Anthony Chasteau v Clive Mahon
| Jurisdiction | Caribbean States |
| Judge | Burnett, M |
| Judgment Date | 23 November 2020 |
| Judgment citation (vLex) | [2020] ECSC J1123-2 |
| Court | Eastern Caribbean Supreme Court |
| Docket Number | Claim Number: GDAHCV2018/0460 |
| Date | 23 November 2020 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Claim Number: GDAHCV2018/0460
Ms. Debra St. Bernard for the Claimant/Applicant
Mr. George Prime for the Defendant/Respondent
Burnett, M (Ag.): This is an application filed by the claimant for summary judgment pursuant to parti 5.2 (b) of the Civil Procedure Rules 2000.
The grounds of the application are that the defence had no merit in that it was contradictory and unsustainable, the defendant having admitted the fact of the existence of an agreement to sell the subject property to the claimant.
By an agreement made between the claimant and the defendant, the defendant agreed to sell the claimant the freehold interest in a portion of property admeasuring two thousand three hundred and twenty five square feet (2,325 sq.ft.) of land.
The claimant engaged the services of a Licensed Land Surveyor to conduct a survey for the preparation of a plan of the land. A survey plan dated 11 th July, 2017 was prepared.
After the preparation of the survey plan the claimant sought financing for the purchase of land. The defendant provided the claimant with a written memorandum dated 8 th August, 2017.
Upon being provided with the memorandum, the claimant sought and obtained financing from Grenada Co-operative Bank.
The claimant's solicitor, by letter dated the 19 th July, 2017 wrote the defendant informing him that the claimant had secured the financing for the purchase and he was now in a position to complete the sale transaction.
Differences arose between the parties and the defendant subsequently refused to sell the lot to the claimant.
The claimant contended that there was an agreement between the claimant and the defendant made during the month of May 2017. This agreement was evidenced in writing on the 8 th August, 2017.
The claimant contended that the defendant certified that he was in the process of selling the land to the claimant at a price of $10.00 per square foot. The location of the lot was also identified.
The claimant further contended that the written memorandum provided to the claimant by the defendant which followed the oral agreement to sell contained all the essential terms sufficient for an enforceable contract for the sale of the land. The claimant relied on section 4 of the Real and Personal Property (Special Provisions) Act Cap 273.
The memorandum was in writing, it confirmed the location, size and cost per square foot and identified the claimant as the person to whom the lot was being sold.
The claimant proffered that there was nothing in the memorandum which suggested that the contract for the sale of the lot was incomplete.
The defendant submitted that on the 27 th February, 2019 he filed a defence to the claim which stated that the claimant failed to pay the 10% deposit as agreed upon between the parties.
The defendant further contended that no deposit having been paid, the defendant was of the view that the claimant was no longer interested in purchasing the property since no contract came into being.
The claimant denies that the defendant ever requested of him a 10% deposit; neither was there a requirement in law that a 10% or any deposit be paid with respect to contracts for the sale of land.
The claimant relied on section 4 of the Real and Personal Property (Special Provisions) Act Cap 273.
Section 4 of the Act states “No action shall be brought whereby to change any person upon any contract for sale of land or any interest in or concerning them, unless the agreement upon which the action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be changed therewith, or some other person there unto by him or her lawfully authorized.
The defendant submitted that there are two kinds of contracts for the sale of land, the open and the formal. The open contract is a basic agreement which provides for nothing beyond:
(a) the names of the parties
(b) the purchase price
(c) description of property
The defendant contended that rights and obligations of the parties under the open contract are regulated by case law, property statute within the region and the practice of conveyance.
The defendant contended that the contextual narrative of this transaction, there was no binding contract between the parties.
The defendant relied on the case of Sorrell and another v Finch 1.
The defendant proffered that the claimant's failure to pay the deposit specified by the contractual terms whether oral or written, will be a fundamental breach of the contract by the defaulting buyer, the claimant.
The defendant relied on the case of Millichamp v Jones 2 Damon Compania Naviera SA v Hapage-Lloyd International SA, the Blankenstein 3
Should the claimant be granted Summary Judgment?
According to Rule 15.2 of the Civil Procedure Rules 2000. The court is empowered to enter summary judgment where it considers that the relevant party has no real prospects of succeeding or defending the claim or issue.
In Swain v Hillman 4 Lord Woolf M.R: enunciated the legal principles. In determining such applications the court is required to consider whether the defendant has a realistic chance of succeeding. The court carries out this evaluation by assessing the parties' respective statements
In Bank of Bermuda Ltd v Pentium 5 Saunders C.J. (Ag) stated that: A Judge should not allow a matter to proceed to trial where the defendant has produced nothing to persuade the court that there is a real prospect that the defendant will succeed in defeating the claim brought by the claimant. In response to an application for summary judgment, a defendant is not entitled, without more merely to say that in the course of time something...
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