Peter Gernert Ursula Gernert Claimants v Egmont Development Inc. Commo Inc. Defendants [ECSC]

• Jurisdiction: Grenada
• Judge: HENRY, J.
• Judgment Date: 30 September 2011
• Judgment citation (vLex): [2011] ECSC J0930-2
• Date: 30 September 2011
• Court: High Court (Grenada)
• Docket Number: CLAIM NO. GDAHCV2010/0218

[2011] ECSC J0930-2

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO. GDAHCV2010/0218

Between:

Peter Gernert Ursula Gernert

Claimants

and

Egmont Development Inc

Commo Inc.

Defendants

Appearances:

Cajeton Hood for the Claimants/Respondents

Michelle Emmanuel-Steele for the Second Defendant/Applicant

DECISION

HENRY, J.

1 The second defendant, Commo Inc, (Commo) applies to the Court for an order pursuant to CPR Part 26.3 and Part 26.8 that the claim against it be struck out on the ground that the claim fails to disclose any reasonable ground for bringing a claim. In the event that such order is not granted, Commo also requests that it be granted an extension of time to file a Defence and for relief from sanctions.

2 According to the allegations in the Amended Statement of Claim, the claimants are joint owners of a residential property situate at Egmont Point, St. Georges. The first defendant is a company duly registered under the laws of Grenada. At all material times it was and still is engaged in the business of land acquisition and development in Grenada. Commo is also a company duly incorporated under the Laws of Grenada. It is the owner of certain lots of land being part ororiginally part of the lands now known as Egmont Point formerly owned by the first defendant. The first and second defendants share common directorship.

3 The claimants allege that in January 2002, they expressed an interest in purchasing a parcel of land at Egmont Point Development (the development) from the first defendant. Specifically they were interested in Lot #160 as defined on the plan which showed the lots of the development. According to the claimants, they were attracted to the Development by a series of representations made by a Director of the first defendant, one Mr. Anthony McLeish. The representations involved a pictorial and oral depiction of Egmont Point as an exclusive development that would be subject to a series of protective covenants designed to ensure the quality of the development in the long term.

4 The claimants further allege that on a visit in or about January 2002, to the location of Lot #160 with Mr. McLeish, it was further represented to them that the land immediately south of Lot #160, whilst forming part of the Development, would not be subject to any form of construction and would remain in its natural state. It was also represented that these lands would not be sold and as a result the claimants would enjoy an unobstructed and unbroken view of the pristine coastline directly in front of their lot.

5 The claimants allege that in reliance on the above representations, specifically, that the first defendant would not assert their right to develop the lands to the south of Lot #160, the claimant agreed to purchase Lot 160.

6 No written agreement for sale has been pleaded. The Deed of Conveyance dated 4^th September 2002 was duly executed by the claimants and first defendant. In fact, the deed sets out in paragraph 3 that the vendor (the first defendant) has laid out a portion of the property it owns in lots as a building estate to be called or known as Egmont Point as shown on the general plan of the said portion of the property. Lot 160, as described in the third schedule of the deed, is noted as being one of the lots in Egmont Point.

7 Paragraph 5 recites that it is intended that all purchasers of lots forming part of Egmont Point should enter into similar covenants to observe and perform the restrictions and stipulations set out in the Fourth Schedule, so as to create a building scheme and so as to entitle the Purchasers ofany of the lots to enforce the covenants entered into by the purchasers of all other lots in whatever order of time the respective purchases were made.

8 Paragraph 6 recites that the vendor has agreed with the Purchasers for the sale to them of Lot 160 for an estate in fee simple upon the terms set out. The vendor's covenants are thereafter set out, followed by the Purchasers covenants.

9 The fourth schedule sets out the applicable restrictions and stipulations; the fifth schedule sets out the rights conveyed and the sixth schedule sets out the rights acccepted or reserved.

10 The claimants allege that subsequently, in further reliance on the said representations, with the intention of taking full advantage of the unobstructed view of the pristine coastline, they purchased a second lot of land, Lot #161, located adjacent to Lot #160. The Deed of Conveyance to that lot is in identical terms as the deed to Lot 160.

11 According to the claimants, covenants 1 and 3 of the conveyances stipulated that only one private dwelling shall be erected on a lot and that such dwelling shall be of one storey unless otherwise approved in writing by the vendor. Further, covenant 6 reserved in the first defendant a general power to modify, waive or release any of the covenants relating to adjoining or neighbouring land. The claimants aver that the conveyance therefore contained an implied term that this general power would be exercised fairly and reasonably.

12 The claimants have since built their residence on the lots, wherein they reside. They allege that the design and construction of their residence was done in a manner to take full advantage of the representation made to them.

13 The claimants furthermore allege that in July 2009, the first defendant conveyed two parcels of land to Commo; that these two parcels of land are stated in the conveyances to be situated at Egmont Point and are in fact part of the very lands south of the claimants' lot expressly represented by Mr. McLeish to them as being part of the Egmont Point and not intended for development.

14 The claimants aver that by virtue of the representations pleaded above, the first defendant is estopped from asserting their right to sell or in any way develop the property. They also aver thatby virtue of the provisions and restrictions in their conveyance and the matters pleaded above, equitable rights were created in the claimants' favour which right cannot and must not be unilaterally infringed and cut down by the first defendant, Commo or any purchaser of lots within Egmont Point. Among the rights ensuring to their benefit, the claimants allege, are the following:

• (a) The right not to have their view obstructed and/or restricted by uncontrolled development on neighbouring lots;

• (b) The right that all purchasers of lots within Egmont Point shall be treated equally and fairly by the first defendant and shall be equally bound by the same or similar covenants;

15 According to the claimants, Commo has constructed or is in the process of constructing a two storey structure, in the process obliterating or significantly obstructing the claimants' view of the foreshore and coast line immediately south of their property.

16 The claimants assert that Commo, by virtue of the common directorship it shared with the first defendant, knew or ought to have known of the existence of the restrictive covenants operating in favour of the claimants' land; that in constructing a two storey building, Commo is in breach of the said restrictive covenants. Alternatively, that by virtue of the common directorship, Commo knew or ought to have known of the existence of an equity in the claimant's favour in relation to the land directly south of the claimants' lots which is now owned and occupied by Commo.

17 The claimants therefore claim against Commo as follows:

• (a) A declaratory order that Commo was under a restriction not to develop the lot or lots of land immediately south of the claimants' property. Alternatively:

• (b) A declaratory order that Commo was under a restriction not to develop its lot or lots immediately south of the claimants' property without the same or similar restrictions as those which apply to the claimants' property.

• (c) A Declaratory Order that Commo by its actions in developing the lot or lots immediately south of the claimants' property in a manner that in the circumstances of the case is unreasonable and unfair to the claimants, has interfered with thecontractual rights of the claimants arising under their contract with the first defendant.

• (d) A declaratory order that the building now being erected by Commo on its lot or lots immediately south of the claimants' property within the Egmont Point Development Scheme is in breach of the planning permission granted to it or its Director, Derick Steele by the Planning Authority on April 8,2009.

• (e) Damages.

18 Commo now seeks an order striking out and dismissing the claim against it on the grounds that:

• 1. That Commo's property does not form part of the same development or building scheme as the property of the claimants. As such the claimants are not entitled to claim that Commo is restricted by the same restrictions and stipulations which affect the claimants' property.

• 2. The claimants conveyances from the first defendant in respect of their two lots are clear that the covenants contained therein affect a defined area which had been subdivided by the first defendant subject to the provisions of Clause 6 of the conveyance.

• 3. The Amended Claim Form and Statement of Claim do not set out a legally sufficient or sustainable claim with regard to the effect of certain alleged representations made by an officer of the first defendant in that the alleged representations were allegedly oral and not evidenced by any writing.

• 4. That the claimants are endeavouring to restrict an admitted contractual right granted by the claimants to the first defendant under a deed to which Commo is not a part. That this right is not a covenant enforceable against other lot holders. It therefore does not give any basis for an action by the claimants against the second defendant.

• 5. Commo has obtained planning permission in respect of its plans...