Levers J
```html IN CHAMBERS IN THE GRAND COURT OF THE CAYMAN ISLANDS CAUSE NO. 365 of 2006 BETWEEN: ANTHONY TRAVERS Plaintiff AND: THE PROPRIETORS, STRATA PLAN CORPORATION #104 (a Corporation) Defendant BEFORE: The Honourable Madam Justice Levers Appearances: Mr. Mac Imrie of Maples & Calder for the plaintiff Mr. Diarmad Murray of Walker for the defendant Date of hearing: 18th May 2007 JUDGMENT Levers， J. There are two applications before this Court. One is a Summons for Directions filed by the Plaintiff dated 19th February 2007 and the other is Summons filed by the Defendant dated 3rd April 2007. ```
```html 1 In view of the nature of the relief sought by the Defendant, it was 2 decided to hear the Summons filed on the 3rd April 2007, first. The 3 Summons asks for the following relief: (Defendant's Summons) 4 5 (1) That pursuant to Order 28, rule 8 of the Grand Court Rules 6 these proceedings be continued as if this action had been 7 commenced by Writ of Summons; 8 (2) That the Plaintiff be at liberty within 28 days to serve a 9 Statement of Claim; 10 (3) That the Defendant be at liberty within 28 days to serve a 11 defence and that the Plaintiff be at liberty within 14 days 12 thereafter to serve a reply; and 13 (4) That the costs of and occasioned by this application be 14 paid to the Defendant by the Plaintiff. 15 16 The simple reason for hearing the Defendant's Summons first was in 17 the event that this Court ruled that the matter proceed by way of Writ 18 of Summons, the directions given would be of a different character to 19 that given in the Originating Summons process. 20 21 ackgroun 22 1 Bnd ```
The Plaintiff commenced this action on 7th September 2005 by way of Originating Summons which has subsequently been amended. The action is clearly one that can be begun by way of Originating Summons (see Order 5, rule 4 (1) of the Grand Court Rules, 1995). It is also understood that it is not an usual way of commencing proceedings in matters where there is a substantial dispute of fact. The Supreme Court Practice (1999) Vol 1, at 7/7/2 gives several examples of when the commencement of action by originating summons is appropriate. In describing the appropriate form to be used it is said, "it is used for applications for relief under the inherent jurisdiction of the Court when no other form is prescribed, for example declarations as to construction of documents, and questions of law, administration of estates, kin enquiries, and mortgage actions under Order 88." The Defendant's position is that this case comes under the category of a subsute of fact. It is to be noted that the dispute is arising in the image of two unregistered land parcels to do with the
The Cayman, known as The Cayman Club, which was damaged significantly in the 2004 Hurricane Ivan. The Defendant apparently received insurance proceeds as a result of an insurance claim for damage caused by hurricane Ivan. The Plaintiff petitioned the Court seeking a declaration as to whether the basis of an assessment and/or damage to each of the units prepared by BCQS, is accurate, as each of the registered proprietors, including the Plaintiff were given a credit from part of the insurance proceeds for the cost of refurbishing their units. The Plaintiff disputes the basis of and the amount of the insurance distribution made to him. He also claims to be entitled to information relating to the apportionment of the insurance proceeds and the Defendant's assessment of the cost of repairs to The Cayman Club. Mr. Murray on behalf of the Defendant submits:
That the Defendant will produce factual and expert evidence on each of the issues the Plaintiff disputes;
```markdown (2) That there will be several affidavits because a determination of whether the Plaintiff is entitled to the accounts sought will require an assessment by the Court as to whether the Plaintiff is so entitled to the accounts on the facts; (3) The Court will be required to determine a factual dispute in relation to: (i) the assessment of damages undertaken by the Defendant's third party agents; and (ii) the assessment of whether the methodology used by the defendant in determining the credit for the cost of refurbishing their units allocated to each of the registered proprietors, including the Plaintiff, was correct. (4) And finally, he submits that the prejudice to the Defendant if the proceedings were to continue by Originating Summons would be as set out in the affidavit of Kevin Doyle, extremely harmful and that the Defendant would be denied the benefit of discovery. In other words, that the Plaintiff is likely to hold documents relevant to the extent of damage to the units owned by him as the Plaintiff retained his own contractors to reinstate those units. ```
By this Originating Summons, which is issued on the application of Anthony Travers of Unit 5, the Cayman Club, West Bay Road, Grand Cayman, the Plaintiff claims against the Defendant in respect of point 1 below and seeks the determination of the Court on points 2, 3 and 4 below, namely: (1) An order that the Defendant by its Executive Committee do produce to the Plaintiff: (a) An account of the manner in which the insurance proceeds received in respect of the damage caused by Hurricane Ivan have been or are to be allocated or apportioned to each owner of a condominium at The Cayman Club. (b) An account of the manner in which the assessment for the costs of repairs have been calculated by the Defendant's agents and claimed from each owner of a condominium at The Cayman Club. (2) A declaration as to the correct amount due and appropriate are to be paid by the Plaintiff to the Defendant in respect of the
Assessments Made by the Executive Committee of The Cayman Club (3) A declaration that the Plaintiff is not bound to complete the "Release and Discharge" circulated by the attorneys-at-law for the Defendant as a condition precedent to the Plaintiff's entitlement to receive the appropriate proportion of his insurance proceeds. (4) A declaration that, pending the resolution by the Court or the parties of the issues in points 1, 2 and 3 above, the Plaintiff is entitled to participate in and vote at any general meeting notwithstanding that all contributions in respect of his strata lot may not have been duly paid. (5) Such other orders, declarations or directions as the Court deems just or expedient. (6) An order that the Plaintiff's costs of and incidental to this proceeding be paid by the Defendant. If the Defendant does not acknowledge service, such judgment may be given or order made against or in relation to him as the Court may direct and expedite the Court's justice.
Mr. Murray makes these submissions against the background that he has not filed any affidavit evidence and the arguments advanced to date have not been advanced by any expert or witness on oath. In addition, he has not requested any further information from Mr. Imrie. His submissions are based on the premise that should he put in any evidence, the Court will likely come to the conclusion that his objections would succeed. The Court is clearly at a disadvantage when an argument is based against this background. Had affidavit evidence been filed, it would have been most useful. Mr. Imrie for the Plaintiff submits to the Court that there are two issues to be resolved by this case: (1) What is the proper assessment of damage to the Plaintiff's apartment? and (2) Has the Strata committee adopted the correct method of apportioning the insurance proceeds?
All other points in the Amended Originating Summons, he submits are ancillary to these main points. The first relief sought in the Originating Summons is an order for accounting. On the present state of the evidence before the Court, it cannot be said that this will result in a substantial dispute of fact. It surely would be a question of construction of the by-laws of the strata corporation to determine whether this Plaintiff is entitled to an accounting and the question of the manner in which the assessment was made would also be a question for the Court to determine based on the documents before it. The second relief is a declaration as to the correct and appropriate amount due to be paid by the Plaintiff to the Defendant. This would be a simple matter to resolve, once the evidence is before the Court on (1) and (2) above. The quantum of the Defendant's claim is not as quantum of the Plaintiff's claim. The Court is asked to determine the correct amount due to the Court to ensure that the accounting is done correctly and appropriately in view of the manner in which the accounting is done.
I cannot see that this could be a question of a substantial dispute of fact in the sense of complexity. It may be a mathematically tedious question.
The third relief is a declaration that the Plaintiff is not bound to complete the "Release and discharge" that has been circulated by the Defendant.
This would be a matter of construction of the Strata by laws, but in any event I am informed that this has been resolved.
A declaration is also sought that pending the resolution by the Court or the parties of the issues in points 1, 2 and 3 above, the Plaintiff is entitled to participate and vote in any general meetings. I am told, as a result of the Plaintiff not paying the Strata Corporation's fees and the Defendant refusing a cheque for $278,000, this declaration was requested. Apparently this matter too has been resolved.
So, it would appear that of the relief sought, two matters were matters of construction and have been resolved and the others are the ones that Murray is shouldered with.
In an Originating Summons the Plaintiff and the Defendant can cross-examine each other's witnesses if they so require and the methodology and quantum of assessment and distribution can be addressed by way of affidavits. However, if the Defendant puts in substantial evidence which will require the Court to go into disputes of fact, then the Court can review the Defendant's application on the evidence before this Court. However, at present it cannot say that this matter will involve a substantial dispute of fact. All the cases that have been referred to in this case are relevant and useful if the Court were convinced that there is a substantial dispute of fact. I am not so convinced. I therefore dismiss the Defendant's Summons. Mr. Murray submits that if the Court was not to hold in his favour then the Defendant would not be contesting the order sought by the Plaintiff, except that he wishes more time to file affidavits than the 28 days given in the rule. The Court has already ruled that the Defendant cannot file affidavits before the hearing. Therefore, the Court dismisses the Defendant's Summons.
```markdown (1) The Plaintiff will be granted leave to file and serve the affidavits of Anthony Travers, Richard Douglas and Christopher Phillips; (2) The Defendant do file its affidavits in reply to the Plaintiff's evidence within 28 days from the date of this order, such affidavit to include evidence of the matters specified in paragraphs 1(a) and 1(b) of the Amended Originating Summons dated 7th September 2006; (3) The Plaintiff do file any affidavits in reply to the Defendant's evidence within a further 21 days thereafter; (4) The parties do have leave to simultaneously exchange one expert's report on the issue of the cost of repairing the damage to the Plaintiff's unit 21 days after the date the Plaintiff's reply evidence is filed; (5) Within 14 days after service of the Plaintiff's reply evidence or (if applicable) the exchange of expert reports, the Plaintiff do serve on the Defendant points of claim to be decided at the hearing of this action; (6) Within 14 days after service of the points of claim, the Defendant do serve on the Plaintiff its points of defence; (7) The re-listed first available for trial date is 21st February 2007. The matter will be heard by the Honorable Mr Justice [Name of Judge] on the 21st February 2007. ```
```markdown (8) The cost of and incidental to this application be costs in the Cause. I should add that rules and procedures are designed to ensure that the Court was free to adopt the procedure best calculated to enable a just and fully informed decision to be reached. On the evidence before the Court, in the exercise of my case management powers, I can decide the procedure to be adopted, and what should be subject to cross-examination at the hearing. It is my belief that based on the evidence as it presently stands, a just and fully informed decision can be reached if this matter goes to trial/hearing as presently commenced by way of Originating Summons. Dated this 29 th day of May 2007 Judge of the Grand Court