The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Fox Hill’s MP “fell far short” of the evidence needed to persuade the Court of Appeal to halt her eviction from the Centreville property that housed the Crab House and Seafood Emporium.

Appeal Justice Roy Jones, in a December 18 ruling, found that Shonel Ferguson, pictured, had “given contradictory reasons” to support her argument that her company, Turtle Creek Investments, would suffer “irreparable harm and prejudice” unless the Supreme Court order for it to vacate was stayed prior to the hearing of its full appeal.

Despite claiming that Turtle Creek’s appeal would be rendered pointless if the property’s alleged owner, Daybreak Holdings, was able to sell it prior to the appeal, Appeal Justice Jones said Ms Ferguson’s Supreme Court filings spoke “to a desire” for such a sale so that her company’s equity interest could be recovered.

Effectively finding that the Fox Hill MP had not got her story straight, Appeal Justice Jones said there was no good reason to delay Daybreak Holdings and its principal, Donna Davis, from enjoying the benefits of their Supreme Court victory.

That ruling, delivered in writing by Justice Keith Thompson on November 20, required Turtle Creek and Ms Ferguson to vacate the building on the corner of Collins Avenue and Sixth Terrace by the close of business on December 15, 2018.

Turtle Creek lodged its appeal on November 29 and, with the Court of Appeal setting January 8, 2019, as the date for both sides to agree the evidence that will be heard at appeal, Ms Ferguson sought to block enforcement of Justice Thompson’s Order.

“Irreparable harm is likely to be occasioned to the defendants [Turtle Creek] if the said Order is allowed to be executed whilst the appeal is pending, as I am advised and verily believe that the prospect of success is high,” Ms Ferguson alleged in her December 11, 2018, affidavit.

The MP and her attorney, Randol Dorsett, argued that the “harm” would be caused if Daybreak Holdings followed through with plans to sell the building, while also claiming that Justice Thompson’s ruling was “flawed”.

However, Appeal Justice Jones ruled: “On the evidence in support of the application for a stay, the appellant [Turtle Creek and Ms Ferguson] falls far short of what is required to provide the grounds to enable me to exercise my discretion in this matter.

“First, the appellant has given contradictory reasons about the nature of the prejudice and irreparable harm that she faces if the stay is denied. From the affidavit evidence in the trial below, the appellant is claiming an interest in the building that can be ascertained. The Order made by the trial judge provides for an accounting to be done to determine the interest of the parties.

“Second, the appellant in their affidavit evidence from their president, Shonel Ferguson, speaks to a desire and agreement for the building to be sold to enable repayment of its equity. This evidence contradicts the claim made on this application that the sale of the building by itself makes their claim nugatory if successful on appeal.”

Appeal Justice Jones added that there was also no suggestion by Ms Ferguson/Turtle Creek that Daybreak Holdings, if it repossessed and sold the property, would “dissipate” the proceeds such that they would be unable to recover any monies they are entitled to.

Daybreak Holdings and Ms Davis appear to have already acted on the court rulings in their favour, with social media photos showing fixtures and furnishings dumped outside the former Crab House and Seafood Emporium restaurant building during the week leading up to Christmas.

The dispute between Ms Ferguson/Turtle Creek and Daybreak/Ms Davis stems from a near 13 year-old hire purchase agreement between the two sides for the building. Ms Ferguson and Turtle Creek agreed to pay a $150,000 deposit, with $10,833 monthly rental payments from October 30, 2005, as part of a deal that gave them an option to acquire the property.

They were also to receive credit for the deposit if the purchase option was exercised. However, Ms Davis and Daybreak initiated legal proceedings on July 31, 2018, claiming that Ms Ferguson and Turtle Creek were in breach of the deal. They sought an Order requiring the MP to vacate the building within 30 days and cease operating a business from it, and payment of $249,159 representing 23 months’ unpaid rent.

Daybreak then applied to the Supreme Court for a judgment based on Ms Ferguson’s evidence, and Justice Thompson duly ruled that Turtle Creek was “in breach of the hire purchase agreement and ordered the appellants to leave the building”.

However, Ms Ferguson argued before the Court of Appeal that the alleged admissions “were not unambiguous” and there was “no clear admission of liability” by Turtle Creek.

In his November 20 ruling, Justice Thompson ordered that $150,000 be deducted from all sums owed by Turtle Creek to Daybreak to reflect the deposit paid. Ruling that the balance owing be paid, he also ordered the appointment of an accountant to determine “the amount of arrears, outstanding bills, outstanding taxes, outstanding fees, outstanding duties, outstanding fines and outstanding registration charges”.

Daybreak had alleged that Turtle Creek owed $70,000 in real property taxes that had not been paid since it assumed responsibility for the building.

It also claimed that Ms Ferguson’s company owed the Water and Sewerage Corporation some $22,173.15 as of July this year when it was disconnected, having not paid “any utilities and insurance” on the building for at least two years. The last time the water bill was allegedly paid was July 2014.

Daybreak then claimed that Turtle Creek had not purchased any insurance coverage for the building over the past three to four years, causing it to pay $15,963.75 to J S Johnson. It was alleged that Turtle Creek had not paid its light bill for “some time now”, and was relying on a generator.

Ms Ferguson, though, countered by arguing that at August 17, 2018, her company had paid Daybreak Holdings $1.549m in addition to investing over $700,000 in renovations for what was initially a building in a “dilapidated state”.

She claimed that as the $1.5m exceeded the sum owing on the hire purchase agreement, and both parties concluded that the principal amount due under the agreement was settled, the only remaining issue was the amount of outstanding interest.

Ms Ferguson added that after entering into the hire purchase agreement, Turtle Creek opened several businesses in the building and made “timely” monthly payments. But as the economy declined and crime escalated in the area, both parties agreed to reduce the monthly lease payment to $5,000 until the $1.35m was liquidated.

When the economy didn’t improve, she said both parties agreed to put the building up for sale and distribute the proceeds between them. In particular, Ms Ferguson claimed both parties agreed that upon the building’s sale, Turtle Creek would be reimbursed for the equity it put into the building.

As for the outstanding taxes, Ms Ferguson claimed both parties agreed that all real property taxes would be settled at the sale of the building. She alleged that Daybreak Holdings’ previous tenant, Papa John’s, was responsible for the outstanding water bill and not Turtle Creek - something Daybreak Holdings was “fully aware” of.