By NICO SCAVELLA
Tribune Staff Reporter
FOX Hill MP Shonel Ferguson has failed to convince the Court of Appeal to give her investment company another chance to try to overturn its Supreme Court-ordered eviction from a building on which it allegedly never paid real property taxes since assuming responsibility for it some 13 years ago.
The appellate tribunal of Justices Jon Isaacs, Roy Jones, and Milton Evans refused to exercise its discretion to allow the reinstatement of Turtle Creek Investments’ (TCI) appeal against Justice Keith Thompson’s November 13, 2018 judgment and eviction from the building in Centreville.
The appellate judges said they will provide “fuller reasons” for the court’s decision at a later date. They said in the absence of “compelling reasons for deviating from the usual practice,” they ordered that costs follow the event, to be taxed if not agreed.
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 petitioned the appellate court on the matter, asserting that 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”.
Thus, TCI tried to persuade the Court of Appeal to halt its eviction from the building before 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, Justice 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 application for the restoration of its 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 housed 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 court 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 claimed 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 agreement.