Marlon Brown d/b/a Marlon A. Brown & Company Claimant v Nigel James Defendant [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Actie, M. [AG.],Agnes Actie,Master [Ag.]
• Judgment Date: 22 April 2014
• Judgment citation (vLex): [2014] ECSC J0422-1
• Court: High Court (Antigua)
• Docket Number: CLAIM NO. ANUHCV 2009/0693
• Date: 22 April 2014

[2014] ECSC J0422-1

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Before:

Ms. Agnes Actie Master [Ag.]

CLAIM NO. ANUHCV 2009/0693

Marlon Brown d/b/a Marlon A. Brown & Co.

Claimant

and

Nigel James

Defendant

Actie, M. [AG.]

1 This is an application to strike out a statement of claim.

2 By claim form and statement of claim filed on 23^rd November 2009, the claimant, a building contractor, claims against the defendant for damages for breach of contract. The claimant states that by virtue of a contract partly in writing and partly oral agreed to build a dwelling house for the defendant. The claimant alleges that the defendant failed and /or refused to make payments due under the contract and prematurely terminated the contract.

3 The defendant applies to the court for an order pursuant to part 26.3(1)(c) to strike out the claimant's statement of claim stating that it is an abuse of process of thecourt or is likely to obstruct the just disposal of the proceedings. The application is grounded on the following:

• (a) The claim is founded on a premise that the claimant has executed and carried the completion of work for the benefit of the defendant based on plans that have been duly approved by the Development Control Authority (DCA).

• (b) The plans were never approved by DCA.

• (c) Neither certificates nor any of the requisite documents were ever submitted or issued by the DCA in respect of the construction of the defendant's home.

• (d) The basis upon which the claimant executed the works was unlawful or otherwise renders the contract unenforceable against the defendant.

• (e) The failure to abide by the statutory requirements under theLand Development & Control Act facilitates the commission of a legal wrong.

In the alternative the defendant seeks the court's permission to change his statement of case pursuant to CPR 2000 Part 20.

Background

4 The parties entered into an agreement for the construction of a dwelling house on 25^th January 2008, which contained inter-alia the following clause:

"(1) The Owner is desirous of erecting on their lands situate at … a (1) storey new and complete dwelling house consisting of three bedrooms, two (2) bathrooms, one (1) living room, one (1) dining room, one (1) kitchen, one (1) utility room and a garage and has caused several drawings, plans, elevations and specifications of the said works to be prepared,setting forth the work to be done which said plans have been duly approved by the Development Control Authority in Feb, 2008." (my emphasis)

5 The defendant in the application to strike out contends that the purported approval by the Development Control Authority was fraudulently obtained. The defendant states that the plans drawn and used to construct the dwelling house having not been approved in accordance with theLand Development & Control Act rendered the plans illegal and as a result the contract entered between the parties is void due to the illegality.

6 The defendant further contends that the illegal plan is an illegality that goes to the substance of theLand Development & Control Act and would be an abuse of public policy to permit the claimant to receive a benefit upon an unlawful act which he perpetuated, assisted, knew or reasonably should have known. The defendant relies on the principle of "ex taupi causa" and in support relies on the following authorities:

• (1)Tawney Assets Limited v East Pine Management Limited

• (2)Moore Stephens v Stone Rolls Ltd.

• (3)Beresford v Royal Insurance Company Ltd1

• (4)Law Commission Consultation Paper No. 189 — the illegality Defence

7 The claimant opposes the application to strike out the claim. The claimant contends that the defendant's house was constructed in accordance with plans as approved by the Development Control Authority.

Court's general powers to strike out Statement of Case

8 The court has jurisdiction to strike out a Statement of Case under CPR 2000 Rule 26.3(1) which states as follows:-

"In addition to any power under these rules, the Court may strike out a statement of case or part of a statement of case if it appears to the Court that:-

• (a) There has been a failure to comply with a rule, practice direction, order or direction given by the court in the proceedings.

• (b) The statement of case or part to be struck out does not disclose any reasonable ground for bringing or defending a claim.

• (c) The statement of case or the part to be struck out is an abuse of the process of the court or likely to obstruct the just disposal of the proceedings."

9 The defendant's application to strike out the claim in essence is premised on the ground that the contract entered between the parties is illegal and is accordingly void and unenforceable against the defendant. The defendant alleges that the failure to abide with the statutory requirements of theLand Development & Control Act facilitates the commission of a legal wrong and relies on the "ex turpi causa" principle.

10 It is a well-established principle that the court will not lend assistance to a party who is seeking to enforce a right on an illegality or fraud. InMoore Stephens (A Firm) v Stone & Rolls Ltd., Rimer LJ on the "ex turpi causa" principle states:

"…whether a claim brought is founded in...