HW Holdings Limited, the owners of the Book Nook II shop, recently won a cause in Grand Court to have its lease renewed at the Anchorage Centre for another five years.
‘Justice was done for the Book Nook,’ said shop owner Barbara Levey. ‘We got what we wanted, which is what we rightly deserved.’
The judgment issued by Grand Court Justice Priya Levers last month outlined the facts of the case, which was held in Chambers.
HW Holdings initiated the proceedings against IHC Properties Limited, the current owner of the Anchorage Centre, and West Wind Holdings Limited, the former owner, after it was unable to exercise its contractual lease option on the shop for a price that had been verbally agreed.
Book Nook II’s lease was not scheduled to expire until October, 2006, but after hearing rumours of the pending sale to IHC Properties in April 2004, Mrs. Levey advised West Wind Holdings representative Ivan Ebanks that she wished to exercise her option to renew the lease for another five years, until October, 2011.
Mr. Ebanks suggested a lease rate of $36 per square foot, which was agreed upon by Mrs. Levey, the judgment states.
However, when Mrs. Levey’s attorney Sherri Bodden prepared and sent the lease to West Wind Holdings, it was not signed and returned.
Mrs. Levey eventually lodged a Caution on the property to protect her interests.
Soon afterwards, West Wind Holdings attorney Frank Banks sent an email to Mrs. Bodden confirming that a contract for sale had been entered into for the Anchorage Centre.
The email confirmed the new purchaser was aware of the agreement to sign a new lease with HW Holdings for $36 per square foot. The email also confirmed that Book Nook II would have an option to renew the lease for an additional five years (from 2011 to 2016) at an undetermined rental rate.
The following month, Book Nook II’s attorneys received a letter from Lands and Survey concerning the Anchorage Centre property stating the Registrar of Lands was allowing the transfer of the property to IHC Properties to be registered subject to the Caution.
The judgment states that during the hearing, West Wind Holdings attorney Frank Banks agreed that he tried to influence the Registrar of Lands to register the Transfer with the Caution in place.
Justice Levers stated such a procedure ‘is simply not possible under the Registered Land Law, which specifies that it can be done either with the consent of the person who placed the caution or after the Register of Lands holds the proper hearing.
‘The Plaintiff was advised of the Registrar’s decision after it had been made and was given no opportunity to be heard.’
Justice Levers said attorneys should not encourage actions that circumvent the law.
‘Mr. Banks should either have applied to the Court to lift the Caution or asked for a proper hearing to be held by the Registrar of Lands. The behaviour I have seen in this case is simply not acceptable.’
Justice Levers was critical about Mr. Banks on another point as well.
After confirming in writing that the $36 per square foot price for the lease renewal had been agreed upon, Mr. Banks changed his position.
She noted that in his affidavit produced in evidence, Mr. Banks stated he had been going away on holiday, was rushed and made a mistake.
‘However, in evidence he doesn’t say that he was in a rush and made a mistake,’ Justice Levers stated. ‘What he says is that it was his understanding in the conversation with Mr. Ebanks that the rental (rate) was agreed and that is was he who misunderstood.
‘A solicitor must take the responsibility for information given to a third party, and Mr. Banks’ behaviour in making no mention of the rental being inaccurate till it was apparent the sale may fall through is troubling to this Court.’
The latter statement referred to an email exchange between the new purchaser’s representative Jackie Doak and Mr. Banks in which the former indicated the $36 rental rate was unacceptable and that the purchase of the property could only go through with receipt of a letter from Mr. Banks indicating he was incorrect or under a misunderstanding for originally stating the $36 rental rate had been agreed.
Contacted for comment, Mr. Banks said there was a regrettable misunderstanding between him and his client.
‘To every extent possible, I worked to rectify this misunderstanding as soon as I became aware that such a misunderstanding had occurred.’
With regard to his dealings with the Registrar of Lands, Mr. Banks said nothing improper had had occurred.
‘In fulfilling my obligations to my client, I did request that the Registrar of Lands examine the underlying issues in the case,’ he said. ‘Importantly, I did not suggest any particular course of action should be adopted.’
Mrs. Levey was relieved by the judgment, but said the defendants should have lived up to the verbal agreement without it going to court.
‘The legal system worked for us because we had good attorneys,’ she said.
Mrs. Doak of IHC Properties said the company had inherited the dispute between HW Holdings and the former landlord as to whether an option was exercised and accepted.
‘HW Holdings is a good tenant and additive to the Anchorage Centre tenant mix,’ she said. ‘We are pleased that the matter has been resolved.’
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