Kennie Tannis v Patrick Bunyan
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Moise, M. |
| Judgment Date | 29 June 2018 |
| Neutral Citation | VC 2018 HC 41 |
| Court | High Court (Saint Vincent and the Grenadines) |
| Docket Number | CLAIM NO.: SVGHCV2005/0352 |
| Date | 29 June 2018 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL)
Moise, M.
CLAIM NO.: SVGHCV2005/0352
Ms. Suzanne Commissiong of Counsel for the Claimant
Mr. Emery Robertson of Counsel for the Defendant
Damages - Trespass to land — Deprivation of use of property — Quantum.
This is an application for an assessment of damages pursuant to judgment dated 10 th June, 2015. On 21 st July, 2005, the claimant filed an action against the defendant for a declaration that he was the owner of a parcel of land situated in Bequia. He also claimed damages for trespass and destruction of property against the defendant. On 21 st July, 2005, the claimant also filed an application for an interim injunction restraining the defendant from entering on the land. It appears that this application was not contested, as the defendant acquiesced and in his affidavit dated 28 th July, 2005, undertook not to enter or deal with the property until the determination of the matter. The defendant however, indicated that he had obtained planning approval for the construction of a commercial building on the land and that a delay in the trial would place this project on hold. He also noted that his preparations for the commencement of the project were already at an advanced stage. The defendant filed a defense and counterclaim on 5 th April, 2006, claiming to be the true owner of the property in question. On 10 th June, 2015 Henry J delivered her judgment after the matter went through the trial process. The claimant's claim was dismissed with costs to the defendant. The defendant was also successful in his counterclaim, that he was in fact the rightful owner of the property. The defendant was awarded damages to be assessed.
The defendant filed his application for an assessment of damages on 11 th August, 2016 and both parties have filed affidavit evidence as well as written submissions. However, the submissions filed on behalf of both parties have addressed the issue of damages for trespass to land. It is important to outline the express wording of the trial judge in order to appreciate the order for damages to be assessed. At paragraph 11 of her judgment Henry J stated:
“During the course of these proceedings, Mr. Tannis applied to the court for an interim injunction to restrain Mr. Bunyan from trespassing on the subject land. Mr. Bunyan gave an undertaking to the court not to do anything on the land unless the court gives him permission to do so. Usually the applicant for an interlocutory injunction provides an undertaking in damages to indemnify the respondent for any losses he may incur if the applicant is unsuccessful in the substantive claim. Mr. Tannis would in the normal course of events have had to provide such an undertaking if the interim injunction was granted. He was not required to give such an undertaking because the application was not heard. However, his lawsuit had the effect of interfering with Mr. Bunyan's enjoyment and use of his property. Therefore, the absence of such an undertaking does not absolve him from liability for Mr. Bunyan's losses which reasonably and foreseeably arose from the Tannis' interference with this enjoyment and use of the subject land.”
Essentially, the trial judge found that although an interim injunction was not formally granted, the defendant's undertaking entitled him to damages for the financial loss he suffered as a result of the claim against him. Her Ladyship went on to state at paragraph 12 of her judgment that “ Mr. Bunyan would have suffered consequential financial losses arising from the delayed start of his project. As the owner of the land, he is entitled so far as achievable monetarily, to be restored to the position he would have been in if this suit had not been initiated. He is entitled to recover an amount representing general damages for the losses reasonably incurred by the delay occasioned by this claim and which hindered the commencement of his project.”
The award of damages is therefore not that of damages for trespass, but rather the consequential loss suffered as a result the claimant commencing this claim against the defendant as well as his own acquiescence upon being served with an application by the claimant for an interim injunction.
The defendant claims, firstly, damages for the difference in the cost of construction of his commercial building. In his affidavit dated 18 th August, 2016 he states that in 2005 he obtained planning permission for the construction of a commercial building on the property. According to documentary evidence filed by the defendant, the cost estimate which he obtained for the construction of the building in 2005 was the sum of $330,057.95. He has attached to his affidavit of 18 th August, 2016 a letter from Fraser Construction Company Limited, along with a detailed breakdown of the costs of construction amounting to $676,578.39. In essence, he argues that it now costs him $354,520.44 more to construct this building than it would have in 2005 and requested this sum in damages. At the hearing of the assessment, counsel for the defendant accepted that had this building been constructed in 2005, the defendant would have naturally incurred expenses for maintenance based on the natural wear and tear of the building. These he has not had to incur given his undertaking not to pursue this project until the outcome of the trial.
The claimant, on the other hand,...
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