Tortola Investments Trust Ltd v Wickham's Cay Ltd

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Glasgow, J.
• Judgment Date: 18 June 1971
• Neutral Citation: VG 1971 HC 3
• Docket Number: No. T5 of 1970
• Date: 18 June 1971

High Court

Glasgow, J.

No. T5 of 1970

Tortola Investments Trust Ltd.

and

Wickham's Cay Ltd.

Appearances:

J. S. Archibald for Plaintiffs

J. Rowan Henry, Q.C, instructed by L.W. Barker for Defendants.

1971, Mar 17, 22, 23 June 18

Negligence - Breach of Duty — Whether the defendants' negligence breached agreement.

Facts: The plaintiff claimed that the defendants breached an agreement by the negligent manner in which they reclaimed the land which in turn caused damage to his hotel business.

Held: The plaintiff asserted the defendant's negligence but did not prove it. The facts did not substantiate the claim. Plaintiff's claim failed.

Glasgow, J.

1 By an agreement (hereinafter called “the said agreement”) dated 18 ^th January, 1968 and made between Christine Scott Roy and Pasea Plantation Limited (hereinafter called “the Transferors of the one part and the Defendants of the other part and recorded as Deed No.42 of 1968 in the Registry of Deeds in the British Virgin Islands it was agreed subject to the Defendants carrying out within 5 years of the 18th January, 1968 certain reclamation, operations on Wickham's Cay, in the British Virgin Islands that, inter alia, the Transferors would convey to the Defendants certain lands described in the Schedule to the said Agreement. By clause (2) of the said Agreement the Transferors agreed to covenant so as to bind themselves and their successors in title with the Defendants with respect to sub-clauses (a) to (e) of clause (2) of the said Agreement.

2 Sub-Clauses (d) and (e) of clause (2) of the said Agreement are in the following terms:-

• (d) Subject to mutual agreement being reached between the Transferors and the Transferee as to the area involved the Transferors will permit the Transferee to enter and remain upon part of their land adjacent to the aforesaid Crown land of the Department of Agriculture for the purpose of reclaiming additional land from the sea but no title to or right over such additional land shall be deemed to arise in favour of the Transferors by reason of this Agreement. Any reclamation in accordance with this sub-clause shall extend along the seaward side of the Transferors' land for a distance of not more than 240 feet measured from the boundary with the aforesaid Crown land of the Department of Agriculture, and its limits shall conform with those shown in Drawing WK: A.1 made by Smiths, Gore & Co., a copy of which has been supplied to the Transferors.

• (c) Save and except as provided for in clause (2) (d) of this Agreement or as otherwise may be mutually agreed between the parties to this Agreement no land shall be reclaimed on the seaward side of the land to be retained by the Transferors.”

3 By a conveyance dated 3rd April, 1969 made between Christine Scott Roy, James Rowan Roy and Pasea Plantation Limited (hereinafter together also called “The Transferors”) of the one part and the Plaintiffs of the other part and recorded as Deed No. 189 of 1969 in the Registry of Deeds aforesaid (hereinafter called “the swirl Deed”) the Transferors conveyed to the Plaintiffs in fee simple the land described in the First Schedule thereto (including the land of the Transferors variously referred to in sub-clauses (d) and (e) of clause (2) of the said Agreement together with the benefits and subject to the obligations contained in certain deeds listed in the Second Schedule thereto (including the said Agreement).

4 In or about April, 1969 the Plaintiffs took possession of the land conveyed by the said Deed including the hotel known as Treasure Isle Hotel situate thereon, and have remained in such possession ever since.

5 It is alleged by the Plaintiffs that in and after June, 1969 the Defendants by themselves, their servants and/or agents, in pursuance of sub-clause (d) aforesaid entered and remained upon part of the land conveyed by the said Deed, and reclaimed land from the sea along the seaward side of the land conveyed by the said Deed, but effected such reclamation in breach of sub-clauses (d) and (c) aforesaid in that the Defendants by themselves, their servants and/or agents reclaimed land from the sea for a distance beyond the limit of 240 feet stipulated by sub-clause (d) aforesaid without any agreement by the Transferors or the Plaintiffs for the said distance of 240 feet to be exceeded, and in so doing caused–

• (i) a large accumulation of sand, rubbish and stagnant water to be deposited in front of the said hotel (which was re-constructed and extended at considerable expense to the Plaintiffs between April, 1969 and February 1970), and thereby deprived the Plaintiffs of the sea water rights and jetty facilities in front of the said hotel, and

• (ii) a deposition of send on the sea-bed in front of the said hotel extending for a distance of approximately 289 feet outward from the land conveyed to the Plaintiffs by the said Deed, thereby reducing the depth of the sea water in front of the hotel from a minimum of 3 feet 6 inches to a minimum of 2 feet and so damaging the boating access to the said hotel.

6 The Plaintiffs also allege that by reason of the Defendants' alleged breach of sub-clauses(d) and (e) aforesaid and owing to the bad smell, unsightliness and mosquitoes resulting from the said sand, rubbish and stagnant water the Plaintiffs have suffered damages and loss and the Plaintiffs' use and enjoyment of the land conveyed by the said Deed, and the said hotel in particular, has been seriously disturbed.

7 The Plaintiffs claim $100,000.00 damages for breach of the said Agreement. The Plaintiffs also claim damages for loss and damage alleged to be caused to them by the accumulation of sand, rubbish and stagnant water complained of. Finally, the Plaintiffs ask for an injunction to restrain the Defendants by themselves, their servants or agents or howsoever otherwise from continuing the said accumulation of sand, rubbish and stagnant water.

8 In their Statement of Defence the Defendants confirmed the fact of the said Agreement and stated that they have carried out the required reclamation operations on Wickham's Cay. The Defendants stated that such reclamation works as are referred to in Paragraph 6 of the Statement of Claim were carried out by Interbeton N.V., independent contractors, in an efficient manner and in agreement with Pasea Plantation Ltd. The Defendants denied that the Plaintiffs are entitled to any rights over the bed of the sea or any land reclaimed as alleged. The Defendants also denied bringing to the reclaimed land or any land in the area, rubbish, sand or stagnant water. As to the Plaintiffs' claim for damages, the Defendants stated that no acts of the Defendants have produced any damage to the Plaintiffs and that the Plaintiffs are not entitled to an injunction.

9 As regards the Defendants' allegation that “such reclamation works as are referred to in Paragraph 6 of the Statement of Claim were carried out by Interbeton N.V. independent contractors in an efficient manner and in agreement with Pasea Plantation Ltd.”, the Defendants' solicitor informed the Plaintiffs' solicitor by letter, in reply to the Plaintiffs' solicitor's written request for particulars in that behalf, that–

• (a) the parties to the agreement referred to were Mr. A. Van Dijk, Resident Engineer of the Defendant Company and Mr. J.R. Roy for Pasea Plantation Ltd.,

• (b) the date of the said agreement was 28th October, 1968,

• (c) under the said agreement a specific contour line for the area of the Wickham's Cay Project near Treasure Isle Hotel was adopted, and

• (d) the agreement was verbal but confirmed by each party's signature to a plan.

10 At the hearing of this action, four witnesses gave evidence - all on behalf of the Plaintiffs. The first witness to testify was Mr. Herbert Showering, an investor in the Plaintiff Company, which comprises...