Toojays Ltd v Westhaven Ltd
| Jurisdiction | Barbados |
| Judge | Burgess, J.A. |
| Judgment Date | 16 September 2011 |
| Neutral Citation | BB 2011 CA 20 |
| Docket Number | Civil Appeal No. 14 of 2008 |
| Court | Court of Appeal (Barbados) |
| Date | 16 September 2011 |
Court of Appeal
Moore, C.J. (Ag.); Mason, J.A.; Burgess, J.A.
Civil Appeal No. 14 of 2008
Mr. Bryan Weekes in association with Miss Joie Reece for the appellant.
Mr. Alrick Scott in association with Miss Yasmin Brewster for the respondent.
Injunction - Interlocutory injunction — Discharge
Section 44 (b) of the Supreme Court of Judicature Act, Cap. 117A confers a discretionary power on the High Court to “grant a mandatory or other injunction”. In its inherent jurisdiction, the High Court has discretionary power to discharge or not discharge an injunction so granted. The narrow question with which this appeal is concerned is whether it is appropriate in the circumstances of this case for this Court, to which appeal lie on a point of law from the High Court, to interfere with the exercise by Goodridge, J., a High Court judge, of her discretion to discharge an interlocutory injunction granted by her.
From as long ago as 1981, this Court in the case of Williams v. Canadian Bank of Commerce Trust Co. (Caribbean) Ltd.. [1981] Barb L.R. 11 accepted the principles laid down by Lord Diplock in the English House of Lords decision in American Cyanamid Co. v. Ethicon Ltd.. [1975] A.C. 396 as establishing the guidelines to be applied in determining whether or not to grant or to discharge an interlocutory injunction. Since 1981, cases in the High Court have been applying the American Cyanamid guidelines without any reference to this Court's interpretation of those guidelines in Williams v. Canadian Bank of Commerce Trust Co (Caribbean) Ltd.. [1981] Barb L.R. 11. The result of this is that there is some confusion in the case law. This appeal also provides an opportunity for this Court to clarify some of the confusion.
The factual background to this appeal is not complicated. The respondent is the owner of a restaurant property situate at Holetown, St. James. On May 1, 1998, the respondent entered into a lease agreement to let that property to the appellant for a period of five years commencing May 15, 1998. The respondent and the appellant operated under this agreement for a period of almost four years.
In 2002, the appellant informed the respondent that, in order to satisfy two potential investors, it, the appellant, needed to offer these investors a 10 year lease minimum. The respondent acceded to the appellant's request and a second lease agreement was executed by the respondent and the appellant. In this second lease agreement, it was agreed that the appellant “shall rent the above-mentioned building for a period of 10 years commencing May I, 1998 to terminate on April 30, 2008 with an option of renewal for an additional five years to terminate on April 30, 2013”. This agreement is undated.
The appellant sent to the respondent a letter dated January 28, 2008 in which it sought to exercise the option to renew the lease contained in the second lease agreement. However, the respondent claimed that the option to renew was not properly exercised and refused to renew the lease.
The appellant then filed a writ in the High Court on May 6, 2008 claiming:
“(1) a declaration that the option for renewal contained in the second agreement was validly exercised by the appellant;
(2) specific performance of the option to renew the lease in accordance with the terms contained in the second agreement with the effect that the respondent does grant the appellant a lease in writing to expire on the 30th day of April 2013.”
On June 1, 2008, at the expiration of the term under the first lease agreement, the respondent retook possession of the demised premises. The appellant thereafter, on June 3, 2008, obtained an interlocutory injunction ex parte by the order of Goodridge, J., directing the respondent to give immediate possession of the premises at Holetown, St. James to the appellant in order for the appellant's principal to access the appellant's records. The order also enjoined the respondent from entering into any lease arrangement with any party or in any way dealing with the demised property so as to part with possession of it until further order of the Court.
On July 1, 2008, the appellant filed an amended Writ, in which it claimed that the second lease agreement varied the terms of the first lease agreement. In these premises, the appellant sought, in the alternative, damages for breach of contract.
On July 3, 2008, the respondent filed a summons to discharge the interlocutory injunction granted ex parte on June 3, 2008. The application was heard by Goodridge, J. on July 4 and 25. She ordered that the injunction be discharged “since damages would be an adequate remedy if the plaintiff (now appellant) succeeds at trial”.
The appellant now appeals against the order of July 4, 2008 of Goodridge, J. discharging the interlocutory injunction granted ex parte on June 3, 2008.
The case for the appellant is set out in the Notice of Appeal which discloses only one ground of appeal. It is that the “Learned Trial Judge erred in law in holding that in all the circumstances that the injunction should be discharged on the basis that damages are an adequate remedy to compensate the appellant should it be successful at the trial of the matter when the substantive matter deals with the appellant's application for, inter alia, specific performance of an option to renew a lease of real estate for a period of five years between the parties to the action”.
Before this Court, Counsel for the appellant, Mr. Weekes, expanded on this ground. He argued that two legal consequences flowed from the fact that the matter before Goodridge, J. was an application for an order of specific performance. The first is, as he formulated it, “in cases where specific performance is sought of an agreement damages are virtually never considered an adequate remedy”. The second is that the principle stated in Halsbury's Laws of England Vol. 24 4th Edn pars 920 that “pending proceedings for specific performance, the High Court will grant an injunction to restrain a vendor from dealing with property if there is a clear and undisputed contract” became applicable. According to Mr. Weekes, Goodridge, J. fell into error in not having regard to these principles.
Mr. Weekes argued that for the foregoing reason the trial judge's exercise of her discretion was wrong. It is on this basis that the appellant is urging this Court to interfere with the exercise by the trial judge of the discretion to discharge the injunction.
The case for the respondent has been presented by Mr. Scott, counsel for the respondent. He argued that an appellate court has a limited function in an appeal from a grant or refusal of an interlocutory injunction and should only interfere with the exercise of the discretion of the trial judge where the trial judge has in some way misdirected himself or herself. Mr. Scott's argument continued that, in this case, the learned trial judge did not misdirect herself in holding that the appellant could be adequately compensated by an award of damages were the appellant to be successful at the trial. This being the case, he concluded that there is no basis for this Court to interfere with the exercise of the discretion to discharge the interlocutory injunction granted ex parte on June 3, 2008.
Mr. Scott advanced an argument in the alternative. It is that, even if Goodridge, J. was wrong in holding that the appellant could be adequately compensated by an award of damages were the appellant to be successful at the trial, this Court would still have to consider the balance of justice (convenience). Given the circumstances of this case, Mr. Scott contended, the relative strength of the parties cases must be taken into account in considering the balance of justice. If this is done, he submitted, the irresistible conclusion is that the respondent has the stronger case and that the balance of justice favours not granting the discharge sought by the appellant. For this reason, concluded Mr. Scott, this Court should not interfere with the exercise of the discretion by Goodridge, J. to discharge the injunction.
The case presented by both the appellant and the respondent accepts that the discharge of the injunction by Goodridge, J. was done pursuant to a discretionary power which resided in her as a judge of the High Court. The logic of this acceptance leads to the conclusion that two principal issues are raised in this case.
The first of these is whether there is any jurisdiction in this Court, an appellate court, to interfere with the discharge of an interlocutory injunction by Goodridge, J., which is admittedly the exercise of a discretion that resides in her. The second is, assuming there is such a jurisdiction, whether there is any basis for this Court to interfere with the exercise by Goodridge, J. of her discretion to discharge the interlocutory injunction in this case.
These two issues are dealt with hereafter seriatim.
In the English Court of Appeal decision of Phonographic Performance Ltd. v. AEI Redifusion Music Ltd.. [1999] 1 W.L.R. 1507, 1523-D, Lord Wolf outlined the appellate function in respect of an appeal to an appellate court against the exercise of a discretion by a trial court as follows:
“Before the Court can interfere it must be shown that the judge has either erred in principle in his approach or has left out of account or has taken into account some feature that he should, or should not, have considered, or that his decision was wholly wrong because the Court is forced to the conclusion that he has not balanced the various factors fairly in the scale.”
This dictum underlines what is...
To continue reading
Request your trial