeport Ltd) v Gaudet', the consideration of which were relevant to the proper determination of the Declarations and the Respondents' Counterclaim relative to the Challenged Period.

• f) The Learned Judge's acceptance of the Respondent's case of “Clerical and/or Typographical Errors” was plainly wrong and such finding was wholly unsupported by the evidence as a whole, impermissible on the evidence as a whole and one which no reasonable judge could have reached on the evidence.

• g) The Learned Judge, having granted the Appellants damages in the total amount of $25,946.22 erred in law by failing to consider and determine the Appellants' pleaded claim for interest on such damages thereby leaving such pleaded claim wholly undetermined.

• h) Having regard to all of the circumstances of the case, no Judge properly directing himself on the law and the evidence would have refused the Declarations, directed the “proper accounting” as aforesaid, directed the Appellants to make payment to the Respondent on the basis of such “proper accounting”, accepted the Respondent's case of “Clerical and/or Typographical Errors” and fail to consider and...