Moore v Callender
| Jurisdiction | Barbados |
| Judge | Richards, J |
| Judgment Date | 06 February 2013 |
| Neutral Citation | BB 2013 HC 1 |
| Docket Number | 1774 of 2005 |
| Court | High Court (Barbados) |
| Date | 06 February 2013 |
High Court
Richards, J.
1774 of 2005
Mr. Patrick Phillips, Attorney-at-Law for the plaintiff.
Mr. Edmund King Q.C., Attorney-at-Law for the defendant.
Real property - Vendor and purchaser — Agreement for sale — Forfeiture of deposit — Whether time was of the essence — Specific performance.
By a Writ of Summons filed on 13 September, 2005, Lorna Vanella Moore (“the Purchaser”) sought an order for the specific performance of an agreement for the sale to her of a parcel of land. The Purchaser also claimed damages for breach of contract in lieu of or in addition to specific performance.
The Purchaser and Von Wilfred Collymore (“the Vendor”) executed an agreement for the sale and purchase of land at Lot 14 Cally Drive, Pilgrim Place in the parish of Christ Church. The Purchaser resided in England, and the Vendor resided in the United States of America.
Mr. Carol Fields, Q.C. forwarded the agreement to the Purchaser for signature by a letter dated 14 June, 1996. He also confirmed receipt of the deposit from the Purchaser. The letter stated:
“Dear Madam:
Re: Lot 14 Pilgrim Place, Christ Church
Enclosed please find two (2) Agreements relative to the purchase of the captioned lot.
Kindly sign both Agreements as indicated on page 3 in the presence of a Notary Public who will witness your signature. Please do not date the agreements but return them to me as soon as possible.
I confirm that the deposit has been paid and I take this opportunity to thank you for allowing me to act on your behalf.
I look forward to hearing from you.”
The Purchaser signed the agreement in England before a Notary Public. Mr. Randolph Sealy signed the agreement, on behalf of the Vendor, under a power of attorney. The agreement is undated, but the parties accept that it was executed on 23 August, 1996.
The relevant sections of the agreement provide as follows:
“9. Purchase price: $36,060.00
11. The balance of the purchase money or sum of $26,000.00 together with interest thereon shall be paid by monthly installments of $863.58 secured by a charge by way of Legal Mortgage from the Purchase[r] to the Vendor executed immediately after the execution of the Conveyance from the Vendor to the Purchaser and the matter completed as provided in paragraph 19 hereon.
13. The Property Transfer Tax attributable to either Vendor or Purchaser shall be paid by such party. The Purchaser shall not be entitled to any indemnity whatsoever which might arise under Section 9A of the Property Transfer Tax Act Cap. 84A (as amended) and no requisition shall be made in respect of such contingent liability or any indemnity given in respect thereof.
19. This matter shall be completed within one month after the Vendor has obtained a Certificate of Compliance from the Chief Town Planner in respect of the Permission dated 1989.05.25 re: Application 2497/9/88D and notify the Purchaser accordingly.”.
The Purchaser testified that after she signed the agreement she sent lump sums of money to an individual in Barbados. That individual was supposed to pass on these lump sums to Mr. Fields in order to pay off the balance of the purchase price. The Purchaser hoped to complete the payments in just over a year. According to the Purchaser, it was around 1997 that she discovered that the money was never paid over to Mr. Fields. As a result, she engaged the services of a lawyer, Mr. Alfred Martindale, to recover her misappropriated money.
There appears to have been a period of inactivity until June 2001 when the Purchaser visited Barbados. After this visit, she sent a letter dated 25 January, 2002, to Mr. Fields. She informed him that:
“I am writing regarding a meeting with Mr. Gooding at his office on 22nd June 2001. He promised that I would hear from [?] concerning the Title Deeds from the purchased land at Pilgrim Place, Christ Church within the next six weeks. It is now well over six months and I am anxious to have this matter finalised.
Could you please look into it for me and advise whether you will handle it, or would I need another lawyer to do it for me. I am in the process of having plans drawn up to start building on it in August of this year.”
The question mark, inserted in the third line of the letter quoted in paragraph [7], indicates a missing word or words from the text of the letter. The Purchaser omitted to say who was to send her the information about the title deeds. It may have been either Mr. Gooding, or Mr. Fields, or someone else. Mr. Gooding was no stranger to the transaction between the parties. He signed the first letter sent to the Purchaser on 14 June, 1996, on behalf of Mr. Fields.
Gooding also witnessed the signature of the agent who signed the agreement on behalf of the Vendor. The occupation given for him on the agreement is Clerk. His capacity to sign these documents must have been as a clerk to Mr. Fields. And it is in that capacity that he spoke to the Purchaser in Mr. Fields' office on 22 June, 2001. That meeting and the content of the conversation, as alleged in the Purchaser's letter at paragraph [7], have never been denied.
Correspondence in the agreed bundle of documents before the Court indicates that Mr. Fields passed on his file to Mr. Edmund King Q.C. in early 2003, and instructed Mr. King to complete the matter on his behalf. By this time, the Purchaser was represented by Mr. Martindale. Mr. King and Mr. Martindale perused titled deeds and a draft conveyance, and dealt with requisitions on title. Unfortunately, Mr. Martindale died in February 2004, and thereafter Mr. Fozlo Brewster continued the negotiations on behalf of the Purchaser.
In August, 2004, Mr. Brewster forwarded to Mr. King a conveyance signed by the Purchaser, together with a number of other documents. Mr. Brewster anticipated that the Vendor would also sign the conveyance, and that the sale and purchase would be completed by 31 August, 2004. The Vendor refused to complete the transaction.
In his evidence the Vendor referred to a letter dated 25 March, 2004, that he had written to Mr. Fields. It would be useful to quote that document in full.
“Re: Lot #14 Cally Drive
Dear Mr. Fields,
This is to reiterate previous conversations and correspondence detailing information concerning Lot #14, located at Cally Drive, Pilgrim Road, Christ Church. It is my understanding that ten (10) years ago, ten thousand dollars ($10,000.00) was made as an initial deposit on this Lot, however no other monies was forthcoming after that deposit, thus leading to correspondence being sent to the party involved, who resided in England, informing her that if the remainder of the cost of the lot was not forthcoming within a certain period of time, the initial deposit would be forfeited.
Since there was no response to any of the correspondence sent to the party involved, the money was indeed forfeited. After careful consideration, you, Mr. Fields, informed me that I should return the money involved after the Lot is sold. This I planned to do, but have not sold said Lot.
I will not accept now, the rate from ten (10) years ago for Lot #14 that has since increased in value. Should the original party be still interested in Lot #14, then he/she will have to pay the going rate for that Lot. As far as I knew it was concluded that since there has been no response from the party involved, this matter was resolved and I am prepared to return said party's initial deposit”.
The Vendor believed that the protracted delay of the Purchaser had effectively discharged him from any performance of the agreement for sale. Therefore, he counterclaimed for a declaration that the Purchaser was in breach of the agreement; and that as Vendor he was entitled to retain the deposit as liquidated damages.
The Vendor in paragraph 3 of his witness statement, filed on 29 November, 2010, stated that he retained the services of Mr. Fields to perform legal services on his behalf. Indeed, Clause 3 of the agreement identifies Mr. Fields as the Vendor's attorney-at-law, with his place of business at Fields House, Spry Street, Bridgetown.
At Clause 6 of the agreement, the space for entering the name of the attorney-at-law acting for the Purchaser was left blank. However, Mr. Fields in his correspondence of 14 June, 1996, thanked the Purchaser for allowing him to act on her behalf. This letter was written after the payment of the deposit but before the execution of the agreement. It was not until the Purchaser's correspondence to Mr. Fields of 25 January, 2002, that she queried whether he would look into the matter of the title deeds, and the completion of the matter. The Purchaser also enquired of Mr. Fields whether she needed to engage another lawyer to act on her behalf.
A number of conclusions may be drawn from the correspondence that passed between Mr. Fields and the Purchaser. He received the deposit from her prior to the execution of the agreement. The deposit was received on behalf of the Vendor, whose legal interests he represented in the transaction. Mr. Fields was also permitted by the Purchaser to act on her behalf.
The evidence of the Purchaser was that she did not have a lawyer when she paid the deposit. She further testified that she engaged a lawyer in Barbados when she discovered that the money she sent to pay the balance of the purchase price had been misappropriated. This is when Mr. Martindale became involved. But between 1996 and January 2002 when she wrote to Mr. Fields, there is no evidence that the Purchaser had independent legal representation in Barbados.
It is against this background that Mr. Fields' correspondence of June 1996 is to be understood. There must have been some discussion between them about Mr. Fields...
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