H&F boss Fraser wants James brothers cited for contempt
Humphrey Machinery and Frandec (H&F Inc) has moved to have Fix-it Hardware Black and Decker Inc cited for contempt in the Commercial Court, for going against an injunctive order of September 2007 not to recommence work on the H&F Inc property.
The motion is also seeking a writ of sequestration – a prejudgment process which orders the seizure or attachment of property to be maintained under court order and supervision, until the court determines otherwise.
Work is currently underway on the Fix-It Black and Decker property at Lot 29 Sub-Lot B Main and Holmes streets, which formerly housed the national Archives. However, the structure under construction is bracing against the H&F Inc building on the northern façade damaging it in parts. Since it is a higher structure, it also overlaps the H&F building.
In addition, the steel structure, which braces the building, does not allow for windows on the northern side of the H&F building to be opened. From all appearances the four-storey steel structure has two wings – one running west to east with the entrance on Main Street and the other attached to the first wing running north to south on a portion of land behind Lot 29 Sub-Lots A and B. The north to south wing is bordered by Holmes Street and Rosemary Lane.
H&F Director Peter Fraser, who has caused the contempt motion to be filed, told Stabroek News that permission was granted to the directors of Fix-It Hardware Black and Decker to build a common stairway in keeping with a common wall agreement, but on no account to encroach on H&F Inc’s property. H&F Inc had previously owned both sub-lots on Lot 29 Main and Holmes streets, but sold Sub-Lot B to Fix-It Hardware Black and Decker.
It was verbally agreed that a common stairway would be built which would be used by both buildings. A stairway has been built but instead of catering for two storeys in keeping with the structure of H&F it goes four storeys high. To facilitate the continuation of the stairway and the higher levels of the Fix It Hardware Black and Decker structure, the builders have cut into the roof of the H&F building without permission being granted.
H&F, which is currently renovating its building, in an effort to replace roofing material discovered yesterday that the workmen could not place the type (length) of zinc sheets it had used previously because the workmen of Fix-It Hardware Black and Decker had welded some steel structure where the zinc sheets had covered. They undertook the welding after H&F workers removed the sheets and before they could have replaced them with new sheets.
Because of this, Fraser said, H&F would not be able to put guttering material to allow for proper drainage from the roof when it rained. Because the Fix-It Hardware Black and Decker building is overlapping the H&F building it also means that rain water from the higher building would fall on the lower building.
When Fix-It Hardware and Black and Decker started to lay the foundation of the current steel structure and it was discovered that the H&F property was being encroached on. Fraser said he immediately brought the violation to the attention of Director of Fix-It Hardware Black and Decker, Paul James.
After little or no action was taken he moved to the court seeking an injunctive order, which was granted. The work stopped for a period but recommenced recently causing much damage and inconvenience to reconstruction works now underway on the H&F building which houses the services provided by Frandec and other businesses.
Attorney-at-law Stephen Fraser filed the contempt motion, which is still to be heard, in June. It is calling for an order that businessmen Paul James and Ronald James, the registered directors of Fix-It Hardware Black & Decker Inc to be committed to the Georgetown Prison for contempt, citing the injunctive order granted to H&F by Justice BS Roy on September 12, 2007.
According to the motion, the contempt involves interfering with, obstructing or impeding the administration of justice by the court, as well as in aiding and abetting, by their actions and that of their servants and/or agents to unlawfully recommence and continue to carry out building works and to enter and go upon the plaintiff’s land at Lot 29 sub-lot A Main and Holmes streets, notwithstanding the order of September 2007.
H&F is also seeking a writ of sequestration against Fix It Hardware Black and Decker Inc for its contempt in wilfully disobeying Justice Roy’s September 2007 order against recommencing, continuing to carry out building works and entering the plaintiff’s land; and costs for incidental damages.
According to H&F’s motion, one of the directors, Paul James, had assured the court on April 23, that his company was complying with the injunction as he had to suspend construction because his bank had withdrawn the loan. However, on May 23, 2008 a sworn land surveyor visited the plaintiff’s premises and on measuring the façade found that a structure was erected and that it was 0.25’ (3”) inside H&F’s premises.
Fraser, who is also the chairman of the board of directors of H&F Inc is contending that Fix-It Black and Decker breached an agreement by encroaching and building on H&F Inc property contrary to a party wall agreement they entered into on October 14, 2005 regarding the boundary walls of the said adjoining properties.
They agreed that the wall would be shared; that they both would keep their respective parts of the party wall in a state of repair “as will ensure to each of them in respect of its own part the convenient enjoyment of its rights to support and use over the rest of the party wall”.
Even before the injunction was granted in September last year, Fraser had written to Paul James on August 23, asking that he cease all work and that they submit to arbitration in keeping with the party wall agreement because of unlawful construction and trespass to the property of H&F Inc and damage done to building and erections.
In recent months and weeks, Stabroek News has sought an interview with Paul James on his proposal for the development of a hotel in the area. But despite several promises to return calls this newspaper was unsuccessful in contacting him.
