Corporation of Hamilton v Minister of the Environment, Planning and Natural Resources and Billing 1998 Civil Jur. No. 10

• Jurisdiction: Bermuda
• Judgment Date: 02 July 1998
• Date: 02 July 1998
• Docket Number: Civil Jurisdiction 1998 No. 10
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Meerabux, J

Civil Jurisdiction 1998 No. 10

BETWEEN

The Corporation of Hamilton

Appellant

and

The Minister of the Environment, Planning and Natural Resources

First Respondent

and

Dorothy Billings

Second Respondent

Mr. J. Riihiluoma for the Appellant

Mr. John Cooper for the Second Respondent

Wilson v ChurchELR (1879) 12 Ch D 454

Erinford Properties Ltd v Cheshire CCUNK [1974] 2 All ER 448

Nimemia Maritime Corp v Trave SchiffahrtsUNK [1984] 1 All ER 398

The Iran NabuvatUNK [1990] 3 All ER 9

American Cyanamid Co v Ethicon ltdELR [1975] AC 396

Ketchum v Group Public RelationsUNK [1996] 4 All ER 374

Merchant Adventurers Ltd. v M GrewUNK [1971] 2 All ER 657

Application for injunction to restrain 2nd respondent from carrying out building work pending determination of appeal — Nugatory

JUDGMENT

PRELIMINARY

In this case the Appellant applied for an injunction to restrain the Second Respondent from carrying out any building work on Woodmont Nursery School situate at 27 Dundonald Street, Hamilton until determination of the appeal against the decision of this Court. The hearing of the appeal is likely to be heard in November 1998.

COMPETING ARGUMENTS

Mr. Riihiluoma for the Appellant submitted that the Appellant had to establish that the appeal was bona fide and that an injunction should be granted in the case of a pending appeal because if the appeal were successful the decision should not be nugatory. He argued that the grounds of appeal were bona fide and not a shot in the dark. He submitted that damages would not be an adequate remedy. He stated that the Appellant offered an undertaking in damages. In his reply Mr. Riihiluoma further submitted that the Appellant had to establish that he had an arguable case by way of appeal. He cited Wilson v ChurchELR(1879) 12 Ch. D. 454, Erinford Properties Ltd. v Cheshire CCUNK[1974] 2 All E.R. 448, Ninemia Maritime Corp. v Trave SchiffahrtsUNK[1984] 1 All E.R. 398, andThe Iran NabuvatUNK[1990] 3 All E.R. 9.

Mr. Cooper for the Second Respondent submitted that the Appellant had no right that deserved protection if the building construction continued, that the Appellant had no easement, no right of way or other recognisable interest in land, that the Second Respondent was not purporting to commit a tort, breach of contract or contravention of a statute, that the Appellant could not say that the Second Respondent was about to or could cause irreparable injury or harm. He argued that the Appellant was an objector and as such that did not give the Appellant the status to obtain an injunction. He submitted that the Appellant must establish that it had a good arguable appeal which they had failed to do. He argued that an award of damages to the Appellant presumed that there had been a damage to it that deserved compensation; however, the construction of the proposed addition would not cause any damage to the Appellant. He stated that there was no evidence what the Appellant's loss would be. He submitted that the Appellant would suffer no loss by being deprived of injunctive relief pending its appeal and, moreover, the outcome of the appeal would not be determinative of the Second Respondent's ability to carry out the proposed works. He argued...