Armstrong v Hinds
| Jurisdiction | Barbados |
| Judge | Richards, J. |
| Judgment Date | 12 November 2010 |
| Neutral Citation | BB 2010 HC 25 |
| Docket Number | 457 of 2006 |
| Court | High Court (Barbados) |
| Date | 12 November 2010 |
High Court
Richards, J.
457 of 2006
Mr. Gregory Nicholls of George Walton Payne & Co for the plaintiff.
Mrs. Alicia Richards-Hill of Yearwood & Boyce for the defendant.
Civil Practice and Procedure - Application by the applicant for summary judgment pursuant to Order 81 of the Rules of the Supreme Court, 1982 — Specific performance of a contract for the sale of land — Whether there was an issue or question in dispute which ought to be tried — Whether there was an executed agreement — Whether the plaintiff's claim is statute barred — Whether the plaintiff was guilty of prolonged, inordinate and inexcusable delay in filing the action for specific performance — Whether the defendant has been prejudiced — Whether the agreement was frustrated by the plaintiff's delay — Whether the defendants could raise the defence of hardship.
This is an application for summary judgment filed by the plaintiff on 20 April, 2006, pursuant to Order 81 of the Rules of the Supreme Court, 1982. The plaintiff is seeking specific performance of a contract for the sale of land to him by the defendant. The plaintiff contends that the defendant has no defence to his Writ filed on 15 March, 2006.
The plaintiff filed two affidavits in support of his application, on 24 May 2006, and on 30 April, 2009. The defendant responded by affidavit on 14 May 2008. There is one other relevant affidavit of Michael Alleyne filed on 04 April 2006. Mr. Alleyne's affidavit was filed in a separate and earlier application by the plaintiff for injunctive relief. However, it is relevant because it was referred to by the plaintiff in paragraph 9 of his affidavit of 24 May, 2006.
The plaintiff alleges that on 15 August, 1987, he entered into a written agreement with Albert Alverie Guiler (“the Vendor”) for the purchase of two parcels of land at Enterprise Road, Christ Church. The purchase price was $88,732, of which $10,000 was paid as the deposit to Mr. Chezley Boyce, attorney-at-law for the Vendor.
The Vendor died on 14 January, 1991, before the sale was completed. And approximately 13 years later, on 23 June, 2004, the defendant was appointed as the administrator of the Vendor's estate. Over the years, various attorneys-at-law have acted on behalf of the plaintiff, the defendant, the Vendor, and the Vendor's estate.
Before his death, the Vendor retained Mr. Chezley Boyce. More recently in 2005, Mr. Boyce acting on behalf of the Vendor, issued two notices to complete the sale to the plaintiff. These notices were dated 21 February, 2005, and 10 March, 2006, respectively. Mr. Milton Pierce also had some involvement with the Vendor's estate and this particular transaction. The defendant was represented at different times by Mr. David Thompson Q.C., Mr. Clyde Turney Q.C. and Mr. Lindsay Bolden Q.C.. Mrs. Alicia Richards-Hill of Yearwood & Boyce, in association with Mr. Leslie Haynes Q.C., entered appearances on behalf of the defendant in this particular application.
The plaintiff was first represented by Miss Sandra Osborne, and then by Sir Henry Forde Q.C. for a number of years. Mr. Gregory Nicholls of the law firm of George Walton Payne & Co. appeared for the plaintiff in all the court proceedings to date, beginning with the filing of the Writ on 15 March, 2006. Prior to this date, and from about the year 2001, Mr. Nicholls'firm made several attempts to verify who was acting on behalf of the defendant and the Vendor's estate, and to complete the sale. While the plaintiff was being represented by the firm, Sir Henry Forde Q.C. responded to one of the notices to complete served by Mr. Chezley Boyce on behalf of the plaintiff.
Since the filing of the Writ in 2005, Mr. Nicholls has obtained two injunctions from the Court. The first injunction was granted by Goodridge J. on 07 April, 2006. It restrained the defendant from acting on the second notice to complete issue by Mr. Chezley Boyce. No application was made by the defendant to discharge this injunction.
The second injunction was granted by Kentish J. on 10 August, 2006. This injunction restrained the defendant from otherwise selling or disposing of the two lots of land. Again, no application was made by the defendant to discharge the second injunction.
Subsequent to the filing of the plaintiff's application for summary judgment on 20 April, 2006, the defendant filed his defence on 30 May, 2006. He admitted the existence of the agreement for sale and the receipt of the deposit. However, he resisted the plaintiff's application on the basis that:–
-
(1) the plaintiff failed to complete the purchase, therefore the defendant was entitled to repudiate the agreement, and/or treat the plaintiff's conduct as a repudiation of the agreement which the defendant was entitled to accept;
-
(2) the plaintiff was guilty of prolonged, inordinate and inexcusable delay in bringing his action;
-
(3) the plaintiff acquiesced in the matters complained of;
-
(4) the plaintiff by his delay caused or permitted the defendant to believe that the plaintiff did not intend to enforce the agreement. As a result, the defendant has been or will be prejudiced; and
-
(5) the action is statute barred under the Limitation of Actions Act, Cap. 231.
On 17 March, 2008, the defendant filed a summons seeking leave to amend his Defence. His affidavit in support of the summons, dated 01 April, 2008, revealed that in addition to the matters raised in his Defence (see paragraph [9] above), the defendant also proposed to argue that an executed agreement for sale did not exist.
In both her oral and written submissions, counsel for the defendant further submitted that:
-
(1) the contract was frustrated by the delay of the plaintiff and by the effluxion of time;
-
(2) the defendant was prejudiced by the plaintiff's delay, and should be awarded interest on the balance of the purchase price if the plaintiff is granted specific performance of the agreement for sale; and
-
(3) an order for specific performance would cause hardship to the defendant.
The relevant portions of Order 81 of the Rules of the Supreme Court provide as follows:
“1. (1) In any action begun by writ endorsed with a claim
(a) for specific performance of an agreement whether in writing or not for the sale, purchase or exchange of any property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages, …
the plaintiff may, on the ground that the defendant has no defence to the action, apply to the court for judgment.
2. ……
3. Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the action, the Court may give judgment for the plaintiff in the action.”
In the recent decision of Roseal Services Limited v. Challis et al (Civ. Ap. No. 2 of 2009, 11 June, 2010) the Barbados Court of Appeal observed that the procedures for summary judgment under Order 14 and Order 81 have similar objectives and purposes. Speaking for the Court of Appeal, Simmons C.J. said that:
“They are both designed to provide for speedy judgment and to prevent unnecessary and unreasonable delay in wholly unmeritorious situations. Their purpose is to enable a plaintiff to obtain speedy judgment where there is plainly no defence to the claim.” (paragraph [13] of judgment).
This Court then has to determine whether there is an issue or question in dispute which ought to be tried; or posed in the alternative, whether the defence is wholly unmeritorious and there is essentially no defence to the claim. In so doing and in keeping with the directions of the Court of Appeal in the Roseal case, the Court will attempt to thoroughly identify the several issues, and analyse the evidence and the applicable legal principles. (See paragraph [32] of the Roseal decision).
Counsel for the defendant appears to have abandoned the defendant's allegation contained in paragraph 19 of his affidavit of 14 May 2008 that “I am of the belief that there is no executed Agreement for Sale as alleged by the plaintiff in his Statement of Claim.”. The defendant further pleaded that he was unable to find the agreement. And the plaintiff could only provide what was purported to be a copy of the agreement signed solely by the plaintiff. The plaintiff also deposed that he recalled executing an agreement for sale. Noticeably, counsel for the defendant made no reference to this line of defence either in her oral arguments or written submissions.
Section 47 of the Property Act, Cap. 236, provides that:
“(1) No action may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged or by some other person thereunder by him lawfully authorised.
(2) This section applies to contracts whether made before or after 1st January, 1980 and does not affect the law relating to part performance or sales by the court.”
This section of the Property Act appears to be the basis of the application to amend the defence. And the Court is of the view that counsel for the defendant was wise not to resurrect this line of defence, even though it was not officially abandoned. The relevant correspondence that was annexed to the plaintiff's affidavit of 24 May 2006, appears to have been written against the background of an existing and valid agreement for sale. There is no allegation that any of the attorneys-at-law who...
To continue reading
Request your trial