Betteto Frett v Flagship Properties Limited
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TERRITORY OF THE VIRGIN ISLANDS IN THE COURT OF APPEAL HCVAP 2009/026 On Appeal from the Commercial Division BETWEEN: BETTETO FRETT Appellant and FLAGSHIP PROPERTIES LIMITED Respondent Before: The Hon. Mde. Ola Mae Edwards Justice of Appeal The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal The Hon. Mr. Don Mitchell Justice of Appeal [Ag.] Appearances: Ms. Akila Anderson for the Appellant Ms. Willa Liburd-Tavernia, Ms. Rhonda Brown with her, for the Respondent _____________________________ 2011: September 26, 27. _____________________________ Civil appeal – Commercial Division – Construction of concrete ramp in seawater at shipyard – Nuisance – Injunction – Challenges to findings of fact made by the learned trial judge ORAL JUDGMENT
[1]This is the judgment of the court. The appellant, Mr. Betteto Frett, operates a marina, and the respondent company, Flagship Properties, operates a shipyard on neighbouring lots at Frenchman's Cay in Tortola.
[2]Mr. Frett brought a claim in nuisance against Flagship claiming an injunction to restrain Flagship from constructing a concrete ramp in the seawater at its shipyard and for general damages. Mr. Frett pleaded that, with the construction of the ramp, his legitimate expectation of quiet enjoyment and the growth and development of his marina facilities and other related businesses would be stymied. As a result of the construction of the ramp, he was unable to use the western side of his dock, resulting in income reduction and his inability to satisfy his financial commitments.
[3]The learned trial judge found that Mr. Frett had failed to prove his claim, and she made several findings of fact relating to the evidence in favour of Flagship which were the subject of this appeal.
[4]Based on the case of Watt (or Thomas) v Thomas [1947] 1 All E.R. 582, which has been adopted by this court in a legion of cases, more recently in the case of Chiverton Construction Ltd et al v Scrub Island Group Ltd (TVI HCVAP 2009/028, unreported), an appellant who challenges findings of fact faces a serious hurdle. A Court of Appeal should attach the greatest weight to the opinion of the judge who saw the witnesses and heard the evidence, and consequently should not disturb a judgment of fact unless they are satisfied that it is unsound.
[5]In this case, the learned judge had the advantage of seeing and hearing the witnesses testify, and was in a position to assess their credibility. Mr. Frett has not been able to show us that the learned trial judge did not take proper advantage of having seen and heard the witnesses, or that the reasons given by the trial judge for the findings of fact which are the subject of the appeal are unsatisfactory.
[6]We find no errors with the trial judge's findings of fact in the circumstances. The appeal is therefore dismissed with costs and the judgment entered in the court below is affirmed.
[7]Concerning the question of costs, this was based by the learned trial judge on the value placed on the claim pursuant to CPR 2000 65.5(2)(b)(ii). We accept the submissions of Counsel for Flagship Properties as to how the trial judge arrived at the value of $530,409.60, and we see no reason to disturb the value. Having regard to the value she placed on the claim, and her reduction of the prescribed costs pursuant to Rule 65.5(4), she awarded prescribed costs of $63,557.47. Consequently, the costs in the appeal, being two thirds of that amount, are $42,371.64.
Ola Mae Edwards
Justice of Appeal
Davidson Kelvin Baptiste
Justice of Appeal
Don Mitchell
Justice of Appeal [Ag.]
TERRITORY OF THE VIRGIN ISLANDS IN THE COURT OF APPEAL HCVAP 2009/026 On Appeal from the Commercial Division BETWEEN: BETTETO FRETT Appellant and FLAGSHIP PROPERTIES LIMITED Respondent Before: The Hon. Mde. Ola Mae Edwards Justice of Appeal The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal The Hon. Mr. Don Mitchell Justice of Appeal [Ag.] Appearances: Ms. Akila Anderson for the Appellant Ms. Willa Liburd-Tavernia, Ms. Rhonda Brown with her, for the Respondent _____________________________ 2011: September 26, 27. _____________________________ Civil appeal – Commercial Division – Construction of concrete ramp in seawater at shipyard – Nuisance – Injunction – Challenges to findings of fact made by the learned trial judge ORAL JUDGMENT
[1]This is the judgment of the court. The appellant, Mr. Betteto Frett, operates a marina, and the respondent company, Flagship Properties, operates a shipyard on neighbouring lots at Frenchman’s Cay in Tortola. 2
[2]Mr. Frett brought a claim in nuisance against Flagship claiming an injunction to restrain Flagship from constructing a concrete ramp in the seawater at its shipyard and for general damages. Mr. Frett pleaded that, with the construction of the ramp, his legitimate expectation of quiet enjoyment and the growth and development of his marina facilities and other related businesses would be stymied. As a result of the construction of the ramp, he was unable to use the western side of his dock, resulting in income reduction and his inability to satisfy his financial commitments.
[3]The learned trial judge found that Mr. Frett had failed to prove his claim, and she made several findings of fact relating to the evidence in favour of Flagship which were the subject of this appeal.
[4]Based on the case of Watt (or Thomas) v Thomas [1947] 1 All E.R. 582, which has been adopted by this court in a legion of cases, more recently in the case of Chiverton Construction Ltd et al v Scrub Island Group Ltd (TVI HCVAP 2009/028, unreported), an appellant who challenges findings of fact faces a serious hurdle. A Court of Appeal should attach the greatest weight to the opinion of the judge who saw the witnesses and heard the evidence, and consequently should not disturb a judgment of fact unless they are satisfied that it is unsound.
[5]In this case, the learned judge had the advantage of seeing and hearing the witnesses testify, and was in a position to assess their credibility. Mr. Frett has not been able to show us that the learned trial judge did not take proper advantage of having seen and heard the witnesses, or that the reasons given by the trial judge for the findings of fact which are the subject of the appeal are unsatisfactory. 3
[6]We find no errors with the trial judge’s findings of fact in the circumstances. The appeal is therefore dismissed with costs and the judgment entered in the court below is affirmed.
[7]Concerning the question of costs, this was based by the learned trial judge on the value placed on the claim pursuant to CPR 2000 65.5(2)(b)(ii). We accept the submissions of Counsel for Flagship Properties as to how the trial judge arrived at the value of $530,409.60, and we see no reason to disturb the value. Having regard to the value she placed on the claim, and her reduction of the prescribed costs pursuant to Rule 65.5(4), she awarded prescribed costs of $63,557.47. Consequently, the costs in the appeal, being two thirds of that amount, are $42,371.64. Ola Mae Edwards Justice of Appeal Davidson Kelvin Baptiste Justice of Appeal Don Mitchell Justice of Appeal [Ag.]
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TERRITORY OF THE VIRGIN ISLANDS IN THE COURT OF APPEAL HCVAP 2009/026 On Appeal from the Commercial Division BETWEEN: BETTETO FRETT Appellant and FLAGSHIP PROPERTIES LIMITED Respondent Before: The Hon. Mde. Ola Mae Edwards Justice of Appeal The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal The Hon. Mr. Don Mitchell Justice of Appeal [Ag.] Appearances: Ms. Akila Anderson for the Appellant Ms. Willa Liburd-Tavernia, Ms. Rhonda Brown with her, for the Respondent _____________________________ 2011: September 26, 27. _____________________________ Civil appeal – Commercial Division – Construction of concrete ramp in seawater at shipyard – Nuisance – Injunction – Challenges to findings of fact made by the learned trial judge ORAL JUDGMENT
[1]This is the judgment of the court. The appellant, Mr. Betteto Frett, operates a marina, and the respondent company, Flagship Properties, operates a shipyard on neighbouring lots at Frenchman's Cay in Tortola.
[2]Mr. Frett brought a claim in nuisance against Flagship claiming an injunction to restrain Flagship from constructing a concrete ramp in the seawater at its shipyard and for general damages. Mr. Frett pleaded that, with the construction of the ramp, his legitimate expectation of quiet enjoyment and the growth and development of his marina facilities and other related businesses would be stymied. As a result of the construction of the ramp, he was unable to use the western side of his dock, resulting in income reduction and his inability to satisfy his financial commitments.
[3]The learned trial judge found that Mr. Frett had failed to prove his claim, and she made several findings of fact relating to the evidence in favour of Flagship which were the subject of this appeal.
[4]Based on the case of Watt (or Thomas) v Thomas [1947] 1 All E.R. 582, which has been adopted by this court in a legion of cases, more recently in the case of Chiverton Construction Ltd et al v Scrub Island Group Ltd (TVI HCVAP 2009/028, unreported), an appellant who challenges findings of fact faces a serious hurdle. A Court of Appeal should attach the greatest weight to the opinion of the judge who saw the witnesses and heard the evidence, and consequently should not disturb a judgment of fact unless they are satisfied that it is unsound.
[5]In this case, the learned judge had the advantage of seeing and hearing the witnesses testify, and was in a position to assess their credibility. Mr. Frett has not been able to show us that the learned trial judge did not take proper advantage of having seen and heard the witnesses, or that the reasons given by the trial judge for the findings of fact which are the subject of the appeal are unsatisfactory.
[6]We find no errors with the trial judge's findings of fact in the circumstances. The appeal is therefore dismissed with costs and the judgment entered in the court below is affirmed.
[7]Concerning the question of costs, this was based by the learned trial judge on the value placed on the claim pursuant to CPR 2000 65.5(2)(b)(ii). We accept the submissions of Counsel for Flagship Properties as to how the trial judge arrived at the value of $530,409.60, and we see no reason to disturb the value. Having regard to the value she placed on the claim, and her reduction of the prescribed costs pursuant to Rule 65.5(4), she awarded prescribed costs of $63,557.47. Consequently, the costs in the appeal, being two thirds of that amount, are $42,371.64.
Ola Mae Edwards
Justice of Appeal
Davidson Kelvin Baptiste
Justice of Appeal
Don Mitchell
Justice of Appeal [Ag.]
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TERRITORY OF THE VIRGIN ISLANDS IN THE COURT OF APPEAL HCVAP 2009/026 On Appeal from the Commercial Division BETWEEN: BETTETO FRETT Appellant and FLAGSHIP PROPERTIES LIMITED Respondent Before: The Hon. Mde. Ola Mae Edwards Justice of Appeal The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal The Hon. Mr. Don Mitchell Justice of Appeal [Ag.] Appearances: Ms. Akila Anderson for the Appellant Ms. Willa Liburd-Tavernia, Ms. Rhonda Brown with her, for the Respondent _____________________________ 2011: September 26, 27. _____________________________ Civil appeal – Commercial Division – Construction of concrete ramp in seawater at shipyard – Nuisance – Injunction – Challenges to findings of fact made by the learned trial judge ORAL JUDGMENT
[1]This is the judgment of the court. The appellant, Mr. Betteto Frett, operates a marina, and the respondent company, Flagship Properties, operates a shipyard on neighbouring lots at Frenchman’s Cay in Tortola. 2
[2]Mr. Frett brought a claim in nuisance against Flagship claiming an injunction to restrain Flagship from constructing a concrete ramp in the seawater at its shipyard and for general damages. Mr. Frett pleaded that, with the construction of the ramp, his legitimate expectation of quiet enjoyment and the growth and development of his marina facilities and other related businesses would be stymied. As a result of the construction of the ramp, he was unable to use the western side of his dock, resulting in income reduction and his inability to satisfy his financial commitments.
[3]The learned trial judge found that Mr. Frett had failed to prove his claim, and she made several findings of fact relating to the evidence in favour of Flagship which were the subject of this appeal.
[4]Based on the case of Watt (or Thomas) v Thomas [1947] 1 All E.R. 582, which has been adopted by this court in a legion of cases, more recently in the case of Chiverton Construction Ltd et al v Scrub Island Group Ltd (TVI HCVAP 2009/028, unreported), an appellant who challenges findings of fact faces a serious hurdle. A Court of Appeal should attach the greatest weight to the opinion of the judge who saw the witnesses and heard the evidence, and consequently should not disturb a judgment of fact unless they are satisfied that it is unsound.
[5]In this case, the learned judge had the advantage of seeing and hearing the witnesses testify, and was in a position to assess their credibility. Mr. Frett has not been able to show us that the learned trial judge did not take proper advantage of having seen and heard the witnesses, or that the reasons given by the trial judge for the findings of fact which are the subject of the appeal are unsatisfactory. 3
[6]We find no errors with the trial judge’s findings of fact in the circumstances. The appeal is therefore dismissed with costs and the judgment entered in the court below is affirmed.
[7]Concerning the question of costs, this was based by the learned trial judge on the value placed on the claim pursuant to CPR 2000 65.5(2)(b)(ii). We accept the submissions of Counsel for Flagship Properties as to how the trial judge arrived at the value of $530,409.60, and we see no reason to disturb the value. Having regard to the value she placed on the claim, and her reduction of the prescribed costs pursuant to Rule 65.5(4), she awarded prescribed costs of $63,557.47. Consequently, the costs in the appeal, being two thirds of that amount, are $42,371.64. Ola Mae Edwards Justice of Appeal Davidson Kelvin Baptiste Justice of Appeal Don Mitchell Justice of Appeal [Ag.]
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