Franklin Dobson v Michael Burrill

• Jurisdiction: British Virgin Islands
• Judge: JOSEPH-OLIVETTI, J
• Judgment Date: 09 May 2006
• Court: High Court (British Virgin Islands)
• Docket Number: BVIHCV 2005/0086
• Date: 09 May 2006

IN THE HIGH COURT OF JUSTICE

BVIHCV 2005/0086

Franklin Dobson

Claimant

and

Michael Burrill

Defendant

Appearances:

Richard Rowe, J.S. Archibald & Co. for the Claimant

John Carrington and Ms Thalicia Blair, Mc Todmn & Co. for the Defendant

(Landlord and Tenant — Distress — Landlord levying in person — whether distress wrongful because landlord not certified under the Recovery of Rent Act

Landlord and Tenant — Distress — whether distress wrongful because landlord seized tenants tools of trade —

Landlord and Tenant — Distress — Landlord seizing all the goods on the premises-whether distress excessive.

Trespass to land — Unlawful re-entry by Landlord without serving written notice — whether verbal notice sufficient. compliance with section 56 Registered Land Act.)

JOSEPH-OLIVETTI, J

1 The law grudgingly grants self-help remedies and guards their exercise as jealously as George Elliot's sympathetic miser, Silas, did his gold, albeit more effectively. In this case, Mr. Michael Burrill rented premises to Mr. Franklin Dobson, for use as a woodwork shop. Mr. Dobson fell behind in his rent and Mr. Burrill personally levied distress on all his goods and equipment on the premises including all his tools of trade and locked him out. To date, some 16 months after the event Mr. Burrill still has most of the items distrained on in his custody and has refused to deliver them to Mr. Dobson until he pays the arrears of rent. Needless to say Mr. Dobson has not seen fit to pay the arrears which he admits owing. Instead, Mr. Dobson claims that the re-entry and the distress are unlawful and seeks damages. Mr. Burrill in his turn has counterclaimed for the arrears of rent, the costs of cleaning up the premises and the costs of the storage of the goods.

Who Testified

2 Mr. Dobson gave evidence on his own behalf and so did Mr. Burrill. In addition Mr. Burrill called his supervisor, Mr. Michael Clarke and Mr. Gerard Kraakman as an expert on the value of the lumber and equipment levied on.

Main Issues to be Determined

3 The parties filed pre-trial memoranda. The relevant issues as the court sees them, having regard to the memoranda, the pleadings and the evidence are:-

1) Whether Mr. Burrill's re-entry and determination of the tenancy was lawful as he did not give written notice under S. 56 of the Registered Land Act (Cap. 229); ‘the R.L.A.’; if it were not then whether Mr. Dobson is entitled to damages for the wrongful eviction and the amount of such damages;

2) Whether the distress was unlawful in that Mr. Burrill levied the distress in person without holding a certificate under the Recovery of Rent Act Cap. 66 (‘the R.R.A.’);

3) Whether Mr. Burrill levied on goods whose value was clearly disproportionate to the arrears of rent claimed and the costs of the distress thus rendering the distress excessive and wrongful;

4) Whether Mr. Burrill levied on Mr. Dobson's tools of trade in circumstances in which he was not entitled to thus rendering the distress wrongful in respect of the tools;

5) If the distress were wrongful for any of the foregoing reasons whether Mr. Dobson is entitled to damages and the amount of such damages;

6) As regards the counterclaim—

(a) whether Mr. Dobson is liable to pay for the clean-up of the premises after the re-entry and if so how much;

(b) whether Mr. Dobson is liable to pay for storage of the distress and if so for what period and how much;

(c) whether Mr. Burrill is entitled to judgment for the arrears of rent claimed.

Issue 1—Whether Mr. Burrill's re-entry and determination of the tenancy was lawful as he did not give written notice under S. 56 of the Registered Land Act (Cap. 229); ‘the R.L.A.’; if it were not then whether Mr. Dobson is entitled to damages for the wrongful eviction and the amount of such damages.

4 I must preface this by quoting Mr. Dobson's counsel in his closing submissions— ‘save for the nature, quantity and value of the items seized by the Defendant, there is little dispute on the evidence.’ Mr. Burrill rented premises at Sea Cow's Bay, Tortola to Mr. Dobson for a term of 1 year at a monthly rent of $2,500.00 commencing 1 ^st February, 2004. The premises were to be used to carry on ‘the manufacture of woodworking products’ This agreement was the successor to a first agreement dated 23 ^rd October, 2003 for a term commencing 1 ^st November 2003 and a monthly rent of $ 2000.00. This first agreement is at page 16 of the Trial Bundle (‘T.B.’).

5 Mr. Dobson, pursuant to the agreement, paid $2,000.00 as a deposit, which was to be, ‘returned after deduction for any loss, damage or unpaid bills upon determination of the lease’. See clause 1.

6 According to Mr. Dobson (his evidence was not disputed) the parties entered into the new tenancy agreement as he required additional space to store a shipment of tiles.

7 The parties used a form of written agreement identical to the first agreement in every respect save for the commencement of the term and the new rent. That document bears the same date as the first but on the last page it bears the date 30.01.04. However, both parties agree that this is the current tenancy agreement. It was admitted at the trial as it had been omitted inadvertently from the Trial Bindle (‘TB’).

8 Mr. Dobson admits that he subsequently fell into arrears of rent and that by 8 ^th September he owed 3 and one half months rent being rent for June, July, August and 8 days in September which he calculated as $8,166.00 and that after discounting his deposit of $2000.00 which it is not disputed that he admits owing $6,166.00 1. Mr. Burrill here agrees with the calculation and the amount 2.

9 Mr. Burrill gave him time to pay but for reasons which do not strictly concern us he was unable to do so. Mr. Burrill obviously saw no good reason to grant any further indulgences and without giving any prior written notice to Mr. Dobson, terminated the tenancy on the 8 ^th September 2004 by entering the premises and changing the locks. And, in addition, he personally seized all Mr. Dobson's goods and machinery on the premises for non-payment of rent. He claims to have acted lawfully in terminating the tenancy under clauses 1 and 3 of the agreement.

10 Mr. Dobson only learnt of this re-entry and distress when he arrived at the premises on the 9 ^th September and was greeted with a letter from Mr. Burrill affixed to the outer door which was locked. This letter bears date 8 ^th September, 2004 and states that rent amounting to a total of $10,000.00 for June to September had not been paid, that accordingly the lease was thereby terminated and his goods seized ‘until such time as the arrears of rent are paid up.’ It further stated that Mr. Burrill had changed the lock and that Mr. Dobson was ‘denied access, without express permission’ and that if he attempted to enter the premises he would be reported to the police for breaking and entering 3.

11 Mr. Burrill in paragraph 9 of his witness statement and in cross examination maintained that despite what his letter said he did not change the locks and that he took no steps to seize the goods until November, 2004. Then, he moved them so that he could occupy the space. The court does not find this at all credible as Mr. Burrill is a business man and a so man of the world, and what is more he struck me as being gifted with more than a fair measure of intelligence. I therefore harbour no doubt that explaining matters in this way

was his attempt to try to get around the issue of whether or not he had complied with the R.R.A.

12 Furthermore, if he really did not mean what he said in the letter and did not intend Mr. Dobson to act on it then he could easily have contacted Mr. Dobson and retracted the letter and allowed him back on the premises. Of course he did not do so then or at any time thereafter as no doubt as far as he was concerned he had acted lawfully. In any event, his pleadings make it clear that he terminated the tenancy agreement and that he levied distress on the goods although he claims that they were lawful actions 4.

13 There was a dispute as to whether the letter was affixed to the door of the premises or whether Mr. Burrill handed it to him. I accept Mr. Dobson's evidence that it was affixed to the door and that he took it down and read it and that Mr. Burrill did not hand it to him but that he did speak to Mr. Burrill at the time and asked him to return his tools which Mr. Burrill declined to do unless he paid the arrears. In any event, by whatever means Mr. Burrill apprised Mr. Dobson of the contents of the letter, the fact is that it was never retracted and it is not disputed that Mr. Dobson was given notice of its contents. Accordingly, I find that Mr. Dobson was entitled to govern himself having regard to the letter's import and did so.

14 Therefore, on the 9 ^th September. Mr. Dobson took his leave peaceably and obeying the letter did not attempt to re-enter the premises thereafter. This was commendable in all the circumstances as all too often such summary actions by landlords tend to provoke a breach of the peace. In passing I note that foreclosure by peaceable re-entry is not regarded as a civilized method now and it has been described as ‘dubious and dangerous’ by the English courts. See Lord Templeman in Billson v Residential Apts. Ltd.5 See also the seminal text on the law of landlord and tenant, Hill and Redmans Law of Landlord and Tenant 18 ^th edn. where it is stated— ‘the policy of the law is to discourage self-help even when effected by peaceful re-entry. The course of bringing proceedings for possession is favoured. A landlord has nothing to gain in

terms of resisting relief against forfeiture by resorting to self-help. 6 I think this statement of policy applies here equally especially as the Civil Procedure Rules 2000(‘CPR2000’) provides for such claims for possession to be dealt with more...