Colby v Felix Enterprises Ltd and Felix Broome Incorporated

JurisdictionCaribbean States
CourtCaribbean Court of Justice
JudgeHayton, J.A.
Judgment Date08 Jul 2011
Docket NumberCCJ Appeal No. CV 7 of 2010; BB Civil Appeal No. 30 of 2006

Caribbean Court of Justice

Nelson, J.A.; Saunders, J.A.; Bernard, J.A.; Wit, J.A.; Hayton, J.A.

CCJ Appeal No. CV 7 of 2010; BB Civil Appeal No. 30 of 2006

Colby
and
Felix Enterprises Ltd. and Felix Broome Incorporated
Appearances

Mr. Alair Shepherd, QC and Mr. Philip McWatt for the appellant.

Mr. Roger Forde, QC and Ms. Nargis Hardyal for the Respondents.

Contract - Purchase and sale of land — Delays — Vendor had waived time being of the essence of the contract — Purchaser entitled to specific performance of the contract subject to paying vendor monthly rental until contract completed.

AN OVERVIEW
Hayton, J.A.
1

This vendor-purchaser dispute involving a contract for the sale of land ought to have been a relatively straightforward one. Matters, however, became complicated due to delays of the parties and the courts and due to the absence of detailed standard conditions of sale containing clear comprehensive provisions governing the process through to completion or termination of contracts for the sale of land. Conveyancing in Barbados would be much simpler and quicker - and recourse to the courts very much less - if a small working party of experienced conveyancing attorneys could prepare a set of standard conditions to be incorporated into land contracts except to the extent expressly modified with special conditions to cover the exigencies of a particular sale.

2

Ultimately, we hold that the vendor had waived time being of the essence for completion of the contract so that she could not forfeit the deposit and recover the property that she had leased to the purchaser at $3,000 per month until completion of the purchase. Instead, the purchaser is entitled to have the contract specifically performed. Thus the vendor's appeal will be dismissed, except that we will order the purchaser to pay the vendor from 1st December 2004 rent at $3,000 per month until completion of the purchase. As the vendor failed in the hard-fought main appeal but succeeded in a more straightforward aspect, we will order the vendor to pay three quarters of the purchaser's costs relating to the appeal to this Court, such costs to he taxed if not agreed. Unfortunately, it would be remiss of us if we did not again comment adversely upon the excessive delays in the delivery of reserved judgments. The trial judge took over two years four months — and even then it took over eight months for his order to be finalised — while the Court of Appeal took two years, all in the context of litigants having a constitutional right under Article 18(8) of the Constitution that their “case shall be given a fair hearing within a reasonable time.” The outcome of the hearing is clearly a key part of the hearing process. In Reid v. Reid [2008] CCJ 8 (AJ) at [22] Saunders, J. in delivering this Court's judgment stated, “as a general rule no judgment should he outstanding for more than six months and unless a case is one of unusual difficulty or complexity, judgment should normally be delivered within three months at most.”

4

While appreciating that circumstances as to finances, facilities, manpower and other resources will vary from country to country and a reasonable time varies according to circumstances, it is worthwhile noting the recent approach of the English Court of Appeal in Bond v. Dunster Properties Ltd. [2011] E.W.C.A. Civ 455 where the trial judge did not deliver his judgment for twenty two months. Arden, L.J. stated Ibid at [1]–[2],

“This extraordinary delay clearly called for an apology and, if any existed, an explanation of the mitigating circumstances… The matter goes further than just the effect on the parties. An unreasonable delay of this kind reflects adversely on the reputation and credibility of the civil justice system as a whole, and reinforces the negative images which the public can have of the way judges and lawyers perform their roles. If there were regular delays of this order, the rule of law would be undermined.”

THE BACKGROUND
5

On 16 May 1995 by a written agreement (‘the Contract’) Mrs Delys Colby (hereafter the appellant', who died on 20 May 2005 but was duly replaced in these proceedings by her executor, Mr David Colby) contracted to sell land and a house known as Maristow to Felix Enterprises Limited (“the Purchaser”), already a monthly tenant of the appellant. There was a problem with the title so the Contract required the appellant to take legal proceedings to perfect the title.

6

Of particular significance are the following clauses of the Contract.

“2(e). The Purchaser will continue to pay to the Vendor the rent of Three thousand dollars ($3,000.00) per month on the 10th day of May 1995 and continuing on the 10th day of each and every month until completion in accordance with clause 10 hereof and all sums so paid shall be credited toward the purchase price until evidence of title has been produced to the Purchaser's attorney-at-law as set out in clause 10 hereof

6. The Land Tax for the current year shall be apportioned as at the date of completion of the sale and purchase.

10. The title to the said property shall be perfected by means of proceedings through the Supreme Court of Barbados and subject to the Vendor obtaining a good and marketable title by such proceedings the sale and purchase shall be completed within thirty (30) days of the Vendor producing evidence to that effect to the Attorneys-at-Law for the Purchaser when the balance of purchase price shall be paid.

16. If the Purchaser fails to complete the purchase in accordance with the terms of this agreement the deposit paid as aforesaid shall be forfeited to the Vendor who shall accept the same as liquidated damages for breach of this agreement and it shall not be necessary for the Vendor to give or to tender a conveyance to the Purchaser but this clause shall not be interpreted so as to make time of the essence of the contract and the Purchaser shall forthwith give up possession of the property to the Vendor. The Vendor shall within 180 days of the Purchaser giving up possession pay to the Purchaser the sum of Two hundred thousand dollars ($200,000.00) representing the improvements made to the property by the Purchaser”.

7

By letter of 27 June 1995 the parties to the contract amended it so that the rent referred to in clause 2(e) should be paid by the Purchaser's standing order to the Vendor's bank account and “[s]hould the rent not be paid on the date specified in clause 2(e) or within fourteen days thereof, as to which time shall be of the essence, then the rent for that month shall not be credited towards the purchase price”.

8

The proper effect of this last clause created the key difficulty between the parties when it came to determine the precise amount of the balance of the purchase price to be paid by the Purchaser to complete the contract. The Purchaser claimed that if in any month it paid the monthly rent of $3,000 within the fourteen days period the payment should be credited against the purchase price. The appellant claimed that payments had first to be set off against arrears of rent for earlier months. Thus only the first seven payments of $3,000 could be credited against the purchase price because thereafter there were arrears so that payments were always credited against arrears rather than the rent due for the month in which the payment happened to be made.

9

Greenidge, J. and, on appeal, the Court of Appeal found in favour of the appellant on this issue. The Purchaser has not challenged this in this Court.

10

On 2 February 1998 the appellant obtained a consent order from Carlisle Payne, J. which was duly entered on 5 June 1998, so evidencing the appellant's title to Maristow and enabling the appellant to invoke clause 10 of the contract at [6] above to make completion possible within thirty days.

11

In fact, the appellant's attorneys did not send a completion statement to the Purchaser until 8 October 1998. The statement credited against the purchase price of $535,000 the deposit of $53,500 and $21,000 relating to the seven payments of the $3,000 a month rent, while providing for an apportionment of Land Tax as stipulated in clause 6 of the contract at [6] above.

12

On 23 November 1998 the appellant's attorneys gave the Purchaser notice to complete the contract and pay the balance of purchase money “as set out in our Completion Statement dated the 8th day of October 1998” “within twenty-eight (28) days from the date hereof' in default of which the deposit would be forfeited to the appellant, who would rescind the contract and seek such relief as she might be entitled to in law.

13

The Purchaser's attorneys on 27 November 1998 served requisitions on the appellant's title which the appellant's attorneys duly answered by letter dated 1 December 1998.

14

This letter also responded to the Purchaser's attorneys' letter of 18 November 1998 stamped as only having been received on 27 November 1998. This letter not only raised the Purchaser's contention as to the crediting of payments of $3,000 a month discussed at [8] and [9] above but stated that the Purchaser wished the property to be conveyed instead to its nominee, Felix Broome Incorporated. As to this, the appellant's attorneys pointed out that the Court Order dated 5 June 1998 and referred to in the Completion Statement had duly provided for the Registrar of the Supreme Court to execute a conveyance in favour of the Purchaser, Felix Enterprises Limited. They also pointed out that if the Purchaser now wanted the conveyance to be to Felix Broome Incorporated the Purchaser must persuade the Registrar to do this and have the necessary changes made to the Court Order and this “must be within the notice period” under the 23 November 1998 notice to complete within twenty-eight days.

15

By letter of 23 December 1998 (outside such “notice period”), stamped as received by the appellant's attorneys on 29 December 1998, the Purchaser's attorneys disputed...

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