Frascati Hotel Company Ltd and Cambridge Beaches Ltd v Roberta Trott
|06 October 2003
|06 October 2003
|Civil Jurisdiction 1998 No. 74,Civil Jurisdiction No. 74 of 1998
|Supreme Court (Bermuda)
In the Supreme Court of Bermuda
Civil Jurisdiction No. 74 of 1998
Mr. Christian Luthi, Conyers, Dill and Pearman for the Plaintiffs
Mrs. Georgia Marshall, Marshall & Company for the Defendant
Landlord and tenant — Devolution of tenancy to wife upon death of tenant — Oral tenancy — Notice to quit
The Frascati Hotel Company Limited, the First Plaintiff is the owner of, inter alia, the premises known as ‘Allspice Cottage’, (the premises) which forms a part of the property known as Cambridge Beaches Hotel and Beach Club. The Second Plaintiff is, the company wholly owned by the First Plaintiff which carries on the business of hotelier, and operates the Cambridge Beaches Hotel and Beach Club. The Second Plaintiff, was, at all material times, the head tenant of the premises in respect of a tenancy granted to the late Thaddeus Trott in and about June 1990 (‘the tenancy’).
The Statement of Claim in part reads:
‘3 The tenancy was created by oral agreement made in or about June 1980 and evidenced in writing by letter dated 1st July, 1980. The terms of the tenancy were, inter alia, that the tenant would pay the rent of $2,100.00 per month. There were no terms expressed in respect of the length of the tenancy or determination and accordingly the tenancy was a tenancy at will.
4 Subsequent to the granting of the tenancy, Thaddeus Trott married the Defendant, Roberta Trott. Thaddeus Trott died on or about the 14th day of October, 1997, and, as a consequence, the said tenancy with the Second Plaintiff came to an end. Despite the determination of the tenancy, the Defendant has wrongfully remained in occupation of the premises.
5 If, which is denied the tenancy was a periodic tenancy, or a yearly tenancy, the said tenancy devolved, upon the death of Mr. Trott, on his personal representatives. By letter dated 14th November, 1997, the Second Plaintiff notified the personal representatives of the termination of the tenancy on the 28th February, 1998.
6 On or about 14th November, 1997 the Second Plaintiff wrote to the Defendant giving written notice to vacate the premises by the 28th February, 1998.
7 The Defendant did not vacate the premises on the 28th February, 1998 and continues to wrongfully occupy the premises, despite further demands and request’.
The Plaintiffs contend that as a consequence of the Defendant's wrongful occupation of the premises the Second Plaintiff is deprived of the use of the premises and consequently they have suffered loss and damage.
The Plaintiff seeks, inter alia, an Order for possession of the premises mesne profits at the rate of $415 per day from the 28th February, 1998 to 15th April, 1998 and thereafter at $595 per day until the date of possession and damages.
By her Defence and Counterclaim, the Defendant Mrs. Roberta Trott inter alia states:
’12 In 1997 Trott in his capacity as President of the Second Plaintiff and as a joint tenant, with the Defendant, of ‘Allspice Cottage’ agreed to a lease between the Second Plaintiff and the Defendant the term of which was for 5 years from the date of execution of the lease, which lease was to be executed one year after his death. Trott expended considerable sums of money on ‘Allspice Cottage’ both before and after the said agreement in anticipation of, and in reliance upon the said agreement. Trott further caused a company W. J. H. Trott Limited which he controlled to expend considerable sums of money on ‘Allspice Cottage’ and/or the property of the Second Plaintiff in reliance upon the said agreement’.
Mrs. Trott in her Counterclaims seeks:-
1 A declaration that Trott was a tenant of ‘Allspice Cottage’ from year to year and a declaration that after her marriage to Trott the Defendant became a joint tenant of ‘Allspice Cottage’ with Trott and occupies ‘Allspice Cottage’ as a tenant from year to year.
2 An Order that the Second Plaintiff do execute a lease one year after the death of Trott in favour of the Defendant in terms of the agreement for a lease entered into between Trott and the Second Plaintiff.
3 In the alternative, such Order as is just to give effect to the equity in favour of Trott and the Defendant created by the expenditure of money by Trott upon ‘Allspice Cottage’ and/or the other property of the Second Plaintiff.
The hearing commenced on 8th September 1999 at which time it occupied 5 days of the Court's time. The hearing resumed 5 months later on the 31st January and lasted four days. It was concluded on the 1lth day February, 2000.
Thaddeus Trott was at all material times the President of the First and Second Plaintiff (the company); he was the moving spirit of the company and was allowed to control all its business activities entirely. He was autocratic by nature and was allowed to run the company's affairs as he saw fit without hindrance. I shall deal more fully with this later.
In cross-examination by Mrs. Marshall, Mr. Ivan Davies agreed that it was fair to say that Mr. Trott's management style was autocratic. He has heard it said of his management style ‘beat the donkey between the eyes’ and if he gave a directive he expected it to be carried out as soon as possible.
From the material before me I am satisfied that on or about June 1980 Thaddeus Trott and the Second Plaintiff, Cambridge Beaches, entered into an oral tenancy agreement which was subsequently evidenced in writing by letter dated 1st July 1980 (The 1980 Agreement). A term of the agreement was that ‘the agreement will run initially for one year from 1st January, 1981 and be automatically renewed for further periods as agreed’ that is for one year period. (Emphasis added).
On the 8th September 1981 Thaddeus Trott married Roberta Trott.
Mr. Michael Winfield who was made President and CEO, of the Second Plaintiff, in 1997, was hired by Mr. Trott in 1983 as the General Manager of the Second Plaintiff. Mr. Winfield testified that he had both a personal and professional relationship with Mr. Trott and was one of the three (3) executors of Mr. Trott's Will. Shortly after his appointment as General Manager in 1983 he and Mr. Trott would meet on Sundays. Mr. Ivan Davies, the Chief Financial Officer, was included in the Sunday meetings. He came to document these meetings ‘fairly early on’ in his tenure, when he and Mr. Trott occasionally disagreed as to what had been said in a previous meeting. It was his [Winfield's] responsibility to produce the summaries and one of the first lessons he learnt was that the summaries were to be kept as short and succinct as possible. As a result of this practice the Court has the benefit of the summaries of the conversations which led up to the draft agreement and lease, the subject of this matter.
In his evidence-in-chief, Mr. Winfield referred to the summary of the meeting of 2nd April 1995 which included a discussion of the amended plans for an office for Mr. Trott and his secretary and late check-out facility for Cambridge Beaches and an additional bedroom with en suite bathroom for Mrs. Trott. Mr. Winfield said Mr. Trott informed him that ‘he required the extra bedroom because he and Roberta Trott were no longer comfortable sharing the same bedroom and indeed didn't in their other residence in Baltimore’. The building works were to be completed in December 1997 but the project ran over schedule.
Messrs Michael Winfield and Mr. Ivan Davies both testified that from the 25th June 1995 to April 1997 a series of conversations took place between Michael Winfield and Thaddeus Trott that he wished an Agreement made between himself in his personal capacity and Cambridge Beaches, whereby a lease for 5 years was to be executed by Cambridge Beaches and Roberta Trott, one year after his death by which Roberta Trott, the Defendant, would be the tenant of ‘Allspice Cottage’.
To enable the agreement to be drawn in a proper form Mr. Winfield sought the advice of Messrs Appleby, Spurling & Kempe, Barristers and Attorneys. Considerable dialogue passed between Mr. Winfield and Messrs Appleby, Spurling and Kempe regarding the technicalities of reducing into-writing Mr. Trott's instructions. Mr. Winfield conveyed these difficulties to Mr. Trott who was not swayed from his objective by these technicalities.
A number of vitally important summaries of meetings record the discussions. For example the summary of the meetings dated 10th December 1995 reads.
‘16 M. W. [Mike Winfield] is to work on a lease for ‘Allspice Cottage’ of five years at current cost. This lease is to include the possibility of the proposed additions to the cottage and note that furniture will not belong to CB [Cambridge Beaches].
Another summary dated 23rd February 1997
February 23rd 1997
To: Mr. T. D. P. Trott
From: Mike Winfield
Ref: Summary of Meeting
4. Allspice lease—M. W. had contacted Dianna Kempe, [a Barrister and Attorney at Messrs Appleby, Spurling & Kempe] regarding this lease and had been informed that as this was an agreement contemplating events after Mr. Trott's demise, Mr. Trott could not be a party to it. Mr. Trott wants the agreement to be between Cambridge and himself, which will carry on for Mrs. Trott for five years after his death. M.W. will discuss the matter further with Dianna Kempe.
By the 30th March, 1997 a second draft of the agreement and the lease between Mr. Thaddeus Trott and the Second Plaintiff was given to Mr. Trott for his review.
By the 13th April 1997 a further draft agreement and lease had been submitted to Mr. Trott. The summary of 13th April 1997 meeting reads:-
To: Mr. T. D. P. Trott
From: Mike Winfield
Ref: Summary of Meeting
19. M. W. had been advised that the lease for Allspice could not be granted to a non-Bermudian, even if she...
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