The Full Court last Thursday discharged an injunction previously granted to Moeenul Hack, who is trying to prevent brothers David and Stuart James from constructing an apartment building at Liliendaal, East Coast Demerara.
Added to the discharge of his interim injunction, Hack (the Respondent) has also been ordered to pay the Appellants costs in the sum of $250,000 no later than November 17th.
His argument has been among other things, that the construction at the Lot 23 Area B Liliendaal location breaches the servitude on the property by essentially transforming its use from residential to business.
In discharging the injunction, however, Justices Gino Persaud and Damone Younge who heard the appeal, ruled that this was not the case; and moreso that “the magnitude of irreparable harm” to the brothers favoured the discharge.
On this point Justice Persaud noted in the written ruling that having regard to case law authority, the Court must strive to reduce the risk of irreparable harm to the interests of the parties; especially given that both pre-trial interference and forbearance can result in harm to the parties’ interests.
Relying on a plethora of cases, he said that the Court needed to follow a course most likely to achieve a just solution, which means that it must adopt the course most likely to protect, rather than harm, the parties’ interests.
He said that having considered the servitude which Hack contends the Appellants breached, it does not appear from a plain reading of it that an apartment building falls squarely within its parameters.
Justice Persaud did, however, note this to be a prima facie view stating that at this stage there is no finding on the merits of the contention and that the court would not embark on a mini trial.
In respect of the two city by-laws which Hack contends the Appellants also breached, the Judge said that there was insufficient evidence for the Court to have offered any view on whether that was a serious issue to be tried.
He added that in any event, that issue is a question of fact eminently suited for trial.
The Court in its ruling referenced a defence filed by the Central Housing and Planning Authority (CH&PA) which denied Hack’s claim that there is no provision for parking facilities at the property on question.
Justice Persaud said that the Housing Ministry also denies that the apartment building would be contrary to the restrictive covenants and servitudes on the property as is being contended by Hack, or that it would amount to a change of use from residential to business.
He said it also further denies Hack’s contention that there was no consultation with residents.
The Judge pointed out that the CH&PA in fact contended that it approved the Appellants’ application to erect the three-story apartment building after taking all relevant matters into consideration including consultations and availability for parking; and satisfied itself that the development was not likely to affect the character or amenity value of the surrounding residential area.
The judgment noted the CH&PA’s contention that Hack’s claim ought to be dismissed.
The Court noted, too, that Hack seems to have delayed in approaching the Court for injunctive relief stating that while his application is dated December 1st, 2021, the Appellants contend that they commenced construction in November, 2020.
Justice Persaud said that this delay is not explained by Hack in his application for injunctive relief and must be taken into consideration. The Respondent the Court stated “did not act with alacrity and urgency in approaching the court for injunctive relief.”
Regarding contentions of public nuisance in the injunction application, Justice Persaud said that that was immaterial as it was not pleaded as a cause of action in the statement of claim and neither was any relief sought therefor.
The Judge said that the Appellants have outlined the pecuniary harm they have suffered as a result of the grant of the interlocutory injunction; in which they noted that construction has halted since December 2021 while noting that financial consequences include costs overrun, monthly mortgage repayments, increase in construction costs and security costs among others.
These expenditures the Court said, “do not sound unreasonable or exaggerated but rather in line with the consequences associated with the halting of such a venture,” and that “It is therefore urgent that a final resolution of the rights of the parties be speedily determined.”
Justice Persaud said that in all the circumstances of the case, the balance of convenience favours the Appellants; while noting that the magnitude of irreparable harm to them, was substantially greater than any potential harm to Hack.
Accordingly, the Judges allowed the appeal, thereby discharging the interlocutory injunction which had been granted to Hack on December 14th, 2021 by Justice Simone Morris-Ramlall. He has also been ordered by the Full Court to pay $250,000 costs to David and Stuart, no later than November 17th, 2022.
Further, Justices Persaud and Younge have remitted the matter for continuation with a trial.
