Brighter Law

Court of Appeal Summary – March

The following are summaries of civil decisions in the Court of Appeal for the Turks and Caicos Islands to March 2023.

In Vanesha Parker v Sky Catering Ltd. d.b.a. Top of the Cove Deli (CL-AP 8 of 2021) [2023] TCACA 1 (03 February 2023) the Appellant, Vanesha Parker, appealed the decision of the Labour Tribunal on several grounds, primarily that the Tribunal erred in refusing to hear or consider the Appellant’s evidence about compensation loss, forward loss or other types of losses. The Court found that the Tribunal, in failing to hear the Appellant on the calculation and amount of compensation awarded, which went to the “gravamen” of the appeal, was a breach of the principle of audi alteram partem (the right to be heard). The Court remitted the matter back to the Tribunal for the Appellant to be heard.

In Mayra Trejo Barron v Caicos Dream Tours Ltd. dba Caicos Dream Tours (CL-AP 4 of 2022) [2023] TCACA 3 (03 February 2023) the Appellant, Mayra Trejo Barron had commenced a personal injury action against the Respondent, Caicos Dream Tours for damages and loss arising from a boating accident. The Appellant obtained default judgment against the Respondent, which was later set aside. The Appellant appealed the interim decision to set aside the default judgment and the Respondent made an application for security for costs. The Appellant argued the Respondent was delayed in requesting security for costs and since she resided outside the jurisdiction the application was also discriminatory and unfair. The Court did not accept there was sufficient material delay and considered the fact the Appellant was a resident outside the jurisdiction as proper grounds to exercise discretion in favour of security for costs ordering the Appellant pay $30,000 as security for costs.

In Leeward Water Services Ltd v Provo Water Co and the Attorney General (CL-AP 16 of 2022) [2023] TCACA 7 (24 March 2023), the Appellant, Leeward Water Services, appealed against the decision of Justice Michael Hylton QC (as he was then) who held upon hearing of a preliminary issue that the Water and Sewerage Ordinance CAP 8.03 (the “Ordinance”) does not prohibit the appointment of more than one water undertaker for a specific geographic area. The appeal was focussed on the statutory construction of provisions of the Ordinance and specifically whether the use of “a” in sections of the Ordinance would connote the singular, when viewed in conjunction with section 4 of the Interpretation Ordinance which states that words in the singular include the plural and vice versa. The Court held upheld the decision of Hylton J not finding anything in the subject or context provided that would displace section 4 of the Interpretation Ordinance and require singularity.

Paintamilkavalan & ors. v. The Hon. Arlington Musgrove & ors. 2) Paintamilkavalan & ors. v. Dir. of Immigration Derek Been & ors. 3) Thambyrasa & ors. v. Been & ors 4) Ravikkumar v. Been & ors. (CL-AP 11 of 2022, CL-AP 12 of 2022) [2023] TCACA 6 (24 March 2023), concerned two appeals and the decision of Justice Simons to refuse applications by summons for specific disclosure under Order 24 rule 7 and 11 of the Civil Rules 2000 (the “Rules”) of a government “draft Policy” document regarding the right to work of asylum seekers. The Respondent submitted that the Court should not hear the appeals because the proceedings relating to the action have been completed. The Court dismissed the appeals holding that there was nothing exceptional relating to the appeals and underlying applications. There was no constitutional question or matter of public interest that would therefore engage the Court’s jurisdiction.

In The Proprietors Strata Plan No. 67 v HMC Holdings Ltd. 2) HMC Holdings Ltd. v The Proprietors Strata Plan No. 67 (CL-AP 5 of 2022, CL AP 7 of 2022) [2023] TCACA 8 (24 March 2023), there were two appeals before the Court arising from a trial and judgment for damages caused by the breach of duty of the strata corporation (the “Regent Grand”) in failing to repair a roof. The failure to repair had caused water ingress into HMC’s unit. The 1st appeal (CL AP 5 of 2022) was made by the Strata Corporation (the Defendant and Plaintiff by Counterclaim) and the 2nd appeal (CL AP 7 of 2022) by HMC Holdings Ltd (the Plaintiff and Defendant by Counterclaim). There were seven issues identified for consideration by the Court: (1) sources of the leak; (2) assessment; (3) amenity; (4) interest; (5) illegality; (6) windows; and (7) costs. The Court dismissed the appeal on (1), ordered payment of $74,313.93 in special damages on (2), dismissed (3), allowed the appeal in relation to interest on (4), allowed the appeal in relation to illegality finding that damages for loss of rent should not have been disallowed on (5), dismissed the appeal on (6), and awarded 75% of costs to the Strata corporation on (7) adjusting the judge at first instance’s costs orders to reflect the disposition of the appeals.

By Murray Snider  

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