Smith v Smith
| Jurisdiction | Bermuda |
| Judgment Date | 28 September 2021 |
| Docket Number | Appellate Jurisdiction 2019 No 22 |
| Court | Supreme Court (Bermuda) |
[2021] Bda LR 86
Appellate Jurisdiction 2019 No 22
In The Supreme Court of Bermuda
Landlord and tenant — Appeal against grant of possession order — Non-payment of rent — Appeal by re-hearing — Bias — Statutory jurisdiction of Magistrates Court — Natural justice
The following cases were referred to in the judgment:
Simmons & Simmons v Cartwright and Hill [2008] Bda LR 29
Kessell and Cedarberry (Bermuda) Ltd v Barritt & Sons Ltd [2009] Bda LR 27
First Atlantic commerce Ltd v Bank of Bermuda Ltd [2007] Bda LR 4
Woods v Swan [2014] Bda LR 76
Shocked v Goldschmidt [1998] 1 All ER 372
Qamar v Bermuda Medical Council [2021] Bda LR 10
Davidson v Scottish Ministers [2004] UKHL 34
Porter v Magill [2001] UKHL 67
Tucker v Public Service Commission [2020]
Hofstetter v London Borough of Barnet [2009] EWHC 3282
Hill v Smith [2017] Bda LR 2
Ms J Chambers (McKenzie Friend) for the Appellant
Mr C Rothwell for the Respondent
JUDGMENT of Mussenden J
1. The Appellant was raised by Willis Cecil Smith (“Willis Smith”) as his son and enjoyed a good father-son relationship with him. In an agreement with Willis Smith, the Appellant paid rent for a period starting in 2008 for his occupancy of a structure at his father's house referred to as the “Storage Room”, also known as the Lower Back Unit (the “Unit”) situated at 12 Lusher Lane, Warwick WK 03 (the “Property”).
2. Willis Smith had four other children, including his daughter Janette Smith. Therefore, Janette Smith and the Appellant were “half-siblings”. In 2002 Willis Smith voluntarily conveyed the Property to Janette Smith whilst keeping a life interest in it. She tried to evict the Appellant from the Unit in 2012. Willis Smith died in December 2013, Janette Smith died in 2018 and in February 2019 the Property was vested in her son the Respondent.
3. In May 2019 the Respondent commenced proceedings in the Magistrates' Court for possession on the grounds that the Appellant had failed to pay the monthly rent and the Respondent intended to carry out renovations to the property. The Respondent was granted possession of the Unit on 7 June 2019 (the “Possession Order”), when the Appellant did not appear before the Magistrates' Court, and it was further ordered that the Appellant give the Respondent such possession by that date.
4. In an expedited hearing on 28 June 2019, the Learned Magistrate heard submissions from Mrs. Chambers and the Appellant to set aside the Possession Order but he declined to do so, confirming his earlier order that vacant possession be granted forthwith to the Respondent.
5. There is some useful material background as follows:
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(a) On 14 May 2002 Willis Smith voluntarily conveyed the Property to his daughter Janette Smith subject to a life interest for himself.
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(b) In 2008, the Appellant entered into a tenancy agreement with his father Willis Smith to pay rent of $300 for the Unit. In June that year it was increased to $700. The rents were always paid by the Department of Financial Assistance (the “DFA”).
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(c) In 2012 Janette Smith commenced proceedings to evict the Appellant from the Unit because of his conduct and a failure to pay the monthly rent.
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(d) On 19 December 2013 Willis Smith died.
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(e) In 2014 Magistrates Court proceedings took place in respect of the non-payment of rent and eviction.
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(f) On 27 April 2015 the Appellant commenced proceedings in the Supreme Court (the “2015 Supreme Court Proceedings”) seeking inter alia a stay of the proceedings in the Hamilton Magistrates' Court and a declaration and determination of an equitable interest.
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(g) On 14 May 2015 Hellman J, as he then was, ordered the Appellant to commence fresh proceedings by Writ and Statement of Claim (the ‘Fresh Proceedings’). However, to date, the Appellant has not complied with the order of Hellman J.
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(h) On 22 January 2018 Janette Smith died and later on the ownership of the Property was vested in Janette's Smith's son, the Respondent in this matter, who is the nephew of the Appellant.
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(i) Around February 2018 the DFA confirmed that rental payments of $700 per month were approved until August 2018.
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(j) On 25 April 2018 the Appellant filed a Caveat in the estate of Janette Smith. However, it was dismissed on 14 December 2018 by the Learned Registrar for failure to proceed.
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(k) On 26 February 2019 the Property was vested in the Respondent who commenced proceedings for the Possession Order.
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(l) No rent was received from the DFA or the Appellant as of 1 August 2018.
6. The Appellant appeals against the decision of the Learned Magistrate as follows:
“The Respondent (then the Plaintiff) be given possession of the Storage Room/Lower Back Unit at 12 Lusher Lane, Warwick, which unit is occupied by the Appellant.”
7. The Appellant applies for the Decision to be overturned or set aside on the following grounds:
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i. The Magistrate did not apply the right test in considering whether to make or set aside the order for possession.
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ii. The Magistrate was biased against the Appellant (the then Defendant).
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iii. The Magistrates' Court does not have jurisdiction due to section 17 of the Magistrates Act 1948.
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iv. The Decision is against natural justice.
8. In the First Affidavit of the Respondent sworn 20 November 2019 along with Exhibit “MJS-1” he stated that Willis Smith had four children which included his mother Janette Smith. Willis Smith continued to live at the Property after his wife died, eventually needing help from his daughter Janette Smith who assisted him with his expenses and care in return for the Property being conveyed to her with a life interest remaining for him. The Respondent stated that Willis Smith required rental payments from all his children who lived on the Property and even he, the Respondent, as a grandchild paid rent up until the date he became the legal owner of the Property.
9. In respect of the Appellant, in 2008 he entered into a tenancy agreement (the “Oral Lease”) with his father Willis Smith in which he paid $300 per month to rent the Unit, such rent being paid by the DFA increasing to $700 per month which over time fell into arrears with no payments made by the DFA between March 2012 and October 2012. Due to disruptive behaviour by the Appellant towards members of the family and non-payment of rent, Janette Smith as Receiver for her father Willis Smith commenced proceedings in 2012 to have the Appellant's tenancy terminated and for the rental arrears (the “2012 Eviction Proceedings”).
10. The Respondent states that Willis Smith died intestate on 19 December 2013 and as he was by then only a life tenant, the Property did not form part of his estate and the Appellant did not acquire any interest in the Property. The Eviction Proceedings continued in 2014 but were adjourned from time to time to allow the Appellant to seek relief in the Supreme Court for his interests in the Property. In 2015 the 2015 Supreme Court Proceedings commenced and on 14 May 2015 Hellman J ordered that the Fresh Proceedings be commenced by Writ and Statement of Claim thereafter. However, the Appellant did not take any steps to comply with the order of Hellman J to file the Fresh Proceedings.
11. The Respondent states that on 22 January 2018 his mother Janette Smith died intestate. The Appellant by way of his counsel's letter inquired whether Willis Smith had left a will or voluntarily conveyed the Property to Janette Smith (his daughter). 0n 25 April 2018 the Appellant filed a Caveat in Janette Smith's Estate which on 14 December 2018 was dismissed by the Registrar for “(i) failure to enter an appearance within 8 days of serving of the warning upon him; (ii) failure to state an interest in the Will of the Deceased; and (iii) failure to issue Summons for Directions.” The Respondent states that on 14 December 2018 he was granted Letters of Administration of his mother's estate and by a Vesting Deed dated 26 February 2019 the Property was vested in him in fee simple absolute.
12. The Respondent states that due to not having received any rent since 1 August 2018, he commenced proceedings for possession for failure to pay rent and because he was going to undertake renovations. The Appellant was duly served and the hearing was set for 7 June 2019 when the Appellant failed to appear and the Learned Magistrate ordered vacant possession which was followed by the filing of a Warrant to Evict dated 12 June 2019. As a result of the Appellant filing two letters with the Magistrates' Court, a hearing was set for 28 June 2019 when the Learned Magistrate heard submissions from the Appellant and Ms Chambers but declined to set aside his order of 7 June 2019.
13. The Respondent stated that following the Possession Order, the Appellant remained in possession of the Unit but since 13 July 2019 he believed the Appellant had secured alternate accommodation and had vacated the property. He had reviewed his security camera and noted that the Appellant had visited the Unit two times in July 2019, three times in August 2019 and two times in September 2019 but had not returned to the Unit since 18 September 2019.
14. In respect of the 2015 Supreme Court Proceedings, the Appellant failed to obey the order of the Court to proceed with the Fresh Proceedings and no other action had been taken on the file for four years to the date of the Respondent's affidavit. The Respondent stated that both he and his mother Janette Smith have sought to evict the Appellant from the Unit since 2012 and given all the delays, it was unclear whether the Appellant intended to pursue his claim of an interest in the Property or Unit.
15. The Appellant swore an affidavit on 5 December 2019 in support of his appeal and in...
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