CLAIM NO. ANUHCV2013/0029
BETWEEN:
STUART M. COLEMAN
Claimant
and
CARIBBEAN DEVELOPMENTS (ANTIGUA) LIMITED
Defendant
Appearances:
Ms E. Ann Henry Q.C. and Ms Mandi Thomas of Henry & Burnette for the Claimant
Mr. John Fuller and Mr. C. Dyer for the Defendant
Date: October 18, 2018
[1] On or about 29th March 2006, the claimant became the Registered Proprietor of land located at Jolly Harbour and recorded in the Registry of Lands as Registration Section: South West; Block 55 1186C Parcel 75, on which he constructed a villa. The defendant is the developer of the Jolly Harbour Complex. The claimant claims against the defendant damages for breach of certain contracts and consequential loss arising therefrom. Two of the contracts which are the subject of the dispute are written contracts, namely: the Land Purchase Agreement dated the 28th November, 2005 and the Instrument of Transfer of Land dated 28th November 2005. The third contract is for the supply of utilities by the defendant to the premises of the claimant and is an oral agreement.
[2] In respect of the Land Purchase Agreement, the claimant avers that the defendant is in breach of clause 28, in that from August, 2007, the defendant has imposed an amount for Community Charges which exceeds the amount of US$211.75 contracted for by the parties. Further, in breach of its contract to supply utilities, the defendant has improperly overcharged the claimant for water consumption during the period October to November 2009. When the claimant challenged the amount charged, the defendant improperly disconnected the supply of electricity and water to the claimant's villa during the period April 2011 to December 2014. Additionally, the defendant wrongfully imposed charges for interest when there was no agreement between the parties for the claimant to pay such on any outstanding sums for utilities and/or community charges.
[3] The claimant therefore seeks the following relief:
[4] The defendant denies the claimant's allegations and argues that the claimant breached the agreement by failing to pay outstanding utilities bills. The defendant also asserts that it had a policy in respect of both the utilities and community charge which required owners to pay a 2% interest charge on all amounts overdue in excess of 60 days. The defendant contends that the claimant had received proper notice of this policy from the commencement of his ownership and by way of Counterclaim claims the unpaid community charges with interest from the claimant. The defendant therefore seeks:
[5] At the commencement of the trial certain concessions were made. Counsel for the defendant conceded that interest is, in fact, not chargeable by the defendant on outstanding amounts, therefore the declaration sought in item 3 of the Claim Form ought to be granted. Further, the parties agreed that item 4 of the Claim Form is no longer necessary, since the services have been restored.
[6] The issues for the court's determination are:
[7] Clause 28 of the First Schedule of the Land Transfer document addresses the issue of community charges in respect of the property. Clause 28 of the First Schedule provides:
"The Transferee shall pay the monthly maintenance charge also known as the community charge, which charge is now levied by the Transferor and which charge is now currently set at two hundred and eleven dollars and seventy-five cents ($211.75) United States Currency per month per villa and which is charged for and expended upon the services provided to and for the benefit of the above-mentioned parcel, which services are included but not limited to security, grounds maintenance, infrastructural maintenance, sewage, lighting and liability and risk insurance for common areas in the administration thereof. Any increase in the monthly community charge shall be on the basis of the budgeted accounts and audited financial statements."
[8] The claimant admits that one of his obligations under the Agreement is to pay the monthly community charge for services provided by the defendant. He also admits that the First Schedule provides a mechanism by which the monthly fee can be increased.
[9] The claimant's evidence is that when he purchased the property the community charge was US$211.75. Subsequently, he started paying a higher figure of US$250.00 monthly. In fact, he paid the increase amount from August 2007 until December 2011, almost 4 years. He says that he did so because he was advised of the increase by letter which indicated that the increase was based on audited accounts and a new budget set by the defendant. According to the claimant, at the time the increase was demanded, he did not take the time to carefully review the Agreements, and mistakenly paid the increase.
[10] By letter dated 1 December 2011, the claimant wrote to defendant regarding the said charges stating:
"It has come to my attention that the community charge invoices that Caribbean Developments (Antigua) Limited ("DAL") have been rendering to me do not appear to be in accordance with Article 28 of the said covenants. Under the Article, any increases in community charges shall be on the basis of budgeted accounts and audited financial statements. I do not recall having been provided with budgets or audited financial statements which justify this quantum increase. Therefore the increased community charge over and above the $211.75 amount stated in my covenants does not appear to be warranted."
[11] He requested an explanation and warned that in the absence of a satisfactory explanation, he would be requesting a refund.
[12] One Carol Joseph, Customer Relations Coordinator of the defendant responded to the claimant by email sent on 8th December 2011. She thanked him for his email and forwarded to him a copy of the PWC 2007 Audit, which she indicated formed the basis for the increase in August 2007 from US$211.75 to US$250.00.
[13] Clause 28 makes provision for increases in the community charge. The claimant does not challenge this. It is the process that has been challenged. Under clause 28 the increase "shall" be on the basis of the budgeted accounts and audited financial statements. The audited accounts tendered into evidence were approved by the defendant's Board on 26th January 2009. At page 90 of the Bundle of Agreed Documents the Audited Report sets the monthly community charge per homeowner's unit at US$254.81.
[14] Accordingly, the claimant is entitled to be reimbursed for the increased community charges paid for the period August 2007 to December 2008.
[15] The claimant received two invoices from the defendant's Accounts Department: one dated 31st October 2009 and the other dated 30th November 2009. The October invoice indicated that the claimant consumed 50,200 gallons of water during that month at a cost of EC$2,761.00. While the November invoice indicated consumption of 27,150 gallons of water during that month at a cost of EC$1,493.25.
[16] The essence of the claimant's evidence on this issue is that the billings for the months of October and November 2009 could not be accurate because there was no consumption of water in his Villa during that period. In his witness statement, the claimant states that for those months, his villa was unoccupied and the supply of electricity and water to the villa was turned off.
[17] The claimant also stated that he inquired as to the reading of the meter for those two months and was satisfied that the reading reflect the bills he received. He refers to this as a mystery and noted that theft was not impossible. He further stated that it is quite possible for someone to steal the meter from his villa and use it elsewhere.
[18] The defendant's evidence on this issue was given by Karen Phoenix and Israel De Aza. Ms Phoenix's evidence is that under her direction, both the claimant's water and electricity meters were checked by her staff and staff from the maintenance department and were found to be functioning properly.
[19] Mr. De Aza's evidence is that he is employed as a plumber with the defendant. His duties include checking water meters to determine if they are functioning properly. Towards the end of January 2010 and early February 2010 he was requested by his superiors to check the water meter at the claimant's unit at Jolly Harbour to determine if it was functioning properly. Upon inspection and follow-up inspection he was satisfied that the meter was functioning correctly.
[20] The Utilities Agreement is an oral one and the terms are set out in paragraph 4 of the Statement of Claim. It states that "it was agreed between the claimant and the defendant that, in consideration of the supply of the utilities as aforesaid the claimant would pay to the defendant for the amount consumed as measured on the metres affixed to the villa."
[21] If the claimant is to avoid liability for the gallons registered he must show that the amount of water indicated on the meter was not consumed at his villa.
[22] The defendant did not challenge the claimant's evidence that the villa was unoccupied for the two months in question. The invoice for the month of October, while indicating consumption of 50,200 gallons of water, shows zero consumption of electricity. It is difficult to accept that someone was in occupation and consumed 50,200 gallons of water but no electricity.
[23] Each party has advanced competing theories to explain the consumption of the enormous gallons of water. The claimant's theory of theft of the meter is found to be more probable given the evidence.
[24] Given the above evidence and the large quantities of water involved, I find the claimant's explanation more probable and I accept that the water was not consumed at the claimant's villa. Therefore given the terms of the agreement, the invoices for October and November as rendered were improper and did not reflect consumption at the villa. Therefore the disconnection of the claimant's utility services amounted to a breach.
[25] The evidence is that when the villa is not in use by the claimant, it is usually rented. The claimant was unable to rent the villa during the period the utilities were disconnected. The claimant is therefore entitled to damages as follows: Special damages in the sum of US$8500.00 representing loss of rental income during the period of disconnection; together with general damages of EC$20,000.00
[26] The defendant avers that since 31st October 2009, the claimant has ceased to pay any community charges. The claimant has maintained that the increase in the fees is invalid. The court has held that the increase in fees is valid from January 2009. Therefore, the defendant is entitled to judgment for the unpaid amounts in community charges for the period October 2009 to 1st February 2013 and from 1st March 2013 until the date of judgment.
[27] Accordingly, judgment is granted on the Claim in favour of the claimant as follows:
[28] Judgment is granted in favour of the defendant on the Counterclaim as follows: