Smellie J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
CAUSE # 349/95
BETWEEN ALBERT JACKSON PLAINTIFF
AND MICHAEL THOMAS EBANKS DEFENDANT
Mr. Steven Roy for the Plaintiff.
Defendant in person.
JUDGMENT
The plaintiff brings this action by writ to recover unpaid rents and damages to the rental property.
The defendant commenced the tenancy in 1984 at a rent of CI$450 per month which was increased to CI$500 per month and eventually to CI$600 per month in or around 1989.
The plaintiff was for much of the tenancy an absentee landlord by reason of having been incarcerated in 1987.
From the evidence, the tenancy relationship proceeded well and it seems the rental was generally paid in time and in full until 1993.
In that year, of the total rent payable CI$5600 was actually acknowledged as paid, leaving arrears of $1600.
Those arrears are a matter of record having been the subject of correspondence between the parties. In that respect the plaintiff, in his evidence, states that he asked the defendant to vacate the premises because he had failed to pay.
I accept that evidence and find that there were arrears accumulated from 1991, of $1600.
The rest of the evidence as to arrears is not so recorded and is not as straightforward.
The plaintiff appears to have kept a record of the details given to him, while he was incarcerated, as to the payments. But to a large extent that record is hearsay. That is so in particular as the recorded details would have depended on what the plaintiff was told by his brother who acted as his agent for the purposes of collecting rent from the defendant.
The plaintiff’s brother did not give evidence. Instead the plaintiff relied on his own written record that he kept in prison, of the information reaching him there.
The defendant also failed to give evidence. He admitted, in the course of his own cross-examination of the plaintiff, to owing arrears of rent. But in the course of exchanges between himself and the plaintiff and by way of suggestions and responses during his closing arguments, he cited his own inability to recollect the amounts and the alleged loss of records which he once had. He also said that there were several months when he made payments to the plaintiff’s wife and brother but got no receipt. Eventually, he said in his closing argument, he would estimate that he owed $1000 for unpaid rent.
The plaintiff stoutly denied the suggestion that the defendant would have paid any amounts to his wife and such payments not be accounted for. I accept the plaintiff’s evidence on this - it is clear as he also asserted, that he had instructed the defendant not to make any further payments to his wife and that no such payments would have been made during the time in question, 1991 - 1993.
There is however some doubt as to what may have been paid to the plaintiff’s brother and I so find as regards the year 1992.
On an examination of the plaintiff’s records kept while incarcerated, it is noted that payments were made to his brother in 1992 as well as to the Bank and to the plaintiff’s lawyer.
Arrears of $2950 are claimed for 1992.
On a balance of probabilities I am prepared to hold in favour of the defendant that he might have paid as much as one-half that amount and not receive or retained proof of payment from the plaintiff’s brother.
That sum of $1475 or approximately two and one-half months rent, I will deduct from the sum claimed.
I take this approach on the basis that payments made to the Bank ($1900) and to the plaintiff’s lawyer ($1200) in 1992 would have been strictly accounted for and on the basis that the plaintiff’s record was a faithful and correct record of those payments.
Thus, the only area for discrepancy to my way of approaching the case, is as to the payments to the plaintiff’s brother. Thus, to that extent I give the defendant the benefit of half the arrears for 1992 and award the other half by way of a quantum merit to the plaintiff.
This approach to the matter does not however avail the defendant for 1993. In that year the plaintiff’s record does not show a single payment to his brother. All recorded payments were instead made to the Bank ($2700) and to the lawyer’s office ($2000).
The defendant was unable to assert a single payment to the brother in 1993
Notwithstanding his assertion that his own records were lost, he declined to give evidence and was not cross-examined.
In circumstances where his first 5 payments for 1993 were to the lawyer’s office and the next two to the Bank, I had no difficulty concluding,
particularly in the absence of any clear assertion to the contrary from him, that he failed to make any payment to the plaintiff's brother at all in 1993.
I therefore find that he owes arrears for 1993 in the amount of $1900.
This give a total arrears of rent due of $4975. From this must be deducted the amount of $1000 agreed to have been paid by the defendant.
The plaintiff also claims damages for exceptional wear and tear and for various missing items of furniture.
In this area the plaintiff's evidence is entirely hearsay and I can find no independent basis for acting upon it.
The defendant did not vacate the premises by handing the keys over to the plaintiff as one would normally expect.
Instead he suggested in cross-examination of the plaintiff that when he proffered the keys to his brother and wife they refused to take it because there had, it seems, been some disagreement amongst the family about the property.
Because the defendant did not give evidence, it was never established whether and if so when he gave over the keys. The plaintiff testified that the defendant had handed the keys over to a neighbour's grandson but that, taken with the rest of the evidence as to the state of the premises when the defendant vacated, was all hearsay.
I simply have no proper basis on which to base a conclusion on the claim for damages.
In the result that claim failed.
Accordingly I enter judgment for the plaintiff in the amount of $3975 for arrears of rent due and payable plus interest on that amount in the amount of 8% simple interest to be calculated from the end of 1993 until the judgment debt is fully paid.
Costs to the plaintiff to be taxed if not agreed.
A. Smellie Q.C.
Judge of the Grand Court
Dated this 30th day of September 1996