JHR Properties Ltd v Mutual Risk Management Ltd 1991 Civil Jur. No. 204

• Jurisdiction: Bermuda
• Judgment Date: 07 October 1991
• Date: 07 October 1991
• Docket Number: Civil Jurisdiction 1771 No. 204
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Norma Wade, A.J.

Civil Jurisdiction 1771 No. 204

JHR Properties Limited

Plaintiff

and

Mutual Risk Management Limited

Defendant

Mr. Narander Hargun for the Plaintiff

Mr. Andrew Martin for the Defendant

SL Sethia Liners Ltd v State Trading Corp of India Ltd.UNK [1986] 2 All ER 395

Walton Insurance Ltd v Agrichem Ltd 1987 Civil Appeal No. 6

Houlder Bros & Co Ltd v GibbsELR [1925] 1 Ch 585

Wilson v Flynn & OthersUNK [1948] 2 All ER 40

Rules of the Supreme Court 1905, Order 14

Landlord and tenant — Application by plaintiffs for summary judgment — Application by defendants to extend time for filing defence and for stay of proceedings — Plaintiffs claimed possession on grounds of non-payment of rent — Defendants had right of first refusal to lease other premises in same building — Tenants of other premises assigned their lease to third parties, with plaintiffs' consent — Defendants alleged plaintiffs had breached lease by refusing to grant them right of first refusal — Lease had arbitration clause — Commercial property lease — Whether landlord's consent to sub-let can be withheld

JUDGMENT

Norma Wade, A.J.

At this hearing I have been asked to consider two applications.

First, the Defendant requests an order, (a) to extend the time limit for the filing of a defence and (b) for a stay of proceedings in favour of Arbitration in accordance with the terms of an alleged existing Arbitration agreement between the parties.

Second, the Plaintiff seeks an order for Summary Judgment, for (a) possession of the premises under the terms of the lease between the parties executed on the 8th September, 1989; (b) payment of arrears for rent and service charge from 1st April, 1991 to the date of possession, and Mesne Profit from the 5th June, 1991 to the date of possession; and (c) other relief, including costs;.

Mr. Hargun invited the Court to first of all look at the merits of the application for Summary Judgment. He submits that the application for a stay is the reverse side of the same coin. In support of this approach, he referred to the case of SL Sethia Liners Ltd. -v- State Tradinq Corp. of India Ltd.1986 2 All E.R. where at page 395, Kerr L.J. said,

‘If a point of law is raised on behalf of the defendants, which the court feels able to consider without reference to contested facts simply on the submissions of the parties, then it is now settled that in application for summary judgment under Ord 14 the court will do so in order to see whether there is any substance in the proposed defence, It if concludes that, although arguable, the point is bad, then it will give Judgment for the plaintiffs. This course will also be adopted where there is a counter-application for a stay of the action. If the contract between the parties contains an arbitration clause to which S (1) of the l975 Act applies, then the court is not thereby precluded from considering whether there is any arguable defence to the plaintiff's claim. If the court concludes that the plaintiff, is clearly right in law then it will still give judgment for the plaintiffs. In the same breath, as it wet-u, it will then have decided that inreality there was not in fact any dispute between the parties. If the court is satisfied that the plaintiffs are clearly right in law, and that the defendants have no arguable defence, then it will not avail the defendants to have raised a point of law which the court can see is infact bad. In those circumstances the defendants cannot tic hear-d to say that there was a dispute to be referred to arbitration’.

Collis, J. as he then' was, used precisely that approach in a similar application. See Agrichem Limited (formerly Insurance Company Limited) and Manufactures and General Limited (formerly Manufacturers and General insurance Company Limited) et al. Civil Jurisdiction 1986 No. 431.

Collis, J's decision was approved by the Bermuda Court of Appeal. See Walton Insurance Ltd. -v- Aqrichem Limited et alCivil Appeal No. 6 of 1987. For the purpose of consideriny these applications, I am obliged to follow this approach.

The essential facts which form the background to these two applications are undisputed. The Plaintiff...