Armstrong Martin Realty Ltd v Acton Grange Properties Ltd et Al

• Jurisdiction: Barbados
• Judge: Williams, C. J.
• Judgment Date: 05 February 1991
• Neutral Citation: BB 1991 HC 12
• Docket Number: No. 501 of 1990
• Court: High Court (Barbados)
• Date: 05 February 1991

High Court (Civil Jurisdiction)

Williams, C.J.

No. 501 of 1990

Armstrong Martin Realty Ltd.

and

Acton Grange Properties Ltd. et al

Appearances:

Mr. Ernest Jackman for the plaintiff.

Mr. Peter Williams for the defendants.

Judgment - Application for final judgment under O. 14 — Principles governing exercise of court's jurisdiction.

Williams, C. J.

1 A commission of Bds. $175,000 falls to be paid to the plaintiff Armstrong Martin Realty Limited [Armstrong Martin] by the first defendant Acton Grange Properties Limited [Acton Grange] on the purchase by Acton Grange of the shares in Golden Anchorage Ltd., the holding company of Caribbean Resorts Ltd. and Sunset Crest Resorts Ltd. Armstrong Martin says that their fee is due and payable but Acton Grange contends that under its agreement with Armstrong Martin the commission is not payable until the end of December 1994.

2 The agreement between them is contained in the following letter of the 13th March, 1988 from Mr. Richard Armstrong, a director of Armstrong Martin, to Acton Grange which was countersigned on the same date by Mr. Keith J. Wheeler, Acton Grange's Chairman and Managing Director–

“Dear Sirs,

This is to confirm our previous discussions and agreement regarding the payment to our company of a Finders Fee by Acton Grange Properties, Ltd. or its nominee, for arranging the purchase of Golden Anchorage Ltd., Caribbean Resorts Ltd. and Sunset Crest Resorts Ltd. at Sunset Crest, Barbados, by the said Acton Grange Properties, Ltd. or its nominee.

In this regard, it is hereby agreed that our fee will be Bds. $175,000.00 [one hundred and seventy five thousand Bds. dollars] payable in full on the closing of the sale and purchase by yourselves.

Please indicate your agreement with the foregoing terms by countersigning in the space provided below.

Thanks again for choosing the services of Armstrong Martin Realty, Ltd.”

3 The issue turns on the meaning of the words “payable in full on the closing of the sale and purchase” by Acton Grange and has arisen in this way. Armstrong Martin brought an action to recover the amount of the fee and a defence was filed in which it is pleaded that the plaintiff is not entitled to its finder's fee prior to the closing of the sale and purchase as agreed and that the sale and purchase has not been closed because the shares have not been transferred and registered in the name of the purchaser. Armstrong Martin then applied for final judgment under Order 14 on the ground that there is no defence to its action.

4 Armstrong Martin's application is supported by the affidavit of Ernest W. Jackman, attorney-at-law, who swears that the share transfers have been fully executed by both parties. He continues–

• “5. It is my understanding that both the vendors and purchaser, parties to the said share transfers, are appealing the valuation of the said shares by the Commissioner of Valuation;

• 6. In the meantime the new management has entered into possession of the property, refurbished a part of the property and has set up the same for sale and has been advertising the same for sale as aforesaid in the daily newspapers …

• 7. To date and to the best of my knowledge the company has sold a part of the property originally purchased to one William Lycett and his wife.

• 8. As a consequence of the valuation of the Commissioner of Valuation the parties have entered into an agreement in which for the purpose of the appeal of the valuation of the share transfer …the said sale and purchase is not to be completed on or before the year 1995.”

5 Annexed to the affidavit are documents in support of the averments in paragraphs 6 and 7.

6 Mr. Philip Martin, a director of the plaintiff company, has also sworn an affidavit in which he swears that the share transfers have been executed and delivered by the vendor to the purchaser and that according to his information and belief the sale and purchase of the property is closed even though the issue as to the quantum of property transfer tax to be paid has not been finally settled. He further swears that the first defendant is, and has from sometime in 1989 been, in full possession and control of all of the assets of Golden Anchorage Ltd., Caribbean Resorts Ltd. and Sunset Crest Resorts Ltd., and, as owner, has been advertising the property for sale in whole or in part.

7 Mr. Basil Giles, attorney-at-law, in his affidavit in support of the stand taken by Acton Grange swears that, although the share transfers have been duly completed, the transfers of the shares have not yet been completed since they have not been adjudicated by the Registrar because of an appeal lodged by the parties against the valuation of the shares. Consequently Acton Grange has not yet been registered as owner of the shares and the sale of the property cannot be deemed to have been completed. He states his opinion that the sale and purchase has not yet been closed as the share transfers have not been adjudicated and the shares have been not registered in the first defendant's...