Punter et Al v Dawkins et Al

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Smith, J.
• Judgment Date: 06 April 2001
• Neutral Citation: MS 2001 HC 2
• Docket Number: Civil Suit no. 174 of 1993
• Date: 06 April 2001

Punter et al

and

Dawkins et al

Smith, J.

Civil Suit no. 174 of 1993

High Court

Real property - Landlord and tenant — Lease agreement — Plaintiffs claimed damages for loss of income and goodwill, unlawful eviction and detention of their personal property and special damages of $13,129.11 — Nature of occupation by plaintiffs in respect of premises — Expressed and implied terms of occupancy — Whether defendants in the course of their conduct harassed or obstructed the plaintiffs in the conduct of their business — Whether the taking of possession of the premises by the defendants was unlawful — Loss suffered by the plaintiffs through the actions of the defendants — Finding that plaintiffs had a mere monthly tenancy determinable by notice of at least one month — Right of re-entry and forfeiture attached to the tenancy and thus on the non-payment of rent for a period of at least 21 days the landlord had a justification for re-entry and eviction — Plaintiffs' claims dismissed against 1st, 2nd and 7th defendants — Award of damages of $1,000 to plaintiffs against other defendants.

Appearances:

Jean E. H. Kelsick, for the plaintiffs.

Justin L. Simon, for the defendants.

Smith, J.

1 The plaintiffs are husband and wife who lived at Old Town in the Island of Montserrat. They are both restaurateurs and at the material time operated a restaurant called Ziggy's in the said Island of Montserrat firstly in premises called Oriole Plaza and later at the premises of the Montserrat Yacht Club in the district of Wapping.

2 The defendants, except the seventh, were all at one time or another members of the unincorporated association known as the Montserrat Yacht Club. The first defendant was at relevant times the commodore of the said yacht club. The Montserrat Yacht Club occupied premises at Wapping from where it conducted all such business as a yacht club will conduct on land and in which the club also had a restaurant operating.

3 The plaintiffs were approached by certain of the defendants who thought that they might be good for the operation of the restaurant in the yacht club when the earlier operator renting the club's premises no longer did so. The plaintiffs took over the operation of the club's restaurant in early April 1992. It appeared that the original intent of the parties was for the plaintiffs to operate the restaurant under a 3-year lease but the plaintiffs went into occupation before any document was executed. Indeed no formal document for the lease was ever executed.

4 There was a short honeymoon between the parties in the operation of the restaurant but things soon started going wrong and by July 1992 the first defendant as commodore of the yacht club was writing the plaintiffs detailing a number of things which seemed to have been irritating the members of the yacht club. Things went thereafter from bad to worse until the yacht club was clamouring for the plaintiffs to vacate the restaurant. It reached the stage where the plaintiffs were forcibly evicted.

5 The defendants have maintained that they did not unlawfully evict the plaintiffs. Aggrieved by what they perceived as forcible eviction and unlawful treatment at the hands of the defendants and complaining of having suffered loss the plaintiffs had a writ of summons issued against the defendants. By the said writ the plaintiffs claimed the following reliefs, namely:

• “(a) damages for loss of income and goodwill and unlawful eviction and the detention of their personal property.

• (b) special damages of $13,129.11.”

6 In the statement of claim endorsed on the said writ of summons the plaintiff made certain allegations. Those allegations were in paragraphs 2, 4, 5, 7, 8, 10, 11, 12, 13, and 14 which are set out hereafter as follows:

• “2. On or about the month of October, 1991, and on divers dates thereafter, the first defendant purporting to act on behalf of the Montserrat Yacht Club, approached the plaintiffs on several occasions whilst they were operating a restaurant and bar at the Oriole Plaza, Plymouth, and invited them to move their operation to the premises of the Montserrat Yacht Club at Wapping.

• 3. The first and second defendants assured and promised the plaintiffs that they would be granted an acceptable lease by the said Club should they move their operation as aforesaid.

• 4. During the month of March, 1992, the plaintiffs met with the first and second defendants and reviewed and approved a lease of the premises of the said Club for a period of three years.

• 5. The plaintiffs were informed by the first and second defendants that if they were to assume the tenancy of the premises of the said Club the said lease would be signed shortly thereafter by those members of the Club authorized to do so and that in any event the said lease represented the understanding in full between the parties and spelt out in full the working relationship between them.

• 7. As a consequence of the first and second defendants' assurances, the plaintiffs left the said Oriole Plaza and assumed the tenancy of the Montserrat Yacht Club on 1st April, 1992, and commenced operating a bar and restaurant thereat.

• 8. During the month of October, 1992, and on divers dates thereafter, the first and second defendants, conspiring together and acting in concert, harassed and embarrassed the plaintiffs and obstructed them in the conduct of their business at the premises of the said Club in a manner which was calculated to cause the plaintiffs loss of income, custom and goodwill.

PARTICULARS

• (a) Intimidating the plaintiffs' staff.

• (b) Conducting themselves loudly and offensively in the presence of the plaintiffs' customers.

• (c) Grilling food in the dining area of the said Club whilst customers were dining therein.

• (d) Lacerating the upholstery of the plaintiffs' dining chairs and blocking the bathroom toilets.

• (e) Publishing and circulating to members of the public writings which undermined the plaintiffs' business integrity and credibility.

• 10. Further thereto, during the month of October, 1992, the first defendant served a notice on the plaintiffs that they were to quit the premises of the said Club by 16th January, 1992. The plaintiffs refused to comply with the said notice and applied to the High Court for a determination of the matter, which application is still pending.

• 11. On 27th August, 1993, the third defendant wrote to the Montserrat Water Authority unlawfully instructing them to disconnect the supply of water to the plaintiffs at the said Club.

• 12. Further thereto, on 1st September, 1993, the first, third, fourth, fifth, sixth, seventh and eighth defendants, acting in concert and conspiring together, unlawfully and forcibly entered the premises of the said Club and evicted the plaintiffs therefrom and wrongfully took into their possession and detained all personal property situate therein and belonging to the plaintiffs.

• 13. As a consequence of the said eviction and the detention of the said personal property, the plaintiffs have suffered loss and damage and loss of goodwill.

PARTICULARS

• (i) Loss of foodstuffs and alcoholic and non-alcoholic beverages which rotted and were damaged respectively whilst in the custody of the defendants to this action or alternatively which were not returned.

• (ii) Damaged appliances.

• (iii) The loss of a strand of electric lights, a marine radio aerial and mount, garbage bin and a professional bar sink, which the defendants to this action have converted to their own use.

• (iv) Loss of income as a result of not being able to conduct business.

PARTICULARS OF SPECIAL DAMAGE

• (a) Loss of income of $1500 a day commencing the 1st September 1993, and continuing.

• (b) Rotten, damaged and missing foodstuffs $4.630.46

• (c) Alcoholic and non-alcoholic beverages $ 979.00

• (d) One professional bar sink $1,735.00

• (e) One marine radio aerial and mount $ 225.00

• (f) One strand of electric lights $ 68.00

• (g) One garbage bin $ 85.00

• (h) One damaged upright wine cooler 2,000.00

PARTICULARS

PARTICULARS

PARTICULARS OF SPECIAL DAMAGE

7 TOTAL 722.46

8 To the plaintiffs statement of claim the defendants entered a defence. The important paragraphs of that defence were 3,4,5,8,9,10,11,13,14,16,17, and 18. Those paragraphs were in the following terms:

3

By advertisement appearing in the January 10, 1992 issue of the Montserrat Reporter the second-named defendant as Secretary of the Montserrat Yacht Club invited tenders from the general public in respect of running the Bar and Restaurant facilities of the Montserrat Yacht Club on behalf of the Club's members, which said facilities are situated on the upper floor of the Yacht Club premises in Wapping. The said facilities were then being managed by one Edward Edgecombe who relinquished his tenancy on or about the 31st day of March 1992. 4. The first-named defendant admits inviting the plaintiffs to submit a tender and states that they declined so to do as they were then negotiating to take over the management of the restaurant at the Montserrat Golf Club. 5. By letter dated March 6 1992 the plaintiffs applied for a tenancy of the Yacht Club pledging, inter alia, to co-operate with the Club's committee to improve the Club and increase the membership thereof. The plaintiffs were at that date familiar with the Club membership's rights which would be made conditional to any tenancy granted by the Club. 8. Following a Club Committee meeting on March 24 1992 the second-named defendant and other Club members were mandated to discuss a draft lease agreement with the plaintiffs and a meeting was subsequently held with the plaintiffs at the home of one Stuart Arnold. 9. The defendants state that the plaintiffs were advised that the said draft lease was a discussion document only and that a lease could not be executed until the resolution of an internal constitutional and proprietorship issues within the Club. 10...