The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Bahamian contractor has successfully overturned a $520,000 default judgment despite admitting he “breached the agreement to complete certain works” at a high-end West Bay Street property.

Hugh Gordon Cash, trading as North Eleuthera Builders, persuaded acting Supreme Court registrar, Renaldo Toote, that there was an “irregularity” in how Jon and Valentina Snell obtained the April 19, 2023, judgment against him in a dispute over “incomplete and defective” renovations to 955 West Bay Street.

The 5,055 square foot home, set on 1.2 acres of land and built in 1994, is listed for rent at a rate of $13,500 per month on the websites of multiple Bahamian realtors. “Built on an elevated lot of mature and spectacular 1.2 acre gardens overlooking the beach, the unique villa’s interiors were conceived by an international designer/art collector as a whimsical private entertaining and relaxation space,” its marketing material states. 

“The three-bedroom, three-bathroom villa has a resident caretaker for all guests’ needs. Some of the amenities include Starlink Internet, own water purification system, solar panels and a generator. The villa’s main entrance, with floor to ceiling windows, opens to a grand entrance hall.”

The battle between the two sides appears to have become increasingly personal, amid allegations that items were “stolen” during the construction work, with a website concerning the alleged construction failings still existing on the Internet.

However, the Snells launched legal action against Mr Cash over his alleged failure to complete $601,000 worth of renovations to the property in early 2022. “On February 22, 2022, the claimants agreed for the defendant to effect renovation repairs on their property situated on West Bay Street in New Providence for an agreed sum of $601,000,” Mr Toote wrote in his September 10, 2024, verdict.

“The date of completion appeared to have been agreed as August 31, 2022. The claimants allege that the defendant breached the contractual agreement by failing to complete the said project within the agreed time and, to date, has refused to complete the same.

“The claimants further allege that the defendant negligently misrepresented to the claimants that he and/or his agents had the necessary skills and competence to perform the renovations to the claimants’ standard. As a result, the claimants suffered loss and damages due to the defendant’s incomplete and defective work.”

Mr Toote, though, noted that the default judgment obtained by the Snells was filed on March 9, 2023. This brought it under the new Supreme Court civil procedure rules that took effect eight days earlier at the beginning of March 2023.

The Snells subsequently applied for an Order to “examine” Mr Cash in November 2023, which was served on him on April 8, 2024. The Bahamian contractor later appeared before another Supreme Court deputy registrar on May 15, 2024, and “confirmed that he was indebted to the claimants but not for the claimed sum”.

After hiring attorney Ian Cargill to represent him, Mr Cash applied on July 12, 2024, to have the default judgment set aside “due to procedural irregularities” that violated the new civil procedure rules. Mr Cargill argued that the non-compliance stemmed from the Snells’ failure to serve Mr Cash with the claim form and statement of claim “in their totality”.

The Snells argued that all the necessary details were contained in their writ filed before the civil procedure rules took effect, but Mr Toote rejected this and found the default judgment was “irregular” and the couple had failed to “cure” these deficiencies.

And he also found they had “erroneously entered judgment for a liquidated sum” when their claim had been for an “unliquidated sum”. The Snells, in their writ, alleged that Mr Cash had been paid a total $522,965 “but failed to honour the various agreements and...and has refused to complete the renovations on the Plaintiff’s property and is in breach of the various contractual agreements”.

They added: “The defendant negligently misrepresented to the plaintiffs that he and/or his agents had the necessary skill and competence to carry out the renovations on the plaintiff’s property, and have not only produced defective work resulting in the plaintiff’s having to hire others to rectify the defects, but have also destroyed, stolen and damaged some of the fixtures, materials and personal property of the plaintiffs all of which has caused the plaintiffs to suffer loss and damage as a result of the defendant’s and/or his agents action.”

The Snells, in their writ, claimed $85,000 in damages for “defective workmanship and performance and costs to correct the defects”, plus a further $105,000 for delays in completing the renovations and $30,000 to replace “lost, damaged or stolen property”. Some $300,000 was also sought for failure to perform under the terms of the construction contract.

However, Mr Toote ruled: “On the face of the indorsement, the judgment which was entered as against the defendant is irregular. The indorsement does not contain any quantified special damages which amounted to $520,000.

“The claimants entered judgment in a liquidated amount with respect to a claim which was clearly unliquidated in nature. All of the damages cited in the indorsement must be specifically proven and assessed by the court to ascertain their validity.

“The sum of $520,000 is a sum which the claimants unilaterally assessed, as there is no reference to any professional assessment. This could therefore not form any basis of a liquidated claim.” Mr Toote also accepted that Mr Cash “has no recollection of ever being served” with the default judgment, and that he only found out after his attorney searched the Supreme Court’s records on May 24, 2024.

“Based on the defendant’s affidavit evidence, I accept that he did not appreciate the significance of a Writ of Summons being served on him. According to his evidence, [Mr Snell] came to his house in Eleuthera and informed him that he need not to worry about the claim, as he [the Claimant] was not interested in pursuing it or taking it to court,” Mr Toote added.

“The defendant exhibited a draft defence to his affidavit in his application. While the brevity of the claim form presents challenges, there are serious issues to be tried between the parties and the defendant’s prospects of disputing at least some aspects of the claimants’ claim are not fanciful.”

Mr Toote thus proceeded to set aside the draft defence, even though “the defendant has by his own admission in his draft defence exhibited to his affidavit accepted that there was a breach of the agreement to complete certain works”.