Westerhall Point Residents Association Ltd Claimant v Alvin Dabreo Defendant [ECSC]

• Jurisdiction: Grenada
• Judge: MICHEL, J. (Ag.)
• Judgment Date: 29 July 2009
• Judgment citation (vLex): [2009] ECSC J0729-1
• Court: High Court (Grenada)
• Docket Number: CLAIM NO. GDAHCV2008/0622
• Date: 29 July 2009

[2009] ECSC J0729-1

IN THE SUPREME OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

CLAIM NO. GDAHCV2008/0622

Between:

Westerhall Point Residents Association Limited

Claimant

and

Alvin Dabreo

Defendant

Appearances:

Mr. Nigel Stewart for the Claimant/Respondent

Mrs. Winnifred Duncan-Phillip for the Defendant/Applicant

MICHEL, J. (Ag.)

1 The Claimant in this case is a Grenada registered company which, by Deed of Assignment dated 24^th April 2001, became the assignee of "the rights to enforce, modify, waive or to create new covenants, restrictions and stipulations affecting the development known as Westerhall Point including all covenants relating to fees, assessments and charges."

2 The Defendant, by an Indenture of Conveyance dated 25^th May 1992, became the owner of one of the lots forming part of the Westerhall Point Development.

3 The Claimant claims that the Defendant, as the owner of a lot in the Westerhall Point Development, became subject to the covenants, restrictions and stipulations existing at the time of the purchase of his lot, or any covenants, restrictions and stipulations created or modified by the Claimant at any time thereafter, and that one such condition or stipulation is that upon approval of the building plans of a lot owner by the Claimant and before the construction of any building, the lot ownermust pay to the Claimant a construction fee of $15,000. They also claim that by letter dated 6^th July 2007 they approved the Defendant's building plans whereby the sum of $15,000 became due and payable to them by the Defendant. They claim that on 10^th January 2008 the Defendant paid them the sum of $5,000 but, wrongfully and in breach of the said condition or stipulation, has failed and refused to pay to them the remaining $10,000 due and owing to them. Consequently, by Claim Form and Statement of Claim dated 23^rd December 2008 they instituted these proceedings against the Defendant claiming the sum of $10,000, together with interest, costs and further or other relief.

4 The Claim Form and Statement of Claim were served on the Defendant on 4^th March 2009 and an Acknowledgement of Service was filed on his behalf by Mr. Ashley Bernadine on 18^th March 2009.

5 No defence having been filed by or on behalf of the Defendant, on 24^th April 2009 the Claimant requested and obtained a Judgment in Default of Defence against the Defendant.

6 According to an Affidavit of Service filed on 3^rd June 2009, on 27^th May 2009 the Defendant was served with a copy of the Judgment in Default of Defence.

[6] On 3^rd June 2009 an application was made by the Claimant to have the Defendant examined under oath consequent on his failure to satisfy the Judgment.

7 On 10^th June 2009 the Defendant applied to the Court, through his new Attorney at Law, to set aside the Judgment in Default of Defence and for leave to file a Defence out of time. The grounds of the Defendant's application are that he relied on his previous Attorney-at-Law whom he thought had filed a Defence on his behalf and that he has a good defence to the claim. His application is supported by an affidavit filed on 10^th June 2009 which has exhibited to it a Draft Defence and Counterclaim.

8 In his Draft Defence and Counterclaim, the Defendant denies that the aforesaid Deed of Assignment is effective in law to assign the right to modify, waive orcreate new covenants and stipulations affecting the entire Westerhall Point Development and states that he is only subject to the covenants, restrictions and stipulations contained in a Deed of Conveyance made on 4^th September 2003 and that there is no condition or stipulation in relation to him regarding a construction fee of $15,000. The Defendant admits paying the sum of $5,000 to the Claimant, but states that he did so in error and counterclaims for the repayment to him by the Claimant of the aforesaid sum.

9 On 14^th July 2009 both applications to the Court in this matter, namely, the application by the Claimant to have the Defendant examined and the application by the Defendant to have the Default Judgment set aside, came up in Chambers. The Court deferred consideration of the...