THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE TERRITORY OF ANGUILLA (CIVIL) AD and

Transcription

1 CLAIM NO. AXAHCV 1995/0021 THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE TERRITORY OF ANGUILLA (CIVIL) AD 2009 BETWEEN: RAFAEL VEGAS and 1. GRAZINA ADAMCZYK (As personal representative of e Eate of George Adamczyk (deceased) ) 2. PALOMA LIMITED Claimant Defendants Appearances: Mr. Gerhard Wallbank and Miss Tameka Davis for e Claimant Ms. Euella Fontaine and Mrs. Cara Connor for e Defendants : April 6, June JUDGMENT [1] MICHEL, J. (Ag.): By Writ of Summons filed on 6 March 1995 e Claimant, Rafael Vegas, inituted proceedings in e High Court of Juice in Anguilla again George Adamczyk and Paloma Limited. [2] An appearance was entered for e Defendants on 6 [3] On 18 April March 1996 e Claimant filed a Statement of Claim setting out his case again e Defendants and seeking e following relief 1. A declaration at e Claimant is entitled to 121 of e 424 shares of e 2nd Named Defendant. 1

2 2. An order at e corporate regiers of e 2 nd Named Defendant be completed to reflect e Claimant s shareholding in e company. 3. An order at e 2 nd Named Defendant issue e Claimant a share certificate for his 121 shares. 4. A declaration at e Claimant is entitled to an accounting from e Board of Directors of e 2nd Named Defendant and/or e 1 Named Defendant. 5. An order at e Board of Directors of e 2nd Named Defendant and/or e 1 Named Defendant produce an accounting to e Claimant. 6. Damages. 7. Such furer or oer relief as e Court deems ju. 8. Cos. [4] On 5 July 1996 a Defence and Counterclaim was filed on behalf of e 1 Named Defendant only, wi a Reply and Defence to Counterclaim being filed by e Claimant on 15 January [5] By Summons filed on 20 September 1996, e Claimant sought judgment again e Defendants upon e claims set out in his Statement of Claim. [6] By Order of e Court dated e 26 day of April 1998 and entered on e 7 day of May 1998, e Claimant was granted e relief claimed in e paragraphs numbered 1, 2 and 3 above and e determination of all oer claims was ayed pending e outcome of Suit 460 of 1995 inituted by e Claimant again e 1 Named Defendant in Sint Maarten, The Neerlands Antilles. [7] Judgment in e Sint Maarten suit was handed down on 5 May 1998 in favour of e Claimant, wi e 1 Named Defendant being ordered to pay e Claimant for e value of his shares in e 2 nd Named Defendant. 2

3 [8] By Order of is Court dated 21 May 2008 and entered on 23 rd May 2008, it was ordered at if e 1 Named Defendant does not file and serve witness atements and/or witness summaries of fact which he intends to rely on by 6 June 2008 en e 1 Named Defendant will be debarred from seeking to produce e evidence at trial and e counterclaim shall and dismissed. [9] No witness atements and/or witness summaries having been filed or served by e 1 Named Defendant by 6 June 2008, or at all, e counterclaim accordingly ood dismissed and e Defendant, wi no application made by him for relief from sanctions, was not erefore allowed to present any evidence at e trial of e matter. [10] The trial erefore proceeded wi evidence by e Claimant only, a witness summary having been filed on his behalf on 9 November [11] At e trial, an objection taken by Learned Counsel for e Defendants to e form of e aforesaid witness summary was overruled by e Court on e basis at e witness summary complied wi e requirements of Part 29.6 of e Civil Procedure Rules. [12] The Court having disposed of certain of e claims prior to e matter coming to trial and certain of e claims having been dealt wi by e court in Sint Maarten in Suit 460 of 1995, e issues to be determined at e trial appear to be e following - 1. Wheer e Claimant is entitled to a declaration and to an order at e Board of Directors of e 2 nd Named Defendant and/or e 1 Named Defendant produce an accounting to e Claimant. 2. Wheer damages in e form of unpaid rent is due and owing to e Claimant by e 1 Named Defendant. 3. Wheer e Claimant is entitled to damages from e Defendants oer an for unpaid rent. 3

4 [13] Alough e Agreed Li Of Issues dated and filed on 12 December 2006 did not mention e issue of damages oer an for unpaid rent, ere was a definitive averment in paragraph 24 of e Statement of Claim of loss and damage occasioned to e Claimant by acts or defaults of e Defendant and a claim for damages consequential ereto and a joinder of issue by e 1 Named Defendant on is averment and claim. There was also evidence given by e Claimant in support of is averment and claim and so a determination mu be made by e Court on is issue. [14] The oer issues contained in e Agreed Li Of Issues dated and filed on 12 December 2006 no longer arise because e Claimant has denied e claims made by e Defendants giving rise to ese issues and e Defendants are unable to present any evidence to support em and so ey cannot be proceeded wi. [15] In terms of e date from which damages in e form of unpaid rent is being claimed, Learned Counsel for e Claimant submits at e date of 1 February 1999 ated in e Agreed Li Of Issues is an error and at e correct date as can be deduced from e pleadings is 1 February 1996, in addition to e quantified and specifically claimed unpaid rent for e period up to 31 January 1996, which latter claim is admitted by e 1 Named Defendant in his defence. This submission was not disputed by Learned Counsel for e Defendants and does appear to be borne out by e pleadings wherein arrears of rent up to 31 January 1996 is quantified and specifically claimed, wi unpaid rent beyond at date not being quantified and specifically claimed and us being left to be determined by e Court as to wheer it is due and owing to e Claimant by e 1 Named Defendant. [16] In terms of e fir of e issues to be determined, is Court considers at e Claimant is clearly entitled to a declaration and an order at e Board of Directors of e 2nd Named Defendant produces an accounting to him. The Claimant did seek a declaration and an order to is effect in his Statement of 4

5 Claim, e 2 nd Named Defendant did not conte his entitlement ereto, e evidence in e case supports his entitlement to e declaration and order and e Court erefore declares at e Claimant is entitled to have accounts produced to him by e Board of Directors of e 2 nd Named Defendant and hereby orders at e Board of Directors of e 2 nd Named Defendant produces to e Claimant an account of e affairs of e 2 nd Named Defendant up to 5 May 1998, after which date e Claimant is entitled not to shares in e company but to e value of his shareholding in e company. [17] The Court does not, however, consider at e Claimant is entitled to a declaration and order at e 1 Named Defendant produces an accounting to him. The Claimant did seek a declaration and order to is effect in his Statement of Claim, e 1 Named Defendant, however, put in a defence conteing e Claimant s entitlement to e claims made by him in e Statement of Claim and no evidence was presented by e Claimant to support his entitlement to a declaration and order at e 1 Named Defendant produces an accounting to e Claimant. [18] In terms of e second issue to be determined by is Court, I have little difficulty in accepting e submission by Learned Counsel for e Claimant to e effect at e date ated in e Agreed Li Of Issues was intended to be 1 February 1996 and not 1 February 1999, since e fir date logically arises from e pleadings whereas e second date is referable neier to e pleadings nor to any document or averment in is case. [19] Alough Learned Counsel for e Defendants is right when she criticizes e Claimant for e lack of specificity in his Statement of Claim in not specifically pleading his entitlement to rent for e period from 1 February 1996 and e non payment ereof and in not specifically claiming e unpaid rent as damages, e fact is at in one of e Claimant s pleadings, namely e Reply filed on his behalf, e Claimant does aver at e 1 Named Defendant s obligation to pay rent continued after 31 January 1996 in light of e continued exclusive occupation of e property by e 1 Named Defendant. It is also a fact at e agreement 5

6 dated 14 March 1992 to which e Claimant and e 1 Named Defendant were parties, and which is one of e documents in evidence in is case, does give e 1 Named Defendant e right to exclusive occupation of e property and e obligation to pay rent to e Claimant for e property in accordance wi a formula contained in e agreement. [20] The same agreement also gives e 1 Named Defendant e obligation to purchase e shares of e Claimant in e 2 nd Named Defendant which owns e property and determines e time by which and e price at which he will purchase e shares. When e 1 Named Defendant had failed to purchase e Claimant s shares at e agreed time, e Claimant inituted proceedings again e 1 Named Defendant in Sint Maarten, whereupon e court in Sint Maarten, on 5 May 1998, ordered e 1 Named Defendant to pay e Claimant e amount due to him for e price of e shares as determined in e agreement. [21] Consequent on e order of e court in Sint Maarten, which order is filed in is case, e 1 Named Defendant s obligation to pay rent to e Claimant for his share of e property arising from his shares in e 2 nd Named Defendant would accordingly be extinguished after 5 May [22] In e circumances, e Claimant would be entitled to damages in e form of unpaid rent from 1 February 1996 to 5 May 1998 at e rate of FF6, per mon, yielding a total of FF254, or US$50,955.52, bearing in mind e provision in e agreement at [e]ach initiated mon has to be paid for, meaning at May 1998 will have to be paid in full even ough only five days had elapsed in e mon. [23] In terms of damages claimed oer an from unpaid rent, it needs fir to be ated at e court in Sint Maarten awarded damages to e Claimant for e value of his shares which, by virtue of e 14 March 1992 agreement between e parties, e 1 Named Defendant was to have purchased from e Claimant in accordance wi an agreed formula. This was e full extent of e damages awarded by e court in Sint Maarten to e Claimant. 6

7 [24] The issue of damages in e form of unpaid rent and damages for loss to e Claimant occasioned by e wrongful organization of e shareholding and management of e 2 nd Named Defendant by e 1 Named Defendant was not addressed by e court in Sint Maarten. [25] The Claimant having pleaded his loss and damage resulting from e wrongful organization of e shareholding and management of e 2nd Named Defendant by e 1 Named Defendant and having given evidence of at loss and quantified it as being between US$24,500 and US$29,500, and no evidence having been given to contradict it, e Claimant is entitled to an award of damages again e 1 Named Defendant arising from e alleged loss and damage. [26] The submission by Learned Counsel for e Defendant to e effect at compensation to e Claimant in respect of is loss should be by way of legal co and not damages does not find favour wi is Court and an award of damages is hereby made to e Claimant again e 1 Named Defendant in e sum of US$24,500. [27] The total amount of damages awarded to e Claimant in is matter is erefore $243,466.91, being e EC equivalent of US$90,172.93, made up of unpaid rent up to 31 January 1996 of US$14,717.41, unpaid rent from 1 February 1996 to 5 May 1998 of US$50, and damages for loss occasioned to e Claimant from e 1 Named Defendant s wrongful organization of e shareholding and management of e 2 nd Named Defendant in e sum of US$24, [28] As agreed between Counsel for e parties, cos in is matter will follow e event and will be prescribed cos based on e amount of any award of damages to e Claimant in e event at judgment is rendered in favour of e Claimant. Cos are erefore awarded to e Claimant in e sum of EC$45, [29] For e sake of completeness, it should be noted at in e course of e proceedings e Claimant, who arted life in is suit as Plaintiff, was rechriened as Claimant and Grazina Adamczyk as personal representative of e eate of 7

8 George Adamczyk (deceased) was subituted for her deceased husband, George Adamczyk, as 1 Named Defendant. [30] By way of summary, e following orders are hereby made: 1. This Court declares at e Claimant is entitled to have accounts produced to him by e Board of Directors of e 2 nd Named Defendant and hereby orders at e Board of Directors of e 2 nd Named Defendant produces to e Claimant an account of e affairs of e 2 nd Named Defendant up to 5 May The 1 Named Defendant is to pay damages to e Claimant in e following amounts - (a) (b) (c) e sum of $39,737.01, being e EC equivalent of US$14,717.41, for unpaid rent up to 31 January 1996; e sum of $137,579.90, being e EC equivalent of US$50,955.52, for unpaid rent from 1 February 1996 to 5 May 1998; e sum of $66,150.00, being e EC equivalent of US$ 24,500.00, for loss and damage occasioned to e Claimant by e 1 Named Defendant oer an for unpaid rent. 3. Cos to e Claimant in e sum of $45, Mario Michel High Court Judge (Ag.) 8