By NICO SCAVELLA
Tribune Staff Reporter
FOX Hill MP Shonel Ferguson’s investment company is seeking to have a new hearing over the claims that led to its Supreme Court-ordered eviction from a building it allegedly never paid real property taxes on since assuming responsibility for it some 13 years ago.
Turtle Creek Investments (TCI), in a notice of appeal filed in December, is seeking to have Justice Keith Thompson’s entire November 13, 2018 judgement and eviction order set aside and the matter remitted to the Supreme Court for trial.
TCI claims Justice Thompson erred in finding that it had breached the hire purchase agreement it entered into with Daybreak Holdings on December 31, 2005, because the evidence on that issue was contained in “competing affidavits not tested by cross examination”.
Last year, Justice Thompson ordered TCI, its agents, servants, assigns or subtenants to move out of the building in Centreville no later than close of business on December 15.
Additionally, Justice Thompson ordered TCI to pay all outstanding sums it owes Donna Davis’ Daybreak Holdings, the plaintiff, pursuant to a hire purchase agreement it entered into for the building. The judge also ordered both parties to engage an accountant to determine what TCI owes Daybreak pursuant to the agreement.
TCI was also ordered to pay all of Daybreak Holdings’ costs associated with “the bringing of and prosecution” of the court matter, to be taxed if not agreed.
TCI subsequently tried to persuade the Court of Appeal to halt its eviction from the building in question ahead of its appeal, asserting that it would suffer “irreparable harm and prejudice” unless Justice Thompson’s order was stayed.
“Irreparable harm is likely to be occasioned to the defendants [Turtle Creek] if the said order is allowed to be executed whilst the appeal is pending, as I am advised and verily believe that the prospect of success is high,” Ms Ferguson said in her December 11, 2018, affidavit.
The MP and her attorney, Randol Dorsett, argued that the “harm” would be caused if Daybreak Holdings followed through with plans to sell the building, while also claiming that Justice Thompson’s ruling was “flawed”.
However, appellate Justice Roy Jones, in a December 18 ruling, found that TCI fell “far short of what is required to provide the grounds to enable me to exercise my discretion in this matter”. He further ruled that Ms Ferguson had given “contradictory reasons” to support her argument that TCI would suffer “irreparable harm” as she claimed.
And despite claiming that TCI’s appeal would be rendered pointless if the property’s alleged owner, Daybreak Holdings, was able to sell it prior to the appeal, Justice Jones said Ms Ferguson’s Supreme Court filings spoke “to a desire” for such a sale so that her company’s equity interest could be recovered.
Justice Jones also added that there was also no suggestion by Ms Ferguson/TCI that Daybreak Holdings, if it repossessed and sold the property, would “dissipate” the proceeds such that they would be unable to recover any monies to which they are entitled.
TCI’s appeal is the latest in a legal dispute over a near 13-year-old hire purchase agreement between the two sides for the building in question, which houses the Crab House and Seafood Emporium in Centreville.
According to a sworn affidavit by Ms Davis, president of Daybreak Holdings, it was agreed that TCI would pay Daybreak a $150,000 deposit and thereafter the sum of $1,350,000 in monthly instalments of $10,833 per month over a period of 264 months.
In exchange, Ms Ferguson’s company was permitted to assume responsibility and operation of the building in question. TCI was also responsible for all maintenance, taxes, fees, and insurance over the building.
TCI was also given the option to purchase the building for an amount to be agreed. And in the event that happened, TCI would receive full credit for the $150,000.
According to the documents, TCI paid the $10,333 monthly sum for the most part until around December 2009, at which time there were some missed payments. TCI allegedly started making “reduced payments” in 2015, and by the end of September 2016, made no payments whatsoever.
Daybreak Holdings claimed in the meantime, it served “many letters” on TCI, all of which contained “numerous requests and demands” for all outstanding sums pursuant to the hire purchase agreement, but to no avail.
On July 31, 2018, Daybreak Holdings initiated legal proceedings, claiming that Ms Ferguson and TCI were in breach of the deal.
Daybreak Holdings had alleged that TCI owed $70,000 in real property taxes having never paid them since it assumed responsibility for the building.
Additionally, Daybreak Holdings claimed TCI owed the Water and Sewerage Corporation $22,173.15 as of July 2018 when it was disconnected, having not paid “any utilities and insurance” on the building for at least two years. The last time TCI paid its water bill was in July of 2014, it was alleged.
Concerning the building’s insurance, TCI allegedly did not pay any insurance premiums for the past three to four years, something that caused the building’s owner to recently pay $15,963.75 to J S Johnson Insurance Agents & Brokers in a bid to bring the insurance policy current.
It was also alleged that TCI had not paid its light bill for “some time now,” and was consequently utilising a generator for electricity.
Additionally, TCI allegedly did not pay any of the $10,833 monthly payments it agreed to pay for the building in question since September of 2016, resulting in the owner receiving no revenue from the agreement, despite the company currently subleasing a portion of the building for $12,000 per month.
Daybreak Holdings further claimed that notwithstanding the various breaches, TCI “failed and/or refused” to bring the hire purchase agreement current or to vacate the building.