Court of Appeal Sitting – 24th – 26th November

Court of Appeal Sitting Antigua and Barbuda th – 26 th November 2014 Judgment Case Name:

[1]BRILLA CAPITAL INVESTMENT MASTER FUND SPC LIMITED (A Cayman Islands segregated portfolio company, for and on behalf of Brilla Cap Juluca Segregated Portfolio M, a segregated portfolio thereof)

[2]ANGUILLA HOTEL INVESTORS II LIMITED

[3]BRIDGE FUNDING LIMITED v [1] JOHN GREENWOOD (Acting as Liquidator appointed to Leeward Isles Resorts Limited (In Liquidation) by Order dated 4 May 2012 [2] LEEWARD ISLES RESORTS LIMITED (IN LIQUIDATION) [3] CAP JULUCA L&C LIMITED

[4]CAP JULUCA L&C PROPERTIES LTD

[5]CHARLES & LINDA HICKOX

[6]ANGUILLA SOCIAL SECURITY BOARD [AXAHCVAP2013/0007] (Anguilla) Date: Monday, 24 th November 2014 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Kelvin John holding for Chancery Lane Chambers Respondent: Mr. Dane Hamilton for first and second respondents holding for Daniel Brantley & Associates. Mr. George Lake for third, fourth and fifth respondents holding for Joyce Kentish & Associates Issues: Civil appeal – Interlocutory appeal – Removal of liquidator – Whether master erred in refusing application to give directions to a liquidator/remove a liquidator – Test for removal of liquidator – Section 10 of Aliens Land Holding Regulation Act Result / Reason: Held: allowing the appeal as to the removal of the Liquidator; refusing the directions sought; setting aside the master’s decision; and ordering that the appellants, the first respondent and the sixth respondent have their assessed costs paid out of the assets of LIR, that: When deciding whether to exercise its discretion to remove a liquidator, the court must be satisfied that the retention of the liquidator will be against the liquidation or conversely, that the removal of the liquidator is in the interest of the liquidation. In making this determination, the court should follow a three step process. Firstly, the court must determine whether the applicant has the standing to apply for the removal of the liquidator. This issue is usually uncontroversial and an application by a creditor or contributory will often meet the requirement. Secondly, the court has to decide whether due cause has been shown for the removal of the liquidator. Due cause does not necessarily mean that there is misconduct on the part of the liquidator or unfitness for purpose, but rather, the court should take all the circumstances into consideration and decide whether, on the whole, the liquidator should be removed. Thirdly, if due cause has been shown, the court should then decide whether to exercise its discretion to remove the liquidator. This is a difficult balancing exercise and the court will have regard to the considerations in determining whether the applicant established due cause for the removal of the liquidator, bearing in mind that the court does not lightly remove its own officer and the likely impact of the removal on the professional standing of the liquidator, although these concerns will not be a bar to removal in appropriate cases. The instant appeal was brought by creditors of LIR, which satisfies the standing requirement. However, the Liquidator failed to report to the creditors on the progress of the liquidation and had no acceptable reason for this failure. The Liquidator also failed to comply with section 10 of the Act and lacked vigour in dealing with the issues surrounding the liquidation. As a result, there was a reasonable loss of confidence in the Liquidator by the creditors. Taking all these circumstances into consideration, the appellants have shown due cause for the removal of the Liquidator. Nam Tai Electronics Inc. v David Hague et al, Territory of the Virgin Islands, BVIHCVAP2000/0021 followed; Johnson et al v Deloitte and Touché A.G. [1997] CILR 120 applied; In re Marseilles Extension Railway and Land Company (1867) LR 4 Eq 692 applied; Nigel Hamilton-Smith et al v Alexander M. Fundora, Antigua and Barbuda, ANUHCAP2010/0031 followed; AMP Enterprises Ltd v Hoffman and another [2003] 1 BCLC 319 applied; Re Keypak Homecare Ltd [1987] BCLC 409 applied. An appellate court will only upset the exercise of discretion of a judge if it is satisfied that in exercising his or her discretion the judge failed to take into account or gave too little or too much weight to relevant factors and considerations, or by taking into account or being influenced by irrelevant factors and considerations, and that as a result of the error or degree of error in principle, the judge’s decision exceeded the generous ambit within which reasonable disagreement is possible and as a result, may be said to be clearly or blatantly wrong. If the appellate court is so satisfied it may exercise its own discretion afresh. In dealing with the application for the removal of the Liquidator the learned master did not deal with the failure of the Liquidator to cause LIR to apply for a licence under section 10 of the Act; failed to deal with the complaint against the Liquidator’s failure to report to the creditors in the reasons for her decision; and did not deal with the issue of delays in the reasons for her decision. Accordingly, the learned master erred in principle in not dealing with these considerations and it was open to the Court to exercise its discretion afresh taking these factors into account. Dufour and Others v Helenair Corporation Ltd and Others (1996) 52 WIR 188 followed. Status Hearing Case Name: Paulette Matthew v Antigua and Barbuda Port Authority Board of Commissioners [ANUHCVAP2008/0020] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: No appearance Issues: Status of the matter – Directions Result / Order: [Oral delivery] The matter is adjourned to further status hearing during the sitting of the Court of Appeal during the week of the 9 th March 2015. Reason: To allow counsel to advise himself on the way forward. Case Name: Esmond James v Mark Anthony t/a M.D.A. Trucking & Equipment Services [ANUHCVAP2013/0012] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Ms. Kema Benjamin Respondent: Mr. Kendrickson Kentish holding papers for Mr. Peyton Knight Issues: Status of the matter – Directions Result / Order: [Oral delivery] This appeal is to be set down for hearing during the next sitting of the Court of Appeal in Antigua and Barbuda during the week commencing 9 th March 2015. Case Name: Saffron Limited v Angel Estates Limited [ANUHCVAP2012/0045] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Ms. C. Debra Burnette holding papers for Dr. David Dorsett Respondent: Mr. John Fuller Issues: Status of the matter – Directions Result / Order: [Oral delivery] The Registrar of the High Court is to take the necessary steps so as to ensure the transcripts which are completed are fully edited and provided to the parties on or before the 15 th December 2014. Once the record of appeal is prepared, bearing in mind it is an appeal against assessment of damages, the appeal shall be set down for hearing during the sitting of the Court of Appeal in Antigua and Barbuda during the week which commences on the 9 th March 2015. Case Name: Gerald A. Watt, QC v Dr. Maxwell Francis [ANUHCVAP2012/0039] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. John Fuller holding papers for Dr. David Dorsett Respondent: Mr. Clement Bird Issues: Status of the matter – Directions Result / Order: [Oral delivery] Leave is given to the respondent if necessary to file an affidavit in opposition to the application to strike out within fourteen (14) days. The applicant is granted twenty eight (28) days leave from today’s date to file and serve skeleton submissions in support of the application. The respondent shall have fourteen (14) days leave thereafter if necessary to file and serve skeleton submissions in reply. The application to strike is to be fixed by the Chief Registrar to be heard on a date to be determined by her. Case Name: [1] Ronnie James [2] Sean James v [1] Georgice Mendes-Blackman [ANUHCVAP2012/0036] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Lawrence Daniel Respondent: Ms. C. Debra Burnette Issue: Status of the matter Result / Order: [Oral delivery] Matter is adjourned for further status hearing during the sitting of the Court of Appeal in Antigua and Barbuda during the week which commences on 9 th of March 2105. Case Name: Charlesworth Theophilus Harrigan v Gwendolyn King [ANUHCVAP2012/0031] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Ms E. Denecia Thomas Respondent: Ms. Kema Benjamin Issue: Status of the matter Result / Order: [Oral delivery] Leave is given to the applicant, Gwendolyn King, to file and serve an affidavit in response to the affidavit deposed by Lisa George within seven (7) days of this order. The applicant is to file and serve skeleton submissions in support of the application within twenty eight (28) days and the respondent shall have fourteen (14) days leave thereafter to file and serve skeleton submissions in opposition to the application to strike out. The application to strike out shall be fixed for hearing on a date to be determined by the Chief Registrar. Case Name: Ultramarine (Antigua) Ltd v Sunsail (Antigua) Ltd. [ANUHCVAP2012/0023] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. John Fuller Respondent: No appearance Issue: Status of the matter Result / Order: [Oral delivery] Matter is set down for further status hearing during the sitting of the Court of Appeal during the week 9 th March 2015. The applicant is to take the necessary steps to get the transcripts. Case Name: [1] Mark Smith [2] Andrew Sharpe v [1] The Attorney General of Antigua and Barbuda [ANUHCVAP2012/0021] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin for Mr. Sherfield Bowen Respondent: Ms. Bridgette Nelson Issue: Status of the matter Result / Order / Reason: [Oral delivery] Leave to discontinue is granted; accordingly the appeal stands dismissed. Case Name: [1] Jessica Hood v [1] Free Trade and Processing Zone Commission [2] Houghton Forde [3] Vere Carbon [4] Angella Gonsalves [ANUHCVAP2012/0018] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Ms. Debra Burnette holding for Dr. David Dorsett Respondent: Ms. Kema Benjamin Issue: Status of the matter Result / Order: [Oral delivery] The matter is fixed for further status hearing during the sitting of the Court of Appeal in Antigua and Barbuda during the week which commences on the 9 th March 2015. The appellant is to take the necessary steps in order to apply for and obtain the transcripts. Case Name: Leroy Silston v Ruthlyn Chambers [ANUHCVAP2012/0008] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Kendrickson Kentish Respondent: Mrs. Eleanor Clarke Solomon Issue: Status of the matter Result / Order / Reason: [Oral delivery] The matter is fixed for further status hearing during the week which commences on 9 th of March 2015 in order for the Court of Appeal to be able to ascertain the status of the transcript based on the request for transcript. Case Name: [1] Delvin Longfor [2] Maulvin Trucking v [1] Randall Buckley [ANUHCVAP2011/0030] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: Ms E. Denecia Thomas Issue: Status of the matter Result / Order / Reason: [Oral delivery] The matter was erroneously listed and is to be taken off the list as the appeal was heard in March 2012. Case Name: Trevor Santos v Horizon Construction Ltd. [ANUHCVAP2011/0015] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Ms. C. Debra Burnette Respondent: Ms. Saska Diamond Issue: Status of the matter Result / Order: [Oral delivery] Fourteen (14) days leave is granted to the respondent to file and serve written submissions in support of the application for dismissal for want of prosecution. The respondent is granted 14 days after receipt of the written submissions to file and serve written submissions in opposition to the application to strike out. The application to dismiss for want of prosecution is to be fixed for determination on a date to be determined by the Chief Registrar. Case Name: Jennings Building Products Limited v C.O. Williams Construction (Antigua) Limited [ANUHCVAP2010/0045] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Ms E. Denecia Thomas Respondent: Ms. Gail Christian with her Ms. Sherri-Ann Bradshaw Issue: Status of the matter Result / Order / Reason: [Oral delivery] Based on the undertaking of the parties to have the record prepared on or before the 8 th day of December 2014, the appeal shall be set down during the sitting of the Court of Appeal in Antigua and Barbuda during the week which commences on 9 th March 2015. Case Name: Kenard J Byron v Eastern Caribbean Amalgamated Bank (ECAB) [ANUHCVAP2012/0010] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Ms. E. Denecia Thomas holding papers for Dr David Dorsett Respondent: Ms. Tracy Benn Roberts Issue: Status of the matter Result / Order: [Oral delivery] Twenty one (21) days is granted to the appellant to file an affidavit in opposition to the application to strike out together with skeleton submissions in support of the affidavit in opposition to strike out. The respondent is granted twenty one (21) days leave to file and serve an affidavit in opposition to the application to deem the appeal properly filed and served. Parties are granted fourteen (14) days within which to file and exchange skeleton submissions on the application to deem the appeal properly filed and served. Both applications are to be fixed on a date for hearing as determined by the Chief Registrar. Case Name: [1] Colin George [2] Iva May George v [1] Morriel Jenneth George-Carr [ANUHCVAP2012/0016] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin for Mr. Steadroy Benjamin Respondent: Ms. Sherri-Ann Bradshaw Issue: Status of the matter Result / Order: [Oral delivery] The matter is fixed for further status hearing during the sitting of the Court of Appeal in Antigua and Barbuda during the week of 9 th March 2015 in order to be able to determine the status of the transcript. Case Name: [1] Winston Baldwin Spencer [2] Crusader Publications and Broadcasting Limited v [1] Lester Bryant Bird [ANUHCVAP2012/0006] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Ms. Sherri-Ann Bradshaw Respondent: Ms. Kema Benjamin Issue: Status of the matter Result / Order: [Oral delivery] Leave is granted to the applicant to file and serve submissions in support of the application to strike out within twenty one (21) days of this order. The respondent is granted twenty one (21) days leave thereafter to file and serve submissions in opposition to the application to strike out. The application is to be fixed for hearing on a date to be determined by the Chief Registrar. Case Name: Sylvia Cox v Eugene Joseph [ANUHCVAP2012/0024] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Ms. Marcelle Watts holding papers for Mr. Lawrence Daniel Respondent: Ms. E. Denecia Thomas (watching brief) Issue: Status of the matter Result / Order: [Oral delivery] The matter is adjourned to further status hearing during the next sitting of the Court of Appeal in Antigua and Barbuda during the week commencing on 9 th March 2015. Case Name: [1] Garfield Morrison v [1] Chief Magistrate [2] Ivan Walters [3] The Commissioner of Police [ANUMCRAP2010/0002] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. John Fuller Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order: [Oral delivery] The matter is set down for hearing during the week of 9 th March 2015. Case Name: Reynold Isaac v The Queen [ANUHCRAP2012/0006] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order: [Oral delivery] The matter is adjourned to further status hearing of the Court of Appeal during the week commencing 9 th March 2015. The Registrar of the High Court is to take the necessary steps with a view to ensuring that the transcript is prepared. Case Name: Simon Davis v The Queen [ANUHCRAP2012/0007] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: No appearance Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order: [Oral delivery] The Registrar is to take the necessary steps with a view to ensuring that the transcript is prepared by 9 th March 2015. The matter is fixed for further status hearing during the sitting of the Court of Appeal during the week of 9 th March 2015. Case Name: [1] Vere Bird Jr. [2] Lester Bryant Bird [3] Gaston Browne [4] Mary Claire Hurst [5] Molywn Joseph [6] Sharon Kentish

[7]Jim Galloway v [1] The Commissioner of Police [ANUMCRAP2010/0015] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin with him Ms. Rika Bird Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order: [Oral delivery] The matter is fixed for further status hearing during the next sitting in the Court of Appeal in Antigua and Barbuda during the week of 9 th March 2015. Case Name: [1] Jerry Fubler v [1] The Commissioner of Police [2] Asquith Riviere [ANUMCRAP2005/0011] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] Leave to withdraw the appeal having been made orally by learned counsel is granted, accordingly the appeal stands dismissed. Case Name: Troy Robinson v The Commissioner of Police [ANUMCRAP2012/0001] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: No appearance Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] The matter is fixed for further status hearing which will be held when the Court of Appeal sits next in Antigua and Barbuda during the week of 9 th March 2015 at which time the status of the transcripts can be ascertained. Case Name: Dayton Salmon v The Commissioner of Police [ANUMCRAP2012/0004] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] Leave to withdraw the appeal is granted; accordingly the appeal is dismissed. Case Name: Anthony Browne v The Commissioner of Police [ANUMCRAP2012/005A] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order: [Oral delivery] The Chief Magistrate is directed to take the necessary steps so as to ensure that the notes of evidence are prepared by 16 th January 2015. The Registrar of the High Court is to cause a copy of the order to be served on the Chief Magistrate and the appeal is to be put for further status hearing during the sitting of the Court of Appeal in Antigua and Barbuda during the week of 9 th March 2015. Case Name: Romar Graham v The Commissioner of Police [ANUMCRAP2012/0006] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order: [Oral delivery] The Chief Magistrate is directed to take the necessary steps so as to ensure that the notes of evidence are prepared. The Registrar of the High Court is to cause a copy of the order to be served on the Chief Magistrate and the appeal is to be put for further status hearing during the sitting of the Court of Appeal in Antigua and Barbuda during the week of 9 th March 2015. Case Name: James Pelle v The Commissioner of Police [ANUMCRAP2011/0001] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] The matter is fixed for further status hearing during the sitting of the Court of Appeal in Antigua and Barbuda during the week of 9 th March 2015 which will enable counsel to advise the Court of Appeal on the way forward. Case Name: [1] Constian Robert Cupid v [1] The Commissioner of Police [2] Asquith Riviere [ANUMCRAP2005/0001] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] The matter is dismissed for want of prosecution. Case Name: Luchene Verde v The Commissioner of Police [ANUMCRAP2007/004A] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] Based on the application of the counsel to withdraw the appeal, the court grants the leave that is requested and accordingly the appeal stands dismissed. Case Name: [1] Samantha Cochrane v [1] The Commissioner of Police [2] Asquith Riviere [ANUMCRAP2008/0001] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order: [Oral delivery] Matter has been removed from the list. Case Name: Pauline Veronica Edwards v The Commissioner of Police [ANUMCRAP2011/0005] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] Appeal is dismissed based on the order dated 26 th June 2013 as a consequence of the information filed by Mr. Benjamin, Sr. Case Name: [1] Andre Kerr v [1] Attorney General of Antigua and Barbuda [2] Chief Magistrate [ANUMCRAP2010/0005] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] Based on the oral application of counsel, leave is granted to withdraw the notice of appeal, accordingly the appeal stands dismissed. Case Name: Mandella Victor Spencer v The Commissioner of Police [ANUMCRAP2011/0002] Date: Tuesday, 25 th November 2014 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Mr. Damien Benjamin holding for Mr. Steadroy Benjamin Respondent: Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] Matter is fixed for further status hearing during the next sitting of the Court of Appeal in Antigua and Barbuda during the week of 9 th March 2015 in order to determine whether the appellant still wishes to prosecute the appeal. APPLICATIONS AND APPEALS Case Name: Janice Reynolds-Greene v The Bank of Nova Scotia [ANUHCVAP2010/0037] Date: Monday, 24 th November 2014 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant / Applicant: Ms. Laurie Freeland-Roberts holding for Ms. Janice Reynolds-Greene Respondent: Mr. Kwame Simon holding for Ms. Nelleen Rogers Murdoch Issue: Application for conditional leave to Her Majesty in Council Result / Order: [Oral delivery] Leave is granted to the appellant to appeal to Her Majesty in Council pursuant to section 122 (1)(a) of the Constitution of Antigua on the condition that: Within ninety (90) days of the date hereof the applicant must take the necessary steps for the purposes of procuring the preparation of the record, the settling of such record with the solicitors for the respondent and the application and the certification of the record by the Registrar of the Court of Appeal. The record shall be prepared in accordance with Rules 18-20 of the Judicial Committee (Appellate Jurisdiction) Order 2009, Practice Direction 4.2.1-4.2.3 and Practice Direction 5, and shall be transmitted to the Registrars of the Judicial Committee of the Privy Council without delay where final permission to appeal has been granted. The applicant shall make an application for final permission to appeal to Her Majesty in Council supported by the Certificate of the Registrar that the security for costs ordered therein has been given within the time prescribed by this order to the satisfaction of the Registrar. The applicant is to, within ninety (90) days of this order, give good and sufficient security in the sum of $2,500.00 as is satisfactory to the Registrar for the due prosecution of the appeal and the payment of all such costs as may become payable by the applicant in the event of this appeal being dismissed. The costs of this application for conditional leave to appeal shall be costs in the appeal to the Privy Council. Reason: The Court was satisfied that the applicant/appellant satisfied the requirements for conditional leave to appeal to Her Majesty in Council. Case Name: Carl Baynes v Claudio Iturrianga [ANUHCVAP2014/0024] Date: Monday, 24 th November 2014 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Hugh Marshall Respondent: Mr. Kelvin John with him Mr. Loy Weste Issues: Application for leave to appeal – Application for stay of proceedings – Whether the learned judge erred in dismissing the application for extension of time – Whether the learned judge erred in finding that an application under CPR 26.8 was relevant – Whether the learned judge failed to consider the powers given to him under CPR 26.9(3) Result / Order: [Oral delivery] Application for leave to appeal is dismissed. The application for a stay of execution is also dismissed. Costs to the respondent agreed in the sum of $1,000.00 Reason: The Court was of the opinion that the application did not meet the criteria to demonstrate that the appeal has a realistic prospect of success. Case Name: Franciscus Petrus Vingehoedt (Also Known as Frans Vingerhoedt) v Stanford International Bank Limited (In Liquidation) (Acting by and Through its Joint Liquidators, Marcus A. Wide and Hugh Dickson) [ANUHCVAP2014/0030] Date: Monday, 24 th November 2014 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Ms. E. Ann Henry, QC with her Ms. C Debra Burnette Respondent: Mr. Malcolm Arthurs with him Ms. Nicolette Doherty Issues: Civil appeal – Hearsay evidence – Whether the learned trial judge erred in admitting transcript into proceedings – Whether the trial judge admitted hearsay evidence under section 29 of the Evidence (Special Provisions) Act, 2009 Result / Order: [Oral delivery] Leave to appeal is granted and the application is treated as the substantive hearing of the matter. Decision reserved. The proceedings in the court below are stayed pending a decision. Case Name: Brown’s Bay Resort Limited v Luca Pozzoni [ANUHCVAP2010/0033] Date: Monday, 24 th November 2014 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Applicant / Appellant: Dr. David Dorsett Respondent: Mr. Lenworth Johnson Issue: Application for conditional leave to Her Majesty in Council Result / Order: [Oral delivery] Leave to appeal to Her Majesty in Council is granted to the applicant pursuant to sections 122(1)(a) and (c) of the Antigua and Barbuda Constitution Order 1981 against the judgment of the Court of Appeal issued herein on 10 th March 2014 upon the condition that: Within ninety (90) days of the date hereof the applicant must take the necessary steps for the purposes of procuring the preparation of the record, the settling of such record with the solicitors for the respondent and the application and the certification of the record by the Registrar of the Court of Appeal. The record shall be prepared in accordance with Rules 18-20 of the Judicial Committee (Appellate Jurisdiction) Order 2009, Practice Direction 4.2.1-4.2.3 and Practice Direction 5, and shall be transmitted to the Registrars of the Judicial Committee of the Privy Council without delay where final permission to appeal has been granted. The applicant shall make an application for final permission to appeal to Her Majesty in Council supported by the Certificate of the Registrar that the security for costs ordered therein has been given within the time prescribed by this order to the satisfaction of the Registrar. The applicant is to, within ninety (90) days of this order, give good and sufficient security in the sum of $2,500.00 as is satisfactory to the Registrar for the due prosecution of the appeal and the payment of all such costs as may become payable by the applicant in the event of this appeal being dismissed. The costs of this application for conditional leave to appeal shall be costs in the appeal to the Privy Council. Reason: The Court was satisfied that the applicant/appellant satisfied the requirements for conditional leave to appeal to Her Majesty in Council. Case Name: Clive Oliveira v The Attorney General [ANUHCVAP2010/0047] Date: Monday, 24 th November 2014 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant / Applicant: Dr. David Dorsett Respondent: Mrs. Carla Brooks-Harris Issue: Application for final leave to appeal to Her Majesty in Council Result / Order: [Oral delivery] Final leave to Her Majesty in Council is granted to the applicant. Reason: The applicant/appellant satisfied the conditions for final leave to appeal to Her Majesty in Council. Case Name: Austin King v The Queen [ANUHCRAP2008/0028] Date: Monday, 24 th November 2014 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. John Fuller Respondent: Ms. Shannon Jones-Gittens Issues: Criminal appeal against sentence – Buggery Result / Order: [Oral delivery] The appellant shall file and serve written submissions with authorities relied on by Monday, 15 th December 2014. The respondent shall file and serve submissions in response by Monday, 12 th January 2015. The hearing of the appeal is adjourned to the next sitting of the Court of Appeal in Antigua and Barbuda commencing 9 th March 2015. Case Name: George W. Bennett Brysons & Co. Ltd. Trading as Bryson’s Shipping v George Purcell trading as Hortico Landscaping and Nursery [ANUHCVAP2011/0023] Date: Monday, 24 th November 2014 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Justin L. Simon, QC with him Mr. Kwame Simon Respondent: Mr. Kelvin John with him Mr. Loy Weste Issue: Whether the judge erred in finding that there was a contract Result / Order: Judgment reserved. Case Name: [1] Asot Michael [2] Josette Michael [3] Teresa-Anne Michael v [1] The Attorney General [2] The Commissioner of Police [3] The Magistrate for District A (Ivan Walters) [ANUHCVAP2009/0020] Date: Monday, 24 th November 2014 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. John Fuller Respondent: Ms. Carla Brooks-Harris Issue: Whether the judge erred in finding that the warrants were in proper form, properly issued and executed Result / Order / Reason: [Oral delivery] The appellants are granted leave to withdraw the appeal. The order of this Court dated 9 th November 2009 is confirmed and made permanent, namely that the 1 st and 2 nd respondents, whether by themselves, their servants or agents or otherwise howsoever, be restrained from using or permitting the use of any of the documents (or copies thereof) and/or other material seized by the 1 st and 2 nd respondents from premises situate at Dry Hill, Antigua, and St. John’s, Antigua on 10 th January 2008, in any way, including but not limited to their use in any legal proceedings whether in Antigua and Barbuda or abroad. The order of the High Court (the Hon. Mr. Justice Harris dated 30 th June 2009) namely, that the costs of the claim be made in favour of the 1 st appellant (the 1 st claimant) against the 1 st respondent (the 1 st defendant) pursuant to the CPR 2000 or as otherwise agreed between the parties is confirmed. Case Name: Teckla Edwards v Dr. Alvin G. Edwards [ANUHCVAP2012/0040] Date: Monday, 24 th November 2014 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Dane Hamilton, QC with him Mr. Dane Hamilton Jr. Respondent: Ms. E. Ann Henry, QC with her Ms. C. Debra Burnette Issue: Whether the learned judge failed to adequately evaluate the totality of evidence Result / Order: [Oral delivery] Matter adjourned to Wednesday, 26 th November 2014. Case Name: [1] Marie Makhoul v [1] Cicely Foster [2] Louis Lockhart [ANUHCVAP2009/0014] Date: Tuesday, 25 th November 2014 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Gerard St. C. Farara, QC, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Hugh Marshall Respondent: Sir Gerald Watt, QC with him Dr. David Dorsett and Mr. Jared Hewlett Issues: Civil appeal – Landlord and tenant – Subletting by tenant – Whether the learned judge erred in finding that notice to quit was valid – Section 53(h) of the Registered Land Act – Title to building – Chattel – Fixture – Whether building became a fixture – Whether building is a tenant’s fixture – Whether tenant entitled to remove building – User principle – Whether learned judge ought to have awarded damages on the user principle Result / Order: Judgment reserved. Case Name: Claxton Ralph v Eugene Teague [ANUHCVAP2010/0038] Date: Tuesday, 25 th November 2014 Coram: The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Gerard St. C. Farara, QC, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Charlesworth Browne Respondent: Mr. George Lake with him Ms. Kathleen Bennett Issues: Civil appeal – Whether decision was unreasonable and not supported by evidence Result / Order / Reason: [Oral delivery] Leave to withdraw the appeal is granted, accordingly, the appeal is dismissed. Each party to bear its own costs. Case Name: Colin Turner v Terrance Sansom [ANUHCVAP2011/0021] Date: Tuesday, 25 th November 2014 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Gerard St. C. Farara, QC, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Dane Hamilton, QC with him Mr. Dane Hamilton Jr. Respondent: Ms. E. Ann Henry, QC with her Ms. C Debra Burnette Issue: Whether the learned judge failed to consider or adequately consider the evidence given by the respondent in cross-examination Result / Order: [Oral delivery] Application is no longer opposed. Order to be filed. Case Name: Geary Andrew Joseph v Zephepha Rose Mae Joseph [ANUHCVAP2013/0003] Date: Tuesday, 25 th November 2014 Coram: The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Gerard St. C. Farara, QC, Justice of Appeal [Ag.] Appearances: Appellant: Dr. David Dorsett Respondent: No appearance Issue: Whether learned judge erred in finding that the application for an order to set aside an order was an appeal and not an application Result / Order: [Oral delivery] The hearing of the appeal is adjourned and traversed to the next sitting of the Court of Appeal in Antigua and Barbuda during the week commencing on 9 th March 2015. Notice of hearing shall be served on the respondent personally and on Mr. Damien Benjamin within 14 days of this order. The respondent is to be granted leave if necessary to file and serve submissions in reply on or before 16 th January 2015. Affidavit of service to be filed with the court. Case Name: Jumby Bay Resort v Kiston Brown [ANUHCVAP2012/0019] Date: Tuesday, 25 th November 2014 Coram: The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Gerard St. C. Farara, QC, Justice of Appeal [Ag.] Appearances: Appellant: Mrs. Nelleen Rogers-Murdoch Respondent: Mr. Vere Bird III Issues: Whether learned judge erred in assessing the period of employment – Whether the learned judge erred in finding that the employee was summarily dismissed Result / Order / Reason: [Oral delivery] The appeal against the decision of the Industrial Court contained in the judgment dated 28 th July 2012 is allowed on the basis that the then president of the Industrial Court exhibited bias against Jumby Bay Resort. Accordingly, on the concession of the learned counsel, Mr. Vere Bird III, ground 12 is made out. The decision of the Industrial Court is quashed and the matter is remitted to be retried by a differently constituted Industrial Court. Case Name: [1] Unit 301 South Point Limited [2] Unit 302 South Point Limited [3] Unit 303 South Point Limited [4] Unit 304 South Point Limited [5] Unit 305 South Point Limited [6] Peter David [7] Wendy Maw

[8]Lynn Clip v [1] The Proprietors, The Condominium Plan #C20080028 [2] ROLS Limited [ANUHCVAP2014/0015] Date: Tuesday, 25 th November 2014 Coram: The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Gerard St. C. Farara, QC, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Justin Simon, QC with him Mr. Kwame Simon Respondent: Mr. E. Ann Henry, QC with him Ms. Ms. C. Debra Burnette Issues: Civil appeal – Costs Result / Order: [Oral delivery] The claimants/appellants to pay 50% of the costs of the respondents in the court below. No order as to costs in this matter. The costs assessed if not agreed within 21 days. Reason: The learned judge did not properly address his mind to the effect of the concession of the first respondent at the commencement of the hearing. It ought to have been reflected in the order as to costs. Case Name: Teckla Edwards v Dr. Alvin G. Edwards [ANUHCVAP2012/0040] Date: Wednesday, 26 th November 2014 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Dane Hamilton, QC with him Mr. Dane Hamilton Jr. Respondent: Ms. E. Ann Henry, QC with her Ms. C. Debra Burnette Issue: Whether the learned judge failed to adequately evaluate the totality of evidence Result / Order: Judgment reserved.