Hope v Rodney and Portfolio Investments Ltd
| Jurisdiction | Caribbean States |
| Judge | de la Bastide, P.,Pollard, J.A.,Saunders, J.A.,Bernard, J.A.,Hayton, J.A. |
| Judgment Date | 04 December 2009 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No. CV 1 of 2009; BB Civil Appeal No 3 of 2006 |
| Date | 04 December 2009 |
Caribbean Court of Justice
de la Bastide, P.; Pollard, J.A.; Saunders, J.A.; Bernard, J.A.; Hayton, J.A.
CCJ Appeal No. CV 1 of 2009; BB Civil Appeal No 3 of 2006
Mr. Alair P Shepherd QC and Ms Wendy Maraj for the appellant.
Mr. Andrew V Thornhill and Mr. Gregory P B Nicholls for the respondents.
Real property - Conveyance — Vendor placing sale “on hold” after purchaser had the necessary funds — Order that vendor do all necessary to convey the property — Vendor ordered to pay costs.
This appeal concerns a parcel of land (“the Property”) situate at Prospect, St. James on the West Coast of Barbados. The Property is owned by the appellant, Mr. Vernon Hope. In 1996 Mr. Hope agreed to sell it to Mr. Shaka Rodney, the first respondent. Mr. Rodney subsequently assigned his rights and interests under that agreement to a company called Portfolio Investments Inc. (“Portfolio”). In July, 2000 Mr. Rodney and Portfolio instituted these proceedings against Mr. Hope for specific performance of the agreement. The trial judge, Kentish J, dismissed the action. The Court of Appeal upheld the subsequent appeal of Mr. Rodney and Portfolio. Mr. Hope has now appealed the judgment of the Court of Appeal. For the reasons we give here, we have determined that his appeal cannot succeed.
The contract between Mr. Hope and Mr. Rodney is contained in a formally drawn agreement dated 6th December, 1996 (“the Agreement”). The purchase price originally agreed was $395,000, ten per cent of which was paid as a deposit to Mr. Hope's attorney-at-law. Completion was fixed for 28th February, 1997.
The contract was not completed on the scheduled date. Neither party was then in a position to complete. Mr. Hope was not in possession of all the requisite documents. But even if he had them, Mr. Rodney was then in no position to pay off the balance of the purchase price.
At some stage Mr. Rodney executed an assignment of the agreement to Portfolio, a company of which Mr. Rodney was a director and shareholder. The deed of assignment is undated. During the trial before Kentish, J. it was agreed that it should be dated 28th February, 1997. After the assignment was effected, further negotiations ensued between the parties. Mr. Hope was able to have Portfolio, represented by Mr. Rodney, agree to an increase in the purchase price of the Property to $430,000.
On 4th May, 1998, Mr. Hope issued a notice to Portfolio making time of the essence and requiring the transaction to be completed on or before 26th May, 1998. Portfolio did not tender the balance of the purchase price but on the said 26th May it informed Mr. Hope that it was ready, willing and able to complete. On the 3rd June, 1998 Portfolio's attorney-at-law attended the Chambers of Mr. Hope's lawyers waving his cheque book. Portfolio's lawyer indicated that his client was ready to close the transaction. Mr. Hope's lawyer responded that he was awaiting further instructions from Mr. Hope. Those instructions came two days later when Mr. Hope indicated that completion of the sale had been placed “on hold”.
On 31st August, 1998 Portfolio issued Mr. Hope with its own notice to complete the contract. A period of 28 days was given within which Mr. Hope was required to complete. Mr. Hope ignored this notice. No further initiative was taken on the matter by either side until Mr. Rodney and Portfolio launched these proceedings in July 2000 claiming an order for specific performance.
The claim for specific performance was stoutly resisted by Mr. Hope on four principal grounds. First of all, the defence alleged that as a result of the purchaser failing to complete on or before 26th May, 1998, the vendor was entitled to treat the contract as being at an end and to forfeit the purchaser's deposit. Secondly, Mr. Hope denied that there had been any valid assignment of the Agreement. Thirdly, the defence alleged that the action should be dismissed on account of delay and laches in the instituting of proceedings. Fourthly, it was claimed that the purchasers were not entitled to specific performance because it had not been demonstrated that either Portfolio or Mr. Rodney was truly ready, willing and able to come up with the balance of the purchase price.
The trial judge found that the notice served by Mr. Hope on 4th May, 1998 was ineffective. The judge noted that neither party to the contract was in a position to complete on the original date fixed for completion. As a result, the judge reasoned, as at 4th May, 1998 the contract was an open one. Basing herself on British and Commonwealth Holdings plc v. Quadrex Holding Inc. [1989] 3 All E.R. 492 the judge found that in such circumstances Mr. Hope could only validly make time of the essence if (a) he himself was ready, willing and able to complete, (b) the purchasers had been guilty of unreasonable delay and (c) the served notice had given the purchaser a reasonable time within which to complete. The judge rightly held that Mr. Hope's notice floundered on the second of these conditions as it was only on the very day of its issue, 4th May, that Mr. Hope had overcome all obstacles to the passing of a good title. The first of the issues raised on the defence was therefore decided in the purchaser's favour.
On the assignment issue, the trial judge found for the vendor. She held that the assignment was invalid because no express notice of it had been given to Mr. Hope as required by statute. It was on the strength of this finding that she dismissed Portfolio's claim for specific performance. This determination of the trial judge and the challenge to it in the Court of Appeal were the focus of a considerable portion of the legal argument in the courts below. The issue is now entirely moot. Mr. Shepherd QC, counsel for Mr. Hope before the Court of Appeal and this Court, rightly conceded to this Court that the assignment could not properly be challenged on the ground that no proper notice of it was given. The relevant statute (Section 214 of the Property Act, Cap 236 of the Laws of Barbados) speaks not of the need to give a notice in writing but rather of the requirement to give express notice in writing. No formal requirements had therefore to be met in the giving of notice and on the facts of this case Mr. Hope had been sufficiently made aware in writing that there had been an assignment from Mr. Rodney to Portfolio (See: Van Lynn Developments, Ltd. v. Pelias Construction Co. Ltd. [1968] 3 All E.R. 824).
Having dismissed the claim for specific performance because of her finding that the contract was not validly assigned to Portfolio, the trial judge might have ended her judgment there and then without consideration of the other two defences raised by the vendor. Wisely, the judge thought that, in case she was held to be wrong on the assignment point (as turned out to be the case), she should determine the two other issues raised by the defence as well.
The pleaded issues of laches and delay were fully argued at the trial. The judge decided this point in favour of the purchaser. She found that although it might be said that the purchaser had waited an unreasonable length of time before commencing its action for specific performance, the vendor had neither pleaded nor proved that he had been prejudiced by the delay. In the circumstances, the judge ruled that the defence of laches and delay was untenable. This finding of the judge is unchallenged as there was no appeal on this point.
Finally, as to the readiness and ability of the purchaser to complete the transaction, the judge treated this issue as being entirely bound up with the notice to complete that was served by the purchaser. The focus of the judge, and indeed the focus of counsel for the vendor at the trial, centred exclusively on whether, on a balance of probabilities, Portfolio was ready, willing and able to complete when it served its own notice dated 31st August 1998. Ultimately the judge held that Portfolio had not shown “that it had the requisite funds to pay the balance of the purchase price” (our emphasis) at the time when it issued its notice to complete. On this basis the judge held that Portfolio's notice to complete was bad.
Ground (iii) of the notice of appeal to the Court of Appeal alleged that “the learned judge erred in refusing to consider whether the proffering of a cheque by [Portfolio's] attorney-at-law was a valid tender” and ground (v) claimed that “the decision of the learned Judge is against the weight of evidence”. Despite these two grounds, however, the submissions to the Court of Appeal appear to have been made exclusively on the issue of the validity of the assignment. No challenge was made by the purchaser to the specific finding of the judge that during the period 31st August – 28th September 1998, when the purchaser's notice was running, there was not available to Mr. Rodney or to Portfolio sufficient funds to pay the balance of the purchase price. Mr. Thornhill,...
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...and there was, in effect, an open contract for the sale and purchase of the land. (See ( Hope v. Rodney And Portfolio Investments Limited BB 2009 CCJ 7). 59 In the Privy Council case of ( Graham v. Pitkin [1992] 2All E.R. 235), Lord Templeman restated the law as follows: “It is common groun......
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