Vegas v Adamczyk (Personal Representative of the Estate of George Adamczyk (Deceased)) and Paloma Ltd

• Jurisdiction: Anguilla
• Judge: Michel, J.
• Judgment Date: 05 June 2009
• Neutral Citation: AI 2009 HC 10
• Docket Number: AXAHCV 21 of 1995
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Date: 05 June 2009

High Court

Michel, J. (Ag.)

AXAHCV 21 of 1995

Vegas

and

Adamczyk (Personal Representative of the Estate of George Adamczyk (deceased)) and Paloma Ltd.

Appearances:

Mr. Gerhard Wallbank and Miss Tameka Davis for the claimant.

Ms. Eustella Fontaine and Mrs. Cara Connor for the defendants.

Damages - Real property — Whether claimant entitled to damages for unpaid rent — Quantum.

1 Michel, J. (AG.): By Writ of Summons filed on 6th March 1995 the claimant, Rafael Vegas, instituted proceedings in the High Court of Justice in Anguilla against George Adamczyk and Paloma Limited.

2 An appearance was entered for the defendants on 6th April 1995.

3 On 18th March 1996 the claimant filed a Statement of Claim setting out his case against the defendants and seeking the following relief:–

• 1. A declaration that the claimant is entitled to 121 of the 424 shares of the 2nd named defendant.

• 2. An order that the corporate registers of the 2nd named defendant be completed to reflect the claimant's shareholding in the company.

• 3. An order that the 2nd named defendant issue the claimant a share certificate for his 121 shares.

• 4. A declaration that the claimant is entitled to an accounting from the Board of Directors of the 2nd named defendant and/or the 1st named defendant.

• 5. An order that the Board of Directors of the 2nd named defendant and/or the 1st named defendant produce an accounting to the claimant.

• 6. Damages.

• 7. Such further or other relief as the Court deems just.

• 8. Costs.

4 On 5th July 1996 a Defence and Counterclaim was filed on behalf of the 1st named defendant only, with a Reply and Defence to Counterclaim being filed by the claimant on 15th January 2007.

5 By Summons filed on 20th September 1996, the claimant sought judgment against the defendants upon the claims set out in his Statement of Claim.

6 By Order of the Court dated the 26th day of April 1998 and entered on the 7th day of May 1998, the claimant was granted the relief claimed in the paragraphs numbered 1, 2 and 3 above and the determination of all other claims was stayed pending the outcome of Suit 460 of 1995 instituted by the claimant against the 1st named defendant in Sint Maarten, The Netherlands Antilles.

7 Judgment in the Sint Maarten suit was handed down on 5th May 1998 in favour of the claimant, with the 1st named defendant being ordered to pay the claimant for the value of his shares in the 2nd named defendant.

8 By Order of this Court dated 21st May 2008 and entered on 23rd May 2008, it was ordered that if the 1st named defendant does not file and serve witness statements and/or witness summaries of fact which he intends to rely on by 6th June 2008 then the 1st named defendant will be debarred from seeking to produce the evidence at trial and the counterclaim shall stand dismissed.

9 No witness statements and/or witness summaries having been filed or served by the 1st named defendant by 6th June 2008, or at all, the counterclaim accordingly stood dismissed and the defendant, with no application made by him for relief from sanctions, was not therefore allowed to present any evidence at the trial of the matter.

10 The trial therefore proceeded with evidence by the claimant only, a witness summary having been filed on his behalf on 9th November 2007.

11 At the trial, an objection taken by Learned Counsel for the defendants to the form of the aforesaid witness summary was overruled by the Court on the basis that the witness summary complied with the requirements of Part 29.6 of the Civil Procedure Rules.

12 The Court having disposed of certain of the claims prior to the matter coming to trial and certain of the claims having been dealt with by the court in Sint Maarten in Suit 460 of 1995, the issues to be determined at the trial appear to be the following:–

• 1. Whether the claimant is entitled to a declaration and to an order that the Board of Directors of the 2nd named defendant and/or the 1st named defendant produce an accounting to the claimant.

• 2. Whether damages in the form of unpaid rent is due and owing to the claimant by the 1st named defendant.

• 3. Whether the claimant is entitled to damages from the defendants other than for unpaid rent.

13 Although the Agreed List Of Issues dated and filed on 12th December 2006 did not mention the issue of damages other than for unpaid rent, there was a definitive averment in paragraph 24 of the Statement of Claim of loss and damage occasioned to the claimant by acts or defaults of the defendant and a claim for damages consequential thereto and a joinder of issue by the 1st named defendant on this averment and claim. There was also evidence given by the claimant in support of this averment and claim and so a determination must be made by the Court on this issue.

14 The other issues contained in the Agreed List Of Issues dated and filed on 12th December 2006 no longer arise because the claimant has denied the claims made by the defendants giving rise to these issues and the defendants are unable to present...