Andre Beaufrand Appellant v Simon Hughes De Pointes Respondent [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | MOE, J.A.,Chief Justice |
| Judgment Date | 12 December 1988 |
| Judgment citation (vLex) | [1988] ECSC J1212-1 |
| Court | Court of Appeal (Saint Vincent) |
| Docket Number | CIVIL APPEAL NO. 2 of 1987 |
| Date | 12 December 1988 |
IN THE COURT OF APPEAL
The Honourable Sir Lascelles Robotham—Chief Justice
The Honourable Mr. Justice Bishop
The Honourable Mr. Justice Moe
CIVIL APPEAL NO. 2 of 1987
H. DeB. Forde, Q.C., A. Shephard, A. Cummings and A. Saunders instructed by Messrs. Hughes and Cummings for the Appellant.
O. Sylvester, Q.C., and M. Williams, instructed by Sylvester and Williams for the Respondent.
This appeal is against an award of $143,433.89 Special Damages and $10,000 General Damages to the respondent on his Counterclaim for loss and damage which he claimed he suffered as a consequence of several breaches of a tenancy agreement between himself and the appellant relating to premises called the Hotel Anchorage Yacht Club.
The appellant sued the respondent for inter alia arrears of rent and/or use and occupation and/or mesne profits for the premises for the months of December 1981 to April 1982 inclusive. The respondent in his Defence and Counterclaim pleaded so far as is relevant to this appeal as follows:—
1. The defendant denies that he is indebted to the plaintiff in the sum of $105,000.00 or any other sum. The defendant says further that by virtue of a tenancy agreement made partly orally and partly in writing on May 1, 1981, the plaintiff agreed to let and he agreed to accept an annual tenancy of the Anchorage Yacht Club at an annual rental of 360,000 French Francs, or E.C. $167,400.00, and further agreed to pay the same in 12 equal monthly instalments of 30,000 French Francs or E.C. $13,950.00.
3. At the time of the agreement, the plaintiff represented to the defendant that it was necessary to operate all of the facilitiesof the Anchorage Yacht Club in order to generate enough revenue to meet the monthly rent as the hotel itself was too small to be operated as a profitable unit, so that it was necessary to earn income from the agency fees for Air Martinique; rent for the office on the Anchorage compound accommodating Air Marginique; charter fees from the daily charter of the Charagate; profits from the operation of the dry dock; income from the operation of the hotel, the hotel bar and the dining-room; and from the paying passengers who frequented the transit lounge of Air Martinique. In reliance on the plaintiff's representations that the annual tenancy would include the Anchorage and its allied facilities, the defendant agreed to accept the annual tenancy at the stated rent on the express understanding with the plaintiff that the aggregate income therefrom would accrue to the defendant.
4. It was an express term of the said agreement that at the defendant's initial cost he would renovate and repair the resort, its furniture, fittings and other allied facilities in return for a security of tenure to recover his initial outlay on the said resort; and alternatively, if for any reason the tenancy determined before the defendant had recovered the same that the plaintiff would reimburse him for the following expenses:
(1) $75,525.63 which represents an overdraft incurred by the previous tenant of the Anchorage Yacht Club, Laurent Moriniere. This debt had become the personal liability of the plaintiff and he would have been personally liable to discharge it in order to restore bank credit facilities to the resort. Those facilities had been terminated and were not restored until the defendant had discharged the said overdraft;
(2) $27,592.84. This sum, like that referred to above, was an aggregate of debts incurred by the said Laurent Moriniere during his operation of the resort. They consisted of the following:—
a. rent owed for an house that was occupied by Laurent Moriniere—cheque 769
$1,800.00
b. telephone fees for March 1981—cheque 048763
4,465.50
c. telephone fees for April 1981—cheque 044203
3,835.44
d. St. Vincent Electricity Services Limited
9,653.62
e. H.M.S. Customs—cheque 764
1,440.50
f. National Provident Fund—cheque 767
513.78
g. Income tax—cheque 768
254.78
h. Broadway Supermarket—cheque 771
1,824,50
i. Commissions on US$ cheques
445.50
J. Employees holiday pay
3,359.52
27,592/84
The above-mentioned sums represented actual cash which the defendant had to spend on the facilities at the Anchorage before he could commence business in order to put the resort into a state of repair suitable for business. It was done in the presence and with the knowledge of the plaintiff, who, at all material times lived at the resort and never once objected to anything that was being done. In fact, he openly praised the defendant for the good work he was doing to restore it to its former lustre, for he was aware of the appalling state of disrepair of the facilities at the resort. That disrepair related to the following:—
(a) a malfunctioning ice-machine
(b) an uncleaned, malfunctioning water-tank
(c) a defective generator
(d) a collapsing dry dock
(e) a defective desalination plant
(f) inadequate kitchen facilities.
After the defendant had expended his money, approximately $103,118.47 on the resort, his annual tenancy was abruptly terminated by the plaintiff without warning; and in consequence, the defendant lost the opportunity to recover his investment as had been agreed.
8. That the plaintiff took over an area of the demised premises and constructed an office thereon and took chairs and other office equipment from the demised premises together with electricity and water therefrom and used same as an office for Air Martinique. The defendant says that five hundred dollars ($500.00) per month is a reasonable rent for the aforesaid facility.
9. In further breach of the agreement the plaintiff assumed control of the Air Martinique travel agency and collected commission fees therefrom for 5 months, taking $700.00 monthly, thereby making a total of $3,500.00.
13. The defendant repeats paragraphs 2,3,4,5,6,7,8,9, 10 and 11 of the Amended Statement of Defence and says further that by virtue of the plaintiff's several acts of interference by himself, his servants and/or agents, the plaintiff so disturbed the defendant's right of quiet possession that he caused him to lose considerable revenue; in consequence whereof the defendant has suffered loss and damage.
1.
Under paragraph 4 hereof, loss of investment
$117,068.47
2.
Under paragraph 7 hereof, loss of 4 months charter service at the rate of $2,836.50 per month for use of the yacht Charagate
11,346.00
3.
Under paragraph 8 hereof, loss of Air Martinique office for 5 months at the rate of $500.00 per month
2,500.00
4.
Under paragraph 9 hereof, loss of commission fees for travel agency, 5 months at the rate of $700.00 per month
3,500.00
5.
Under paragraph 10 hereof, loss of landing fees for the use of the Union Island airfield
35,722.00
6.
Under paragraph 11 hereof, loss of profits from boutique
21,262.50
7.
Under paragraph 11 hereof, loss of dry dock facilities
6,227.55
$197,625.52
And in the General prayer he claimed Damages for breach of contract and/or warranty of quiet possession.
The appellant in a reply denied that the agreement was for an annual tenancy or a lease as contended for by the respondent. He averred that he made it clear to the respondent that before he could consider the grant of such a lease he would require from the respondent, who was an alien to the State, his work permit and residency permission, police record, bank statements and/or references. The respondent promised to produce them and upon that promise the appellant permitted the respondent to operate the club subject to the production of the documents and do pay the appellant $13,950 monthly. The appellant further pleaded that the respondent having failed to produce the documents the monthly tenancy was terminated and he gave the respondent notice to quit dated 8th December, 1981 expiring on 31st January, 1982.
It was clear therefore that issues which arose for the learned Judge's determination was whether the tenancy held by the respondent was monthly as claimed by the appellant or annual as asserted by the respondent for $167,400 payable monthly and also whether there was an express term in the agreement between the parties that the respondent would repair and renovate the premises and if he did not have his annual tenancy he would be entitled to recoup the sums of money he had paid out.
The learned Judge found that the terms of the agreement between the parties to be a yearly tenancy renewable at the end of each year to extend to five years with the annual rentable being $167,400 payable at the rate of $13,950 E.C. or 30,000 francs per month. That the respondent would be given the option to purchase the premises and whenever that option was taken the agreed purchase price of $800,000 U.S. would be paid off by the end of five years. He found it was expressly agreed that the respondent would renovate and repair the premises and put them in good working condition at his own expense on the understanding that he would enjoy them from year to year at least for five years if he did not exercise the option to purchase or as his own, if the option were exercised.
The learned Judge further found that the respondent paid $30,595.84 to clear debts which Mr. Moriniere incurred while he held a tenancy of the premises. He went on to find that the debts, being debts incurred by the Anchorage Yacht Club of which the appellant is owner, became the appellant's own personally, moreso, having regard to the very wide powers given to Moriniere to manage the appellant's affairs by a Power of Attorney under which the appellant agreed to ratify and confirm whatsoever Moriniere "shall do or purport to do by...
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