Derick Steele v Prickly Bay Waterside Ltd
| Jurisdiction | Grenada |
| Judge | Actie, J. |
| Judgment Date | 01 November 2021 |
| Judgment citation (vLex) | [2021] ECSC J1101-1 |
| Docket Number | CLAIM NO. GDAHCV2016/0144 |
| Court | High Court (Grenada) |
IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
(CIVIL)
The Hon. Mde. Justice Agnes Actie High Court Judge
CLAIM NO. GDAHCV2016/0144
Mr. Gregory Delzin with him Mrs. Michelle Emmanuel-Steele for the Claimant
Ms. Claudette Joseph with her Mr. Ian Sandy for the Defendant
The central issues in this claim are whether the claimant is entitled to interest as damages and whether the claim is statute barred.
On 9 th May 2016, the claimant, Derick Steele (Mr. Steele) filed a claim against the defendant, Prickly Bay Waterside Limited (Prickly Bay), a limited liability company, for payment of the sum of US $728,039.40 in interest as damages pursuant to an agreement and consent order made on 18 th May 2007, interest at a rate of 6% per annum, among other reliefs. In response to the claim, Prickly Bay asserts that Mr. Steele is not entitled to interest or interest as damages and in any event the claim is statute barred. In light of the foregoing, the main issue for determination is whether Mr. Steele is entitled to payment of interest in the sum of US $728,039.40, together with interest at a rate of 6% per annum from the date of filing of the claim to present.
Mr. Steele and Prickly Bay were parties to a previous claim in GDAHCV2006/0162. On 18 th May 2007, the parties entered into a compromise agreement which was reduced into writing and formalized by way of a consent order. The consent order annexed certain agreements, including a sale agreement which is the subject of this claim. Under this agreement, Prickly Bay agreed to purchase Mr. Steele's property situate at L'Anse aux Epines, Saint George, Grenada and the sale was to be completed on 18 th May 2009. In accordance with clause 4 of the sale agreement, Prickly Bay agreed to pay interest in the sum of US $225,000.00 which was calculated on the balance of the purchase price in the sum of US $2,250,000.00.
Further, clause 6 of the consent order provided that concurrent with the execution of the sale agreement, Prickly Bay was to provide an irrevocable bank guarantee for payment of the balance of the purchase price. The guarantee was negotiated with British American Insurance Company Limited (BAICO) and the parties entered the consent order.
On 16 th December 2011, Mr. Steele instituted enforcement proceedings against Prickly Bay for the appointment of a receiver and orders for sequestration of assets of its directors. Prickly Bay countered the application claiming that it had complied with the terms of the consent order by the payment of the balance of the purchase money to BAICO. On 26 th August 2015, Henry J granted Mr. Steele's application and ordered (1) an injunction to restrain Prickly Bay from dealing with the property until the appointment of a receiver by the court; (2) the appointment of David Holukoff as a receiver of the income and capital assets of the defendant to obtain payment of the balance of the purchase price, among other reliefs.
Prickly Bay appealed the judgment of Henry J. However, the parties through their legal practitioners engaged in a series of email correspondence between 30 th September 2015 and 9 th October 2015 proposing settlement. On 4 th November 2015, the parties entered into a second consent order before a single judge of the Court of Appeal, Thom JA. The second consent order included a clause which provided that Prickly Bay shall forthwith pay to Mr. Steel the sum of US $2,475,000.00 being the balance of the purchase price which was paid to Mr Steele on 6 th November 2015.
By letter dated 4 th January 2016, Mr. Steele through his legal practitioner demanded payment of the sum of US $728,039.40 being interest as damages from Prickly Bay. By letter dated 18 th January 2016, the legal practitioners for Prickly Bay rejected the claim that it was liable to pay interest as damages. Being dissatisfied with the above response from Prickly Bay, on 9 th May 2016, the Claimant, Derick Steele (Mr. Steele) filed the extant claim against the Defendant, Prickly Bay Waterside Limited (Prickly Bay), for payment of the sum of US $728,039.40 in interest as damages pursuant to the agreement and consent order made on 18 th May 2007 together with interest at a rate of 6% per annum, among other reliefs.
Mr. Steele avers that he received payment of the sum of $2,475,000.00 pursuant to the second consent order six years after the due date for payment of the sum under the first consent order. Therefore, Mr. Steele contends that in light of Prickly Bay's breach of the first consent order, he has been deprived of the benefit and use of that money, the benefit of interest which may have accrued and the difference in value of the count between 18 th May 2009 and 6 th November 2015. Accordingly, Mr. Steele contends that he is entitled to damages to compensate him for this loss.
In response to the claim, Prickly Bay in its defence filed on 30 th June 2016 asserts that Mr. Steele is not entitled to interest or interest as damages and in any event the claim is statute barred., Prickly Bay denies asserts that there is no contractual, legal or procedural entitlement to interest and states that:
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(1) The parties settled and concluded the action by entering into a consent order in the Court of Appeal dated 4 th November 2015 which provided that upon complying with the order “the injunction and receivership orders granted pursuant to paragraph 6 (1) (i) and (ii) of the said order of Henry J dated 26 th August 2015 shall stand discharged and the Appellant (Prickly Bay) will have satisfied its obligations in relation to the first respondent (Mr. Steele) pursuant to the said order of Henry J dated 26 th August 2015”.
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(2) Therefore, having complied with the consent order before the Court of Appeal, Prickly Bay contends that having met all of its obligations thereunder they were led to believe that the issues between them were finally resolved and there would be no further or fresh action in relation to the consent order of 18 th May 2007 and the order of Henry J dated 16 th August 2015. In the premises, Mr. Steele is now estopped from re-litigating the matter to assert any entitlement for interest as damages as claimed or at all.
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(3) Notwithstanding the above, Prickly Bay further asserts that:
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(a) Mr. Steele is not entitled to interest or interest as damages under the consent order dated 18 th May 2007, because interest under that agreement was expressed to be in a specific sum which Prickly Bay has already paid;
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(b) Mr. Steele is not entitled to interest in law and it relies on section 27 of the West Indies Associated States Supreme Court (Grenada) 1 for its full meaning and effect;
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(c) The issue of interest was not canvassed before Henry J dated 26 th August 2015 neither did Mr. Steele's application include a prayer for interest and accordingly the learned Judge's order did not include any order for payment of interest.
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Mr. Steele in his witness statement avers that he commenced the action in Claim No. GDAHCV2006/0162 to stop Prickly Bay from construction of a block of buildings at the Prickly Bay Marina which were immediately in front of his home in L'Anse aux Epines in the parish of Saint George. Mr. Steele applied for an injunction to restrain Prickly Bay from building in excess of the agreed heights. However, his claim for an injunction was refused by the High Court. Thereafter, Mr. Steele avers that he appealed, but that appeal was unsuccessful. Mr. Steele, then appealed to the Privy Council and was successful on that appeal. Subsequently after, he was offered a settlement by Prickly Bay and after some negotiations, the parties reached a settlement which was entered into a consent order.
Under the consent order, it was agreed that Prickly Bay would purchase his property situate at L'anse aux Epines for the purchase price of US $2,500,000.00. Mr. Steele avers that he was paid a deposit in the sum of US $250,000.00. The balance of the purchase price in the sum of US $2,250,000.00 together with interest calculated on the balance at the rate of 5% per annum was to be paid to him by completion date of 18 th May 2009. The amount of interest due on the completion date would be US $250,000.00. However, Prickly Bay breached the consent order, since it failed to pay the balance of the purchase price by the agreed completion date.
On 16 th December 2011, Mr. Steele states that he initiated enforcement proceedings against Prickly Bay to enforce the terms agreed upon. In the application, Mr. Steele avers that he claimed for interest at a rate of 6 % per annum from 18 th May 2009. The application was heard on 11 th and 12 th April 2012 before Henry J. However, before Henry J delivered her decision, Prickly Bay filed an application to join British American Insurance Company Limited as a party to the first claim. On 26 th August 2015, Henry J delivered her judgment and ordered an injunction against Prickly Bay, the appointment of a receiver, the payment of the balance of the purchase price by Prickly Bay, among other things. Mr. Steele avers that the legal practitioners for Prickly Bay sent email correspondence to his legal practitioners making an offer to pay the amount ordered by Henry J. The parties engaged in further correspondence between 7 th and 9 th October 2015.
Thereafter, Mr. Steele says that a consent order was entered on 4 th November 2015, before the Court of Appeal in Grenada Civil Appeal No. 2015/0026 wherein Prickly Bay agreed to pay the balance of the purchase price and there was a mutual understanding that he would have the right to pursue a claim for interest separately. Mr. Steele avers that having regard to...
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