By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The dispute over a Rum Cay restaurant’s demolition has been sent back to the Supreme Court for re-trial even though its majority owner may have “a bogus claim to ownership of the land”.

The Court of Appeal, in a unanimous verdict delivered this week, found that David Cummings and his company, Tamarind Tree Holdings Co Ltd (TRECo), were in possession of the Green Flash Restaurant and Bar prior to its destruction on October 22, 2007.

The duo had sued for damages related to alleged trespass and the restaurant’s unlawful destruction, but the Supreme Court rejected the first claim while finding that Bobby Little and his Sumner Point Properties company - which claimed ownership of the land on which the Green Flash was built - had committed no breach of fiduciary duty.

But Appeal Justice Jon Isaacs, in overturning the initial ruling, said the Supreme Court was mistaken to throw out the trespass claim and should have instead found that Mr Cummings and his company remained in possession “through their occupation of the land” on which the Green Flash was constructed.

The restaurant’s demolition, and subsequent row and legal battle, have their roots in Mr Little’s then-decision to sell his business to Montana Holdings, the developer behind the proposed $700m Rum Cay Resort Marina project.

While that sale ultimately fell through, and the Rum Cay Resort Marina project never happened, the Green Flash’s demolition has become one of numerous legal battles between Messrs Cummings and Little stemming from the duo’s long-running real estate dispute on Rum Cay.

Mr Cummings, who runs a pollution control company in New York state, and Mr Little have been feuding on Rum Cay for more than a decade with demolished buildings central to the dispute between the two parties. Multiple other actions are also at various stages of resolution in the Bahamian judicial system.

As for the Green Flash, the Court of Appeal said Mr Little agreed to sell his business - including Sumner Point’s marina - to New England Marine Service (NEMS), a subsidiary of Montana Holdings, in late June 2007.

The sales agreement gave power to NEMS to “dispose of any houses, offices, buildings and lands” that were owned by Sumner Point, and this was followed by a second “power of attorney:” on October 19, 2007, allowing the Montana Holdings subsidiary to act as it saw fit to implement the purchase agreement.

Harry Briggs, a Montana Holdings and NEMS employees, demolished the Green Flash some three days later. John Faraday, NEMS chief operating officer and an agent for Sumner Point, argued that the bar “was a part of Sumner Point’s property inasmuch as it was included in the sale agreement.

“John Faraday’s position was that he had been given absolute corporate control of Sumner Point and had been appointed chief operating officer of NEMS, and that he had operated at all material times in his capacity as such,” the Court of Appeal added.

Mr Cummings and his company immediately sued for damages related to trespass and unlawful destruction, but Mr Little and Sumner Point countered that they were not in possession of the Green Flash and did not have a right to operate.

They added that the restaurant was “not operational and was a derelict structure on” Sumner Point’s property, while pinning the blame for the demolition on Montana Holdings and its staff, including its principal, John Mittens.

Mr Faraday, in his defence, said he had received legal advice that the Green Flash was built on property that NEMS now controlled via the sales agreement. Confirming that he gave instructions to demolish the restaurant after removing all valuables, his defence contradicted itself by first claiming he offered to pay Mr Cummings $400,000 compensation only to then deny this ever happened.

Justice Fraser, in delivering the Supreme Court verdict, rejected the trespass claim on the basis that Mr Cummings and his company had failed to prove they were “in actual possession” of the Green Flash or land that it was built on.

This, though, was rejected by the Court of Appeal given that Mr Faraday admitted removing their valuables just prior to demolition and placing them somewhere safe. “It suggests, therefore, that at the time that Harry Briggs and John Faraday demolished the Bar it was in the possession of the appellants [Mr Cummings],” it ruled.

“Notwithstanding the cease and desist letter written by counsel for the first and second appellants, and despite what may have been a bogus claim to ownership of the land by the appellants, the appellants were de facto possessors of the Bar.”

Evidence given on behalf of Mr Cummings by Ian Parrish also contradicted claims that the Green Flash was dilapidated. “The judge seems to have considered that since the bar was not operational, the appellants could not be said to have been in possession of it,” the Court of Appeal found.

“This is not dispositive of the issue. The appellants’ property remained in the bar until same was removed prior to the demolition of the bar.... The judge’s finding that the appellants were entitled to damages for the destruction of the bar is incompatible with her conclusion that the action for trespass fails.

“If the Judge was satisfied the appellants should be compensated for the bar’s destruction she must have arrived at the conclusion that they had some connection to it.”

The Court of Appeal also ruled that the Supreme Court was incorrect to determine that Mr Faraday alone was responsible for the demolition, instead finding that all defendants had “acted in concert” to bring about its destruction.

“We were satisfied the judge erred when she found against the appellants’ claim for damages for trespass against the respondents jointly and severally,” the Court of Appeal concluded.

“Further, the judge ought to have found that the appellants remained in possession of the land through their occupation of the land on which the Bar was constructed, and in which their property remained.”