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Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> O'Toole and Cox -v- Mendonca [2009] JRC 136 (03 July 2009)
URL: http://www.bailii.org/je/cases/UR/2009/2009_136.html
Cite as: [2009] JRC 136
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[2009]JRC136
royal court
(Samedi Division)
3rd July 2009
|
Before : |
J. A. Clyde-Smith, Esq., Commissioner and Jurats Le Brocq and Liddiard. |
|
Between |
Paul William O'Toole |
First Plaintiff |
|
|
Francoise Michelle O'Toole (Née Perree) |
Second Plaintiff |
|
|
Lorna Mary Fox |
Third Plaintiff |
|
And |
Gabriel Jesus Mendonca |
Defendant |
IN THE MATTER OF AN APPLICATION FOR A PERMANENT INJUNCTION PREVENTING THE DEFENDANT OR HIS AGENTS FROM PARKING IN A COMMON AREA
Advocate M. L. Preston for the Plaintiffs.
The Defendant is a litigant in person and represented himself.
judgment
the commissioner:
1. The Plaintiffs in this case seek a permanent injunction against the defendant restraining him or his agents from parking a vehicle on the avenue and yard that they own in common. The yard and avenue is subject to the following restriction which is contained in each of their contracts, as follows:-
"That it shall always be prohibited save as stipulated in the proceeding clause both to park any vehicles whatsoever on the avenue and yard in common, delivery and collection vehicles always accepted, including lorries, caravans and boats and to place anything else on the avenue and yard in common."
2. The plaintiffs allege that the defendant has, on numerous occasions, over the past three years or so, parked or allowed various vehicles to be parked on the yard. The defendant admits that this is the case but justifies it on the grounds that it was necessary to protect his property from damage and his family, in particular his daughter. He also alleges that he has been discriminated against by the plaintiffs on the grounds of his race and made the subject of abuse.
3. We have heard evidence from two of the plaintiffs, Paul William O'Toole and Lorna Mary Cox and from the defendant Gabriel Mendonca and his partner, Miss Canha. There is a long history to the matter and personal relationships have deteriorated between the parties. The situation has affected the relationship between the defendant and his partner, all of which is sad and regrettable. However the terms of the contract are absolutely clear and have to be complied with. The defendant admits acting in breach of the restriction and we find that he is indeed in breach. None of the grounds put forward either in his pleading or in his evidence or that of his partner justify his actions.
4. The Court does not accept that the plaintiffs, or any of them, have damaged his property or driven through the yard in a manner which constitutes a danger to his family or that he is being discriminated against on the grounds of his race. As often happens in disputes of this kind, it has escalated to affect the whole of the relationship between the three neighbours but we find that at the heart of it is the defendant's parking of cars on the yard in clear breach of the restriction.
5. It is important that the terms of contracts passed before the Royal Court are complied with. Indeed when contracts are passed the parties swear solemnly to comply with their terms. The defendants' parking on the yard must cease at once. The defendant tells us that he has five vehicles when he only has garaging for three cars. He would appear to be running a stonemasons' business from his property in breach of other provisions of the contract, not the subject of a complaint before us; that use is simply not sustainable.
6. We therefore impose a permanent injunction restraining the defendant and/or his agents from parking a vehicle on the avenue and yard in common. We also warn the defendant that he must comply forthwith with this order on pain of contempt and that if he fails to do so he can be brought back before this Court where the Court can impose a fine or even imprisonment. The defendant must understand that the Court will ensure that its orders are obeyed.
7. We direct the Judicial Greffier to have this Judgment and the Act of Court translated into Portuguese and sent to the defendant by registered post.
8. The plaintiffs have sought costs against you on an indemnity basis. There are two types of costs that can be awarded, the higher award is called indemnity where you have to pay the majority of the plaintiffs costs and is only usually awarded where you have acted unreasonably. The lower award is what we call standard; it is costs on a standard basis where the Greffier will reduce the costs of the plaintiffs to a set scale. The plaintiffs have asked for indemnity costs which would be somewhere around 75% of their costs.
9. We award costs to the plaintiffs on the standard basis.
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