'This is about greed'

The trading of insults and claims of who is a ‘tief’ marked Thursday’s resumption of the trial in which a company owned by developer Juliet Holness is suing for a title linked to its $800-million apartment complex.

“You would agree with me that if the claimants were to say that you deliberately tief piece of the access road to add it to lot one, that they would be speaking truth?” Rose Bennett-Cooper, the lead attorney for JAJ Development and Holdings, fired at defendant Charlene Ashley.

Ashley dismissed the suggestion, triggering the start of 25 minutes of tense cross-examination that closed the day’s proceedings in the Supreme Court case being presided over by Justice David Batts.

“Holness’ dishonesty does not impact on me and my integrity. I have over-delivered to her. The sales agreement is what stands… . Holness, I understand, has filed a suit to pretty much try to steal a significant part of my land,” she alleged.

JAJ is suing Ashley, a marketing consultant, to get the splintered title for the land on which the incomplete development is located in Leas Flat, St Andrew.

The company bought a piece of the property on which Ashley lives in 2012 for $22 million. Ashley's portion is Lot One while JAJ's is Lot Two.

A condition of the sales agreement was for Ashley to deliver a splintered title, which was requested weeks after the transaction in October 2012. Ashley is to get an apartment as part payment.

Ashley claims she could not produce the title because of problems with the subdivision and the company's alleged failure to turn over drawings of the development. She said the drawings were turned over in 2020.

She has countersued JAJ, accusing it of trespassing on her lot and breaching the sales agreement by destroying concrete structures to build an access road to the apartment complex.

Holness is the speaker of the House of Representatives and wife of Prime Minister Andrew Holness. She was present in court. 

The trial was originally set for five days in May 2023. It continued in July before being adjourned for continuation over three days this month.

It was disclosed on Wednesday that Ashley’s new trial lawyer, John Clarke, who is instructed by the firm Knight, Junor & Samuels, is unwell but the judge insisted that the case would go ahead. Attorney Andre Moulton has been standing in.

During yesterday’s proceedings, JAJ’s lawyer elaborated on why the company rejected a title that Ashley submitted in December 2022, two years after JAJ filed its lawsuit.

Bennett-Cooper claimed that the “bogus” document contained a three-metre access road between the two lots that was five metres short of what was allegedly agreed and in violation of a 2011 subdivision approval by the Kingston and St Andrew Municipal Corporation (KSAMC).

“You would agree with me that there is an agreement for sale with… a plan with an eight-metre road attached to it, and that after the suit was filed, a title was delivered to the claimant with a three-metre road.”

Bennet-Cooper also argued that when Ashley turned over the title in December 2022, it was “the first time” that the claimant learnt that the access road was restricted to three metres.

“Absolutely no such thing, Holness’ team was on the ground when that land was pegged,” replied Ashley after noting that the application for the title was made in 2020 and approved in 2022.

“We over-delivered to Holness,” she added, to which Bennett-Cooper asked: “By over-delivered, do you mean that she should not have gotten any road at all?”

“Definitely. No road,” Ashley responded.

“We said we would give her an easement. We specifically spoke to an easement. You have written letters on behalf of Holness asking for a road. We have said ‘no’. We didn’t say ‘no’ one time. We said ‘no’ several times. An easement, because we are very clear that the only thing that is allowed, if you do not hit down the concrete on my home, where I live, where I should be allowed to live in peace, then, the only thing that is left is one to two metres, that is what we agreed to… this is just about greed.”

But Bennett-Cooper sought to counter, telling Ashley that, among other things, with the access road at three metres, her lot “increased by the missing five metres which you have stolen”.

“I can’t steal from myself. That’s ridiculous. No. Holness was to get one-to-two metres and Holness is being greedy and wants eight metres,” Ashley shot back.

Asked if the development was due to get a roadway of one-to-two metres wide, Ashley said the contract did not speak to a ‘road’ but to an easement.

“I think we’re beginning to understand your lack of understanding of the meaning of the word ‘easement’, but we will get to that,” Bennett-Cooper charged.

The lawyer ultimately suggested that JAJ cannot rely on the “bogus” 2022 title to do business, including selling units in the development because it “does not conform” with the 2011 subdivision approval.

“Holness has changed her mind several times and, so now, she has applied for additional density and therefore she needs more roadway that she’s asking the court and the government to take from my house. That is what I would agree with,” Ashley responded.

Earlier in the trial, Ashley said she did not agree with three conditions of the 2011 subdivision approval, one of which she said would have required her to move her home’s existing gate.

But JAJ’s attorney yesterday made it clear that an appeal was dismissed and pointed out that there were no amendments to the sales agreement.

Bennett-Cooper also sought to downplay the significance of a September 2019 letter from her firm which Ashley contended was confirmation of discussions held that month between the two parties. Those talks included the conduct of a survey to outline the adjusted boundaries of the access road. That survey formed the basis of the application for the title.

But the lawyer said there was no final agreement.

And Bennett-Cooper further suggested that JAJ could not rely on the title to satisfy its investors that the development is viable but Ashley claimed that “her greed is what is allowing her to be satisfied”.

“You’ve used the word ‘greed’ but you will agree with me that the only person who has benefited from the alteration in the size of the access road is you,” the lawyer argued.

Meanwhile, Bennett-Cooper’s reference to the 2022 title as ‘bogus’ did not go down well with Justice Batts, who challenged the basis of the allegation.

The lawyer argued that her line of questioning was based on concerns that Ashley allegedly submitted “inaccurate” information in the 2020 application for the title to the National Land Agency.

“You submitted this inaccurate diagram to the titles office in order to get titles for lots one and two that were contrary to the approval that you got from the KSAMC,” Bennett-Cooper told the Ashley who said “absolutely inaccurate”.

However, the lawyer insisted that the titles are “flawed”, “irregular” and “bogus” but Ashley maintained that she disagreed and said that Bennett-Cooper was challenging not just her reputation but also her lawyers'.

Batts intervened after Ashley’s representative objected to the use of the word ‘bogus’. The judge asked whether the claim of fraud was included in JAJ’s claim while also noting that the Registrar of Titles was not named in the suit.

Bennett-Cooper acknowledged that the fraud claims were not in her client’s suit because it was filed before Ashley provided the titles. But, Batts noted that the claim could have been amended.

“We did not amend the claim, based on orders of the court that certain things should happen in respect of the delivery of the title. It was our view, which we had shared with this court, that there was non-compliance with that order.”

Batts countered that the court would have to hear the evidence to determine whether there was compliance.

“Non-compliance does not equal fraud. Non-compliance doesn’t mean the title bogus. It can be a perfectly genuine title but it is not what your client agreed to buy. So I don’t see how bogus and fraud arise on the issues before me,” the judge said.

Bennett-Cooper said the allegations of fraud being made by JAJ are in court applications filed by JAJ. She also noted that applications filed by Ashley indicate that, since the titles were issued, the Registrar of Titles has lodged a caveat against them.

Batts repeated that he had indicated that he would deal with the applications in his judgment.

The trial continues today.

jovan.johnson@gleanerjm.com