Richard Rowe et al v The Authorised Officer for The Angelus

Transcription

Federation of Saint Christopher and Nevis
Island of Saint Christopher
A.D. 2010
THE ANGELUS BOARD OF ASSESSMENT
AWARD OF THE BOARD
25th March 2010
FEDERATION OF SAINT CHRISTOPHER AND NEVIS
ISLAND OF SAINT CHRISTOPHER
AD 2010
BOARD OF ASSESSMENT
(LAND COMMONLY REFERRED TO AS "THE ANGELUS")
AD 2010
THE AWARD
o
FEDERATION OF SAINT CHRISTOPHER AND NEVIS
ISLAND OF SAINT CHRISTOPHER
AD 2010
BOARD OF ASSESSMENT
(LAND COMMONLY REFERRED TO AS "THE ANGELUS")
The Chairman and members of the Board of Assessment:
Mr Don Mitchell CBE QC
Mr Joseph Lancaster
Mr Peter Jenkins
Appearances of counsel and parties before the Board:
Anthony Astaphan SC, Dr Henry Browne, Mr Arud Gossai, Sheleen Matthew, Grace
Gilfillan and Mr Leon Charles with him, for the Authorised Officer
Mr Fitzroy Eddy for Mr and Mrs Mederios
Mr Emile Ferdinand, Mr Damian Kelsick with him
Mr and Mrs Alberto Franconeri, Claimants
Ms Dana Harper, Claimant
Ms Elizabeth Harper
Ms Rosalind Harper, Claimant
Ms Robin Herbert-Thompson
Ms Constance Mitcham, Ms Kishari John with her
Mr David Rawlins
Dr Vernon Veira
Mrs Beverley Williams, Authorised Officer
Mr Dan Wise, Ms Claire Robey and Mr James Fairbum with him of Martin Kenney & Co
Sittings ofthe Board: 6 February, 17 July, 17 September, 1,7,8,9 December 2009, and 18 January and 18
February 2010
THE AWARD
[1]
On 8 September 2006, the Government of the Federation of St Kitts and Nevis issued Statutory Rule and
Order Nos 21, 22 and 23 of 2006' evincing an intention to acquire three parcels of land (hereinafter "the
subject lands") in the Parish of St George, in the island of St Kitts for a public purpose', The subject lands
included a condominium project that was originally called "Paradise Beach Resort" and latterly "The
Published in the Official Gazette of St Kitts and Nevis on 8 September 2006, see page 7 of Vol 1 of the Authorised
2
Officers' Report.
See pages] -6 of Vol 1 of the Authorised Officer's Report.
1
Angelus". SR&O No 21 of 2006 applied to a parcel of land at Frigate Bay Estate comprising 15.032 acres;
SR&O No 22 of 2006 applied to a nearby parcel of land measuring 5.000 acres; and SR&O No 23 of 2006
applied to a third parcel of land measuring 1.5027 acres.
[2]
On 28 December 2006, the Government, acting under section 3 of the Land Acquisition AcP, {hereinafter
"the AcY'} made three declarations published in the Official Gazette4 compulsorily acquiring the subject
lands for a public purpose. By virtue of section 3{3} of the Act, the Government became the owner of the
subject lands on 18 January 2007. Mrs Beverly Williams, Comptroller of Inland Revenue, was appointed
the Authorised Officer for the purposes of the Act.
[3]
Despite protracted negotiations, the issues of entitlement to and amounts of compensation were not
agreed upon by the persons claiming an interest in the subject lands (hereinafter "the Claimants") and the
Authorised Officer.
[4]
Where such a situation arises, the Act at section 11(1} makes provision for the Governor-General to
establish of a Board of Assessment to deal with issues of entitlement to and amounts of compensation.
On 11 July 2008 His Excellency the Governor-General appointed a Board of Assessment comprising Mr
Don Mitchell CBE QC, Chairman, and Mr Edwin Glasford, Member. There were only two persons on the
Board at that time as the Claimants failed to agree on a single nominee. On 18 December 20085, the
Governor-General appointed Mr Joseph Lancaster to the Board of Assessment. The establishment of the
Board and the appointment of members to it were published in the Official Gazette on 31 December 2008.
[5]
The Act provides at sections 13-17 what is to happen after the appointment of a Board. The sections
read, where relevant:
Documents, etc, to be forwarded to the Board
13.(1) Upon the appointment of the Board ... the authorised officer shall forward to the Chairman
... those of the following documents and particulars which relate
to the acquisition
... of the land,
(a) a copy of any notification and declaration which has been published in the Gazette;
3
4
5
Cap 273 ofthe 1964 Edition ofthe Laws of St Kitts and Nevis, as subsequently amended by the Land Acquisition
Ordinance (Amendment) Act. 1969.
SRO Nos 27-29 of2006. see pages 7~13 of Vol 1 of the Report.
As a resu It 0 f a consent order to that effect made by Belle J in the High Court in the case of Rowe & Secrist v A ~G of St
Christopher and Nevis, Consolidated Claims Nos SKBHCV 2008/208 and SKBHCV 2008/219.
2
(b) a copy of the notice of acquisition;
(e) a copy of any notice issued or received by him;
(d) a copy of al/ statements received by him in compliance with any notice issued by him;
(e) the names and addresses of the persons whom the authorised officer has reason to
believe are interested in the land; and
m a copy of the reporl required by this section.
(2) The reporl to be sent to the Board shall state the opinion of the authorised officer, and his
reasons for such opinion, upon each of the following matters (a) what is a fair and proper description of the land acquired, including particulars of any
buildings, trees or standing crops thereon;
(b) the approximate acreage of the land;
(c) the value of the land for the purposes of compensation under this Act
(d) .
(e) .
Inquiry by Board
14. Where a Board has been appointed under the Act, the Board shall hold an inquiry at a place,
date and time to be fixed by the Chairman, of which not less than fourteen clear days notice shall
be given to the parlies concerned, and every such inquiry shall be conducted in public.
Procedure at Inquiry
15. The procedure at an inquiry before the Board, the summoning and remuneration of witnesses
for attendance thereat, and all questions incidental to the inquiry shall be governed by the
provisions of the laws for the time being in force relating to civil proceedings in the Supreme
Courl.
Provided that in the case of any doubt arising on any question of practice and procedure the
same may be sett/ed by the Chairman.
[6]
On 30 January 2009 the Authorised Officer prepared and served Volumes I and II of her Report on the
Board and all counsel representing various Claimants. Volumes I and II contained, inter alia, the
Resolutions, Declarations,Authorised Officer's valuation, claims, and correspondence.
3
[7]
The Board convened its first hearing on 6 February 20096 and gave certain preliminary directions? The
Board convened another hearing on 17 July8. but could not proceed as the Authorised Officer had not
completed the necessary Volume III of her Report.
[8]
During the period 15-17 September 2009, the Authorised Officer made a determination in relation to those
claims which were accepted and those which were rejected and notified the Claimants of her decision.
[9J
The Board conducted another hearing on 17 September 20099 and gave further directions10 for the
hearing to proceed. On 22 September 2009 the Authorised Officer prepared and served Volume III of her
Report on the Board and all counsel representing various Claimants. Volume III contained, inter alia, all
accepted and rejected claims and valuations submitted by Claimants. On 1 October 2009 the Authorised
Officer prepared and served an Addendum to Volume III of her Report on the Board and all counsel
representing various Claimants. The Addendum to Volume III contained, inter alia, additional valuations
submitted by Claimants.
[10]
Mr Edwin Glasford resigned from the Board on 11 November 2009 and was replaced by Mr Peter Jenkins
who was appointed by the Governor-General on 16 November 2009. Mr Jenkins' appointment was
published in the Official Gazette on 19 November 200911.
[11]
On 1 December 2009, the Board commenced its hearings12 into the claims of the various Claimants for
compensation. On this date, the Board at the request of counsel for the Claimants Rowe and Secrist
ruled that all Claimants previously rejected by the Authorised Officer were properly rejected, for failure to
comply with earlier directions given by the Board. The only exceptions were the Medeiros and McDonald
families who had complied, were represented by counsel, and who, it was ruled, would be permitted to
make representations on their behalf. The hearing resumed on 7 December 200913, continued on 8
6 See Appendix 1 for the transcript.
7 See Appendix 2 for the directions.
10 See Appendix 5 for the directions.
11 Official Gazette No 52 of2009.
4
December 200914,and 9 December 200915, and concluded on 18 February 201016.
[12]
The Properties: The three parcels of the subject lands that were acquired by government are held under
the provisions of the Title by Registration Act17. They are:
SRO 2112006
A parcel of land measuring 15.032 acres. This
SRO 27/2006
parcel was previously divided into three parcels
with titles registered as Book Y2 - Folio 69; Y2 382; and Y2 - 383.
SRO 2212006
A parcel of land measuring 5.000 acres.
SRO 28/2006
Board has not been able to locate in the evidence
The
the number of the Register Book in which the title
is registered.
SRO 23/2006
A parcel of land measuring 1.5027 acres. The
SRO 29/2006
Board has not been able to locate in the evidence
the number of the Register Book in which the title
is registered.
Table 1: The acquired properties
The total property acquired consisted of three parcels of land totalling 21.535 acres. The Angelus Project
was a condominium project with accompanying buildings and structures constructed on a part of one of
the three parcels, registered at Book Y2 folio 69, originally measuring 15.032 acres. The properties
registered at Y2 - 382 and Y2 - 383 had previously been severed from the larger parcel Y2 - 69. The titles
to the individual condominiums constructed on Y2 - 69 were registered and held under the provisions of
the Title by Registration Act and the Condominium Act, 197618. The registered Declarations of Covenants,
Conditions and Restrictions indicate that the Condominium was declared only over the property registered
at Book Y2 folio 6919. The Board has not been able to locate in any of the evidence the registered titles of
the other two parcels of land acquired by Government. They will continue in this Award to be referred to
15
16
17
18
19
See Appendix 9 for the transcript.
See Appendix 10 for the transcript.
Chapter 279 of the 1964 edition of the Laws of St Kitts and Nevis.
No 20 of 1976.
See the Declaration at Tab 7 of Bundle 6 of the Martin Kenney & Co bundles.
5
as the 5.000 acre and the 1.5027 acre parcels.
[13]
The long title of the Condominium Act reads,
An Act to facilitate the sub-division of land into parts that are to be owned individually and parts
that are to be owned in common and to provide for matters incidental thereto and connected
therewith.
Titles to condominium units are registered20 with the Registrar of Titles under the provisions of the Title by
Registration Act. Only land under the operation of the Title by Registration Act may be governed by the
provisions of the Condominium Act. Section 3 of the Condominium Act provides that properties brought
under the Act shall comprise only freehold land and interests, if any, appurtenant to that land. Thus,
timeshare interests are not registerable under this Act. The valuation of a condominium unit will include a
proportionate share of the common areas held by the condominium unit owners.
[14]
The condominium had been declared over the parcel registered as Y2 - 69. There were said to be 108
Units constructed on it. It appears that 53 of them were sold by the developers, leaving 55 in the
possession of the developers.
order of Belle
J21.
Rowe and Secrist became entitled to the unsold Units as a result of an
Of the 53 sold units:
(a) 8 units are rejected claims by the Authorised officer (McDonald, Ward and Medeiros), and if
the Board rejects those claims, the compensation paid for those Units would revert to Rowe and
Secrist; and
(b) the balance were accepted by the Authorised Officer.
[15]
The Claimants:
Richard Rowe and Mark Secrist, by the same consent order mentioned above, are
authorised to represent some 125 Claimants in claims relating to the subject property. Their solicitors,
Martin Kenney & Co, also separately represent four owners of 6 condominium Units. Other persons made
claims for compensation based on a number of other alleged entitlements.
attorneys, and others were not.
Some were represented by
After the remaining Units registered to owners other than those
represented by Martin Kenney & Co are deducted, Rowe and Secrist claim to be entitled to the balance of
the compensation payable by government in relation to Y2 - 69, and the entirety of the compensation
payable in relation to Y2 - 382, and Y2 - 383. No claim for compensation has been made by anyone in
relation to the other two parcels of land acquired by Government.
20 See sections 2 and 4 of the Condominium Act.
21 In Rowe & Secrist v Administrative Services Ltd et
ill (Suit
6
No SKBHCV 2003/0222)
[16]
The Claimants whose claims were placed before the Board were, in alphabetical order:
-
Name of Claimant
Particulars of the interest Whether accepted
claimed, and the location in the or rejected by the
evidence
Authorised Officer,
and the reason why
rejected
Armstrong, Frank S
Unpaid bills totaling EC$6,236.01.
Vol III tab 34.
Rejected
No interest in land
Bellis, Roland & Gillian
Units 204A, 205A, 206A.
Certificate of Title.
Cooper Kauffman Valuation.
Vol I p.233; Vol III tab 11.
Accepted
Benton, Roy & Gen,
represented by Martin
Kenney & Co
Units 210A, 211A and 212 A.
Mortgage with National Sank.
Valuation.
Accepted
Buchanan, James
Unpaid bills in
US$10,OOO.00.
Vol III tab 35.
Cable & Wireless
Unpaid bills in the
EC$90,615.99.
Vol III tab 29.
Cooper, Howard
represented by Dr Veira
Units 202C and 203C.
Accepted
Kauffman
Relies
on
Cooper
Valuations.
Vol 1, p.236; Vol III, tab 13.
Cote, David & Elizabeth,
represented by Mr
Rawlings
Rejected
Units 3100,3110 and 3120.
Sale and Purchase Agreement of 22 No interest in land
July 2004.
Oeposit of US$78,OOO.00 on a total
purchase price of US$180,000.00
paid.
No Certificate of Title.
Crossman, Jay & Oanya
Timeshare
sees
interest
the
sum
of Rejected
No interest in land
amount
of Rejected
No interest in land
purchased
US$15,869.QQ.
Claim submitted out of time.
Vol I p.284.
7
for Rejected
No interest in land
Claim submitted out
of time
John Davison for ICC
Cricket World Cup
Un-refunded
payments
of Rejected
US$69,644.70 in 2006 for rental of No interest in land
30 rooms.
Vol III tab 38; Vol iliA tab 21.
Drevs, Mr & Mrs Walter,
Units 3048,3058, and 306B.
Accepted
Edwin Glasford Valuation.
Relies
on
Cooper
Kauffman
Valuations.
Vall p.292; Vol III tab 14; Vol iliA tab
9.
Dunn, Paul & Chae,
Kenney & Co
Units 301 A, 302A and 303A.
aces Valuation.
Dunning, Robert & Janet, Unit 303C.
Sale and purchase agreement.
represented by Ms
Herbert-Thompson
Part paid.
Vol
Accepted
Rejected
No interest in land
Fraites, Derrick V
Judgment
Franconeri, Alberto &
Anne, represented by Dr
Veira
Units 201A, 202A, and 112A.
Vall p.296; Vol III tab 16.
Accepted
Groesbeck, Dr & Mrs
Jess, represented by Dr
Veira
Units 104A, 105A and 106A.
Vall p.305; Vol iliA tab 7.
Accepted
Harper, Dana, & Herbert,
Kyle, represented by Dr
Veira
Units 110A, 111A and 112A
Certificate of Title
Vall p.299; Vol III tab 17.
Accepted
Hayes, Maureen,
Units 305A and 306A.
Vol III p.302; Vol III tab 18.
Accepted
Hobson, Michael
Magistrate's Court judgement, which No claim before the
in
suit
SKSHCV Rejected
2005/0206 in the amount of
EC$11 ,670 plus costs.
Vol III tab 32.
appears to have been previously Board.
settled.
Vol III tab 31.
8
Hunter, Larry & Gail,
represented by Ms
Herbert-Thompson
Unit 302C.
Part paid.
Vol 1.
Island Purified Water
Unpaid bills
EC$2,150.00.
Vol III tab 39.
Lesak, Robert, and Sean
Wischover, represented
by Ms Herbert-Thompson
Units 3118 and 3128.
Certificate of TItle.
in the
amount
McDonald, Gary & Cathy, Unit 301C.
represented by Ms
Herbert-Thompson
Part paid.
No Certificate of TItle.
Mederios, Leonard &
Mary DelPrete,
represented by Mr Eddy
Rejected
No interest in land
of Rejected
No interest in land
Claim submitted out
of time
Accepted
Rejected
No interest in land
Units 2138,2148 and 2158.
Rejected
Sale and purchase agreement of 11 No interest in land
February 2005.
Deposit of US$84,004.25 paid on a
total price of US$190,OOO.OO.
Vol iliA tab 5.
Mitcham, Constance V
Units 210C, 211C and 212C.
Accepted
and Pearline 0 Sylvester, Memorandum of Transfer executed
represented by Ms
on 18 November 2005 on payment
Mitcham
of a total purchase price of
US$125,000.00.
Mitchell, Joseph
Unit 3018.
Morton, Wycliffe, &
Associates
Unpaid bills of US$10,000.00 and Rejected
EC$33,OOO.OO
for
valuation No interest in land
services.
Vol III tab 41 .
Mu'eller, Stephen
Accepted
Units 205C and 206C.
Relies
on
Cooper
Kauffman
Valuations.
Vol I p.361; Vol II! tab 23.
9
Accepted
Nicholls, Fitzroy
One wooden hut.
Rejected
Sale and purchase agreement of 1 No interest in land
August 2005 in the amount of
EC$7,000.00.
Nicholls, Rosalind,
represented by Ms
Mitcham
Units 207C, 208C and 209C.
Accepted
Memorandum of transfer executed
on 18 November 2007 on payment
of a total purchase price of
US$125,OOO.OO.
Vol 1 p.368; Vol III tab 24.
RBM Nursery &
Landscaping Services,
Melissa & Rodney
Flemming
Unpaid bill of EC$20,006.70
landscaping services.
Vol III tab 43.
Robinson, Christine,
Units 210B, 211B and 212B.
Accepted
Vol I p.368; Vol III tab 25; Vol iliA tab
11.
Rowe, Richard, & Secrist,
Mark and others,
Kenney & Co
for Rejected
No interest in land
Those 67 condos built on the Accepted
property registered at folio Y2 - 69 in
Blocks, A, Band C of The Angelus
Resort and unsold by BMT, and their
associated common areas;
All of Block D on Book Y2 - 69, and
its associated common areas.
All of the lands registered at Book
Y2, - 382;
All the lands registered at Book Y2, 383.
Certificates of Title resulting from
judgment of Belle J dated 11
December 2008.
National Bank holds mortgage.
BCaS Valuation.
~------------~-------+-----------~
St Kitts-Nevis-Anguilla
1. Mortgage by BMT Ltd with an Accepted
National Bank Ltd
outstanding balance as of 12
represented by Kelsick
February 2007 of EC$4,348,486.77;
Wilkin and Ferdinand,
2. Mortgage by BMT Ltd with an
subject to a consent court outstanding balance as of 12
order in Claim No
February 2007 of EC$1,016,705.76;
SKBHCV2009/0273
3. Mortgage by Benton, Roy & Gen,
with an outstanding balance as of 12
10
February 2007 of EC$360,962.17;
I
4. Wynne, Mary B & Robert with an
outstanding balance as of 12
February 2007 of EC$810,937.96.
Vol I; Vol III tab 10; plus further
disclosure on 6 October 2009.
~---+-
St Kitts Office Machines
Ltd
Unpaid
bills
amounting
to Rejected
EC$13,550.00 for office equipment. No interest in land
Vol III tab 44.
Sentz, Daniel J,
Units 102A and 103A.
Accepted
Vall p.381; Vol III tab 26; Vol iliA tab
8.
Social Security Board
Unpaid contributions in the amount Rejected
of EC$457,500.54.
No interest in land
Vol III tab 30.
Stapleton, Denise
Judgment in the Magistrate's Court Rejected
in the sum of $8,424.41.
No interest in land
Vol III tab 33.
TDC Ltd
Unpaid bills in the amount of Rejected
EC$12,724.21 as of 29 October No interest in land
2007.
Vol III tab 45.
Ward, Joseph,
represented by Ms
Mitcham
Units 1028 and 1038.
Rejected
Awarded in consideration of loans No interest in land
and advances in the amount of
US$150,OOO.OO made to BMT by
resolution of the Board of BMT.
No mortgage registered.
~-------------+------
Warnell, Paul & Barbara,
Units 310A, 311A and 312A.
Accepted
Vol I p.387; Vol III tab 27; Vol iliA tab
10.
Water and Electricity
Unpaid bills in the amount of Rejected
EC$502,522.91 for electricity and No interest in land
EC$103,039.49 for water.
Vol III tab 28.
WilicuUs, Robert & Donna Timeshare
interest
only
consideration of a payment
US$16,700.00.
No Certificate of title.
-
------------~-
11
in Rejected
of No interest in land
L
I
VollH tab 47.
Wynne~,Ro-bert-&-M-a-ry---+-Un-it-s-10-7A-,-1a-SA and 109A.
I
I
Accepted
Mortgage held by National Bank.
Vall p.305.
I'-~--~~~------'----,=--::---=----=--==----::------'---Table 2: The claims
[17]
The Authorised Officer accepted22 the claims of National Bank which held registered mortgages against
several of the condominium units that were the subject to claims for compensation.
The Authorised
Officer also accepted all claims of persons who held Certificates of ntle or other legal instrument, in her
opinion sufficient to establish an interest in the subject lands.
Such acceptance was subject to the
Authorised Officer's opinion on the value of the land, and subject also to the mortgages of the lands in
favour of National Bank. The Authorised Officer accepted that Rowe and Secrist, in their representative
capacities, were entitled to the remainder of the compensation after all persons with legal interests in the
subject lands and the mortgages have been paid. These accepted claims are also subject to payment of
arrears in property taxes in accordance with the conditions of the Certificates of Title.
[1S]
The Authorised Officer rejected a number of claims based on the wording of the Act which suggested that
only persons who have a legal interest in the subject lands could claim compensation.
Based on this
interpretation of the law she rejected the claims by those persons who relied on court judgments, and bills
for services rendered and goods supplied.
[19]
The Authorised Officer rejected the claims of Jay and Danya Crossman and Robert and Donna Wilcutts
who had each been sold a "timeshare" interest in one or the other of the condominium Units. She found
that no p~rt of the project was registered as a timeshare project and that unless title to a timeshare
interest is registered in accordance with the Title by Registration Act and the St Kitts and Nevis Vacation
."
Plan and Time Share Act 2005, no interest in land exists. No timeshare interest in
, the lands in question
had been registered.
[20]
The Authorised Officer also rejected those Claimants who had paid deposits towards the purchase of units
at The Angelus, but which sales were never completed, on the basis that a compulsory acquisition of
lands frustrates any agreement for sale of the said lands. She found that in such cases it is the vendor
who is entitled to the compensation, and the prospective purchaser must make a claim against the vendor.
22 See Vol ill of the Authorised Officer's Report, tab 2.
12
In one case, she found that a claim had been made on the basis of two units having been given as
collateral for a loan, but no mortgage having been registered, the claimant had no legal interest in the land
and was not entitled to compensation.
She accepted those Claimants who had paid in full for their
condominiums, but who had not obtained Certificates of Title.
[21]
The Law: The entitlement of the Claimants to compensation in this dispute arise primarily under the
provisions of sections 2 and 8 of the 1983 Constitution of St Kitts and Nevis23 which, so far as they are
relevant, read:
2.. This Constitution is the supreme law of St Christopher and Nevis and, subject to the provisions
of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall
prevail and the other law shall, to the extent of the inconsistency, be void.
8. (1) No property of any description shall be compulsorily taken possession of, and no interest in
or right over property of any deSCriptionshall be compulsorily acquired, except for a public
purpose and by or under the provisions of a law that prescribes the principles on which and the
manner in which compensation therefor is to be determined and given.
[22]
Section 8 of the Constitution provides that no property shall be acquired by Government unless it is for a
public purpose and compensation is paid to the persons having an interest in it. The Constitution does not
protect only interests in land, but protects every form of private property. The Edmund Lawrence case24
from St Kitts long ago established that the word 'property" in the Constitution should be given a wide
scope, applying equally to abstract concepts of property, including money.
[23]
The applicable law is the Land Acquisition Act. Section 11 provides that:
"
Determination of questions by Soard ofAssessment
11. (1) All questions and claims relating to the payment of compensation under this Act and to the
apportionment of such compensation shall, save as hereinafter provided, be submitted to a Board
of Assessment to be appointed in each case in accordance with the provisions of section 12..
(2) A Board of Assessment shall have full power to aSS8SS,award and apportion compensation
23 Sl 1983 No 88l.
24 A-G ofSt Kitts and Nevis v Lawrence (1983) 31 WTR 176.
13
in such cases, in accordance with the provisions of this Act.
Award of Board
17. (1) At the conclusion of the inquiry the Board shall decide upon the claims for compensation
and apportionments submitted to them and shall make an award under the hand of the Chairman
who shall cause the same to be filed in the High Court.
(2) The decision of the majority of the members of the Board with respect to the compensation
to be paid shall be deemed to be the decision of the Board, and, if all the members of the Board
differ, the mean between the amount decided upon by the Chairman and the one of the amounts
decided upon by the other two members of the Board which approximates most nearly to the
amount decided upon by the Chairman shall be deemed to be the compensation awarded by the
Board.
(3) An appeal shall lie against a decision of the Board to the Court of Appeal.
Rules for assessment of compensation
19. Subject to the provisions of this Act, the following rules shall apply to the assessment and
award of compensation by a Board for the compulsory acquisition of land (a) the value of the land shall, subject as hereinafter provided, be taken to be the amount
which the land, if sold in the open market by a willing seller, might have been expected to
have realised at a date twelve months prior to the date of the second publication in the
Gazette of the declaration under section 3:
Interest
21. The Board, in awarding compensation, may add thereto interest at the rate of four percentum
per annum, calculated from the date upon which the authorised officer entered into possession of
the land acquired until the date of the payment of the compensation awarded by the Board.
Rules
8S
to costs
22. (1) The authorised officer shall pay to the claimant the reasonable costs incurred by him in or
14
about the preparation and submission of his claim, unless the Chairman considers that the
claimant has failed to put forward a proper claim within a reasonable time after the service of the
notice under section 7, or that the claim put forward is grossly excessive or that he has been a
party to some deceit or fraud in respect of his claim.
(2) ...
(3) ".
(4) Subject to the preceding provisions of this section, the costs shall be in the discretion of the
Chairman who may direct to and by whom and in what manner those costs or any part thereof
shall be paid, and he may in any case direct such costs to be taxed by the Registrar of the High
Court.
(5) The mode of enforcing any order as to costs shall be in the manner prescribed by the
practice of the Supreme Court.
(6) ...
Payment of compensation, etc
29. All amounts which have been awarded by way of compensation under this Act, including
interest and costs to be paid by the authorised officer, and all other costs, charges and expenses
which shall be incurred under the authority of this Act, shall be paid out of the Treasury on the
warrant of the Minister of Finance.
[24]
The Title by Registration Act was brought into effect throughout the Colony of the Leeward Islands by the
last sitting of the General Assembly of the Leeward Islands on 1 February 1887. It is one of the earliest
enactments of the Torrens system of land registration outside of Australia, where it originated. The Act
provides2"that lands are brought under its operation when a first Certificate of Title is issued in respect of
them. On the issuing of the first Certificate of Title to a parcel of land all deeds and former titles by which
the land was held cease to have any force or effect26. Section 5 reads:
5. (1) From and after the time when any land is brought under the operation of this Act, aI/ dealings
with such land shall be in the forms and govemed by the principles set forth in this Act; and al/
such dealings shall take effect from the date and act of registration, and not from the date of the
execution or delivery of any instrument or document, or otherwise, save as in the Act provided. ...
25 At section 2.(2).
26 Section 4.
15
(2) Dealings wfth lands brought under the operation of this Act, which are not in accordance with
the provisions of this Act, shall operate as contracts only, and shall not confer any right in respect
of the land, except the right of enforcing the contract as against the parties, and persons claiming,
otherwise than as purchasers or mortgagees for value, under such parties.
[25]
The correct test for valuation: This is provided by section 19 of the Act set out above at paragraph [23].
The essence of the test is sale in the open market by a willing seller. The correct valuation date under
section 19 is 18 January 2006, ie, 12 months prior to the date of the second publication in the Gazette of
the Declaration of Acquisition.
_
[26]
The condition of the subject property at the material time is relevant to the amount of compensation due to
be paid by Government. There in no dispute that the Angelus Project was a failed one at the prescribed
date, further development of which had been stymied by poor management, litigation, and conflicting
claims. There is a dispute as to whether some of the condominium Units had been cannibalised at the
material date for valuation of 18 January 2006. Williams Architectural, the valuer of the Authorised Officer,
used an assumption of cannibalisation as a basis for applying "multipliers" which have the effect of
reducing the valuation. Such cannibalisation as occurred does not appear to this Board from the evidence
to have affected any of the structures as at 18 January 2006, and was probably limited to fittings and
fixtures.
In any event, at the hearing counsel for the Authorised Officer withdrew the multipliers in
question.
[27]
Another negative factor affecting the valuation of the subject lands is described by the phrase "litigation
blight". Tt1t3High Court in Suit No 222 of 200327 had granted a freezing Order relating to the subject lands
on 27 January 2006. Counsel for Rowe and Secrist argue that there was no real litigation blight affecting
the value of the property at the material time of 18 January 2006 because that date is prior to the date at
which the High Court granted the freezing order of 27 January 2006. In any event, counsel submitted, the
freezing order expressly allowed the Resort to continue to be operated and for condominiums to be sold,
though under strict conditions, and the Resort continued in operation after a fashion. It is noted however
that the suit had been filed since the year 2003. The Rowe and Secrist claim against the original
developer was based on an allegation that investors in the project had been the victims of a "Ponzi
27 Supra
16
scheme". This could hardly have made the project an attractive proposition to buy into; Additionally, there
appear to have been other judgments awarded against the project. The claims of Michael Hobson,
Derrick Fraites and Denise Stap1etonwere based on earlier judqrnents awarded against the developers.
[28]
The evidence before the Board: This consisted almost entirely of the claims that were made to the
Authorised Officer, and additional claims that were made to the Board, and further written claims and
submissions admitted by ttre Board. Most ot them were collected togettrer and placed in ttre Authorised
Officer's Report to the Board, though some supplemental documents in support of some of the claims
were served, with the leave of the Board, after the Board had commenced its sittings.
(29)
None of the Claimants testified viva voce or was cross-examined. Three of those valuers who had
submitted valuation reports testified orally and were cross-examined. They were the only valuers whose
valuation reports were relied on by the Claimants and considered by the BOard. These were Mr Victor
Williams of Williams Architectural, Mr Douglas Gillanders of Cooper Kauffman, and Ms Charlotte Low of
scas of Tortola.
Mr Williams gave evidence on behalf of the Authorised Officer, Mr Gillanders on behalf
of several of the Unit Owners, and Ms- Low on betra1fof the clients of Martin Kenney & Co.
[30]
Williams Architectural.
The Authorised Officer relied on the valuation report28 submitted by Williams
Architectural. Mr Williams of Williams Architectural is a qualified archite.ct,but did not claim to specialise
in or trave any formal training or expertise in ttTe valuation of property or land. His valuation was done
some time in or around November 2006, and was dated 30 December 2006. Mr Williams also submitted
a written Assessment29 of the other valuation reports relied on by the Claimants. Mr Williams assigned a
value at US$135,OOO~OO per acre to the land, and US$75.0o- per sc fr to the condominiums. While he
provided Values for the common facilities he seems to have omitted the pool. He provided a range of
values for the whole of the subject property of between US$5,079,863.80
and US$tO,305,229;OO
US$6,667,321.24,
[31]
(the replacement value assigned).
(the forced sale assigned value)
He assigned" a market value of
upon which the Authorised Officer relies, to the entire property.
Mr Williams testified before the Board on f8 December 2009, and was subjected to cross-examination by
the Claimants. We accepted his testimony that The Angelus had (1) been subject to litigation blight even
before the freezing order of 27 January 2006, and (2), that due to bad management, the project had the
28 Found at the Report of the Authorised Officer, Vol I.
29 Found at the Report of the Authorised Officer, Vol III, tab 9.
17
reputation of a failed project at the time prescribed for valuation. These factors would have negatively
impacted the market value of the property at the prescribed date. The Board accepted that Ms Mitcham,
Ms Sylve-ste-rand Ms Nicholls had purchased Units at The Angelus in November 2005 at a much reduced
price. The suggestion made by the Authorised Officer was that these depressed prices reflected the true
market value of the condominium Units at the time of the sales.
[32]
Mr Williams did not value the property as of the date required in the Act. 18 January 2006. but rather as of
the date he was instructed. ie, in November 2006. His values for the condominiums do not appear to
have included a proportionate share of the common facilities. His valuation report makes no reference to
the tests given in the Act. He described his report as a standard assessment of the value of the subject
lands, not a valuation specifically for the purposes of the Land Acquisition Act. His valuation report did not
set out in any detail the factors that he took into account in arriving at his values.
[33]
The Board did not accept Mr Williams' suggestion that the values of the condominiums had been reduced
by "cannibalisation". The evidence is contested, eg, by the evidence of Mr Sentz and Mr Fraites.
Government had encouraged owners to sell and remove their personal possessions from the Units after
acquisition, and the evidence is that many did so. In any event, such cannibalisation as Mr Williams saw
must have occurred after the prescribed date.
[34]
Cooper Kauffman.
Mr Gillanders appears to have been instructed from time to time in the period
between February and September 2007 to conduct valuations of condominium Units at The Angelus
Resort. These were submitted to the Authorised Officer and were produced to the Board in her Report.
The valuation reports provide valuations as at the date stated on each report. Additionally, Mr Gillanders
testified to'the Board and was subject to cross-examination.
\.
[35]
Mr Gillanders came to values for the condominiums examined by him ranging Mtween US$625,OOO.OO
and US$645,OOO.OO for 3-unit condos. This equates to an average price of between US$375.00 and
US$387.00 per sq ft.
[36]
We accepted that some of the individual units were occupied and furnished by the occupants as at the
date Mr Gillanders did his valuations. However, furniture and fittings, though important in nonnal
valuations. are not relevant to a valuation under the Act. The dates as of which Mr Glllanders did his
18
valuations were incorrect He did not indicate what the market value would have been on 18 January
2006. The procedure he used for doing the valuations, though impeccable for a normal valuation, was not
acceptable for ascertaining valuations required by the Act. He used comparable sales in other new and
thriving condominium projects. He did not, for example, take into account that The Angelus was a failed
condominium project at the prescribed date for valuation.
[37]
BeQS. Ms Low submitted a valuation report30 dated May 2009. She also submitted31 a Response dated
14 September 2009 to the assessment of Williams Architectural. Ms Low testified before the Board on 9
December 2009 and was subject to cross-examination.
[38]
Ms Low appears to have been instructed to value only one of the three parcels of acquired land. This is
the parcel registered at Y2 - 69, from which, as previously described, two small parcels, Y2 - 382 and Y2
- "383had been severed. Rowe and Secrist -intheir representative capacity had acquired titie to all three
parcels by a court order just prior to the acquisition. Parcel Y2 - 69, Y2 - 382 and Y2 - 383 were the only
ones that had been claimed by her clients before the High Court, and to which they had been granted ntie.
These were the ones that she valued.
[39]
Ms Low was the only one of the valuers who made an effort to calculate the values of the acquired
properties as of the relevant date, 18 January 2006, and her valuation report was very professionally
prepared. She arrived at iigures of between tJS$168.1l0 per sq it and tJS$179:00 per sq it for the vatues
of the various condominium Units examined by her. She placed a value on the land and common
improvements of US$4,440,OOO.OO or of US$9.00 per sq ft at the relevant date. When her valuations are
added together, she arrives at a total compensation package due to be paid by Government of
US$12,890,OOO.0032.
[40]
The Board considered that Ms Low's values were too high. She relied too much on the sale of similar
condominium units in successful condominium projects in the Frigate Bay area. We do not consider that
she gave a sufficient discount due to the fact that The Angelus was a failed and litigation-blighted project,
the units of which were notfree1y susceptible to sale by a willing setler in an open market. The very
advantageous prices obtained by Mitcham, Sylvester and Nicho"s in November 2005 rather suggest that
30 See Vo-ls J, Iland III of the AuthorisedOfficer's Report.
31 See the Addendum to Vol III, tab 9, of the Authorised Officer's
32 Bundle AI, tab 1.
19
Report.
values were in free-fall prior to the valuation date. The Board had to determine and to consider what was
the formula for valuation that was fairest to all of the parties in this dispute.
[41]
The legal submissions: Dr Veira represented several owners of condominium Units at The Angelus. He
submitted33 that his clients had had no prior notice of the intended acquisition by Government, and so had
been unable to secure the necessary valuations as of the prescribed date of 18 January 2006. However,
he submitted, several of them had obtained subsequent valuations, and his clients relied on the values
therein stated. He urged that the Cooper Kauffman valuation reports be accepted as they related to the
condition of the Units before the owners had vacated them and before they had become vandalised. The
Board considers that the Cooper Kauffman valuations do not, as has previously been mentioned, deal
with the estimate of valuations as of the 18 January 2006 as prescribed by the Act. Also, the Cooper
Kauffman valuations were "normal" valuations and did not take into account the factors that they should
have under the Act.
[42]
Mr Eddy represented Mr and Mrs Medeiros who had entered into an Agreement of Purchase and Sale on
11 February 2005 for the purchase of Units 2138, 2148, and 2158. The total price was to have been
US$190,000.00, and they had paid a deposit of US$60,000.00 and a further payment subsequentiy of
US$24,004.25, to a total of US$84,004.25. They had never completed, and had no Certificate of Title.
After their property had been compulsorily acquired they had obtained a Cooper Kauffman valuation of
their unit at US$626,OOO.OO.Mr Eddy submitted34 that under the Land Acquisition Act an owner other than
the legal owners of the land might have an interest, ie, legal, equitable, or other interest, that might entitle
the owner to compensation. He submitted that the Medeiros had an interest in the acquired lands which
entitied them to compensation. At the very least, he submitted, they were entitled to repayment of their
payment of US$84,004.25. He urged that they had an equitable claim to compensation.
[43]
Kelsick Wilkin & Ferdinand represented the St Kitts Nevis and Anguilla National Bank and filed and
served subrnssions= on the bank's behalf.
The bank holds several mortgages over various
condominiums and other property, and has made a claim for compensation. The bank claims a
contractual right to interest at the rate provided for in the loan documents and mortgages. As of 30
September 2009 these loans and the amounts claimed were as follows:
33 Submissions in writing filed and served on 11 January 2010.
34 Written submissions of 1 December 1009 and and 5 February 2010.
35 Written submissions of I December 2009, 11 and 22 January 2010.
20
Balance due in EC$
Loan #1990285
Principal and interest
EC$5,506,952.51
Interest continues to accrue at $1,205.00 per day.
Loan #1990307
Principal and interest:
EC$1,298,786.86
Interest continues to accrue at $290.39 per day.
Sub-total
6,805,739.37
Loan #780501
Outstanding principal and interest
Interest continues to accrue at $98.25 per day
455,380.45
Loan #780601
Outstanding principal and interest
Interest continues to accrue at $157.01 per day
961,824.52
Table 3: National Bank's claims for balance ofloans and mterest
[45]
Rowe and Secrist opposes the bank's claims for interest at the contractual rate of 11% beyond the date of
acquisition as being in excess of the statutory rate of 4% applicable under section 21 of the Act. Rowe
and Secrist submit that, should the Board award interest at the rate of 11%, as claimed by the bank, their
clients would be entitled to recoup the 11% interest from the date of acquisition from the Government.
Alternatively, Rowe and Secrist submit that the bank is entitled at most to interest at the rate of 4%, to be
paid to the bank by the Government, from the date of acquisition.
[46]
Kelsick Wilkin & Ferdinand submit that the bank's interest in The Angelus property arises from the
contractual agreements which gave rise to the relevant mortgages. This contractual interest, they submit,
is as much a property right as is the principal sum. They rely on the dictum of Sir Neville Peterkin in the
Edmund Lawrence case" when he said,
The obligation for payment of just compensation is a necessary incident of the power of the
compulsory acquisition of property both under the doctrine of the English common law as well as
under the Continental doctrine of eminent domain subsequently adopted in America. The
Constitution of Sf Kits and Nevis raised this obligation to pay compensation for the compulsory
36 In their written submissions of 26 November 2009.
37 Attorney-General ofSt Christopher and Nevis v Lawrence (1983) 31 WIR 176, at 17(r
21
acquisition of properly to the status of a fundamental right ...
By judicial pronouncements the word 'property' is given a broad scope. It has been held that
there was no reason why the word 'property' should not be given a liberal and wide connotation or
should not be extended to those well-recognised types of interest which have the insignia or
characteristics of proprietary rights. In our jurisdiction, it has been extended to include money
(see Inland Revenue Commissioner and Attornev-General v Lillevman (1964) 7 WIR 496). I am of
the view that section 6 [of the 1983 St Kitts and Nevis Constitution] applies equally to concrete as
well as abstract rights of property.
[47]
Ms Mitcham made submlssionsw on her own and Ms Sylvester's and Ms Rosalind Nicholls' behalf. They
relied on the statement of the basic facts as outined in the statement of Ms Nicholls. They claim to be
compensated by Government on the basis that they had paid in full for their Units, had had Memorandums
of Transfer executed by the vendors, and had been kept out of title by Rowe and Secrist having filed
caveats that prevented the Registrar from registering their ti~es. She also represented some of the partpaid Claimants, and relied in part on the submissions of Ms Herbert-Thompson with whom she agreed.
[48]
Martin Kenney & Co on behalf of their clients Rowe and Secrist resisted the claims by Ms Mitcham and
her clients. In relation to the fully paid Units, they relied40on the English case of Lloyds Bank Pic v Carrick
and Another [1996] 4 All ER 630 and submitted in response that, under the system of @e registration, an
unregistered equitable interest cannot be binding against third parties. In this case, Mrs Carrick had
purchased a property from her brother-in-law, Mr Carrick. She had paid the full purchase price and had
assumed possession, but had failed to register her interest in the land. Mr CarriCk, as legal owner, had
mortgaged the property with Lloyds Bank, but had defaulted in his obligations to the bank, and it had
foreclosed on the property. Mrs Carrick argued that a trust arose which protected her from the bank, on
the basis that Mr Carrick was a bare trustee and as such held no beneficial interest in the property. The
Court of Appeal rejected this contention. It was admitted by all parties that Mr Carrick was a bare trustee
as Mrs Carrick had paid the purchase price in full. Mr Carrick no longer maintained any beneficial interest
in the property. However, due to the land registration system, Mrs Carrick's equitable interest could not
bind third parties with subsequent registered interests. Her interest was binding only as between herself
38 Ibidem, atp.184.
39 Written submissions of7 December 2009 and 11 January 2010.
40 In their written submissions of 12 January 20ID.
22
and Mr Carrick. Lord Morritt said this at page 637:
The payment of £19,000 by Mrs Carrick to Mr Carrick did not as such and without more give her
any interest in the maisonette. Nor, prior to the conclusion of the contract, were the
circumstances such that Mrs Carrick could assert that her brother-in-law held the maisonette on
any trust for her benefit. The source and origin of the trust was the contract ... Mrs Carrick is
unable to establish the bare trust as against the bank for it has no existence except as the
equitable consequences of the contract. Accordingly, I reject the contention founded on the bare
trust
It is true that on this footing the ultimate position of Mrs Carrick with the benefit of a specifically
enforceable contract may be worse than it would have been if there had been no contract. But
that is because she failed to do that which Parliament has ordained must be done if her interest is
to prevail over that of the bank, namely to register the estate contract.
[49]
Martin Kenney & Co submitted that section 5(2) of the Title by Registration Act expresses the principles
repeated in the Lloyds Bank case. Dealings with registered land in St Kitts which are not in accordance
with the provisions of the Act operate, they submitted, as contracts only. They do not confer any right in
respect of the land, except the right of enforcing the contract as against the parties, and as persons
claiming, otherwise than as purchasers or mortgagees for value, under such parties. This exception
would apply, for example, to volunteers, which is not the case here. There is always room for persons
claiming to be entitled to have their titles registered to apply to the Registrar of Titles to have their interests
placed on the Register. Alternatively, they submitted, they may bring suit against the registered proprietor,
either for specific performance of their contracts, or for damages for breach of contract.
[50]
Ms Herbert Thompson represented the McDonald, Hunter, and Dunning Claimants. They had entered
into Agreements of Purchase and Sale on 21 September 2004 relating to Units 301C, 302C, and 303C.
They had paid US$96,853.30 on account of the full purchase price of the Units. They had no Certificates
of Title. They had not paid the full purchase price. She submitted" that they had, never the less,
acquired a beneficial interest in the properties, and held an interest in the properties for the purposes of
the Act She urged that the Board had the authority to assess, award and apportion compensation to
these Claimants.
41 Written submissions of2 December 2009, and 11 and 28 January, and 6 February 2010.
23
[51]
In support of her clients' claims, she submitted that section 8 of the Act referred to "owners of the land or
persons interested therein ...". She submitted that the Claimants are the real beneficial owners of the
property under a trust. She cited the textbook Equity and the Law of Trusts p.152,
Numerous cases from the middle of the seventeenth century onwards establish the general
proposition that where there is a contract for the sale of land the purchaser becomes the owner in
equity of the land or; as Lord Hardwicke put it, the rule is that the vendor of the estate is, from the
time of his contract, considered as a trustee for the purchaser.
She also cited The Law of Real Property, p.601,
Upon the execution of a contract for sale, the purchaser at one becomes the owner in equity. The
owner obtains an immediate equitable interest in the property contracted to be sold.
The
equitable ownership is a proprietary interest, enforceable against third pariies. Also, as between
the pariies to the Agreement for the sale of land, the contract creates a relationship of trustee and
beneficiary, as the vendor is said to be the trustee for the purchaser; and the purchaser to be
beneficial owner.
[52]
Ms Herbert-Thompson
also cited a number of cases in support of her submissions.
In particular, she
referred the Board to:
(1) Lysaught v Edwards (1876) 2 ChD 499, per Sir George Jessel MR, "The moment you have a
valid contract for sale, the vendor becomes in equity a trustee for the purchaser of the estate sold,
and the beneficial ownership passes to the purchaser; the vendor having a right to the purchase
money, a charge or lien on the estate for the security of that purchase money, and a right to retain
possession of the estate until the purchase money is paid, in the absence of express contract as
to the time of delivering possession.""
(2) Shaw v Foster (1872) LR 5 HL 321, where in the opinion of Lord Chelmsford, "According to the
well-known rule in equity, when the contract for sale was signed by the pariies, Sir William Foster
(the vendor) became a trustee of the estate for Pooley (the purchaser) and Pooley, a trustee of
the purchase money for Sir William Foster."
24
(3) Hillingdon Estates Co Ltd v Stonefleld Estates Co Ltd (1952} Ch 627. where it was held that in
the case of a compulsory acquisition order which does not immediately vest title in the acquiring
authority. the purchaser on a contract for sale must complete.
(4) Um Kim Som v Sheriffa Taibah bte Abdul Rahman (1994]1 SLR 393, a case from Singapore,
where the owner of compulsorily acquired property does not normally lose his title in his property
until the award for compensation has been made. possession of the property has been taken by
the Government, and an endorsement has been made in the Registry of Deeds. In that case it
was held that the contract could still have been performed after the notice of compulsory
acquisition, so long as the compulsory acquisition had not been completed.
(5) She sought to distinguish the case of E Johnson (Barbados) ltd v NSR ltd (1997) AC 400,
where it was held that a contract for the sale of land may be frustrated by compulsory acquisition.
In that case. NSR had agreed to purchase a lot of land from Johnson. A deposit was paid and
completion was fixed for a later date. Prior to the date for closing, a notice was issued under the
Barbados land Acquisition Act.
NSR sued for the return of its deposit, and the vendor
counterclaimed for specific performance.
Under the Barbados Act, the notice enabled the
government to do a number of things preparatory to compulsory acquisition, but did not have the
effect of vesting the land in the government until a further notice was published. The Privy
Council held that the publication of the first notice did not frustrate the contract.
[53]
Martin Kenney & Co resisted the claims of Ms Herbert-Thompson's clients on the same basis as they
resisted the claims by Ms Mitcham's clients. They submitted that part-payment is insufficient to give rise
to an equitable interest in land, and her clients were not entitled to compensation from the Govemment. or
to have any portion of the compensation that would otherwise be paid to Rowe and Secrist.
[54]
Mr Gossai. on behalf of the Authorised Officer. urged42 the Board to rely partly on the valuations given by
Mr Williams. In a surprise and novel proposal in his final written submissions, Mr Gossai urged the Board
to rely on the sums paid by Ms Mitcham. Ms Sylvester. and Ms Nicholls in November 2005 as
demonstrating the market value at the prescribed lime for valuation, 18 January 2006. They had, he
submitted, purchased their Units a mere two months before the prescribed valuation date, and these
42 In his written submissions of 12 January 2010.
25
prices were the best indicator, he urged, of the values of the property on the prescribed date. According to
Mr Gossai's calculations, the Mitcham and Sylvester Units had been purchased for US$81.84 per sq ft,
and the Nicholls Units for US$86.54 per sq ft. These prices he claims would result in a range of
compensation between US$75.00 and US$86.54 per sq ft for the condominium Units and US$130,OOO.OO
per acre for all the lands in the three parcels. The overall value of the subject property using this
calculation, he submitted, would be U5$9,368,390.00.
[55]
Mr Gossai based this submission on the learning in the Windward Properties case43 to the effect that the
Board must take into account recent sales at the subject property and use that factor as the major one in
the valuation of the subject property.
[56]
Mr Gossai submitted that the Board could not rely on the purchase prices paid by the purchasers at a
much earlier period when the project was a new and successful one and not yet considered a failing
development. That is entirely correct.
[57]
Mr Gossai further submitted that under the Act the Claimants are entitled to interest at the rate of 4% per
annum from the date of the acquisition, 18 January 2007, until payment is made, and the reasonable
costs of the Claimants in presenting their claims to the Board. That is, in the view of the Board, entirely'
correct.
[58J
Martin Kenney & Co filed a number of written subnusslons", including substantive submissions and
replies to the written submissions of other counsel. Ms Robey of Martin Kenney & Co referred the Board
to the Cyril Bufton case45, which establishes that the sales comparison approach is an appropriate method
of land valuation in these cases. This case held that no compensation for loss of way of life,
inconvenience, or contractual rights, could be awarded under the provisions of the Land A9QuisitionAct.
The Board accepts this as binding.
[59]
Ms Robey also referred to the Blakes Estate case from Montserrat46, which established that the residual
43 Windward Properties LId v Government of Saint Vincent and the Grenadines [1996] 2 LRC 497 at 503, [1996] I WLR
279.
44 Written submissions of 14 September, 14 September No 2,15 September, 26 November, and 4 December 2009; 11
January, 25 January, ] 2 February, and 17 February 20 IO.
45 A-G of Antigua & Barbuda v the Estate of Cyril Thomas Bufton (Civil Appeal No 22 of2004, unreported)
48, Blakes Estate v Government of Momswrat (Civil Appeal Nos 2 and 3 of2000, unreported)
26
sales approach must be guided by comparable sales data.
Evidence of comparable sales should be
taken into account, as should the potential of the land. A Board must give adequate and cogent reasons
for its decision.
Ms Robey submitted that the Board should distinguish the Windward PiOperties case,
which established that recent sale of subject land is relevant, and likely to be the best evidence of value,
provided it is sale in the open market by a willing seller, as in this matter before the Board the recent sales
at the property had not been sales in the open market by a willing seller. This is binding on the Board.
[60]
She also relied on the Barbadian case of E Johnson & Co case47, relating to beneficial interests. This
case established that the incidences of beneficial ownership and risk continue to be governed by the
fundamental
principle flowing from the specifically enforceable nature of the contract, ie, because the
contract is specifically enforceable, the risk of compulsory acquisition lies with the purchaser.
[61]
Ms Robey also relied on a number of non-ECSC and non-Privy Council decisions, which she submitted
are of persuasive authority in this jurisdiction.
These included:
(1) IRC v Clay48, which dealt with the definitions of "willing seller" and "open marker'.
Sale in the
"open marker' must include every possible purchaser, assuming proper steps are taken to market
the property: per Swifen Eady LJ, "A value ascertained by reference to the amount obtainable in
the open market shews an intention to include every possible purchaser. The market is to be the
open m3~:(et,as distinguished from an offer to a limited class only ... the market is not necessarily
an auction sale. The section means such amount as the land might be expected to realise if
offered under conditions enabling every person desirous of purchasing to come in and make an
offer, and if proper steps were taken to advet1ise the prope;ty and let all likely purcl18sers know
that the land is in the market for sale ...";
(2) The Shun Fung case49, which found that the method of valuation is the value a willing seller in
the open market might be expected to realise: "A claimant is entitled to be compensated fairly and
fully for his loss ... Built into the concept of fair compensation is the corollary that a claimant is not
entitled to receive more than fair compensation:
a person
is entitled
to compensatkm
fairly attributable to the taking of his land, but not to any greater amount ... ';
47 E Johnson & Co (Darbados) Ltd v NSR Ltd [1997] AC 400, in the Privy Council.
48 IRC v Clay [191413 KB 466.
49 Direcror of Buildings and Lands v SlIWl FWlg Ironworks (1995) 19 EG 147, lEGLR 19_
27
for losses
(3) Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer50, which found that the
value of land can be measured by the prices achieved in past sales of property of a similar quality
and in a similar location. Such comparable sales are what is meant by the "market value": per
Lord Romer, "In the case of land its value in general can also be measured by a consideration of
the prices that have been obtained in the past for land of similar quality and in similar positions,
and this is what must be meant in general by the 'market value'.";
(4) The Trocette case51, which approved the residual method of valuation where there were no
comparable sales evidence available;
(5) Chiltern's case52, which added a calculation of interest onto the award, and found that, in land
acquisition cases, where the statute is designed to protect the dispossessed owner of the land,
the presumption is in favour of interest being added. In statutes which deprive citizens of property
rights by compulsory acquisition, the provisions dealing with calculation of interest were intended
by Parliament to protect the owner or occupier who was being dispossessed.
Therefore, they
were to be construed in favour of the owner;
(6) The London, Chatham and Dover Railway case53, which held that interest should be paid to a
claimant not because of any damage done but because he has been kept out of his money;
(7) The Hililingdon Estates case54, which held that a purchaser becomes the owner of the land
subject to his obligations to perform his part of the contract by paying the purchase monies;
(8) The Markem Corporation case55, which held that a witness cannot be impeached without
opportunity to defend his testimony in cross-examination.
Any evidence supplied by that witness
ought to be accepted if it is not contested in cross-examination;
50 Raja Vyricherla Narayana Gajapatiraju y Revenue Divisional Officer [1939] AC 302.
51 Trocette y Greater London Council (1974) 27 P&CR 256.
52 Chiltern v Telford Development Corporation [1987] 1 WLR 872.
53 London, Chatham and Dover Railway y South Eastern Railway [1893] AC 429.
54 Hillingdon Estates y Stonefield (1952) I Ch 626.
55 Markern Corporation y Zipher Ltd [2005) RPC 31.
28
(9) Lloyds Bank PLC v Carrick56, which found that unregistered beneficial interests, which arise
only in the event that payment has been made in full, cannot bind a third party with registered
legal interest in the property;
(10) Lysaght v Edwards57, which held that once there is a valid contract for sale, the vendor
becomes the trustee for the purchaser in equity and beneficial ownership passes to the
purchaser. The vendor holds the right to the money, a lien on the estate as security, and a right to
retain possession until the purchase money is paid;
(11) Shaw v Foster58, which held that upon signature of the contract of sale, the vendor becomes
trustee of the estate and the purchaser a trustee of the purchase money;
(12) Pepper v Hart59, which dealt with the purposive interpretation of statutes;
(13) The Kim Um Som case60, which dealt with frustration of contracts for sale of land in the event
of compulsory acquisition. The subject matter of what the parties had bargained for had been
altered by the intervening acquisition. The contract can be set aside, and the purchaser is entitled
to a return of his deposit from the vendor;
(14) The Davis Contractors case61, which found that frustration could not apply where there had
merely been delay, albeit significantly longer than anticipated, that had resulted in an increase in
costs. The contract was still possible, although it became more onerous on one party due to the
delaying events.
The Board accepted that these authorities were, as appropriate, either of binding or of persuasive
authority.
[62]
The test for entitlement: The powers of the Board to award compensation are limited by the provisions
both of the Title by Registration Act and the Land Acquisition Act. While "property" protected by The
56 Lloyds Bank PLC v Carrick [1996] 4 All ER 630.
57 Lysaght v Edwards (1&76) 2 ChD 399.
58 Shaw v Foster (1872) LR 5 HL 321.
59 Pepper v Hart [1993] 1 All ER 42.
60 Kim Lim, Som v Sheriffa Taibah Hte Ahdul Rahman [1994] 1 SLR 393.
61 Davis Contractors Ltd v Fareham UDC [1956] AC 696.
29
Constitution is capable of wide interpretation, the Board is not permitted to award compensation to every
person whose property rights may have been infringed by a compulsory acquisition. In a case involving
compulsory acquisition of registered land, the Board is limited by the Land Acquisition Act to awarding
compensation only to those persons who hold land as defined by the Title by Registration Act and
following the limitations contained in that Act.
[63]
The words of the Title by Registration Act at section 5(2) are quite clear. One of the declared purposes of
the Torrens system of land registration was the replacement of all estates and interests in land previously
recognised at common law by those interests only that were recognised by the Title by Registration Act.
Dealings with lands subject to the Act which are not in accordance with the provisions of the Act operate
as contracts only. They do not confer any right in respect of the subject lands, except the right of
enforcing the contract as against the parties to the contract.
[64]
Any compensation payable by Government in a compulsory acquisition situation must be assessed
against the backdrop of common law principles of fairness. As Thomas JA stated in the recent Court of
Appeal St Kitts Loris James case62, whatever the label given to acquisition of property by the State, "the
payment of fair compensation is always the end resulf'.
The duty of this Board of Assessment is to
determine what the fair compensation due to the admissible Claimants on 18 January 2006 was,
assuming an open market and a willing seller. The Board must take any peculiar characteristics of the
subject land into account. Recent sales of the subject land, if any, will be considered as being the best
evidence of value, provided they were sales in the open market by willing sellers. Additionally, the Board
must consider the legal character of registered land under the Title by RegistrationAct.
[65]
National Bank: It is the view of the Board that the interest of the St Kitts Nevis and Anguilla National
Bank is at most a security interest registered against the titles to the properties in question. The bank
cannot recover from Government more than Government is required to pay to the various Claimants to
title to the mortgaged properties. It will be a matter for the bank and the mortgagors to sort out between
themselves, with the assistance of the court, if necessary. what other amounts are due from the
mortgagors to the bank. The amounts of compensation due to the bank are to be deducted from the
amounts awarded to the property owners in question. If there is any shortfall not covered by the amount
of the award to the particular claimant, that is the risk that the bank took in accepting the security, and
62 Loris James v The Attorney-General
paragraph [29].
ofSt Christopher and Nevis (6 October 2008, unreported Court of Appeal decision)
30
Government is not required to make up the shortfall. In the view of the Board, there is no additional
amount that is to be calculated to compensate the bank outside of what is due to be paid to the various
Claimants whose properties are mortgaged.
[66]
Mitcham, Sylvester and Nicholls: The Board was not able to accept the submissions made by Ms
Mitcham on behalf of herself and her clients. We consider that the submissions made by Martin Kenney &
Co better reflect the law. Inequitable as it seems to us, we are constrained by the law to find that Ms
Mitcham, Ms Sylvester and Ms Nicholls have no interest in land that is required to be compensated by the
Act. If they have any entitlement it is against the previous proprietors of the subject lands, or those who
hold title from them.
[67]
Dunning, Hunter, Lesak: Concerning the claims by Ms Herbert-Thompson's clients and others who had
not paid in full or obtained a Certificate of Title, the Board finds that it cannot accept the submissions
made by Ms Herbert-Thompson as entitling her part-paid purchasers to compensation from the
Government. We prefer the submissions of Martin Kenney & Co. The Board is constrained by the law to
hold that none of the Claimants who did not hold a Certificate of Title under the Title by RegistrationAct is
entitled to compensation from the Government.
[68]
The Authorised Officer: Concerning Mr Gossai's submission that t~e Board should base its valuation of
the condominium Units on the prices paid by Ms Mitcham and Ms Sylvester and Ms Nicholls, the Board
takes the view that, as the Authorised Officer's valuer had not used this procedure at arriving at her
valuation, nor had other counsel been previously alerted to this proposal so that they could respond to it, it
would be unfair to the Claimants to adopt the proposal without more. This submission was raised by Mr
Gossai for the first time in his final submissions to the Board. None of the Claimants' counsel had been
given an opportunity to lead evidence or to cross-examine witnesses on this suggested valuation previous
to the submission being made. The Authorised Officer in her Report had not relied on this theory in
arriving at her valuation. Nor is the Board able to rely entirely on the valuation made by the Authorised
Officer's valuer, Mr Williams, for the reasons previously stated.
[69]
The Board accepts the submissions of Martin Kenney & Co in relation to the legal entitlement of various
Claimants under the Act. The Board prefers the approach to valuation taken by BCQS over all the other
valuers. However, the Board does not accept the conclusions come to by Ms Low in their entirety for the
31
reasons previously given.
[70]
Rejected Claimants:
On 1 December 2009, based on a failure to follow the directions given by the
Board, the Board ruled that all claims rejected by the Authorised Officer, other than the Medeiros and
McDonald claims were properly rejected. The Board wished to hear submissions made on behalf of the
Medeiros and McDonalds, who had complied with the directions.
The Board, in the event, was not
persuaded that the Medeiros or the McDonalds had any right to be compensated by the Government of St
Kitts and Nevis, for the reasons given above in relation to Ms Herbert-Thompson's clients.
[71]
Applying the above principles, the Board reject the following claims as not being entitled to compensation
under the provisions of the Act:
Name of claimant
Particulars
Armstrong, Frank B
Unpaid bills
Buchanan, James
Unpaid bills
Cable & Wireless
Unpaid bills
Cote, David and Elizabeth
Deposit paid
Crossman, Jay and Danya
Timeshare interest purchased
Davidson, John
Unpaid bills
Dunning, Robert & Janet
Deposit paid
Fraites, Derrick V
Court judgment
Hobson, Michael
Court judgment
Hunter, Larry & Gail
Deposit paid
Island Purified Water
Unpaid bills
McDonald, Gary & Cathy
Deposit paid
Medeiros, Leonard & Mary
Deposit paid
1---
Mitcham, Constance and Pearline
Sylvester
Purchase price paid in full
Executed but unregistered Memorandum of
Transfer
Morton, Wycliffe & Associates
Unpaid bills
Nicholls, Fitzroy
Contract for chattel house
Nicholls, Rosalind
Purchase price paid in full
Executed but unregistered Memorandum of
Transfer
RBM Nursery & Landscaping
Unpaid bills
32
-
St Kitts Office Machines
Unpaid bills
Social Security Board
Unpaid contributions
Stapleton, Denise
Magistrate's Court judgment
TOC Ltd
Unpaid bills
-
Ward Joseph
Loan
Water and Electricity
Unpaid bills
I
-----
Wilcutts, Robert and Donna
Time share interest
Table 4. Claimants rejected by the Board
[72]
The property acquired by Government, and for which Government is obligated by the terms of the Act to
pay compensation, may be divided into the following categories:
Land interest
Owners
A" condominium units in Blocks A, 8 and C
Rowe and Secrist
comprising: (a) the unsold units, (b) the 8 units
of rejected claims, and (c) the 6 units of
Mitcham, Sylvester and Nicholls.
41 sold units in Blocks A, Band C.
Condominium owners represented by various solicitors .
._-
12.3285 acres of Y2 - 69, including Block D
The common areas by virtue of the Covenants,
Conditions and Restrictions and the provisions of the
Condominium Act. This land forms part of the
entitlement of the condominium owners according to
their percentage on completion of the first 3 buildings
and is included in the award made to them. The
balance belongs to Rowe and Secrist.
Y2 - 382
Rowe and Secrist
Y2 - 383
Rowe and Secrist
Parcel of land measuring 5.000 acres
No claim made. No award made.
No claim made. No award made.
Parcel of land measuring 1.5027 acres
Table 5. Entitlements
The values of those entitlements, and the distribution of the resulting compensation award, are dealt with
below.
[73]
What remains to be calculated are the amounts of compensation due to be paid to the various property
33
owners at the subject lands. The Board considered the evidence63 of comparable sales in the Frigate Bay
area provided primarily by Ms Low, and found the following:
Angelus
Sea lofts
Leeward
Cove
1,535 sq ft
2 bedrooms
$136.81 sq
1,050 sq ft
2 bedrooms
$128.17 sq
1,500 sq ft
1,600 sq ft
2 bedrooms
2 bedrooms
2 bedrooms
$164.74 sq ft $105.00 sq ft $103.62 sq ft
ft
ft
Island
Paradise
St
Christopher
Club
~..
Timothy
Beach
Average
.-.~-.---
US$127.67 per
sq ft
-
.-
Table 6: Comparative condominium sales in the year 2004
Angelus
Sealofts
Leeward
Cove
968 sq ft
1 bedroom
$116.40 sq
Island
Paradise
St
Christopher
Club
Timothy
Beach
900 sq ft
1 bedroom
$95.84 sq ft
900 sq ft
1 bedroom
$112.07 sq ft
900 sq ft
1 bedroom
$158.30 sq ft
Average
US$120.60 per
sq ft
ft
Table 7: Comparative condominium sales
ill
the year 2005
-_.
Angelus
Sea lofts
Leeward
Cove
Island
Paradise
Timothy
Beach
St
Christopher
Club
1,900 sq ft
US$135.64 per
sq ft
2 bedrooms
3 bedrooms
2 bedrooms
$123.84 sq ft $131.58 sq ft $150.00 sq ft
..
I
Angelus
Sea lofts
Average
Leeward
Cove
Island
Paradise
In
the year 2005
St
Christopher
Club
Timothy
Beach
Average
. _.
1,535 sq ft
2 bedrooms
$136.81 sq
US$131.97 per
1 bedroom
2 bedrooms
2 bedrooms
2 bedrooms
$125.00 sq ft $177.54 sq ft $133.00 sq ft $111.00 sq ft
ft
..
[74]
The average rate at which a condominium
In
sq ft
the year 2006
in the Frigate Bay area sold in the year 2004 was US$127.67
per sq ft. In the year 2005 the average rate for a one-bedroom condominium
63 See Vol 1II of' the Authorised Officer's Report to the Board.
34
unit was US$120.65 per sq
ft, and for a two-bedroom unit was US$135.14. The average rate in the year 2006 for a two-bedroom unit
was US131.97.
Sales varied between US$121.00 to US$137.00 per sq ft for the condominium units.
These values would have included the value for the common areas. The Board has assumed that had it
not been for the legal issues, the condominium Units at The Angelus would have been selling at the
prescribed time for about US$138.00 per sq ft including the common land. Similarly, had it not been for the
legal and management issues, the land could have been sold at the prescribed time for valuation at
US$8.00 per sq ft. Due to the legal and management issues at The Angelus, these values dropped in all
areas, the condominiums, the common areas, and the remainder of the land. The Board has considered
all the relevant factors and has assessed the median value per sq ft of the condominium Units at the
prescribed time at US$100.00 per sq ft and the land at US$5.00 per sq ft. The median rate is an
approximate average of not only the sale price per sq ft before and after litigation blight hit, but is also an
approximate average between the US$115.00 cost of new construction at the requisite date as per Ms
Low's valuation report and Mr Williams' rate of US$75.00 per sq ft. The median rate is applied to the Units
on the middle floors. The ground floor Units are assessed at 90% of the median rate, or US$90.00 per sq
ft. The top floor Units are assessed at 110% of the median rate, or US$110.00 per sq ft.
[75]
The Land: The common areas of the condominium project consist of land and improvements on Y2 - 69,
less Y2 - 382 and Y2 - 383. This parcel of land measures 12.3285 acres or 537,029.5 sq ft. We do not
deduct a notional one acre for the "footprint" of the 3 Blocks as done by Ms Low. The "footprint" of the
buildings is part of the common property of the condominium project. At US$5.00 per sq ft, this gives a
value of US$2,685,145.50. for the total condominium land at Y2 - 69.
[76]
The two parcels of land cut off from Y2 - 69 and recorded at Book Y2 - 382 and Y2 - 383, and which are
not part of the common property of the condominium project, are stated to measure 32,387 sq ft and
85,379 sq ft respectively, which at US$5.00 per sq ft gives assessed values of US$161,111.11 and
US$427,777.78 respectively. These amounts are not to be included in the value of the common property,
but the entire sum of US$588,888.89 belongs to Rowe and Secrist in their representative capacities.
[77]
There remain two parcels of land acquired by Government.
SRO No 22 of 2006 applied to a parcel of
land measuring 5.000 acres. SRO No 23 of 2006 applied to another parcel of land measuring 1.5027
acres. As previously explained, no claim was made in relation to them, and no award is made in relation
to them.
35
[78J
The Improvements:
common facilities.
The improvements on the condominium land at Y2 - 69 include most of the
These belong under the condominium regime partly to the developer and partly to
condominium Unit owners. We agree with the values given to these improvements by Mr Williams as
follows:
Description
US$
Laundry Building
48,000.00
Generator House
30,000.00
Parking and Walkways
230,400.00
Services
135,000.00
Landscaping
40,000.00
Block 0 (shell only)
825,960.00
Tolal
US$1,299,360.00
Table 10: Value of the common facilities.
Note that Block 0 consists of 20,649 sq ft, as did Blocks A, Band C. We agree with Ms Low's rate of
US$40.00 per sq ft. to a total of US$825,960.00. We include Block 0 as part of the Unit entitlement of the
owners of Units in Blocks A, Band C, as we understand this to be the consequence of its having been
constructed on the condominium
lands.
The Central Facility for some unexplained reason was
constructed on Y2 - 383. Ms Low was of the opinion that the Central Facility would be destroyed in due
course, and it appears that for that reason she did not value it separately. However, we are satisfied that it
is property acquired and for which Government is required to pay compensation.
The pool was not
separately valued or measured by either of the valuers. Mr Williams in cross-examination explained that
he had included it in the general calculations. The Board recognises that the pool has value, but has not
been able to quantify this value for the purposes of making an award.
[79]
Unit Values:
The registered plans show the Unit areas and the boundaries of Unit entitlements.
The
individual Units vary in size. The Williams and BCaS valuations include charts and list prices indicating
that the developers of The Angelus had different asking prices for various unit types. These show that the
ground floor was priced approximately 10% less than the middle floor, while the upper floor was priced
approximately 10% more than the middle floor. The Board has assessed from the evidence above the
36
median rate per sq ft of US$1 00.00. This figure is then adjusted to reflect the different values of the three
floor levels as follows:
Ground floor
90%
$90.000 per sq ft
Middle floor
100%
$100.00 per sq ft
Top floor
110%
$110.00 per sq ft
The Board assesses the compensation to be paid for Block C, which is partially complete, at 75% of the
amounts to be paid for Blocks A and B. However, the two sold Units which from the correspondence were
occupied at the acquisition date are considered for the purpose of compensation as complete.
[80]
Using the above sq ft rates, the amount of compensation due to be paid by Government for the
condominium buildings, not including the share of the condominium land or the improvements, which are
separately valued following the example given by the professional valuers, is as follows:
Block A -17,956.37
sq ft x $100.00
=
US$1,795,637.00
Block B -17,956.37
sq ft x $100.00
=
US$1,795,637.00
=
US$1,346,727.70
Block C -17,956.37 sq ft x $100.00 x75%
Total
[81]
US$4,938,OO1.70
The condominium buildings contain common areas such as halls, walls, roofs, floors, and stairways, for
which Government is due to pay compensation.
These areas have not been taken into account in
calculating the values of the individual units. The Board assesses these common areas to be valued at
the prescribed date at US$50.00 per sq ft. The totals amount as follows:
Block A - 2,692.63 sq ft x $50.00
=
US$134,631.50
Block B - 2,692.63 sq ft x $50.00
=
US$134,631.50
Block C - 2,692.63 sq ft x $50.00 x 75%
=
US$100,973.60
Total
[82]
US$370,236.60
The total amount of compensation due to be paid by Government is thus as follows:
Values of the various properties
[t5ondominium
Award in US$
land at Y2 - 6964
2,685,145.50
-----------~-----------
64 Paragraph [75] above.
37
2. Land at Y2 - 382 and Y2 - 38365
588,888.89
3. The common facilities66
.'
1,299,360.00
-
4. Condominium Units in Buildings A, Band
4,938,001.70
C67
5. Common halls, walls, roofs, floors, and
staircases in Buildings A, Band C68
370,236.60
6. The central facility constructed on Y2 - 383
746,130.00
10,627,710.53
Total
Table 11: Totals of compensation due to be paid by Government.
[83]
It becomes necessary to extract from Table 11 the common properties and their values which are to be
used to calculate each Unit entitiement.
These common properties will not include items 2 and 6, which
belongs to Rowe and Secrist alone. Nor will it include item 4, which is allocated directly to the owners of
the condominium Units. That leaves the following:
US$
Values of the common properties
1. Condominium land at Y2 - 69
2,685,145.50
3. The common facilities
1,299,360.00
370,236.60
5. Common halls, walls, roofs, floors, and
staircases in Buildings A, Band C
4,354,742.10
Total
Table 12: Common properties for calculation ofumt entitlements,
[84]
The total amount of the entitlement of each Unit owner is thus the value of the condominium
Unit
depending on its sq ft area, and depending on which Block it is in, and on which floor, to which must be
added the unit entitlement of the common land and common facilities and improvements described above.
[85]
Conclusion:
That leaves to be done the purely mathematical calculation of the individual amounts of
compensation
due to be paid to various Claimants whose claims have been approved by the Board
according to the formula set out at the paragraph above. The Unit entitlement of each of the Claimants
65 Paragraph [761 above.
68 Paragraph [&1]above.
38
and the individual amounts of compensation due to be paid to each are as follows:
Names of
Claimants
Unit numbers, share of Unit size, rate,
property,
common
and and value for
compensation
value for compensation
Bellis
Units 204A, 205A, 206A
2.71%
US$118,013.51
1,441 sq ft @
$100.00
US$144,100.00
US$262,113.51
2.85%
US$124,110.14
1,527 sq ft @
$100.00
US$152,700.00
US$276,81 0.1 0
Units 202C and 203C
1.91%
US$83,175.57
1,020 sq ft @
$100.00
US$102,OOO.00
US$185,175.57
Units 3048, 305B, and 3068
2.71%
US$118,013.51
1,441 sq ft @
$110.00
US$158,510.00
US$276,523.50
2.85%
US$124,110.14
1,527 sq ft @
$110.00
US$167,970.00
US$292,080.10
Units 201A, 202A, and 112A
2.85%
US$124,110.14
1,527 sq ft @
$100.00
US$152,700.00
US$276,810.14
2.71%
US$118,013.51
1,441 sq ft @
$90.00
US$129,690.00
US$247,703.51
2.85%
US$124,110.14
1,527 sq ft @
$90.00
US$137,430.00
US$261 ,540.14
Units 305A and 306A
1.83%
US$79,691.78
976 sq ft @
$110.00
US$107,360.00
US$187,051.78
Unit 3118 and 3128
1.91%
US$83,175.57
1,020 sq ft @
$110.00
US$112,200.00
US$195,375.57
-
Total
compensation
----
Benton
--.-
Cooper
Drevs
Dunn
Franconeri
Groesbeck
Harper
Hayes
Lesak
-
Mitchell
-- -
-
Unit 301 B
0.93%
US$40,499.10
507 sq ft @
$110.00
US$55,770.00
Units 205C and 206C
1.83%
US$79,691.78
976 sq ft @
US$96,269.10
.--
-
Mueller
.
-
-
Robinson
$100.00
US$97,600.00
-
1,527 sq ft @
Units 210B, 2119 and 2128
-
--
39
-
US$177'291.7~
I
2.85%
US$124,110.14
$100.00
US$152,700.00
Rowe &
Secrist
The balance of the property,
subject to any National Bank
mortgage
St Kitts-NevisAnguilla
National Bank
Ltd
Mortgages
secured
various units.
Sentz
Units 102A and 103A
1.91%
US$83,175.57
1,020 sq ft @
$90.00
US$91 ,800.00
US$174,975.57
2.85
US$124,110.14
1,527 sq ft @
$110.00
US$167,970.00
US$292,080.14
Warnell
Wynne
I
by
..
[86]
US$276,810.14
The balance
As previously
described at
paragraph [65]
."
Units 107A, 108Aand 109A 1,441 sq ft @
2.71%
$90.00
US$118,013.51
US$129,690.00
Table 13: Awards of compensation
US$247,703.51
We have earlier written at paragraph [74] that, if there had not been litigation blight, the individual Units
would have been selling at a rate of US$138.00 per sq ft. We are awarding each Unit owner considerably
more than that. There is a reason for this discrepancy. Only 3 out of the 13 condominium Units (A-M) had
been constructed and partly sold at the time of acquisition. The purchase price that each Unit owner paid
for his condominium Unit would have been calculated on an assumption that all purchasers would pay
equally for the common areas. The Unit owners in place at the time of acquisition may be said to have hit
a jackpot as a result of Government having acquired their Units before the entire condominium of 13
Blocks had been constructed.
They get a much higher percentage of the value of the land and other
common facilities than they would have received if the entire project had been constructed as planned.
[87]
All successful Claimants are entitled to be paid 4% interest on their award from the date of acquisition, 18
January 2007.
[88]
Further, all successful Claimants are entitled to be paid by Government their reasonable costs of
presenting their claim. The Board will hear applications for costs at a date, time and place to be notified in
due course.
40
[89]
In conclusion, the Board wishes to thank the several counsel who presented the evidence and the law to
the Board and who made their best efforts on behalf of their clients. The diligence and research abilities
of the attorneys of the firm of Martin Kenney & Co was particularly noted and appreciated.
Mr Arud
Gossai of the Attorney-General's Chambers is thanked especially for his superb efforts and those of his
team in representing the Authorised Officer and in presenting her case before the Board, and in so
efficiently having made the administrative arrangements necessary to permit the Board to do its work.
Dated this ~ay
of March 2010
Joseph Lancaster
Don Mitchell CBE QC
41
A.D. 2010
THE ANGELUS BOARD OF ASSESSMENT
APPENDICES
25th March 2010
Angelus Resort Board of Assessment
APPENDICES
Page
Appendix 1
6 February 2009
2
Appendix 2
Directions
7
Appendix 3
17 July 2009
9
Appendix 4
17 September 2009
11
Appendix 5
Directions
16
Appendix 6
1 December 2009
19
Appendix 7
7 December 2009
24
Appendix 8
8 December 2009
25
Appendix 9
9 December 2009
42
Appendix 10
18 February 2010-03-24
53
1
Appendix 1
at the
Foundation for National Development Conference Room
Bladen Commercial Development
Wellington Road
Basseterre
Proceedings of the hearing on 6 February 2009
10:00 am
Present:
Don Mitchell
Edwin Glasford ]
Joseph Lancaster
]
Board of Assessment
]
Dan Wise
Constance Mitcham
Elizabeth Harper
Emile Ferdinand
Vernon Vieira
Fitzroy Eddy
Anthony Astaphan SC
Arud Gossai
Robin Herbert-Thompson
and various others
The Chairman makes introductory remarks.
Refers to sections 11-17 of the Land Acquisition Act.
Invites counsel for the Authorised Officer to start with any suggested directions.
Mr AstaphanSC: I represent the authorised officer, and appear with Mr Arud Gossai of the Attorney General's
Chambers. The first part of the Authorised Officer's job is complete. We have circulated Vols 1 and 2. Vol 3,
which is the Report, is taking a bit more time. We have an obligation of full disclosure. We want the Authorised
Officer's opinion or report to be accurate. We have received the letter of Martin Kenney, but will not deal in detail
with the issues raised there. This is a meeting for directions only.
I want to focus on directions. I suggest the following possible directions:
1. That the first day of the hearing be set down for preliminary issues. This will be very necessary to clarify the
issues between the AO and also the various parties. For example, there is the High Court consent order. There is
the response by Mitcham and Benjamin. That is a legitimate issue to be set down. If that issue may affect the
scope of the expert's jobs, and the number of the experts, it may be that in a matter of a couple weeks, you invite
submissions in writing.
2. Once I am finished with my outline, I would invite colleagues to suggest other directions. We have to identify
who owns what. The first property is 15 acres. Generically referred to as the Angelus Property. Govemment
acquired 20 acres. There are two properties. The information we have slowly been able to extract from the
2
Registry is that these lands were not owned by BMT or ASL, but for the five acres by Atlantic Views Beachside
Villas Ltd. We have not been able to get a precise line of ownership.
3. There are three acquisitions. We do not know if they are all represented by anyone here.
4. Then there is the issue of disclosure raised by Martin Kenney. In the interest of disclosure, I agree that the third
preliminary issue, to be dealt with either in writing or by oral submissions, is the admissible claims. Martin Kenny
is drawing a distinction between interests in the land and between contractual claims. Some of the claims relate to
debts owed by BMT or ASL. Is there any rule to permit those contractual claims to be taken into account by the
Board? The inevitable exceptions would be claims by the Crown, mortagages or debentures.
5. The other issue is the date of the valuation. We may have a problem. The valuations submitted postdated the
acquisition. Section 19 of the Act sets out the statutory regime. It is to be valued one year prior to acquisition. We
really have no serious dispute with the market value figures presented by Williams Architectural. But, the Board
may need to consider which is the date of valuation this Board is required to follow. Will this Board be able to get
evidence using the valuations obtained, using some sort of forensic deduction, as to the prior value?
On the issue of directions, I would suggest:
1. Disclosure: The AO has disclosed substantially what she has. She has disclosed the valuations she
has, the list of owners. Our list did not include Martin Kenny's clients. The list of owners we submitted
predated my communication with Martin Kenney. We are not denying his clients. We entered into a
consent order with Martin Kenney, this was simply by oversight.
2. Martin Kenny's request that Government disclose the price it received from the sale. I am not sure just
how relevant that is. The sale by government post dated the acquisition. The valuation is to be taken one
year before the acquisition. A series of Privy Council cases establish that government can sell lands
acquired. We are willing to disclose the valuations Cabinet relied on, even though we do not think they
are relevant. In the Windward Properties case the court said that a subsequent contract for sale may be
the best evidence of value. But, the post acquisition valuations in the Windward case is quite different in
this case.
3. Disclosure of all documents. The only document outstanding now would be the valuations that
individual owners and counsel may wish to rely on. In view of the condominium aspect of this case, it
would be a nightmare if each owner came with their own valuation. We would suggest a
compartmentalisation of values. A valuation of the condominiums and a valuation of the land. The Board
will want to discuss this before issuing directions. Can the value of the land be separated from the value
of the condominiums.
4. Experts. We will need to arrive at a date after the Board decides on the number of experts, when these
should be exchanged, how much time should the authorised officer if She disagrees substantially to
respond to the valuations.
5. Witnesses. Each individual counsel will inform the Tribunal how many witnesses they have. You may
want to direct all witness statements to be submitted in writing and to stand as evidence in chief, with the
right of cross examination. That would significantly reduce hearing time. Any response to the Expert
Reports should also be in writing within a time. say, of 3 weeks.
6. Inspection of the property. May not be a help, but is in the discretion of the Board. We are not fussy
3
with it.
7. Timing. We ask, since we have waited so long, putting pressure on now may not assist. The hearing
we can fairly look at some time in April. I am not sure three days will be sufficient. Suggest five days. We
may well finish within three, but may be safer with five.
8. We will ask for a week to finish Part 3 of the Report.
9. Counsel not admitted in St Kitts. That issue was raised in the Medical Benefits case in Antigua. It was
ruled that the question of admission to appear before a commission was the equivalent of an admission to
the Bar over which the Commission had no authority. We may need to look at it further.
[1}
I ask that the time given to this hearing be spaced out, aiming for hearing and completion within the time I
suggested.
Ms Mitcham: Concerning the time line for hearing, I have a problem with April. Would prefer a date before or
after that month, March or May.
Ms Herbert: I would suggest March or May.
DrVeira:
1. When the acquisition took place, I proceeded immediately to get valuations. My clients had to vacate the
premises, and, if left unattended, would deteriorate. I was concerned about the valuation as of the date of
acquisition. Kooper Kauffman did the valuations. We submitted them to the Authorised Officer.
2. There is one tenant in the unit with the consent of the present owner, Marriot Hotel. A visit to that unit would
give an idea of the value.
3. The units, even if all seaside, are different in size. So, the valuations may not be easy to compartrnentalise.
4. Should this exercise not have preceeded the sale of the property?
5. There are valuations from the Inland Revenue before the Board. You will need valuations from independent
valuers. We have consented to the acquisition being considered to include our condominium owners. I am not
asking for new valuations. We will rely on the valuations at the time of acquisition. The property was being run as
a condominium hotel, maintained at the time. Looking at it now will not give an idea of the value at the time. I
undertake to get copies to the Board and to Mr Gossai for circulation.
MrEddy:
I have just a couple of observations:
1. Date of valuation. Unfair to submit my clients to carry out another valuation. They have done one already
in September 2007.
2. There should be a time line for individuals to submit any further documentation or documentation
submitted to AO and which does not appear in the Bundle. The Bundle does not include my clients'
documentation. I am submitting it again to Mr Gossai.
4
3. Ask for the hearing to be in May.
4. I agree that the evidence be all in in writing. To go and look at the units now would not give a fair estimate
of the value at the relevant time.
MrWise:
1. I am broadly in agreement with the approach outlined by Mr Astaphan. There is a significant number of
issues set out which will require to be dealt with by way of preliminary hearing. by written submissions,
with limited affidavit or witness statements. Will not require cross-examination. There will need to be
parameters of what will be determined at the hearing in due course. That will be necessary for the
claimants to know what case they must meet. Will Significantly reduce the work of the Tribunal.
2. I will address my differences later. But I can flag them now:
1. Suggest it is reasonable to have the price and efforts made by government to achieve value for
the resort disclosed. The price achieved for the resort must be relevant as to the market value
which may be ascribed to the property.
2. clients anxious to put in their own valuation evidence. The interests my clients claim in the
resort is different from ownership of a condo. That is the focus of the present valuations. There is
evidence of value which my clients will wish to bring. The problem is that we did not get much
recognition from the AO. We had not seen the Williams valuation until it was disclosed a few days
ago, same with the Inland Revenue valuations.
3. Accept the point on deterioration. Would still suggest a short inspection visit is required to take
account not just of the layout and fit out but also the location and situation of the plot of land which
is highly relevant when the Board is deliberating on the valuation evidence, to see the sea, the
beautiful golf course. It seems to be something worth doing.
3. I would ask that the main hearing to be in late Mayor June.
Mr Ferdinand: My interest is related to claims on behalf of certain creditors, so I have no directions to suggest.
Others present invited to make any submissions, but there is no further submission offered.
Mr Astaphan SC volunteers to summarize the suggested submissions as follows:
1. All valuations that have not yet been submitted be submitted to the Authorised Officer within 60 days of
today's date.
2. The Authorised Officer to review all valuations submitted to her and to file and serve her Report which will
be categorised as Vol 3 of the bundle within 14 days of the receipt of the last valuation submitted to her.
3. The Authorised Officer to serve Vol 3 on all counsel.
4. All interested parties accepted by the Authorised Officer to make submissions on the preliminary issues
within 14 days of the filing and service of Vol 3; and, if not accepted by the AO, to make submissions to
the Board within 14 days of service of Vol 3 as to their interest in the property and on compensation.
5
5. All submissions to be in writing and to be supported if absolutely necessary by a short affidavit.
6. The Board to give its ruling on the preliminary issues within seven days of the receipt of the submissions,
such ruling to be circulated in writing to all counsel and to all parties not represented by counsel for whom
the Authorised Officer has an email address.
7. All evidence in chief relating to the questions of claims relating to the payment of compensation to be
made in writing and submitted to the AO.
8. In the event that the AO does not recognise the right of any claimant, she shall collect all rejected claims
in a separate part of the Report and shall notify that claimant in writing with a copy of her Report; and that
claimant shall have the right to appear at the hearing and to make submissions on his right to make a
claim for compensation.
9. A date for the giving of directions on the substantive hearing to be included in the preliminary directions to
be the Friday three weeks after the date of the ruling.
Mr Astaphan: This is a judicial tribunal with a statutory right of appeal. The Board needs to have the proceedings
recorded for the purpose of any appeal. The Governor General ought to be asked to provide a secretariat of
public officers to record and transcribe the proceedings. The last Board of Assessment sat in a court house room
with assigned police security and a stenographer to record the proceedings.
Hearing adjoumed at 12:15 pm
6
Appendix 2
A.D. 2009
Board of Assessment
(Land Commonly Referred to as "The Angelus")
Preliminary Hearing
Coram:
Mr. Donaldson Mitchell, C8E, QC, Chairman
Mr. Edwin Glasford, Member
Mr. Joe Lancaster, Member
Directions for Determination of Preliminary Issues:
[2]
All claims and valuations that have not yet been submitted be submitted to the Authorised Officer within 60
days of today's date (6th February 2009).
[3]
All questions and/or claims relating to the payment of compensation to be made in writing and submitted
to the Authorised Officer and to be treated as evidence in chief.
[4J
The Authorised Officer to review all claims and valuations submitted to her and to file and serve her
Report which will be categorised as Volume III of the Bundle within 14 days of the receipt of the last claim
and/or valuation submitted to her.
[5]
The Authorised Officer to serve Volume III on all counsel.
[6]
All interested parties accepted by the Authorised Officer to make submissions on the preliminary issues
within 14 days of the filing and service of Volume III; and, if not accepted by the Authorised Officer, to
make submissions to the Board within 14 days of service of Volume III as to their interest in the property
and on compensation.
[7]
All submissions to be in writing and to be supported, if absolutely necessary, by a short affidavit.
[8]
In the event that the Authorised Officer does not recoqnlse the right of any claimant, she shall collect all
rejected claims in a separate part of the Report and shall notify that claimant in writing with a copy of her
Report; and that claimant shall have the right to appear at the hearing and to make submissions on his
right to make a claim for compensation.
7
[9J
The Board to give its ruling on the preliminary issues within seven days of the receipt of the submissions,
such ruling to be circulated in writing to all counsel and to all parties not represented by counsel for whom
the Authorised Officer has contact information.
[10J
A date for the giving of directions on the substantive hearing to be the Friday three weeks after the date of
the Board's ruling on the preliminary issues.
Dated this 6th day of February 2009.
Don Mitchell, CBE, QC
Chairman
8
Appendix 3
Island of St Christopher
AD 2009
Board of Assessment
(Land Commonly Referred to as "The Angelus")
Notes of the Proceedings
on 17 July 2009
at the
Ocean Terrace Inn
Conference Room A
Fortlands
Basseterre
Proceedings of the hearing on 17 July 2009
10:00 am
Present:
Don Mitchell
Edwin Glasford ]
Joseph Lancaster
]
Board of Assessment
I
Esrick Lanns
Emile Ferdinand
Vernon Veira
Arud Gossai
Elizabeth Harper
Beverley Williams
Dan Wise
Shelline Matthew
Arud Gossai
Gianne Williams,
Nisharrna Mack
Merida Cable
Alberto and Anne Franconeri
Constance Mitcham
Teshari John
and various others
Chairman: Would like today to collect Vol III and to see if we can set a hearing date.
Mr Gossai: Volume III was set for 1 July. We were taken over by important matters in St Kitts in which I am
instructing counsel and Mr Astaphan is senior counsel. They apply to the Boundaries Commission and the
recusing of the judge. We expect the matter to resume next week and to take a couple of weeks. We also have
two matters before the Court of Appeal. We are asking for an extension to 14 August. Vol III has to contain
certain particulars. We need to do the assessment of the claims that have been submitted. Recently we had an
analysis done by Williams Architecture.
Nothing else at this time.
9
Mr Wise: We are disappointed at length of time it has taken to complete Vol III. We would not object to 14
August, so long as that is a final deadline. We are alive to the danger of these proceedings extending indefinitely.
It is now 2 Y2 years since the take over. Also alive to the danger of setting directions when we have not seen Vol
"I. Ask you to seek to manage the two issues of moving things along and giving directions when the parties do not
know what the issues that will arise from Vol III will be. We need to see the stance of of the AO on the various
claims before we will know how to respond.
Ms Mitcham: Will be otherwise engaged for the next two weeks. Would not be available for the balance of July.
Mr Veira: 14 August is fine. Am concemed about having these hearing on a Friday as it is usually a Chambers
Hearing date.
Ruling: By consent time extended to 14 August for the Authorised Officer to file and serve Vol "I.
Mr Gossai: The directions of 6 February indicate that after Vol "I is served, the parties have 14 days to make
submissions on any preliminary issue and the Board will rule on the issues in 7 days. That takes us to mid
September as the earliest date we can set for the first day of any hearing.
Ruling: Chairman to circulate a date for hearing in due course. Thursday 10 September is tentatively envisaged.
Adj at 10:35am.
10
Appendix 4
at the
Foundation for National Development Conference Room
Bladen Commercial Development
Wellington Road
Basseterre
Proceedings of the hearing on 17 September 2009
10:00 am
Present:
Don Mitchell
Edwin Glasford ]
Joseph Lancaster
]
Board of Assessment
]
Dan Wise
Claire Robey
Elizabeth Harper
Arud Gossai
Vernon Veira
Alberto Franconeri
Esrick Lanns
Teshari John
Ermilyn Sebastian-Bobb
Constance Mitcham
Damian Kelsick, Representing National Bank
Fitzroy Eddy
Shelline Matthew
David Rawlins
and various others
Proceedings commenced at 10:10 am
Chairman: We are here to see if we can collect our copies of Vol III, and proceed to give directions for the
commencement of the hearings.
Mr Gossai: We have Volume III available for distribution to the Board. The other copies for counsel are being
printed.
We have draft directions and submissions from Mr Daniel Wise. Did anyone have any comment on them.
Ms Mitcham: I have submissions to make on them.
Mr Kelsick: We have submissions to make on the proposed draft directions. Based on the additional information
provided by the Authorised Officer in the last few days, there will be one or two additional directions that will be
necessary on thE} need for written submissions by both accepted and rejected claimants. Perhaps it is sensible to
begin with those.
11
Ms Robey: The proposed directions are set out at para 10 of page 4 of the written submissions.
1. On fixing date for final hearing: See page 4 of Submissions. We suggest 3 months from today's date.
Ms Mitcham: Queries why as long as 3 months.
Mr Gossai: 3 months is too long. The timing previously agreed and given in the directions of 6 February was 6
weeks after serving Vol III.
Ms Robey: That timing does not make provision for disclosure for discovery. If the board makes an order for
disclosure that time frame would not make provision for the disclosure, exchange of lists of documents, etc be
made, ie, within 14 days of the provision of the lists the documents be provided on request.
Mr Kelsick: This is exactly the point at which we come in. No issues have been identified with which disclosure is
to be addressed. They want disclosure in vacuuo.
Ms Robey: We are seeking from National Bank the correspondence, both internal and with BMT Ltd, who were
the former owners who fraudulently took the money from our clients, and into whose ownership our clients traced,
as recognised by the High Court of St Kitts. It is extremely important to our clients to discover that the mortgages
were validly granted. We want to know if the mortgages can be set aside by our clients, in which case our clients
would be enfnled to the entire sum allocated for those units. National Bank's claim is in the region of $4 million.
We have not seen the mortgage document, the deeds themselves. It is essential we see the underlying deeds,
the financial records at the bank. including documents demonstrating the advancement of any loan money, or the
repayment back to the bank, and any internal correspondence relating to the bank's decision to make the loan to
BMT. We need to be sure that the mortgages were validly and legally granted.
Mr Kelsick. The suggestion is that this board investigate the validity of any mortgage granted. That is not within
the province of this board. An action can and has been brought to challenge the validity of the mortgages, but no
such claim has been served. Such a claim has been filed, but not yet served. That is an abuse of the process of
this Board. This Board does not have the jurisdiction to pronounce on the validity of the mortgages. The only
issue is the quantum owing under the mortgage. The basis of our claim is the noted mortgage. The findings of the
AD reflect only registered interests.
Ms Robey: The Board does have express authority in the statute to consider apportionment. That is important.
The Board is apportioning between the two competing parties. Section 11 of the Act is determinative. It would be
wrong of the Board to close its eyes to evidence which goes to apportionment. To make a fair award it must make
a determination on the evidence of title.
Mr Kelsick: What is sought is to challenge the registered mortgages.
Mr Gossal: The Board can give the direction requested. But this is not a case where disclosure can be ordered
between the parties, otherwise we will have 47 parties asking for disclosure and it will take forever. The Board has
the power to ask for any document if it has any doubt as to the validity of a claim, but I do not think the Board can
order one party seeking compensation to make disclosure to another party making a claim for compensation. The
function of the Board is to listen to the claims and to make an award of compensation. I do not think the Board
has the power to pronounce on the validity of any registered title. But, the Board may make a ruling if they are not
comfortable with a title, and the party may make an appeal to the High Court.
Ms Mitcham~ In relation to titles, these absolute matters, a transfer is absolute. That is all the Board must be
12
interested in. But, a mortgage is not a final matter. It is a matter on which the parties have to make payments
periodically, and are not final matters. Although once the mortgage is noted it is a title, but the Board needs to
determine what the balance is that is legally due to the Bank.
Dr Veira: The title is indefeasible. You cannot go behind it, unless you apply to the Court and allege fraud.
Ms Robey: Section 15 indicates that the Rules of the Supreme Court apply. It is the Rule that disclosure be
granted. Standard and specific disclosure is capable of being ordered. There are 3 points. One, we fully accept
that the Board must have sight of certain documents if the Bank is to prove its own case. Where one claimant's
claim impacts directly on another's it can only be fair to give us the opportunity to see those documents and to
determine whether or not those monies are being rightly or wrongly taken.
Second, we are not seeking to duplicate proceedings. If the Board determines that the right course is to bring a
claim against the bank then so be it. We have issued proceedings more as a protectionist approach. In any event
we would be entitled to those docuemtns throough that avenue, but as the Board is seized of 90 % of the other
matters it is mor eappropriate for the Board to make the ruling.
Third, section 11 gives the Board power to deal with all questions and claims relating to the payment of
compensation. The Board cannot blindly apportion claims without looking at the underlying substance.
Order: The Board has considered the submissions and will order disclosure at this point by the Bank to Martin. It
is important to reduce costs by having all proper and relevant evidence adduced at this stage. What is the
suggested direction?
Ms Robey: Para 11 of the draft order is what we seek [reads the paragraph].
Order: Disclosure is ordered in terms of the draft direction.
Ms Robey. We next ask for the order found at para 12 of the draft Order [reads the paragraph].
The reason why we seek this direction is that we have just seen a two page letter from National Bank formally
submitting a claim. National Bank's claim impacts directly on our client's position to a very significant financial
extent, about $4 million. In order for the Board to make a fair determination, and so that we may adequately
prepare with full knowledge of the differences between us, it is only necessary that the Bank set out the basis of its
cI~m.
.
Mr Wise: We want it to be clear that we do not wish to bring two different applications. Either we go by way of the
High Court or we go by way of this Board. We feel that this Board is the only proper forum for these issues to be
determined .
Mr Gossai: The bank is going to do that anyway in its written submissions.
Ms Robey. Para 7 of the original order is not controversial and should be included in the final order for directions.
Ms Robey: Para 8 of the original orders should also be incorporated.
Mr Eddy: My client is not listed by the Authorised Officer; Leonard Mederios and Mary Delprete Mederios are not
listed. Units B213, 8214 and B215.
13
Mr Gossai: They were inadvertently overlooked and I will ensure they are added to Vol "I as an addendum.
Mr Kelsick: Grateful for an address for service on the Board. There are documents that cannot be served
electronically.
Order: The address of Mr Edwin Glasford in Basseterre to be the address for service on the Board, with Mr
Glasford authorised to sign acknowledgements of receipt.
Ms Robey: We have a similar problem to Mr Eddy above with Dr Grossbeck. We ask that his claim be
recognised separately. There are certain of the former owners whom we represented who are separated out.
Mr Gossai: Or Grossbeck is covered in the general representation by Martin Kenny.
Dr Vieira: I am concerned that my client's claim is missing from the Summary. It is the Report of Cooper Kauffman
dated 5 February 2007 relating to Unit 201 and 203. It has been accepted, but there is no indication that the
Valuation Report is included in Vol ".
Mr Gossai: I have no problem in including it in Vol II! as part of the Addendum.
Dr Vieira: I will get it to him today.
Ms Mitcham: We will be relying on that Cooper Kauffman Report in relation to the accepted claims No 21 and 24,
Constance Mitcham and Pearline Sylvester and Rosalind Nichols on 24, and we will be making submissions on
behalf of Joe Ward on No 46. We do not have a separate valuation.
Order: We now begin drafting the Directions.
Ms Robey: We ask for a direction that all parties give standard disclosure in terms of para 10 of our circulated
draft Order.
Mr Eddy: I object. Under para 5 of the order of 6 February 2009 all interested parties were to make submissions.
The underlying basis of the claim, its supporting documents, were to be submitted to the Authorised Officer long
ago. There is no further documentation needed. There is no pot which is going to be divided up among the
parties. The Board will value the amount of Ms Robey's clients' claim. It is a false premise that there will be one
pot to be divided up.
Ms Robey: The reason why it is that way is that it is the duty of the board to look at the property and to value the
entire property, and then look at which individual condominium owner have valid claims, which will affect what
each will get. So, the owner of 5 units will get five times what one unit owner gets. My clients own the land and
the unsold units, and will get the balance of the pot. Any claim that is falsely made does not impact on any of the
other individual owners, but it does impact on our clients because, if the claim is false, our clients will lose that
value. We are therefore entitled to disclosure against all of the individual owners.
Dr Viera: Martin Kenny is trying to preempt the Board as regards the right of a party to claim. They cannot
preempt what the Board will decide. They can go to the court and dispute a claim.
Ms Robin Harbert Thompson: I have a concern that the representatives for Martin Kenny are very self serving,
and seem to be wanting to do the job of the Board in order to get as much of the pot as possible.
14
Ms Robey: If we are to appeal against an award by the Board in relation to a specific claimant, in the absence of
a questionable title document accepted by the Authorised Officer, then we will not have any documentation on
which to base our appeal. We are only asking, since we are only now receiving Vol III, to have the right to apply to
the Board for specific disclosure of any document we will discover is missing. It will not be disclosure at large.
This only arises because of the late provision of Vol III and we wish to protect our clients. We wish to ensure that
only valid claims have been submitted. It is difficult to see how people can object to that ultimate goal. We are not
attacking any individual, only seek to ensure the Board has all the relevant materials before it, and that if there is
to be an appeal all the relevant documents are in. We also want all of this to happen as quickly as possible.
Ms Mitcham: Standard disclosure has already been made. If there is something missing in order to challenge
somebody's claim, a document is missing, they can ask the Panel for specific disclosure.
Mr Gossai: All the documents in Vol III are found in Vol I, except the Outline of Volume III, and the valuations,
which were circulated to all lawyers present here on 18 august 2009. There is no new document that may need
disclosure.
Ms Robey: There are some claims just brought to our attention some two days ago that rely on equitable title,
some of which are accepted by the Authorised Officer and some of which are not accepted by the Authorised
Officer. Mitcham and Sylvester are not registered but are accepted, but the mortgages and time shares of
Crossman and Wi/cat and Ward are rejected.
Order: Disclosure ordered on the basis that it is desirable that all relevant and admissible evidence be brought
before the Board.
The Board, with the assistance of Counsel present, proceeded to finalise the form of the order. There were no
objections to the remainder of the order for directions.
Proceedings ended at 2:55 pm.
15

Richard Rowe et al v The Authorised Officer for The Angelus

Transcription

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