The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A LOCAL nursery owner on Friday decried the Bahamas Agriculture and Industrial Corporation's (BAIC) failure to comply with a court order to pay him more than $90,000 as compensation for a problem that led to the damage and destruction of his plant inventory. 

Instead, William Albury, owner of the Good Earth Nursery on Gladstone Road, lamented that he was now being charged $6,400 in lease fees.

Mr Albury provided documents which indicate that in 2014 then-Chief Justice Sir Michael Barnett ordered that BAIC pay Mr Albury $94,041.50 for the $37,500 worth of "damaged and suffering plants", and $56,541.50 for "dead plants" at the Gladstone Road property as of February 2009. 

The plants were damaged due to a "rock crushing operation" on the property adjacent to Mr Albury's, the dust and by-products of which were blown onto his plants and crops, causing "severe damage and loss of them". 

However, Mr Albury claimed that BAIC has not honoured the court order, leading to a summons filed on October 22, 2015, by his lawyer Troy Kellman to have the Supreme Court order BAIC to pay the sum.

Mr Albury told The Tribune that, as of March 30, 2016, the corporation is now demanding that he pay lease fees totaling some $6,400 as well as demolish a building on the property.

BAIC, in a letter addressed to Mr Albury and signed by BAIC Executive Chairman Dion Smith, claimed that Mr Albury "failed and or refused" to pay his yearly lease fees for the period 2014-2016. 

BAIC also claimed that Mr Albury erected a building on the property and "the same is being occupied by you as a dwelling home", which BAIC said is a breach of Mr Albury's lease agreement with the corporation. 

On Friday, Mr Albury said he had no qualms about paying the $6,400 arrears, granted BAIC pay him the $94,000 owed to him, especially given that the latter sum is nearly 13 times the $6,400 BAIC is seeking in outstanding lease fee payments.

"It's just stress, from one day to the next you don't know what's going to happen," Mr Albury said. "The nursery, it's just like a jungle. It's overgrown, there's no money to maintain it, and I'm having to do everything in the nursery by myself because I can't afford to hire nobody else to do it." 

According to the court documents, Good Earth Nursery Ltd, the plaintiff in the action, became a tenant of BAIC in 1998, when it entered into a lease agreement with BAIC for the purpose of operating a plant nursery. 

According to Sir Micheal's ruling, the lease agreement contains a clause which provides that Good Earth, upon "paying the rents and observing and performing the covenants and stipulations" contained in the lease "shall peaceably hold and enjoy the dismissed premises."

Around July 2006, however, an employee of the first defendant, Tony Miller doing business as T M Trucking, under the "direction and control" of the second defendant, Geneva Albury-Bowe doing business as Tradewind Enterprises, "transported and fixed to the property" leased to (Tony Miller) a "rock and soil crushing machine" and engaged in a "rock crushing and soil separating operation".

Sir Michael noted that prior to 2006, the activities by the second defendant on its leased land "did not constitute a nuisance nor did it interfere with Good Earth's enjoyment of its leased property." Sir Michael said it was not until 2006 when the second defendant "permitted the rock crushing operation on its property that the activities on that property interfered with Good Earth's business".

Sir Michael ultimately ruled that BAIC was liable for the damages caused by the rock crushing operation, agreeing with Good Earth's submissions that BAIC ought not to have allowed another "lessor" to use its leased property in a manner which "substantially interferes with Good Earth's ability to use its property in the manner which BAIC agreed and required that the property should be used."

He also said that BAIC, under its lease with the second defendant, had the ability to stop the second defendant from "using its property to carry out rock crushing operations" and that its failure to do so was "a breach of its quiet enjoyment covenant with Good Earth".

Sir Michael ruled that there was "no basis" on which he could have made an "award for loss of income or loss of profits", adding that there was no "evidential basis" upon which "the court can quantify that loss".

However, he said the "evidence of quantum" was limited to the loss of plants previously testified by Simon Rodehn, owner of Commonwealth Landscaping and Nature Services. According to the ruling, Mr Rodehn, on May 17, 2009, compiled a report based on his inspections of Mr Albury's lot. 

The findings showed a loss of $37,500 for damaged and suffering plants as of February 2009 and $56,541.50 for dead plants as of February 2009. 

Adding the two costs, Sir Michael ultimately entered judgement for Good Earth against BAIC in the sum of $94,041.50. He ruled that BAIC "will pay Good Earth's cost to be taxed if not agreed".

To date, however, Mr Albury claimed that BAIC had yet to pay him as per Sir Michael's ruling.

In a letter dated March 30, BAIC stated: "Your actions as outlined above clearly breaches the agreement, therefore, we invite you to remedy the same for an amicable solution to this matter. In that regard, we request that you pay the outstanding arrears in the sum of $6,400.00 or contact our Collections Department to make arrangements to pay the same; demolish the building on the property immediately. Should we not hear from you within 14 days of receipt of this letter, we will proceed as we may be advised without further notice to you."

Mr Albury said on Friday: "I just want my money, and I want the protection what BAIC said they was going to give me when I moved there."

Attempts by The Tribune to contact Mr Smith were unsuccessful on Friday. However, The Tribune understands that a meeting has been scheduled for Tuesday between the parties.