System Sales Ltd v Browne-Oxley and Suttle

• Jurisdiction: Caribbean States
• Judge: Hayton J.CCJ
• Judgment Date: 25 November 2014
• Court: Caribbean Court of Justice
• Docket Number: CCJ Application BBCV 2 of 2014; BB Civil Appeal No. 10 2006
• Date: 25 November 2014

Caribbean Court of Justice

Wit J.CCJ.; Hayton J.CCJ.Anderson J.CCJ.

CCJ Application BBCV 2 of 2014; BB Civil Appeal No. 10 2006

System Sales Ltd

and

Browne-Oxley and Suttle

Appearances

Mr. Steve Gollop and Mr. Hal Gollop for the applicant.

Mr. Alair P Shepherd QC and Ms Wendy Maraj for the respondents.

Civil Practice and Procedure - Application for special leave to appeal the decision of the Court of Appeal — Whether the appeal had a realistic chance of success or was a matter of public importance so that a definitive reasoned judgment is required from the Court.

Hayton J.CCJ

1 This is an application filed by the applicant, System Sales Ltd, on 26th June 2014 for special leave to appeal the judgment of the Court of Appeal dated 15th May 2014. That court had dismissed an appeal from the judgment of Kentish, J. dated 26th April 2006 rejecting the applicant's application of 15th April 1999 for specific performance of a contract dated 15th July 1998 (“the Contract”). The Contract was for the applicant to purchase from Mr. & Mrs. Suttle eighteen plots of land situate at Hopewell in the parish of Christ Church, Barbados for BB$ 181,007.53. Since then Mr. Suttle has died so that his executrix, Mrs. Browne-Oxley, is now a respondent alongside Mrs. Suttle.

2 Despite the fact that the value of the property entitled the applicant to seek leave as of right from the Court of Appeal to appeal its decision to the Caribbean Court of Justice, the applicant chose to approach the CCJ directly for special leave to appeal to it. In such circumstances the CCJ will not grant leave automatically but only if the application shows that the proposed appeal has a realistic chance of success [ Barbados Turf Club v. Melnyk [2011] CCJ 14 (AJ), (2011) 79 W.I.R. 153; Browne v. Griffith [2013] CCJ 6 (AJ), (2013) 83 W.I.R. 62] or if in a matter of public importance a definitive reasoned judgment is required from the CCJ [ L O P Investments Ltd. v. Demerara Bank Ltd. [2009] CCJ 4 (AJ), (2009) 74 W.I.R. 333.].

3 This application was heard on 14th October 2014 but was inadequately supported by documentation to establish an arguable case. Normally, this would have led to an immediate refusal of the requested leave. Counsel for the respondents, however, was content to allow the applicant (on payment of costs of that day) to file further submissions (with supporting documents) within fourteen days and thereafter to have fourteen days in which to respond. This Court reserved the right then to determine the application on the papers or to schedule a further hearing. Having now before us a copy of the Contract, the relevant Plans, the judgment of Kentish, J. and her Notes of Evidence in addition to the judgment of the Court of Appeal that had accompanied the Application, we are of the view that no further hearing is necessary and that we can properly determine the application on the papers.

4 We find that the application does not have a realistic chance of success. The first issue concerns the background factual context for determining the plan referred to in the Schedule to the Contract only as “a proposed sub-division plan as follows” after which is set out the sold Lots 3 to 20 enumerating the square metres for each Lot, but, remarkably and crucially, no plan is identified in the Contract. There is thus uncertainty as to the subject-matter of the contract. It must be borne in mind that the applicant, as the person seeking to enforce the Contract, bears the burden of resolving this uncertainty.

5 The Vendors, Mr. & Mrs. Suttle, owned an area of land subdivided for planning purposes into twenty Lots, and resided in a chattel house on Lot 2 of Lots 1 and 2 that they were retaining and which side by side fronted to the south onto a public highway, the two Lots being divided by a boundary running north to south. The applicant Purchaser intended to develop the eighteen Lots, 3 to 20, stretching to the north behind Lots 1 and 2 but would first need to build an access road to the east in order that those living in houses to be built on the purchased Lots could have access to the public highway. It was intended that the access road would use rights of way over some landowners^ land further to the east and require a right of way over the land retained by the Vendors. These matters are apparent from the undated plan admitted into evidence by consent as Exhibit “GS3” (“the GS3 Plan”) [At page 129 of the CCJ Record].

6 This GS3 Plan dealing with twenty Lots was a development of an earlier Plan known as the Suttle Plan which, dealing with only thirteen plots, was held by Kentish, J. not to be the plan referred to in the Contract. However, the...