Realtors Ltd v Ramsay
| Jurisdiction | Barbados |
| Judge | Reifer, J. |
| Judgment Date | 03 December 2014 |
| Neutral Citation | BB 2014 HC 60 |
| Docket Number | 1984 of 2008 |
| Court | High Court (Barbados) |
| Date | 03 December 2014 |
High Court
Reifer, J.
1984 of 2008
Mr. Ramon Alleyne and Mrs. Richelle Nicholls of Messrs Clarke Gittens & Farmer Attorneys-at-Law for the claimant.
Mr. Larry Smith in association with Ms. Mawena Brathwaite Attorneys-at-Law for the defendant.
Breach of Contact - Whether the claimant is entitled to the commission on the sale of the condominium unit — Whether the claimant was the effective cause of the sale of the property.
This case raises for the determination of this Court an interesting question of mixed law and fact.
This action was started by Writ of Summons in December 2008. The Plaintiff (hereinafter referred to as the claimant), a Real Estate Agency and registered company, seeks therein orders of the Court for the recovery of an unpaid real estate commission on the sale of Condominium Unit #103 at Haylie Brae in theparish of Christ Church.
It claims the sum of $73,500, the major part of which is made up of a claim of $64,000.00 being commission at 4% of the purchase price of $1,600,000. 00, plus Value Added Tax. The claimant seeks further relief by way of interest on this sum together with costs.
The core of the claimant's claim is that pursuant to a (nonexclusive) written agreement between the parties, it found and delivered to the defendant, in August 2007, ‘a willing purchaser’ (see agreement of July 31St 2007), Mr. Grenville Phillips (Mr. Phillips) and his wife, who are the persons who ultimately purchased the Unit under a Deed of Assignment dated November 14th 2007 and conveyance of later date.
In other words, the claimant's case is, that it was the effective cause of the sale, and as such is entitled to the agreed commission.
The claim of the claimant for payment of a commission was formally initiated after it was informed by this purchaser by letter, that the purchase and sale had been completed, and that he (the purchaser) had taken possession of the property towards the end of November 2007. The claimant states at paragraph 8 of its Statement of Claim that it “intends to rely on the said letter at the trial … for its full terms and effect.”
The defendant in this action was not the legal owner of this Unit, but in reality its equitable owner. He entered into an agreement on the 11th August 2006 to purchase the condominium unit at #103 Haylie Brae for the sum of six hundred and thirty-two thousand, five hundred dollars ($632,500.00). The transfer of the subject Unit to the defendant was never completed. This explains why the defendant did not convey the unit to Mr. Phillips, but rather executed the Deed of Assignment (supra).
The defendant herein filed its Defence on January 28th 2009 denying that it was in breach of its agreement with the claimant. The core of the defendant's defence to this action can be found at paragraph 6 of this document. In essence, it submits that the claimant did not introduce the willing purchaser, but rather the introduction of the willing purchaser was made by Sir Fred Gollop (who was at all material times the Attorney-at-Law for Mr. Phillips and the defendant) on or about the 2nd November 2007, when he introduced the purchaser Mr. Phillips to the sale of the defendant's property #103 Haylie Brae.
The following Witness Statements were filed on behalf of the parties: Witness Statement of Charles Hoad and Witness Statement of Grenville Winslow Phillips, both of July 27th 2010, for the claimant; Witness Statement of Ronald Ramsay and Witness Statement of Sir Fred Gollop QC, both of July 6th 2010, for the defendant.
Attempts by the parties to settle this matter in 2012 having failed, and after several changes of attorney by the defendant and case management of the action, the trial was scheduled and proceeded to completion in October 2013.
The chronology of events leading to the eventual sale/assignment of #103 Haylie Brae to Mr. Phillips is central to the issue for determination by this Court. This chronology of events is largely undisputed by the parties and is set out hereunder.
In July 2007 the defendant listed the subject condominium for sale with the claimant at an asking price of $1,600,000.00. The agreement was a non-exclusive agreement. The property was listed with other real estate agents and placed in the press for sale: see Witness Statement of Ronald Ramsay. There has been no dispute of this fact.
It is clear from the claimant's letter to the defendant of August 16th 2007, that when attempts were being made by the claimant on that date to show the property to interested purchaser Mr. Phillips, the claimant was embarrassed to find out from a third party that the property had already been sold to a Mr. Worme and his wife. (see the Witness Statement of Ronald Ramsay that this proposed buyer was as a result/in response to the advertisement in the press). It is unclear from this letter if the property was shown on that date.
However, Mr. Phillips confirmed in his Witness Statement of July 27th 2010, and in his oral evidence to this Court, that he was shown the property by Mr. Hoad on August 16th 2007 and had instructed Mr. Hoad to make an offer on his behalf, but was informed a few days later by Mr. Hoad that the Unit was sold to a Mr. Worme.
This fact was confirmed by the defendant in his letter to the claimant dated August 17th 2007. In said letter the defendant apologized for the embarrassment caused to the claimant and confirmed the sale of the property to Mr. Worme. The full text of this letter is set out hereunder:
Neil's Plantation
St. Michael
17th August, 2007
Mr. Nick Parravicino
Realtors Limited
Holetown St. James
Dear Nick,
Thanks for your letter dated 16th August. Although I am on vacation, my office is manned by a skeleton staff, there is usually someone at home and my cell phone is operational. I am therefore puzzled that Bill Hoad was unable to contact me or my wife.
Yesterday morning I received word that the deposit had been made by the prospective purchaser of #103 Mr. Malcolm Won-ne. Until then I was not in a position to convey information of this sale to any of our real estate agents.
Kindly convey to Mr. Hoad my regret for his embarrassment which, in the circumstances, would have been unavoidable.
With many thanks for your continued efforts on our behalf in respect of the sale of La Finca and the rental of #102 at Haylie Brae.
Regards,
Ronald A. Ramsey”
It is apparent to this Court that thereafter all attempts by the claimant to sell this property ceased.
The sale to Mr. Worme fell through in early October 2007, but this fact was never communicated to the claimant by the defendant. In fact, the defendant deposes in his Witness Statement that he never informed any of his real estate agents that the sale to Mr. Worme had fallen through. (We also glean from the correspondence exhibited that this failed transaction appeared, at that time, to be headed to the law courts.)
Instead, on November 2nd 2007 the defendant's attorney, Sir Fred Gollop (Sir Fred), advised him that he (Sir Fred) had a client who was interested in purchasing #103 Haylie Brae. The identity of the purchaser was not made known to the defendant at this time, but Sir Fred informed the defendant that no real estate fees would have to be paid as the purchaser came through him.
On November 6th 2007, Sir Fred informed the defendant that the interested purchaser was proceeding. It was made known to the defendant that the interested purchaser was willing to purchase the Unit without being shown it by the defendant, having been informed that it was a ground floor unit. It was made clear in the oral evidence of Mr. Phillips that he was prepared to purchase any Unit in that condominium development, but a ground unit was particularly attractive to him.
On November 7th 2007, the purchaser Mr. Phillips paid a deposit into the office of Sir Fred.
By Deed of Assignment dated November 14th 2008, the defendant and his wife assigned to G. Phillips and his wife and Brentwood Corporation their rights in #103 Haylie Brae. The purchase price was $1,600,000.00. By separate deed of conveyance dated November 20th 2007, Haylie Brae Inc. conveyed the subject Unit to Grenville Winslow Phillips et ux.
On the November 13th 2007 the claimant wrote to the defendant indicating their knowledge of the fact that the sale to Mr. Worme had fallen through, and very significantly in the Court's opinion, seeking the defendant's permission to contact Mr. Phillips about the purchase of the Unit. No such permission was given by the defendant. It is noted that this letter issued approximately one week after the payment of the deposit by Mr. Phillips to Sir Fred.
The claimant produced a letter at page 121 of the record which letter is dated June 12th 2007. Given the undisputed chronology, this date is clearly erroneous, but was not challenged or corrected. By this letter, dated June 12th 2007 Mr. Phillips wrote to the claimant outlining the facts surrounding the purchase by him of #103 Haylie Brae. This Court is of the view that this letter probably followed the event listed below, namely, Mr. Phillips' visit to the offices of the claimant. In so far as the claimant indicated in his pleadings that he was relying on this letter for its full term and effects, the said letter is reproduced hereunder:
“Dr. Grenville W. Phillips CBE. JP.
Mullins
St. Peter. BB 26026
BARBADOS
Email: phillips@caribsurf.com
Tel: (246) 422 4399
12 June 2007
The Managing Director
Realtors Limited
Holetown St James
Attention Mr. Nick Parravicino
Dear Nick,
This letter is in response to your request for me to confirm the circumstances surrounding my purchase of 103 HAYLIE BRAE, a development with which you were associated, in order to facilitate resolution of an apparent...
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