Paragon Holdings Ltd and Erato v Turtle's Nest (Condominium) Company Ltd et Al

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Mathurin, J.
• Judgment Date: 22 February 2018
• Neutral Citation: AI 2018 HC 2
• Docket Number: Claim Number: AXAHCV2013/0012
• Date: 22 February 2018

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

Mathurin, J.

Claim Number: AXAHCV2013/0012

Between

(1) Paragon Holdings Limited

(2) John Erato

Claimants

and

(1) Turtle's Nest (Condominium) Co. Ltd

(2) Brad Huffman

(3) Wesley Fuhrman

Defendants

Appearances:

Ms. Tara Carter for the Claimants

Mr. Thomas Astaphan QC, with him Ms. Paulette Harrigan for the Defendants

Condominium Law - Common property — Unit owner — Injunctions — Damages — Whether claimants ought to be granted injunctions sought — Whether claimants entitled to damages — Condominium Act — CPR P. 40.

ORDER

1 This matter was referred to a Referee in accordance with Part 40 of the CPR 2000; the Court having considered that the matter herein required a prolonged examination of documents generated from the several but related issues for which relief is being sought. By consent, both parties agreed to the appointment of Mr. Michael Fay QC, as a suitable Referee in this matter. His remit was to deal with issues between the parties herein arising out of the Anguilla Condominium Act (the Act), the Condominium Declaration and By-Laws, the Rental Pool and Maintenance Agreements.

2 Mr. Fay QC produced a report on 18 ^th July 2017 subsequent to a seven day hearing facilitating the hearing of at least 14 witnesses after which he considered extensive written submissions. The report was supplied to each party and it is now set down for consideration pursuant to Part 40.6. The Court notes that there was some delay in the consideration of the report, this was occasioned mostly by the repercussions of Hurricane Irma in September 2017, immediately after the Court's long vacation. The matter has however been replaced on track and the parties were given 14 days notice of the Court's intention to consider the said report. Mr. Fay QC's report was very thorough and unravelled the course of events and the difficulties and irregularities in the application of the law that led the parties to this voluminous litigation.

3 On 24th September 2004 Paragon Holdings Limited (“Paragon”), of which Mr Erato was the majority shareholder and director, lodged with the Registrar of Lands a declaration submitting parcel 59 pursuant to the Condominium Act 2000. As such, Turtle's Nest (Condominium) Co Ltd, (“Strata Corp”) came into existence after registration of the Declaration by the Registrar in September 2004. The Strata Corp was to derive its duties and powers from sections 15 and 16 of the Act. As the Referee lamented, the failure by Parties to understand how the Strata Corp should have operated the property is at the root of the disagreement and litigation herein.

4 The Referee made several findings, the following of which the Court proposes to adopt;

• • Prior to 2011 the Strata Corp only had two directors, Mr. Erato and Mr. Soons. The Strata Corp held no meetings prior to 2 ^nd May 2011 and prepared no budgets.

• • That the responsibility for management of Turtle's Nest Beach Resort is vested in the directors of the Strata Lot Corporation namely Turtle's Nest (Condominium) Co Ltd (hereafter “Strata Corp”). The current directors of the Strata Corp are the second and third defendants, Mr. Huffman and Mr. Fuhrman. It follows that absent any agreement or permission from the Strata Corp, Paragon does not have any right or obligation to maintain or occupy the common property for the purpose of maintenance or operation of a rental pool. It does so presently because of the status quo injunction issued by this Court.

• • There...