Ward v Walsh, Bjerkham and Nature's Products Incorporated
| Jurisdiction | Barbados |
| Judge | Burgess, J.A.,Re |
| Judgment Date | 28 November 2012 |
| Neutral Citation | BB 2012 CA 14 |
| Docket Number | Civil Appeal 20 of 2005 |
| Court | Court of Appeal (Barbados) |
| Date | 28 November 2012 |
Court of Appeal
Moore, J.A.; Mason, J.A.; Burgess, J.A.
Civil Appeal 20 of 2005
Mr. Leslie Haynes, Q.C. in association with Mr. Amilcar Branche and Ms. Shena-Ann Ince for the appellant
Mr. Denis Chandler in association with Mr. Benjamin Norris for the 2nd respondent
Mr. Barry Gale, Q.C. in association with Ms. Zarina Khan for 1st and 3rd Respondents
Real property - Vendor and purchaser — Agreement for sale — Doctrine of part performance — Proprietary estoppel.
This is a hard case. It is one of those rare cases where all of the parties have in one way or another impugned the trial judge's treatment of facts as well as his application of the principles of law. It has spawned in this court an appeal by the appellant, Mr. Stephen Ward, against aspects of the order made by Greenidge, J. that Mr. Ward convey to Mr. Timothy Walsh, the first respondent, a sugar plantation called “The Farm” in the parish of St. Peter owned by Mr. Ward for the sum of $1.5 million; an appeal by Mr. Bjorn Bjerkham, the second respondent, against other aspects of the same order; and finally and most interestingly, a cross appeal by Mr. Walsh to the effect that the decision of Greenidge, J., in making the order, was wrong and should be affirmed on additional grounds.
But, it is in Mr. Walsh's cross appeal that the real complexity of this case resides. That cross appeal involves claims for remedial justice based, not so much on the relatively orderly framework of structural property law established by the Property Act, Cap. 236 (Cap. 236), but more on this court's jurisdiction to arrive at “just” and “equitable” solutions in an arms-length dealing in land which was admittedly extremely loose, informal and defective. The cross appeal also involves an overlapping claim for contractual remedies within the framework of Cap. 236. In addition to all of this, the persistent nag that Mr. Ward's dealings in relation to The Farm were not conscientious has not made the adjudication of this case any easier.
Perhaps, it may be appropriate to turn to the factual history of this appeal at this point.
The starting point of this case is a meeting between Mr. Walsh and Mr. Ward at Mr. Ward's place of work sometime in May 1996. At that time, Mr. Walsh was engaged in farming an area of land in Indian Ground, St. Peter. The land at Indian Ground did not have the right soil to produce the crops Mr. Walsh wished to grow. So, satisfied that the soil at The Farm was suitable, Mr. Walsh approached Mr. Ward at the meeting in May 1996 seeking to lease part of The Farm through his, Mr. Walsh's, company, Nature's Produce Inc.
During the meeting in May 1996, Mr. Walsh was told by Mr. Ward to speak to Mr. Roy Ward, Mr. Ward's father who was managing The Farm on Mr. Ward's behalf, with a view to ascertaining the price to be paid for the agricultural rental. We would add here that The Farm comprised approximately 135 acres. The 135 acres were made up of various fields, a derelict plantation house, servants' quarters, garages, a workshop and other buildings, including pig pens, the well and pump house the curtilage of which consisted of 3.5 acres.
On the day following the May 1996 meeting, Mr. Walsh spoke to Mr. Roy Ward at The Farm. Mr. Roy Ward pointed out a 12 acre field to the south of the plantation for the purposes of Mr. Walsh's agricultural project. There it was discussed that Mr. Walsh would rent the 12 acre field for a price of $700.00 per acre per year. Mr. Walsh requested, and it was agreed, that the option to purchase be contained in the lease because, in his words, “of the amount of money I would need to spend to put in infrastructure-pump, parts and hatchery.” The duration of the lease was also discussed. At the time of this meeting, Mr. Roy Ward had two acres of the 12 acre field planted in sugar cane.
A draft lease was thereafter drawn up by Mr. John Hanschell & Co., attorneys-at-law acting on behalf of Mr. Walsh. This draft was delivered to Mr. Ward at his work place. The lease as finally negotiated was not entered into until January 1997. In the meantime, Mr. Walsh told Mr. Ward that he, Mr. Walsh, “had a lot of work to be done to get [his] project into operation and asked if there was any problem with starting work”. Mr. Ward said it was not a problem and Mr. Walsh went into possession of the ten acres and out buildings and commenced work towards the end of May 1996.
Once in possession, Mr. Walsh developed an interest in purchasing the entire plantation and sometime in June 1996, he commenced discussions with Mr. Ward concerning its purchase. There were several conversations during which Mr. Ward indicated that he would be willing to sell “if the price was right”.
Mr. Walsh then gave instructions to his attorneys-at-law, Mr. John Hanschell & Co., as a result of which the following letter dated July 13th, 1996 was addressed to Mr. Ward:
“Dear Sir,
We act on behalf of Mr. Timothy Walsh of Red Hill House, St. Peter.
Our client has instructed us to confirm to you that he is interested in purchasing your property known as the Farm, St. Peter, comprising approximately 135 acres in respect of which he has already spoken to you.
Our client is prepared to offer the sum of $408,500. 00 subject to contract which is calculated as follows:–
85 acres (arable) @ $4100 per acre — $348, 500.00
50 acres (non arable) @ 1200 per acre — $60, 000.00
TOTAL — $408, 500.00
We also advise that our client is interested in securing if necessary “first refusal” rights for the purchase of this property.
Kindly let us hear from you by return.
Yours faithfully
John A. Hanschell
C.C Mr. Timothy Walsh”
Mr. Ward replied to the letter from Mr. Walsh's attorneys-at-law by way of a letter dated August 26th, 1996. This letter reads as follows:
“Dear Sir,
I am in receipt of your letter (sic) dated July 31st, 1996 written on behalf of Mr. Timothy Walsh.
I regret to inform you that I would not be interested in the disposal of the property at the price offered and would only consider a partial sale as follows:–
1. Approximately 80 acres of arable land @ $7500/acre inclusive of water well rights.
2. Approximately 4 acres of yard with water well and buildings $ 300, 000.
There remains approximately 41 acres of non arable land which a Realty company is interested in purchasing with a ridge development plan in mind. Subsequently, I am unable at this time to make any commitment regarding the non arable land.
Yours faithfully etc.”
It is worth noting here that the “first refusal” right requested in the letter from Walsh's attorney-at-law to Ward was not granted in this letter.
The next significant date in this narrative is January 12th, 1997. On this date, a written lease for the 12 acres was made between Mr. Ward and Nature's Produce Inc. There had been several changes to the draft lease with the main change being that the duration of the lease was now 5 years instead of 10 years.
In May 1997, Mr. Walsh saw Mr. Roy Ward at The Farm. Mr. Roy Ward told Mr. Walsh that his, Mr. Roy Ward's', wife was sick in hospital and that he no longer had time for running The Farm. He also told Mr. Walsh that he, Mr. Walsh, should start working the whole plantation.
Encouraged by this conversation with Mr. Roy Ward, Mr. Walsh visited Mr. Ward at his, Mr. Ward's, place of work sometime in June 1997 and proposed a partnership between the two of them for the cultivation of vegetables on the remaining arable lands of The Farm. The proposal was that Mr. Walsh would look after cultivation, irrigation and the management of the operation whilst Mr. Ward would have responsibility for equipment. The proposal was for a “fifty-fifty” partnership.
According to Mr. Walsh's evidence, Mr. Ward was “very keen on the partnership”. However, under cross examination, Mr. Walsh admitted that he left the meeting without any firm commitment from Mr. Ward on the proposed partnership.
At the said June 1997 meeting, the evidence of Mr. Walsh is that Mr. Ward made a promise to him to sell the plantation to him for whatever it was valued at. Mr. Ward also encouraged him to proceed with the work contemplated by the partnership.
Following the June 1997 meeting, Mr. Walsh went into possession of 25 acres of lands of The Farm by ploughing and harrowing the same. He fixed and began using a tractor belonging to Mr. Ward. He also began repairing an old irrigation system and obtained permission from Mr. Ward to use an old overhead aluminium irrigation system which was not in operation at the time. After a lot of work, he got the system to function. He worked 7 days a week from June when he had permission to live at the farm and expended, between himself and Nature's Produce Inc., considerable sums of money to get the project off the ground.
It must be stressed here that at the time of Mr. Walsh undertaking this work in pursuance of the June 1997 meeting there was no concluded agreement on the partnership proposal.
Mr. Walsh had The Farm valued by a Mr. A. N. Kirton. Mr. Walsh gave this valuation to Mr. Ward. Mr. Ward said that he would give it to his father, Mr. Roy Ward, to look at and that he would get back to Mr. Walsh.
In July 1997, Mr. Walsh again visited Mr. Ward at Mr. Ward's work place. He told Mr. Ward that he, Mr. Walsh, wanted to do a pilot fresh water crayfish project. Mr. Ward told him to go ahead. Mr. Walsh contracted Mr. Ward to move the clay for this project from St. Andrew to a dam on The Farm for a price of $8.00 per metre. Mr. Walsh turned out the inside of the dam, cut out the trees and spread the clay for the purposes of making the dam shallower.
Mr. Walsh spent about $9,000.00 on this project. However, some of the payments were made by Nature's...
To continue reading
Request your trial