Lambchop Properties, LLC and RMJE Properties, LLC v Apes Hill Club Homeowners Association Inc. et Al

• Jurisdiction: Barbados
• Judge: Weekes, J.
• Judgment Date: 02 April 2025
• Neutral Citation: BB 2025 HC 14
• Court: High Court (Barbados)
• Year: 2025
• Docket Number: CV 0284 of 2023

Lambchop Properties, LLC and RMJE Properties, LLC

and

Apes Hill Club Homeowners Association Inc Et Al

Weekes, J.

CV 0284 of 2023

High Court

Appearances:

Mr. Garth Patterson SC, Mr. Michael Rivera and Mr. Khayyam Nakhuda of Lex Caribbean Attorneys-at-Law for the Claimants.

Mr. Roger Forde SC in association with Mr. Renee Forde, Attorneys-at-Law for the First, Second and Third Defendants.

Ms. Ruan C. Martinez in association with Mr. Malcolm W.E. Deane of Bynoe Martinez & Co, Attorneys-at-Law for the Fifth Defendant.

REASONS FOR DECISION

THE APPLICATION

Weekes, J.

1 On the 13th day of June, 2024 the Claimants filed an application pursuant to Part 26.1(2)(e) and (I) of the Supreme Court ( Civil Procedure) Rules 2008 for directions that the following issues be tried and determined as preliminary issues (the Preliminary Issue Application).

2 The preliminary issues identified are:

• 1. Whether the Fifth Defendant is the Developer within the meaning of the By-Laws of the First and Sixth Defendant; and

• 2. Whether the Turnover Date within the meaning of the By-Laws of the First and Sixth Defendant, has passed in circumstances where:

  • i. the Claimants allege it has passed by way of the Bank's Conveyance on February 3, 2020, by virtue of Republic Bank (Barbados) Limited exercising its power of sale as mortgagee selling and transferring the Remaining Property to Apes Hill (Barbados) Inc. (then, Plantation Sanctuary Inc.); and

  • ii. the First, Second, Third and Fifth Defendants have alleged that the Turnover Date had not been triggered by virtue of the Assignment on February 3, 2020 between Apes Hill (Barbados) Inc. and the Developer (the “Preliminary Issues”).

3 The grounds upon which the Claimants predicate their application are:

• 1. CPR Rules 1.1 and 1.2 enable the Court to deal with cases justly, which includes, so far as is practicable, saving expense, and ensuring that the case is dealt with expeditiously and fairly.

• 2. The Court has the power to direct the order in which issues are to be tried and the separate trial of specific issues pursuant to Rules 26.1(2)(e) and (f) of the CPR.

• 3. The determination of the Preliminary Issues prior to the substantive trial of these proceedings would further the Court's overriding objective.

• 4. The determination of the Preliminary Issues would effectively dispose of the case as all of the issues as particularized within the Claimants' Statements of Facts and Issues hinge on the determination of the Preliminary Issues.

• 5. The determination of the Preliminary Issues could significantly cut down the cost and time involved in pre-trial preparation or in connection with the trial itself.

• 6. The relevant facts are identified for the purposes of determining the Preliminary Issues.

• 7. Alternatively, any disputed factual allegations between the parties that are relevant to the determination of the Preliminary Issues can readily be disposed of without delay and/or significant cost.

• 8. The determination of the Preliminary Issues will not unreasonably fetter the parties.

• 9. The determination of the Preliminary Issues is relevant.

• 10. The determination of the Preliminary Issues is not likely to lead to an application for the pleadings being amended.

• 11. It is just and equitable in all the circumstances to grant the relief sought by the Applicants herein.

4 Pursuant to Parts 26.1(2)(e) and (f) the Court may decide the order in which issues are to be tried and may also direct a separate trial of any issues.

5 In order to determine whether to grant the Orders sought by the Claimants the Court must consider the application in the context of the matter as pleaded as well as the timing of the application.

CONTEXT

6 The Claimants own 2 of 35 Lots forming part of a residential estate situate at Apes Hill, St. James.

7 The residential estate is part of a larger development which includes a gold course and other amenities.

8 When the owners of the Lots in the residential estate purchased their lots, they became entitled to membership in the Apes Hill Golf and Court Club. Membership is optional at the instance of the lot owners.

9 The First Defendant is a company without share capital which represents the interests of the owners of the Lots making up the Residential Estate in their relationship with the Developer in relation to the use of common areas in the Development and other issues. The members of the First Defendant are lot owners.

10 The Sixth Defendant is also a company without share capital which represents the interest of the lot owners in a specific part of the residential estate.

11 The Claimants are members of the First and Sixth Defendants.

12 Under the First and Sixth Defendants' By-laws the Developer appointed its First Directors, who would be in place until the last of the residential lots in the Estate was sold and conveyed by the Developer, this occurrence would determine “the Turn Over Date”. Thereafter new directors would be appointed at a General Meeting of the members of First and Sixth Defendants.

13 The Developer of Apes Hill Development SRL defaulted in its obligations to Royal Bank of Canada (Barbados) Limited (RBC), the bank which had financed the Development. Consequently, by way of a conveyance dated February 3rd 2020, RBC, pursuant to the express power of sale granted to it by the Developer, sold the entire development, including the unsold residential lots to the Fifth Defendant.

14 The Claimants take the position that “the Turn Over date” was passed when the conveyance of February 3 ^rd 2020 was executed. It follows, they say that the Boards of Directors of the First and Sixth Defendants are not properly constituted because the Fifth Defendant has purported to replace the First Directors in its capacity as the Developer. The Claimants allege that the Fifth Defendant has no such authority.

15 The Claimants assert that certain decisions made and steps taken by those directors were and continue to be ultra vires and should be enjoined and/or quashed by the Court pursuant to its powers under section 228 of the Companies Act as they are and have been oppressive and or unduly prejudicial to the Claimants' interests as members of the First and Sixth Defendants.

16 The Defendants all take the position that “the Turn Over Date” has not passed and the Boards have been properly appointed and no actions taken by the Directors have been oppressive or unduly prejudicial to the Claimants' interests, because the Apes Hill Development SRL had assigned all of its rights and privileges as the Developer to the Fifth Defendant.

THE TIMING OF THE CLAIMANT'S APPLICATION

17 On the 26th of September, 2023 Cornelius J (as she then was) made case management orders in this matter.

18 The Defendants were given extensions of time to file their defences.

19 The parties were ordered to file their respective list of documents, witness statements and statements of facts and issues by stipulated times and the matter was set down for pre-trial review on the 27th of February, 2024.

20 The case management orders have been complied with.

21 Cornelius J was elevated to the Court of Appeal of Barbados and the pre-trial review scheduled for the 27th of February, 2024 did not come off.

22 On the 23rd of April, 2024 the Claimants filed an application supported by an Affidavit of Mr. Paul Lamb seeking an Order that the Defendants be ordered to disclose the documents set out in that application.

23 The First Defendant resists that application and relies on an Affidavit sworn by the Second Defendant filed on the 30th of October, 2024, in which the Second Defendant deposes that the information is not pertinent and that the cost and time required to produce the requested documents would not be in keeping with the Overriding Objective of the CPR 2008.

24 The Fifth Defendant also resists the application and relies on an Affidavit sworn by the Third Defendant and filed on the 30th of October, 2024. This Affidavit is in very similar terms to the Affidavit of the Second Defendant.

25 It is worthy of note that both deponents depose that it would take the First and Second Defendants six months to produce the required documents.

26 At the time of the filing of the Application which is before the Court, it would seem that the only outstanding issue to be determined before trial was the issue raised by the Claimants' application for specific disclosure, as the parties have all complied with the initial case management orders, including the filing of the witness statements of their respective witnesses.

THE COURT'S DISCRETION

27 The Court's discretion to order the hearing of issues separately must be carried out reasonably. Guidance in this regard may be had from Blackstone's Civil Practice 2023 where at page 1164 at paragraph 61.56 the learned authors state:

As a general rule, it is in the interests of the parties and the administration of justice that all issues arising in a dispute are tried at the same time. However, particularly in complex actions, costs and time can sometimes be saved if decisive, or potentially decisive, issues can be identified and ordered to be tried separately from the main trial. The Court's decision on preliminary issues should be used by the parties as a basis for sensible discussions or negotiations. It should not be used as a platform from which the victor launches new, let alone unfounded, claims in order to transform its case on quantum. ( Multiplex Constructions (UK) Ltd. v. Cleveland Bridge UK Ltd. [2008] EWHC 2220 (TCC) at [1673].

There are three types of order that can be made:

• (a) for the trial of a preliminary issue on a point of law;

• (b) for the separate trial of preliminary issues of questions of fact;

• (c) for separate trials of liability and quantum.

Factors to be taken into account when deciding whether to order the determination of preliminary...