Vernon O'Connell Hope Appellant v Shaka Wayne Rodney 1st Respondent Portofolio Investments Ltd 2nd Respondent

JurisdictionCaribbean States
CourtCaribbean Court of Justice (Appellate Jurisdiction)
JudgeMr Justice Michael de la Bastide
Judgment Date22 May 2009
Neutral Citation[2009] CCJ 7 AJ
Docket NumberCCJ Appeal No CV 1 of 2009

[2009] CCJ 7 (AJ)

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

ON APPEAL FROM THE COURT OF APPEAL OF BARBADOS

Before

The Right Honourable and the Honourables

Mr Justice de la Bastide, President

Mr Justice Saunders, JCCJ

Mme Justice Bernard, JCCJ

CCJ Appeal No CV 1 of 2009

BB Civil Appeal No 3 of 2006

Between
Vernon O'Connell Hope
Appellant
and
Shaka Wayne Rodney
1st Respondent
Portofolio Investments Limited
2nd Respondent
1

This case concerns a claim to enforce a contract for the sale of a parcel of land on the West Coast of Barbados. The contract was made originally between Shaka Wayne Rodney (‘Rodney’), the First Respondent, and Vernon O'Connell Hope (‘Hope’), the Appellant. Rodney was the Purchaser and Hope was the Vendor. The price agreed was $395,000 which was subsequently increased by agreement to $430,000. The agreement was made on 6th December 1996.

2

The sale was due for completion on 28th February 1997. Completion was not effected on that date as neither side was in a position to complete. At some time in 1997 there was an assignment by deed of the contract by Rodney to Portfolio Investments Limited (‘Portfolio’), the Second Respondent. Thereafter the matter proceeded as between Portfolio and Hope and the increase in the purchase price was agreed by them.

3

The parties were still not in a position to complete until the beginning of May 1998. On the 4th May, which was the first date on which Hope was in a position to complete, Hope served a notice to complete on Portfolio and the date fixed for completion was 26th May 1998. The purchaser did not complete within the time specified and thereafter there were further dealings between the parties.

4

On 31st August, 1998 the purchaser served a notice on the vendor to complete within 28 days. There was non-compliance with that notice and finally, this action was launched by Rodney and Portfolio against Hope in which they claimed specific performance. There was a counterclaim by Hope in which he sought a declaration that his obligations under the agreement were no longer subsisting, in other words, that he had been discharged from any obligation under the agreement for sale.

5

The matter was heard by Madame Justice Kentish. She delivered a judgment in which she held that the plaintiffs failed in their claim basically on two grounds. One was that the assignment by Rodney to Portfolio was invalid because of lack of a proper notice of the assignment and secondly, because the notice served by Portfolio requiring completion, that is, the notice of 31st August 1998, was ineffective because at the time when the notice was served and was operative, Portfolio was not in a position to complete because of lack of funds for that purpose.

6

The judge also made a finding that the vendor's notice to complete, that is, the one served by Hope on 4th May 1998, was also ineffectual because at the time it was served, the other party, that is, Portfolio, was not in default in that there had been no unreasonable delay on its part since it was only at the time when the notice was served that Hope was first in a position to complete the agreement.

7

Rodney and Portfolio appealed to the Court of Appeal. Their appeal succeeded. The Court of Appeal reversed the decision of the trial judge and made an order for specific performance. In doing so it held that there was a valid notice of the assignment. In relation to the finding that the purchaser's notice to complete was ineffectual, the Court of Appeal treated that finding asobiter and held that notwithstanding the possible invalidity of that notice there was still a right under an agreement that was subsisting to claim specific performance and it was that right that the Court of Appeal enforced by its order.

8

The respondent, Hope, has now appealed to this Court having obtained leave to do so. A Case Management Conference was held by telephone on 22nd April, 2009 and at that Conference an order was made for the trial of a preliminary issue. It is that preliminary issue which has been argued before us today and to which written submissions have previously been addressed by both sides. The case management order was in this form:

‘That the parties do file and exchange written submissions on or before Monday the 4th day of May 2009 on the following preliminary issue:

Is the appellant entitled to or should he be permitted to argue:

  • (a) that the respondent...

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