Kinsale Holdings Ltd v Cool Blue Residences Ltd
| Jurisdiction | Barbados |
| Judge | Madam Justice Margaret A. Reifer |
| Judgment Date | 31 May 2017 |
| Neutral Citation | BB 2017 HC 38 |
| Court | High Court (Barbados) |
| Docket Number | CV. No. 262 of 2014 |
| Date | 31 May 2017 |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
the Honourable Madam Justice Margaret A. Reifer, Judge of the High Court
CV. No. 262 of 2014
Mr. Bryan Weekes Attorney-at-Law for the Claimant represented by Mr. Larry Warren
Mr. Kevin Boyce and Ms. Shena-Ann Ince Attorneys-at-Law for the Defendant represented by Mr. Robby Bell
Real Property - Restrictive covenants — Interpretation — Whether the word “or” in restrictive covenant was disjunctive or conjunctive — Whether restrictive covenant meant that buildings within development could either be a maximum of one storey or maximum height of 20 feet or comply with both restrictions — Whether claimant breached restrictive covenant — Whether claimant ought to be granted injunctive relief — Whether claimant was entitled to damages and/or interest — Claim dismissed.
This matter began by Claim Form and Statement of Claim, filed February 2014, together with Notice of Application filed with a Certificate of Urgency and Affidavit in Support.
The substantive relief claimed is as follows:
“1. An injunction restraining the Defendant by itself or by its servants agents or otherwise from constructing on Lot 24 Coral Cliff, Maynards, in the parish of Saint Peter in this island a dwelling house of more than one storey and constructed of any material other than stone or masonry.
2. An injunction mandating that the Defendant remove the structure existent on Lot 24 Coral Cliff, Maynards, in the parish of Saint Peter which is in excess of one storey;
3. An injunction mandating that the Defendant remove any structure or any part of a structure on Lot 24 Coral Cliff, Maynards, in the parish of Saint Peter which is not constructed of masonry or stone;
4. Further or in the alternative, damages to be assessed;
5. Interest;
6. Costs.”
The parties are both registered companies owning residential real property in a development/building scheme known as Coral Cliff, Maynards in the parish of St. Peter, in this Island; the Claimant company being the owner of Lot 27 therein, the Defendant company being the ‘purported’ owner of Lot 24, which at the time of suit was under construction. (The Defendant pointedly uses the word “purportedly” as it submits later in the proceedings that the Claimant has committed a fundamental procedural error by failing to lead evidence to support the assertion that it is the owner of lot 27. It alleges that a Conveyance shows that lot 27 was conveyed to a company called Larry Warren Architect Limited.)
Both parcels of land were purchased from E.B.T. Limited, which was the developer of the residential district known as Coral Cliff, and was responsible for the creation of the covenants associated with Lots 11 and 29 therein.
Both Lots, 27 and 24, are situated on a cliff facing the ocean. The Claimant's property is situated to the north of the Defendant's along the same ridge line. This fact is significant to an allegation of loss and damage, particularly of privacy. Lot 26 separates Lot 27 and Lot 24.
At the heart of the claim is the interpretation of a restrictive covenant to which lots 11 to 29 of the said building scheme enjoy both the benefit and the burden. These restrictive covenants are to be found in a Deed of Conveyance dated the 15 th June 1970 between E.B.T. Ltd, Edward Ive O'Hara and St. Lucy Manufacturing Limited.
The critical covenant is to be found at page 7 paragraph 2(b) of the said Deed and restricts the owner as follows:
“Not at anytime to erect or cause or permit to be erected on the said lot or parcel of land or any part thereof any buildings or erections other than those comprising one single private dwelling house together with the boundary walls or fences garage servants rooms and other usual outbuildings for use in connection therewith which dwelling house garage servants rooms and outbuildings shall be subject to the following restrictions, namely:-
(i) No such buildings and erections shall be constructed otherwise than of stone or masonry construction or be roofed with any material other than shingles or tiles or asbestos;
(ii) No such buildings and erections or any of the lots marked 11 to 29 inclusive of the key plan shall be of more than one storey or in excess of twenty feet in height above ground level at the highest point of the lot on which it is built.”
The Claimant alleged in this Claim, breach of the above covenant by the Defendant, and loss and damage to the Claimant, but insofar as the allegations in the original Claim Form are significantly narrowed by the time of Case Management, it becomes moot to outline at this stage the claims therein, except to state generally, that the Claimant sought a declaration that the structure erected on Lot 24 by the Defendant amounts to a breach of the restrictive covenants contained in the Deed of Conveyance referenced above.
The concerns of the Claimant are best summarized in the Witness Statement of Anna Warren at Paragraph 10 as follows:
“10. Our main concern with the proposed construction of dwelling houses of more than one storey, regardless of height is that once a house can be constructed of more than one storey, the privacy of many of the Lots which enjoy the benefit of the restrictive covenants will be compromised.”
By Notice of Application filed February 21 st 2014 with an Affidavit/Certificate of Urgency, the Claimant sought Interlocutory Injunctive relief, restraining the Defendant from continuing construction on the second floor of the dwelling house on Lot 24. This Application was supported by the Affidavit of Mr. Larry Warren as Director/Principal of the Claimant, of even date. This Affidavit outlined the formal exchanges between counsel for the Claimant and the Defendant's principal, Mr. Robbie Bell prior to litigation.
On the 28 th February 2014 the Application was adjourned sine die, at the request of the parties, to facilitate the filing of the Defendant's Affidavit in Response.
The Affidavit in Response to the Urgent Application was filed on April 8 th 2014 by the Defendant's Director/Principal, Mr. Robbie Bell.
On May 2 nd 2014 the parties, appearing before the Court on the hearing of this Urgent Application, informed the Court that after discussion between all concerned, they wanted to use the time for case management to take the matter to speedy trial. Significantly, counsel for the Claimant informed the Court that it remained within the discretion of the Defendant whether he will continue construction until such time as the substantive matter can be heard.
Accordingly, several case management orders were made and the matter adjourned to September 24 th 2014 for Pre-Trial Review. (It is unfortunate that on this judge's rotation to Criminal Sessions there was no transfer of this matter to another judge as requested of the Registration Department. This matter was continued by this judge on a return to the Civil Division in 2016.)
Further case management followed: March 2 nd 2016, March 16 th (Draft Order in terms of Application of March 7 th 2016), May 23 rd 2016 (issue of expert witness) June 21 st (Draft Consent Order approved as Amended), November 9 th (trial dates fixed), November 23 rd (Pre-trial review).
The Defendant filed a Defence on March 28 th 2014, the basis of which is an admission that the construction is of a two-storey dwelling house, but a denial that it is in contravention of the said restrictive covenants. At paragraph 8 of the Defence, the Defendant speaks to the Developer's intent in terms to the effect that, it was not to restrict the number of storeys, but to ensure “that the said properties constructed are no more than 20 feet in height”. The Defendant therefore denies that it is in breach of the restrictive covenants affecting Lot 24, and further, avers that the Claimant's Statement of Claim discloses no valid or sustainable claim in law.
The Defendant's Defence annexed documents on which it intended to rely in support of its case, namely, a surveyors report that the house is less than 20 feet in height (18 feet 11 3/4 inches to be exact), and the Developer's approval of the construction designs prior to sale to the Defendant dated August 1 st 2010.
In Reply, it is the Claimant's allegation, inter alia, that the Developer's intent was to ensure “the privacy of the owners of any lot which benefits from the said covenant” and “the view enjoyed by any lot which benefits from the said covenant”.
The case management orders were duly satisfied, the most notable filings being the Witness Statements of Larry Warren and Anna Warren for the Claimant, and Robbie Bell for the Defendant, which re-iterate the parties' interpretation/understanding of the Restrictive Covenant.
In our case management conference of June 21 st 2016, the issues were narrowed by the Claimant's abandonment of the allegation that the subject dwelling-house “is also guilty of using materials other than stone or masonry in the construction of the dwelling-house on its Lot.” See Amended Claim Form and Statement of Claim filed July 12 th 2016.
The Issues for determination have been settled as being:
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(1) The meaning of the restrictive covenant: does the covenant mean that buildings within the development can be either a maximum of one storey or a maximum height of 20 feet or whether such buildings must comply with both restrictions?
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(2) Whether the Claimant has breached that covenant?
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(3) If so, whether the Claimant should be granted the injunctive relief sought and/or damages and/or interest.
Two of the three persons providing Witness Statements gave evidence to...
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