BARBADOS
[Unreported]
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
CV. No. 1628 of 2016
BETWEEN:
ROSALYN ELIZABETH WILKINSON FIRST CLAIMANT
Suing in her capacity as one of the Executrixes
of the Last Will and Testament of ERNEST
CLARENCE WILKINSON dated the 13th day
of August, 1993 and one of the Personal
Representatives of the Estate of Ernest Clarence
Wilkinson, deceased late of St. Paul’s in the
parish of Saint George in the Island of Grenada
CECILY ALEXANDRA WILKINSON SECOND CLAIMANT
Suing in her capacity as one of the Executrixes
of the Last Will and Testament of ERNEST
CLARENCE WILKINSON dated the 13th day
of August, 1993 and one of the Personal
Representatives of the Estate of Ernest Clarence
Wilkinson, deceased late of St. Paul’s in the
parish of Saint George in the Island of Grenada
AND
PAMELA HILL-BASCOMBE DEFENDANT
Before the Honourable Madam Justice Margaret A. Reifer, Judge of the High Court
Dates of Hearing: 2017 April 26th,
July 11th,
August 23rdrd
Date of Decision: 2017 September 15th
Appearances:
Ms. Duana Peterson Attorney-at-Law for the Claimants
Ms. E. Jamila Rawlins Attorney-at-Law for the Defendant
RULING
Introduction
[1] This is an application commenced by Fixed Date Claim Form and filed December 12th 2016 in accordance with Rule 8.1(5) of the Supreme Court (Civil Procedure) Rules, 2008.
[2] In this Application the Claimants sought Orders for the delivery up of possession of a property situate at #97 Durants Green, Christ Church in this Island.
[3] The Claimants also seek an Order that the Defendant pay to them arrears of rent in the sum of $56,000.
[4] The Fixed Date Claim Form was supported by two affidavits, one by First Claimant Rosalyn Elizabeth Wilkinson suing in her capacity as one of the Executrices of the Last Will and Testament of Ernest Clarence Wilkinson, and one of the Personal Representatives of the Estate of the said Ernest Clarence Wilkinson, deceased and late of St. Paul’s in the parish of Saint George, in the Island of Grenada.
[5] The first Affidavit outlined the facts/circumstances of the claim and appended in accordance with Part 8.5(2) of the Civil Procedure Rules, the documents on which the Claimants sought to rely. There were thirteen [13] exhibits inclusive of the Will, the Resealed Grant, the deed of conveyance of the property to the testator, the Certificate of Registration of the said property under the Landlord and Tenant
(Registration of Tenancies) Act, the lease to the Defendant and Notice to Quit served on her.
[6] The second Affidavit in Support is deposed by Hutson Anderson Mottley in his capacity as the Appointed Agent and Accountant in Barbados, in respect of the rental of the property situate at #97 Durants
Green in Christ Church. This appointment took effect in September 2013. This Affidavit, among other things, contains a running account of the sums owed by the Defendant/Tenant in this action, which at the time of the filing of the said Affidavit (3rd February 2017) was the sum of $47,000.
[7] An Affidavit in Reply was filed by the Defendant on April 20th 2017. Among other statements, it outlines payments made after the filing and serving of the Fixed Date Claim Form and alleges that the amount owed at the time of the filing of the Affidavit is the sum of $37,000.
[8] Both parties filed Written Submissions in this matter, the Defendant May 22nd 2017 and the Claimants July 7th 2017.
Discussion
[9] Pursuant to the case management powers of this Court to be found at Part 27.2(3), it was determined that this matter was suited to summary disposition in keeping with the Overriding Objective of the Rules, Part 1.1 to deal with cases ‘justly and save expense’, as there were no disputes of fact on the Affidavits filed, merely an issue as to the legal consequences of the Defendant having made certain payments to the account of the Appointed Agent after the filing of the Fixed Date Claim Form.
[10] The various arguments/submissions can be found in the Written Submissions above mentioned, and will not be rehearsed here. Suffice it to say, that the central issue for determination surrounded the legal effect of the payments made by the Defendant into the Bank of Nova Scotia after service of the Notice to Quit and Fixed Date Claim Form.
Disposal
[11] This Court finds that the Defendant’s tenancy was terminated on the expiration of the Notice to Quit, and that the deposits of arrears of rent did not operate as a waiver by the Claimants and a consequential creation of a new tenancy agreement.
[12] In the circumstances this Court proposes to grant the Claimants the relief sought.
IT IS ORDERED as follows:
1. That the Claimants herein are granted possession of the property situate at #97 Durants Green, Christ Church in this Island;
2. In view of the fact that the subject property is a commercial enterprise housing a private retirement home, the Defendant is ordered to deliver up possession of the said property no later than 4 months from today’s date, that is on or by January 15th, 2018;
3. The Defendant shall pay the Claimants all arrears of rent owed and mense profits due and owing up to the date of delivery of the premises in an amount to be agreed by the parties, or failing that to be
assessed;
4. The costs of this application shall be those of the Claimants to be agreed or assessed.
MARGARET A. REIFER
Judge of the High Court
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