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 15
• 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 23rd of April, 2024, the Claimants applied to the Court, pursuant to Rules 28.5(1)(a), (b) & (c) and 28.16 of the Supreme Court ( Civil Procedure) Rules 2008 (the “ CPR 2008”) for the following orders, namely that:

• 1. The Defendants each carry out a search for and disclose to the Claimants any of the following documents which are, or which have been in their control:

  • a. All documents, including written correspondence, board resolutions, approvals, or authorizations, evidencing that the First Defendant approved the Fifth Defendant to undertake work and/or to incur the expense in respect of work alleged in paragraph 12 of the Affidavit of Christopher Anthony Audain filed on 28 September 2023 (“Audain Affidavit”) and in paragraphs 7 and 9 of the Witness Statements of Christopher Anthony Audain (“Audain Witness Statement”) and Sunil Chatrani (“Sunil Witness Statement”), filed on 16 January 2024 (the Audain Witness Statement and the Sunil Witness together referred to as “Defendants' Witness Statements”) to have been undertaken by the Fifth Defendant on behalf of the First Defendant.

  • b. All documents evidencing work done and/or payments made in respect of the work alleged in paragraph 12 of the Audain Affidavit and paragraphs 7 and 9 of the Defendants' Witness Statements to have been undertaken by the Fifth Defendant on behalf of the First Defendant.

  • c. All documents evidencing the lots owned by the Fifth Defendant in the Apes Hill Development and the Base Assessment payable by the Fifth Defendant to the First Defendant as referenced in paragraph 12 of the Audain Affidavit and paragraph 9 of the Audain Witness Statement.

  • d. Minutes and/or contemporaneous notes of any meetings of the shareholders and the directors of the First Defendant and Sixth Defendant respectively between 3 February 2020 and 12 April 2023 regarding the appointment of the directors of the First Defendant and Sixth Defendant.

  • e. The financial statements of the First Defendant and Sixth Defendant respectively between 3 February 2020 and 12 April 2023.

• 2. The Claimants be permitted to inspect: (a) the documents disclosed pursuant to these orders within 14 days of the Defendants disclosing the same and (b) all books, records and documents referred in paragraph 2 of the Witness Statement of Christopher Audain filed on January 16, 2024 within 14 days of this order, and

• 3. The costs of this application to the Claimants.

2 The Claimants ground their application as follows:

• [1 ] Rule 28.5 of the CPR allows a party in any proceedings to apply for an order for specific disclosure requiring that another party to those proceedings: (a) disclose documents or classes of documents specified in the order; or (b) for that party to disclose documents which are directly relevant to a specified issue or issues in the proceedings.

• [2] The documents sought in this application, which have not been provided to the Claimants in standard disclosure to date, are directly relevant to matters in question as:

  • a. Any document showing whether the First Defendant approved the Fifth Defendant to undertake work on its behalf and/or which show the nature of any such work done will tend to either support at least the First Defendant's case that it acted lawfully and reasonably in not requiring the Fifth Defendant to pay certain fees or it will tend to support the Claimants' case that such conduct was not properly authorized and unreasonable in the circumstances and hence was oppressive.

  • b. Documentation showing the nature of the Fifth Defendant's ownership of lots in the Apes Hill Development and the base assessments which it is liable to pay will tend to support or weaken the Claimants' case that the Fifth Defendant was granted an unreasonable exemption from paying the relevant base assessments;

  • c. Minutes and/or contemporaneous notes of any meetings of either the shareholders or directors of the First and Sixth Defendants will show the circumstances under which the appointment of the current board of directors of the First and Sixth Defendants were made. These circumstances will tend to support at least one party's case regarding the validity of the appointment of the current Board of Directors of the First and Sixth Defendants.

  • d. Whether any financial statements exist for the First and Fifth Defendants between February 3, 2020, and April 12, 2023, and the nature of such statements will tend to support or weaken the Claimants' case that the First to Fifth Defendants have consistently failed to prepare and produce adequate financial records for the First and Fifth Defendants.

  • e. Further or alternatively, the financial statements will tend to show whether they are any debts owed to the Fifth Defendant for work done on behalf of the First Defendant. If the documents sought in this application exist, the Defendants are in control of those documents. (altogether the “Specific Disclosure Sought”).

• [3] The Specific Disclosure Sought is necessary in order to dispose fairly of the litigation.

• [4] The Defendants' compliance with the order sought by the Claimants in this application is not likely to be burdensome to the Defendants, whether with respect to time, cost or otherwise.

• [5] The financial resources of the Defendants are likely to be sufficient to enable them to comply with the orders sought by the Claimants in the instant application.

• [6] The extent of disclosure sought in the instant application is proportionate to the information which could reasonably be expected to be directly relevant.

• [7] There is no applicable right of the Defendants to withhold the disclosure of the specific disclosure sought.

• [8] Further, rule 28.16 of the CPR permits a party to inspect and copy documents mentioned in a witness statement filed in the matter (“Relevant documents”), once the party which seeks inspection provides a written notice to the party or witness that mentioned the relevant documents. Upon receiving written notice of the desire to inspect and copy the Relevant documents, a party is required to provide the same within 7 days of the written notice, unless the documents are not within their possession or control.

• [9] On February 22, 2024, the Claimants through a formal letter requested to inspect and copy documents mentioned in the Witness Statement of Christopher Audain filed on January 16, 2024, (“Requested documents”) giving 14 days to comply with the request. There has been no response to date.

• [10] The Requested documents are likely within the possession or control of the Defendants.

• [11] Considering the foregoing, the grant of the instant application will further the Overriding Objective of dealing with the Proceedings justly as it will ensure that the Claimants, so far as is possible and economically reasonable, will have access to documents which may assist their case or the case of a party in the matter.

3 The Claimants' application is supported by the Affidavit of Mr. Paul Lamb which was filed also on April 23rd, 2024. Mr. Lamb deposes as follows:

Relevant Matters in Issue

Circumstances Giving Rise to the Instant Application

• 1. I am the sole Director of the First and Second Claimants (the “Claimants”) in the instant proceedings (the “Proceedings”) and I am duly authorised by the Claimants to make this Affidavit on their behalf in that capacity.

• 2. Save as is hereinafter expressly stated, the matters deposed to herein are within my own knowledge and are true and, insofar as they are in accordance with information given to me or derived from statements or documents which I have read and hereinafter appears, they are true to the best of my knowledge and belief.

• 3. I make this Affidavit in support of the Application for Specific Disclosure filed herewith. Circumstances Giving Rise to the Claim

• 4. The Claimants are owners of residential lots (the “Lots”) situate within the Apes Hill Club development situate at Apes Hill, in the parish of Saint James in this Island (the “Development”). In particular, the Claimants own property within the phase of the Development known as the “Garden Wall” Phase (the “Garden Wall Phase”), and are thus, automatically members of the Apes Hill Club Homeowners Association Inc. (the “Apes Hill Association”), and by extension, the Garden Wall Villa Association Inc. (the “Garden Wall Association”), by virtue of their ownership of the respective Lots.

• 5. The First Defendant, Apes Hill Association is a non-profit company formed on February 22, 2006, to, inter alia, own the common areas of the Development. The Second to Fourth Defendants are the current directors of the Apes Hill Association (together the “Purported Directors” or the “Purported Board”), having been appointed as such on May 17, 2021. The Fifth Defendant, Apes Hill (Barbados) Inc. (the “Apes Hill Inc.”) is a company that was incorporated under the Laws of Barbados on August 21, 2019, originally under the name, “Plantation Sanctuary Inc.”, but changed its name on March 3, 2022, to Apes Hill (Barbados) Inc. The Sixth Defendant, Garden Wall Association is a non-profit company formed on September 23, 2009 to, inter alia, own and maintain the common areas comprised in the Garden Wall Phase.

• 6. The First Directors of the Apes Hill Association, appointed upon its incorporation, were Charles 0. Williams, Roger D....