Kinsale Holdings Ltd v Cool Blue Residences Ltd

• Jurisdiction: Barbados
• Judge: GIBSON CJ
• Judgment Date: 26 June 2020
• Neutral Citation: BB 2020 CA 6
• Court: Court of Appeal (Barbados)
• Docket Number: Civil Appeal No. 17 of 2017
• Date: 26 June 2020

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

Between

the Hon. Sir Marston C.D. Gibson, K.A., Chief Justice; The Hon. Mr. Justice Andrew D. Burgess, Justice of Appeal and The Hon. Mr. Justice William J. Chandler, Justice of Appeal (Ag.)

Civil Appeal No. 17 of 2017

Between

Kinsale Holdings Limited

Appellant

and

Cool Blue Residences Ltd

Respondent

Mr. Bryan L. Weekes of Messrs Bryan L. Weekes & Associates for the Appellant

Mr. Kevin Boyce and Ms. Sheena Ann Ince of Messrs Clarke Gittens Farmer for the Defendant

DECISION

GIBSON CJ :

Introduction

1 At its core, this matter is about the interpretation of the language of a restrictive covenant set out in the title deeds in a building scheme. The High Court held that, on a proper contextual construction of the covenant, there had been no violation by the respondent of the covenant. For the reasons which follow, we agree with and affirm the judgment of the High Court judge even if we deviate somewhat in our reasoning process.

FACTUAL AND PROCEDURAL BACKGROUND

2 The facts are largely undisputed. The parties in this matter, Kinsale Holdings Limited (“Kinsale” or “the appellant”) and Cool Blue Residences Ltd (“Cool Blue” or “the respondent”) are the owners of Lots 27 and 24 respectively, located in a building scheme at Coral Cliff, Maynards in the parish of St. Peter (the building scheme). The parties, both registered companies under the Companies Act, Cap 308 of the Laws of Barbados, have the benefit and burden of restrictive covenants affecting their use and occupation of the lots in question.

3 By deed of conveyance dated the 30 ^th December 1993 and made between Atlantic Mfg Ltd (Atlantic) as vendor, and Larry Warren Architect Ltd as purchaser (“LWAL”), LWAL purchased Lot No. 27 situated in the building scheme. Larry Warren of LWAL is also the sole shareholder and one of the two directors of the appellant Kinsale. The conveyance from Atlantic to LWAL noted that it was “subject to the...restrictive covenants … contained …in a Conveyance dated the 15 ^th day of June 1970 between [EBT], Edward Ive O'Hara and St. Lucy Mfg Co.”

4 By conveyance dated 17 ^th January 2011, made between EBT, as vendor, and Cool Blue as purchaser (the EBT-Cool Blue deed), Lot 24 was transferred to Cool Blue with EBT reserving unto itself and its successors in title the benefits and burdens of a restrictive covenant which was intended to cover the entire building scheme in that part of Maynards. The covenant covered Lots 11 through 29 of the scheme.

5 A key fact is that both Lots 24 and 27 sit on a ridge or bluff overlooking the ocean. They are not contiguous as the developer EBT has retained Lot 26, which is between Lots 24 and 27. We will return to this fact when we examine the issue of whether the value of the claimant's lot was affected by any violation of the amenities which attached to the lot.

6 A central clause of the covenant required the approval of EBT by each purchaser prior to any construction taking place. That language was contained in the original deed and while it was only incorporated by reference in the deed to LWAL, it was reproduced in the January 2011 EBT-Cool Blue deed. It will be convenient to set it out here:

2. The Purchaser doth hereby for itself and its successors in title (owners for the time being of the said lot or parcel of land hereby assured and every part thereof), covenant with the Vendor and its successors in title (owners for the time being of the other lands of the said building estate and every part as follows:

• (a) …

• (b) not at any time to erect or cause 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 dwellinghouse together with the boundary walls or fences garages servants rooms or other usual outbuildings for use in connection therewith which dwellinghouse garages servants rooms and other usual outbuildings shall be subject to the following restrictions, namely:

  • (i) no such building and erections shall be constructed otherwise than of stone or masonry construction or be roofed with any material other than shingles or tiles or asphalt or asbestos;

  • (ii) no such buildings and erections on any of the lots marked 11 to 29 inclusive on the Key Plan shall be of more than one storey or in excess of twenty feet above ground level at the highest point of the lot on which they are built;

  • (iii) all such buildings or erections shall be designed by an architect and the relevant plans and all specifications in respect thereof shall be submitted to the Vendor for its approval in writing before commencement of constructions Provided However that this restriction shall only apply to buildings and erections the construction of which shall be commenced while the Vendor shall retain its ownership of any lot or lots of the said building estate and thereafter shall become null and void and be of no power and effect.”

  • (Emphasis added).

7 Sometime in July 2010, prior to the purchase of Lot 24 by Cool Blue, Mr. Robbie Bell, a principal of Cool Blue, as required by clause 2(b)(iii) of the conveyance, submitted his plans for the construction of the house to the principals of the vendor EBT, including Mr. Anthony S. May. Appended to the six pages of architectural plans was the statement:

“The attached construction designs by Harper Downie dated July 2010 have been preapproved by the vendor on the basis the final design will be materially based on these shown with particular reference to the overall height of the building not being more than 20 ft above the ground level of the highest point on Lot 24 and the method of construction for the wall will be either stone or masonry and be roofed with shingles or tiles or asphalt or asbestos, in accordance with the covenants contained within the sale and purchase agreement.”

[Emphasis added]

It was signed by four persons (presumably principals of EBT) including Anthony S. May who, by letter dated 1 ^st August 2010 and written to Mr. Bell, stated:

Dear Robbie,

Enclosed are your planes (sic) which have been approved by us for the house you want to build on Lot 24 at Coral Cliff, Maynards. I trust that these are in order.

Yours sincerely

Sgd. Anthony S. May.

8 After the commencement of the construction, Mr. Peter Evelyn QC, an attorney for Kinsale, wrote on December 17, 2013, to Mr. Bell asserting that the type of house being constructed, namely a two-storey house which combined wood with the stone and masonry, was in violation of the restrictive covenants and calling on him to cease construction. In response, Mr. Bell wrote to Mr. Evelyn QC by email on December 24, 2013, stating that he disputed Mr. Evelyn's interpretation of the covenant; that the application to the Department of Town and Country Planning had been made since May 2012 and that any objections should have been raised at an earlier stage.

9 Crucially, moreover, Mr. Bell informed Mr. Evelyn that the design of the property had been approved by EBT Ltd who had created the Coral Cliff Building Estates and its associated covenants. He indicated that he would be willing to meet with Mr. Evelyn's clients to discuss any concerns which they may have had. Attached to Mr. Bell's emails were the approvals mentioned above in para [6].

The Underlying Proceedings

10 By Claim Form dated 21 ^st February 2014 together with a Certificate of Urgency, Kinsale commenced this action against Cool Blue seeking the following relief:

“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.”

11 The Claim Form recited the terms of the covenant. In its Defence filed 28 ^lh March 2014, Kinsale recited the Evelyn letter and Kinsale's response, as well as the approvals before the purchase and after the commencement of construction. As to the claim by Kinsale that there was wood being used in the construction, Cool Blue responded that the wood was there to provide framing for the roof of the house and to provide a rendered finish of the masonry construction.

12 Curiously, neither the Claim Form, Statement of Claim, nor Mr. Warren's Affidavit in Support of the Urgent Application ever mentioned the EBT approval of the plans or that the approval made no reference to the number of storeys. They also never mentioned Bell's response to the Evelyn letter. (see para [6] above).

13 In its Reply filed April 8 ^th 2014, Kinsale noted that the purpose of the covenant was to ensure (a) the privacy of the owners of any lot which benefits from the said covenant; and (b) the view enjoyed by any such lot. Mr. Bell and Cool Blue filed, as part of its defence, an Affidavit in Response on April 8 ^th 2014. Appended to the affidavit was a letter dated 25 ^th March 2014 from G&W Associates to Mr. Bell, per David Gill, a land surveyor, who wrote:

Dear Mr. Bell,

Re

Re: As built height differences as measured on site at “Elysium”, Lot 24, Coral Cliff, Maynards, St. Peter.

Please be advised that I have checked the height differences between the highest roof apex, the ground floor slab and the road curb level at the north east comer of the property which was pointed out to me as the reference point. My findings as taken on March 24, 2014 are stated below and shown on the...