Ada Browne Claimant v Belgrove Gregory First Defendant Bgregs & Company Ltd Second Defendant [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Thomas J (Ag.)
• Judgment Date: 02 February 2010
• Judgment citation (vLex): [2010] ECSC J0202-1
• Date: 02 February 2010
• Court: High Court (Antigua)
• Docket Number: CLAIM NO: ANUHCV 2005/0097

[2010] ECSC J0202-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO: ANUHCV 2005/0097

Between:

Ada Browne

Claimant

and

Belgrove Gregory

First Defendant

Bgregs & Company Limited

Second Defendant

Appearances:

Mr, Ralph A. Francis for the Claimant

Ms. Mary B. White for the First and Second Defendants

Thomas J (Ag.)

1 On 25^th May, 2006, Ms. Ada Browne, the Claimant, filed a fixed date claim form1 in which certain claims are made against Belgrave Gregory and Bgregs & Company Limited the First and Second Defendants, respectively.

2 The Claimant in her amended statement of claim says that she is the registered proprietor of, and entitled to possession of commercial premises situated at Lower Market Street; St. John's; Antigua registered as Parcel 273; Block 66 1692E; Registration Section; Sf. John's South (the premises"). The Claimant further contends that the Defendants are tenants of the said premises at a monthly rent of $12,000.00, with the term of the tenancy commencing 1^st January, 2003, and determined by the Claimant on 21 ^st Aprit 2004. The reason given being the nonpayment of rent for six months.

3 It is the further averment of the Claimant, that the First Defendant on his own behalf and/or on behalf of the Second Defendant, acknowledged the non-payment of rent by letter and requested the Claimant's consideration of the payment of the arrears by monthly remittance of $24,000.00 with effect from May 2004, and acheque in the said amount was enclosed.

4 The Claimant says that by letter dated 4^th June, 2004, the Claimant's attorney-at-law, on her behalf acknowledged receipt of the sum; but at the same time, it was indicated that there was no waiver of the Notice to Quit of 21 ^st April, 2004.

5 At paragraph 6 of the statement of claim, the Claimant avers that the Defendants have failed to deliver possession of the premises to the Claimant and have remained in occupation as trespassers. Further, the Claimant details certain amounts of the arrears of rent paid by the First Defendant, namely $24,000.00 on 26^th October, 2004 and $12,000.00 on 5^th January, 2005. In this regard the Claimant avers that the First Defendant has not remitted any further sums and remains owing the sum of $36,000.00.

6 In the premises the Claimant pleads that she is entitled to mesne profit at the rate of $12,000.00 per month from 1^st June, 2004, to delivery of possession. And it is the Claimant's further contention that there is due and owning in respect of the premises, as of 8^th February, 2005, the sum of $64,136.37 for utilities consumed by the First Defendant on the premises which account is in the name of the Claimant and which continues to accrue.

7 Accordingly, the Claimant claims:

• (i) An order for possession of the premises.

• (ii) Arrears of rent in the sum of $36,000.00.

• (iii) Mesne profit at the rate of $12,000.00 per month from 1^st June, 2004, to the date of delivery of possession.

• (iv)The sum of $64,000.00 for utilities.

• (v) Interest pursuant to the Eastern Caribbean Supreme Court Act at the rate of 12% per annum on the sum of $36,000.00 for 1^st June, 2004, to judgment and at the rate of 8% per annum on all mesne profits accruing and due to the Claimant from 1^st June, 2006, to the date of delivery of possession.

• (vi) Costs.

Defence and counterclaim of First Defendant.

8 In his defence filed on 5^th July, 2005, the First Defendant avers that he is not a defendant on the matter. He imputes his knowledge and defence herein to his prior position as sale proprietor of Market Point Supermarket and his current personal status as 80% shareholder and Manager of the Second-Named Defendant which now trades as Market Point Supermarket.

9 The First Defendant further denies that he operates Market Point Supermarket as the Claimant contends.

10 At paragraphs 3to 7of his defence the First Defendant pleads the following:

• "1. On 17^th November, 2000, the Second Defendant company, Bgregs and Company Limited with its object being to purchase the assets and liabilities of Market Point Supermarket from then onwards.

• 2. On 23^rd November, 2000, by a memorandum, duly signed by Belgrave Gregory, all staff of the Supermarket was duly informed of the new company and its objects and required to sign the said memorandum.

• 3. At this time (23^rd November) the Claimant was amember of staff of the Market Point Supermarket, being Assistant Manager.

• 4. The Claimant signed the memorandum and also holds 20% of the shareholding of the new company.

• 5. The formation of the new company was planned by the Claimant and himself in light of the introduction of the 2% business tax.

• 6. A lease was executed by the Claimant and the Second Defendant on or about 18^th October, 2002; but business activity on the Claimants' premises "until about the 14^th March,2003".

• 7. Prior to the said date of 14^th March, 2003, business was conducted in the Hadeed property."

11 In so far as the Notice to Quit is concerned, the First Defendant avers that he "blindly" authorized a member of staff to accept it and that when he saw it later he did not pay much attention as he wasnot personally liable to the Claimant; and as such the document was served on the wrong party. It is further pleaded by the First Defendant that the 'erroneous acceptance" of the Notice to Quit does not make him a tenant of the Claimant.

12 With respect to the acknowledgement of arrears of rent as pleaded by the Claimant at paragraphs 4 of her statement of claim, the First Defendant refutes the assumption made as regard his personal association with the written acknowledgement. It is the First Defendant's contention that at the time of the acknowledgement he was acting for and on behalf of the company. And with respect to the Claimant, the First Defendant avers that at all material times she was functioning as the Assistant Manager up to early 2004 and then unilaterally stopped functioning as such.

13 Further denials pleaded by the First Defendant are in respect of: being in possession of the premises; being a trespasser on the premises; the payments of rent made were not made in his personal capacity, but as manager of the Second Defendant; liability for possession of the premises, rent, mesne profit; utilities or otherwise, separately or jointly.

First Defendant's counterclaim.

14 It is the pleading of the First Defendant that at all material time:

• 1. the Claimant was fully aware that since 1^st December, 2000, the First Defendant has not been and continues not to operate in his personal capacity as, Belgrave Gregory, as Market Point Supermarket;

• 2. the Claimant was aware that the Second Defendant trades as Market Point Supermarket of which Belgrave Gregory is Manager;

• 3. the First Defendant signed Belgrove Gregory in his capacity as Manager of the Second Defendant which since 1^st December, 2000, had been trading under the name and style of Market Point Supermarket.

The First Defendant's counterclaims:

• 1. A Declaration that the name of Belgrove Gregory in his personal capacity and labeled as the First-Named Defendant in this matter is not aparty thereto.

• 2. A Declaration that the First-Named Defendant in his personal capacity as Belgrove Gregory is not liable for any of the relief and or remedies claimed against him by the Claimant in the Fixed Date Claim and the related Amended Statement of Claim.

• 3. An Order that name of the First-Named Defendant being Belgrove Gregory in his personal capacity be struck-off and or removed as a party from this matter.

• 4. An Order that the First-Named Defendant shall not be liable for any relief and or remedies claimed or at all against him by the Claimant.

• 5. Such further or other relief as to the Court may deem just.

• 6. Costs.

The First Defendant's counterclaims:

Reply and defence to counterclaim of First Defendant.

15 In reply the Claimant joins issue with the defence of the First Defendant.

16 In her defence to counterclaim of the First Defendant, the Claimant contends that Belgrove Gregory is a proper party to the action and further that Bgregs and Company was the vehicle conceived and designed by the First Defendant to take advantage of the tax opportunities available under recently passed legislation.

17 It is the averment of the Claimant that she is aware that her premises were rented by the First Defendant and not by the Second Defendant and therefore denies that the First Defendant is entitled to the orders sought in his counterclaim.

Defence of Second Defendant.

18 In its defence the Second Defendant denies that the First Defendant operates a supermarket. Rather, it is contended that it has been trading as a supermarket under the style of "Market Point Supermarket' since 1^st December, 2000.

19 The Second Defendant avers that on 23^rd November, 2000, by way of memorandum, all staff members were informed that effective 1^st December, 2000, a new company, Bgregs and Company Limited would purchase the assets and liabilities of Market Point Supermarket. The further averment is that the staff complement was informed in the said memorandum, would trade under the name of "Market Point Supermarket'.

20 The Second Defendant contends that prior to the memorandum, the Claimant and the First Defendant jOintly conceived and planned the formation of the Second Defendant in order to take over the operations named Market Point Supermarket and to also take advantage of the enactment of the new 2% business tax legislation. In this connection resolutions were passed by the SecondDefendant for the appointment of bankers and these resolutions were signed by the Claimant as 'Secretary' and Belgrove Gregory as Chairman.

21 At paragraph 8 of its defence the Second Defendant details the lease entered into by the Claimant and the Second Defendant on or about 18^th October, 2002, but contends that the activities of the Second Defendant...