System Sales Ltd v Brown-oxley and Suttle
| Jurisdiction | Barbados |
| Judge | Burgess, J.A. |
| Judgment Date | 15 May 2014 |
| Neutral Citation | BB 2014 CA 10 |
| Docket Number | Civil Appeal 10 of 2006 |
| Court | Court of Appeal (Barbados) |
| Date | 15 May 2014 |
Court of Appeal
Mason, J.A.; Burgess, J.A.; Goodridge, J.A.
Civil Appeal 10 of 2006
Mr. Hal McL. Gollop QC, in association with Mr. Steve A.H. Gollop and Ms. Saffron Griffith, Attorneys-at-Law, for the appellant
Mr. Alair Shepherd QC, in association with Ms. Wendy Maraj, Attorneys-at-Law, for the respondents
Contract - Specific performance — Agreement for sale — Whether first instance judge erred in law in refusing t grant the remedy of specific performance of the agreement for sale of the land — Whether court should have considered question of damages as alternate remedy to specific performance even though damages not specifically pleaded — Appeal dismissed.
This is an appeal from the decision of Kentish J delivered on 26 April 2006 wherein she dismissed the appellant's application for specific performance of an agreement for the sale of a parcel of land situate at Hopewell, Christ Church, made between the appellants and the respondents. The appeal seeks to have the decision of Kentish J set aside and an offer for specific performance granted by this Court. During the course of the oral hearing of the appeal, a related question arose as to whether damages in substitution for specific performance, though not pleaded, should have been granted by Kentish J and as to whether this Court should grant such damages now.
A decree of specific performance is a remedy available in the discretion of our courts to achieve the ends of equity and justice. The grant or refusal of this remedy in a particular case depends very much on the facts of that case. For this reason, it is important that we set out the relevant facts of this case in some detail.
The appellant, System Sales, is a Barbados incorporated and registered company with its registered office at Neils Plantation, Haggatt Hall, St. Michael. Its core business, for some thirty-five years, has been the purchase of land for subdivision and development for resale as residential lots. Mr. and Mrs. Suttle were the owners of the land which is the subject matter of System Sales' application for an order of specific performance.
In 1994, Mr. and Mrs. Suttle sought the permission of the Chief Town Planner to subdivide the land in question into 13 lots as shown on a plan referred to in this judgment as the Suttle plan. That permission was granted as certified by the Chief Town Planner on 12 April 1994 bearing reference no 669/ 4/1992. At the date of this permission, there was a chattel house erected on lot 2 shown in the Suttle plan in which Mr. and Mrs. Suttle resided.
Sometime in July 1997, Mr. Stanton Gittens, managing director of System Sales, entered into negotiations with Mr. and Mrs. Suttle for the sale and purchase of the land in question. These negotiations culminated in a written offer by letter dated 18 August 1997 from Mr. Gittens as managing director of another company, Ideal Homes Ltd, to Mr. and Mrs. Suttle. The offer was subject to the approval of Town and Country Planning and under it, among other things, Mr. and Mrs. Suttle would retain lot 1 and lot 2 and would sell to Ideal Homes or its nominee the remainder of the land in question containing 89755.66 square feet at $2.00 per square foot. Mr. and Mrs. Suttle accepted these terms.
A written agreement for sale was subsequently executed on 15 July 1988 by Mr. Gittens, on behalf of System Sales, the nominee of Ideal Homes Ltd. It is important to underline here the kernel of that agreement. It is that:
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(i) By clauses 1 and 2 Mr. and Mrs. Suttle agreed to sell to System Sales the land “described in the Schedule” to the agreement at a price $181 007.53;
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(ii) By clause 3(i);
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(a) lots 1 and 2 would be retained by Mr. and Mrs. Suttle;
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(b) completion of the sale and purchase was dependent on the issue of a certificate of compliance by the Chief Town Planner with respect to the development of the land;
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(c) Mr. and Mrs. Suttle undertook “to remove or shift the dwelling house on lots 1 and 2 being retained by them to an extent necessary to avoid encroachment on the roadway (including verge) adjoining the lots and to ensure the compliance with the conditions and stipulations of the Chief Town Planner in respect of the development of the said roadway (including verge)”;
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(iii) By clause 3(ii), System Sales could retain $50, 000.00 from the purchase price should Mr. and Mrs. Suttle fail to remove or shift the dwelling house within one month of receiving notice from System Sales of the Chief Town Planner's refusal to issue a certificate of compliance due to the proximity of the dwelling house to the roadway;
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(iv) By clause 4, the sale could not be annulled by any error, omission, mis-description or mis-statement contained in the agreement but would be subject to compensation provided that System Sales was not entitled to compensation in respect of anything which did not materially affect the description of the property;
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(v) By clause 9, System Sales undertook responsibility for obtaining all necessary plans and the relevant permission from the Chief Town Planner; and
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(vi) By clause 12, Mr. and Mrs. Suttle undertook to provide System Sales with a right of way over lots 1 and 2 “as shown on the proposed sub-division platf.
In the Schedule to the agreement, the land is described as:
“ All that parcel of land situate at Hopewell in the parish of Christ Church in this island as shown on a proposed subdivision plan as follows …” (Emphasis added).
What follows is the number of the lots 3 to 20 inclusive with the respective areas listed. It must be underlined here that the ‘proposed subdivision plant’ referred to in the Schedule was not specifically identified in the agreement nor was any plan included in it.
In fact, there were three relevant subdivision plans. These were the Suttle plan referred to in para [4] above, an undated and uncertified plan admitted into evidence by consent as Exhibit ‘GS3’ and a plan certified on 2 February 1999 by Horace A. King, Land Surveyor, which was a revision of Exhibit “GS3” plan, referred to in the judgment of Kentish J as the SSL plan. On the Suttle plan and the Exhibit “GS3” plan lots 1 and 2 both faced and adjoined the public road on the south. On the SSL plan, however, the orientation of lots 1 and 2 changed, so that they both faced the east and only lot 1 adjoined the public road on the south. In addition, the size of both lots changed so that the area of land (excluding the road reserve and road) was reduced.
As has already been seen, pursuant to clause 9 of the agreement for sale, the completion of the sale and purchase of lots 3 to 20 inclusive was dependent upon System Sales obtaining a certificate of compliance from the Chief Town Planner in respect of a roadway (including verge) adjoining the lots. To this end, System Sales commenced the execution of the works necessary to obtain the certificate of compliance. It had expended considerable sums in excavation work on the laying of mains for water and natural gas and was about to lay the slipper drains for the road when, in December 1998, Mr. Suttle chased the workmen of System Sales off the site and stopped the work.
As a result, System Sales sought and obtained in an intended action an injunction restraining Mr. and Mrs. Suttle, among other things, from preventing the servants or agents of System Sales from entering onto the lands for the purpose of completing the development. Thereafter, System Sales commenced an action in the High Court before Kentish J seeking an order of specific performance of the contract between itself and Mr. and Mrs. Suttle for the sale of the land in question.
System Sales' action before the High Court was brought by originating summons filed on 15 April 1999 seeking an order for “Specific Performance of the contract for sale and purchase of the parcel of land described in the heading to this Affidavit”. The heading to the action reads as follows:
“IN THE MATTER of ALL THAT lot or parcel of land (part of a larger area of 9607.1 square metres divided into lots as delineated and shown on the Key Plan certified on the 2nd day of February 1999 by Horace A. King, Land Surveyor) situate at Hopewell in the parish of Christ Church and being the parcel of land that is sub-divided into 20 lots.”
Two aspects of System Sales' action are to be carefully noted. The first is that the key plan to which reference is being made in the heading to the originating summons is the SSL plan. This is noteworthy since the respondents resisted System Sales' action on the grounds that the SSL plan was not the “proposed subdivision plan” referred to in the Schedule and that System Sales, by substituting the SSL plan, a different subdivision plan from the “proposed subdivision plan” referred to in the agreement, had unilaterally varied the agreement for sale and thereby adversely affected the respondents' interests in lots 1 and 2.
The second is that, the only relief sought by System Sales in its action was an order for specific performance. Rather strangely, there was no claim in the alternative for damages or other relief and no evidence was led to establish any loss on the part of System Sales.
Before Kentish J, System Sales contended that it should be granted specific performance of the agreement for sale dated 15 July 1998 and the land be conveyed in accordance with the description in that agreement. System Sales adduced in evidence the SSL plan as the relevant plan. It will be remembered that that plan shows the orientation of lots 1 and 2 facing the roadway to the east. Mr. and Mrs. Suttle, on the other hand, argued that the correct plan was either the Suttle plan or the Exhibit “GS3” plan, both of which showed the alignment of lots 1 and 2 facing the roadway to...
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