Levers J
IN CHAMBERS
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CAUSE NO: 222 OF 2005
BETWEEN:
STACEYANN KELLY Plaintiff
AND:
VICTOR LOOK LOY Defendant
BEFORE: The Honourable Madam Justice Levers
APPEARANCES:
Counsels for Plaintiff: Mr. S. Hall-Jones instructed by Ms. S. Frederick-Westerborg of Associated Advocates Chambers
Counsel for Defendant: Mr. N. Hill, Q.C. instructed by Ms. E. Nervik of Nervik & Co.
Heard: May 12, 2005
JUDGMENT
Levers J,
In this case, Mr. Hill, Q.C., argues that the landlord has the right of re-entering on the basis that the premises were unoccupied and a notice was served.
Occupation, he submits is an actual presence on the property. It is clear on the evidence give by the Plaintiff in sworn testimony that she in the course of her professional duties was visiting abroad and therefore in my view was still in
occupation of the premises. As Chief Justice Smellie, Q.C. states in Cause No. 93/04, Ann Marie Logan v Lighthouse Properties Limited:
"Of particular application here, the Court of Appeal held that section 55 (2) (a) of the R.L.L. did not create a separate and distinct right of forfeiture for a lessor, but was designed to ensure that direct re-entry in exercise of the right created by section 55 (1) or by the lease itself; was only allowed where the land was unoccupied, and in other cases was enforceable only by means of action through the Courts."
There is no evidence placed before me by the landlord that the premises were unoccupied as envisaged by the law. I hold therefore that the premises being occupied, the Defendant in this case would only have the right of re-entry through the Courts. I extend the injunction till the hearing of this matter, on condition that the rent due as stated by the Defendant is paid into Court. Costs to the Plaintiff to be taxed or agreed.
The Defendant of course may wish to renew the application to set aside the injunction after filing of additional affidavits, should he so desire.
Dated this 18th day of May, 2005
Judge of the Grand Court