Brian Michael Homer and Roslyn Cecelia Homer v David Haynes
| Jurisdiction | Barbados |
| Judge | Madam Justice Margaret A. Reifer |
| Judgment Date | 24 April 2017 |
| Neutral Citation | BB 2017 HC 36 |
| Date | 24 April 2017 |
| Docket Number | No. 995 of 2016 |
| Court | High Court (Barbados) |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
the Honourable Madam Justice Margaret A. Reifer, Judge of the High Court
No. 995 of 2016
Mr. Edmund R. King, Q.C. Attorney-at-Law for the Claimants
No appearance by the Defendant
Civil practice and procedure - Summary judgment — Fixed date claim form — Whether judgment ought to be granted where there was no acknowledgment of service of fixed date claim form — Probate and Letters of Administration (Resealing) Act — CPR, R. 8.1(5), 8.5(2), 9.2(4), 12.2, 27.2 and 29.1.
This matter raises practical issues surrounding the granting of judgment in those circumstances where there has been no Acknowledgment of Service to a Fixed Date Claim Form.
The Claimants herein filed a Fixed Date Claim Form on July 15 th 2016, seeking possession of land with a dwelling house thereon situate at Rosegate, in the parish of Saint John, together with arrears of rent and mesne profits.
The Claimants are the Personal Representatives of Celina Louise Sargeant late of 5A Allan Street Avenue, Diego Martin in Trinidad who died in the Republic of Trinidad and Tobago on September 26 th 2011, intestate, by virtue of Letters of Administration issued to them by the High Court of Trinidad and Tobago on March 1 st 2013, resealed with the seal of the Supreme Court of Barbados under the provisions of the Probate and Letters of Administration (Resealing) Act Cap. 247.
The premises, they pleaded, were ‘let to the Defendant for a term of years which said term became forfeited to the Claimants by reason of his failure to pay the rent reserved.’
A document titled “Particulars of Claim” was filed together with the said Fixed Date Claim Form. It alleged, inter alia, that the said Celina Louise Sargeant was the owner of and entitled to possession of the dwelling house situate at Rosegate.
It pleaded the existence of an agreement in writing dated December 5 th 2009, pursuant to the terms of which the Defendant held over, exercising an Option to Renew on the expiration of the one year term of the above-mentioned agreement.
It alleged arrears of rent in an amount of $17,000 at the start of the proceedings.
It claimed mesne profits at the rate of $1000 per month, (being the monthly rental in the alleged agreement in writing dated December 5 th 2009) until possession is given up.
It claimed interest in an unspecified amount.
The Particulars of Claim exhibited the following documents:
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1. The Resealed Grant dated June 18 th 2015;
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2. A copy of a Notice dated June 23 rd 2016 allegedly served on the said Mr. David Haynes on the same date at 7.30 p.m.;
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3. A copy of the Tenancy Agreement between Celina Sargeant and David Haynes dated December 5 th 2009.
An Affidavit of Service filed November 1 st 2016 deposed that the Fixed Date Claim Form and Particulars of Claim were served on the Defendant on the 9 thAugust 2016 by Process Server, Curtis Maloney, who deposed that the Defendant was personally known to him.
A second Affidavit of Service was filed December 2 nd 2016 by the same Process Server Curtis Maloney, which deposed that the Defendant was served with the notice required under the Property Act Cap 236 section 167. A copy of the said Notice was attached.
The first hearing of this matter was effectively March 14 th 2017 at which hearing the Claimants sought judgment in the terms set out in the Fixed Date Claim Form.
The Court on that date ordered Written Submissions to be filed by the Claimants on or by March 28 th 2017, as it was the submission of their counsel that the Claimants were entitled (without more) to judgment in the terms set out in the Claim Form. The matter was then adjourned to April 18 th 2017 to enable the Court to deliver its Ruling.
Paragraphs 3 to 15 of the said Written Submissions are set out “in extenso”:
“3. By virtue of an agreement made the 5 th day of December 2009 between Celina Sargeant of the One Part and David Haynes the Defendant of the Other Part, the premises at Rosegate in the parish of Saint John in Barbados were, let to the Defendant for a term of one year from 5 th December 2009 with an option to renew for an additional period at the monthly rent of $1,000.00 payable on the first day of each month. A copy of that agreement is attached to the Statement of Claim.
4. By virtue of the agreement, Celina Sargeant is entitled to the reversion, which signifies the residue of her interest after she has granted away a term of years to the tenant and by virtue of Section 3 of the Succession Act her interest devolved and became vested in the Claimants. As between herself and her tenant the Defendant is he is estopped from denying her title as landlord and her entitlement to the reversion. Mackley v Nutting [1949] 2 K.B 55.
5. That agreement contains a specific clause for re-entry and cancellation of the tenancy agreement (Clause (3)) if the rent reserved or any part thereof shall be unpaid for 7 days after becoming payable or if any covenant on the Tenant's part herein contained shall not be performed after 14 days' written notice from the landlord requiring the tenant to remedy the same subject to the provisions of the Property Act 236.
6. The Property Act Cap 236 Section 166 provides:
“(1) The right of forfeiture may—
(a) be exercised by entering upon the land and remaining in possession thereof; or
(b) be enforced by action before a court”
(2) A lessor may subject to Section 168 and any provisions to the contrary in the lease, forfeit the lease if the lessee among other things
(a) commits a breach of any agreement or condition on his part expressed or implied in the lease.
7. The Claimants have chosen to enforce their right of forfeiture by commencing this action for possession rather than by making a peaceable entry upon the land, since if any force is used while attempting to make a peaceable entry they may be criminally liable under the Forcible and Clandestine Entries Act Cap 132.
8. The only issue to be decided in this matter is whether the agreement has become forfeited as provided by the contract.
9. The conditions for the exercise of the right of forfeiture are contained in the Property Act Section 167, which states:
“Notwithstanding anything to the contrary contained in a lease, a lessor is not entitled to exercise the right of forfeiture for the breach of any agreement or condition in the lease until
(a) the lessor has served on the lessee a notice
(i) specifying the breach complained of,
(ii) if the breach is capable of remedy, requiring the lessee to remedy the breach within such reasonable period as is specified in the notice; and
(iii) in any case other than non payment of rent requiring the lessee to make compensation in money for a breach;
(b) the lessee has failed to remedy the breach within a reasonable time, if it is capable of being remedied.
10. The Claimants have satisfied the conditions set out in Section 167 of the Act. A notice specifying the breach complained of, that is, that the rent was some $16,000 in arrears and requiring him to remedy the said breach of contract within 14 days, was served on the Defendant on June 23, 2016. Evidence of this is contained in the affidavit of Curtis Maloney, Process Server filed on December 2, 2016.
11. On July 15, 2016 the Claimants' Statement of Claim and Claim Form was served on the Defendant by the said Curtis Maloney, Process Server who swore an affidavit to this effect which was filed on November 2, 2016.
12. A claim, which unequivocally claims possession, operates as a re-entry in law and so brings about forfeiture as soon as it is served on the tenant. Canas Property Co. Ltd. v. K. L. Television Services Ltd. [1970] 2 QB 433.
13. Accordingly the tenancy has been cancelled in accordance with the term of the agreement and the term has been forfeited on July 15, 2016 the date the claim form and statement of claim was served on the Defendant.
14. The Property Act Section 168 gives the tenant a right to apply to the court for relief against forfeiture but the Defendant has failed and/or neglected to file an Acknowledgment of Service in the manner provided by the Civil Procedure Rules Part 9 or at all, thereby indicating he has no wish to contest the proceedings or to avoid judgment being entered against him in default and the effect is the same as under the old rules of court in which the claim is to be treated as admitted if not denied.
15. In the circumstances, the Claimants are entitled to:
(1) Possession of the premises;
(2) Arrears of rent amounting to $17,000.00
(3) Interest
(4) Mesne profits at the rate of $1,000.00 per month from July 1, 2016 until payment and
(5) Cost”
This matter was filed by way of Fixed Date Claim Form consistent with Rule
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