English Shoppe Ltd v Cayman Arms (1982) Ltd

• Jurisdiction: Cayman Islands
• Judge: Zacca, P., Georges and Kerr, JJ.A.
• Judgment Date: 15 April 1992
• Date: 15 April 1992
• Court: Court of Appeal (Cayman Islands)

(C.A.

Zacca, P., Georges and Kerr, JJ.A.

English Shoppe Ltd., Arch (R.E.) and Arch (M.)

and

Cayman Arms (1982) Ltd.

CIVIL PROCEDURE

APPEALS-respondent”s notice and cross-appeal

The respondent sought specific performance of an agreement to vary a lease of premises owned by the appellants. The appellants claimed that therespondent was in breach of the lease and gave notice of forfeiture pursuant to the Registered Land Law (Revised), s.56. The Grand Court (reported at 1990–91 CILR 299) refused specific performance but held that the appellants” notice was invalid since the period of notice given to remedy the breach was unreasonable. The appellants appealed and the respondent sought to serve a respondents” notice out of time seeking to vary the Grand Court”s order by granting (a) specific performance; and (b) declarations on several grounds, including that the appellants were not entitled to repossession since the respondent had not breached the lease.

Held: (1) Under the Court of Appeal Rules, r.13 a cross-appeal was not permitted as part of a respondent”s notice and, since the respondent was making a cross-appeal by seeking an order for specific performance which would have the effect of reversing the Grand Court”s decision, notice of appeal should have been filed pursuant to the Court of Appeal Rules, r.16 (National Socy.for Distrib. of Electricity &c. v. Gibbs, [1900] 2 Ch. 280, dictum of Lindley, M.R. applied).

(2) On the other hand, in seeking, inter alia, to support the Grand Court”s ruling refusing repossession of the leased premises to the appellants, and seeking declarations on related matters, the respondent was not challenging the court”s finding but merely asserting that it had erred in rejecting a particular argument advanced in support of the decision. Accordingly, it could properly be raised by a respondent”s notice within the terms of r.13, especially since the respondent could not appeal against a decision given in its favour.

(3) Leave would therefore be granted to file the notice out of time in respect of this ground since the delay in filing had only been 24 days and caused by misadventure on the part of the chairman of the respondent company. Leave to file a notice of appeal seeking specific performance out of time would, however, be refused, as seven months had elapsed from the date for filing and no proper explanation had been given.

(C.A.

Zacca, P., Georges and Kerr, JJ.A.

English Shoppe Ltd., Arch...