Walsh v Ward, Bjerkham and Nature's Produce Inc.

• Jurisdiction: Caribbean States
• Judge: Byron, P.C.C.J.
• Judgment Date: 15 October 2015
• Court: Caribbean Court of Justice
• Docket Number: CCJ Appeals Nos. BBCV2013/001; BBCV2013/002; BBCV2013/003; BB Civil Appeal No. 20 of 2005
• Date: 15 October 2015

Caribbean Court of Justice

Byron, P.CCJ; Saunders, J.CCJ; Wit, J.CCJ; Anderson, J.CCJ; Rajnauth-Lee, J.CCJ

CCJ Appeals Nos. BBCV2013/001; BBCV2013/002; BBCV2013/003; BB Civil Appeal No. 20 of 2005

Walsh

and

Ward, Bjerkham and Nature's Produce Inc.

Ward

and

Bjerkham Wash and Nature's Produce Inc.

Bjerkman

and

Ward Walsh and Nature's Produce Inc.

Appearances:

Mr. Barry L. V. Gale, QC, Ms. Leodean Worrell and Ms Zarina Khan for Mr. Timothy Walsh and Nature's Produce Inc.

Mr. Leslie Haynes, QC and Mr. Amilcar Branche for Mr. Stephen Ward.

Mr. Dennis Chandler for Mr. Bjorn Bjerkham.

Property Law - Appeal — Whether the second appellant should be ordered to sell his Farm Plantation to the first or third appellant — Whether the Court of Appeal erred in relying on the provisions of section 60 of the Property Act to hold against the first appellant's acquisition of any interest in the Plantation as the section had not been pleaded as a defence — Whether the doctrine of proprietary estoppel could be applied.

Contract Law - Whether the first appellant had a right of pre-emption — Whether there was an enforceable contract between the first and second appellants — Whether the second appellant should compensate the first appellant for unjust enrichment.

Civil practice and procedure - Whether the first appellant should pay costs of the proceedings — Whether the two Justices of Appeal should have recused themselves.

INTRODUCTION

Byron, P.C.C.J.

1 The central issue in the three consolidated appeals before this Court is whether Mr. Stephen Ward (“Ward”) should be ordered to sell his Farm Plantation (“the Plantation”) to Mr. Bjorn Bjerkham (“Bjerkham”) or to Mr. Timothy Walsh (“Walsh”).

2 It is not disputed that on 24th April 1998, Ward had entered into a binding agreement, evidenced in writing, to sell the Plantation to Bjerkham. Walsh, who had been farming portions of the Plantation for about two years, contends that he carried out work and expended money on the Plantation because he expected to be the purchaser based on representations made by Ward to him.

3 The trial judge, Greenidge, J, ordered that the Plantation be conveyed to Walsh on the basis that he had partially performed an oral contract of purchase. Both Ward and Bjerkham appealed the decision. Counsel for Walsh invited the Court of Appeal to invoke principles of equity in Walsh's favour because of the alleged unconscionable conduct of Ward and Bjerkham. He submitted that Walsh acquired rights to the land under the doctrine of proprietary estoppel; that he had a right of pre-emption which prohibited Ward from selling the property to Bjerkham before giving him the opportunity to buy it; and that he had an enforceable contract to buy the property which should be given priority over the contract that Ward had with Bjerkham. In a scholarly Court of Appeal judgment, Burgess, J.A. explained that there was neither a legal nor factual basis to invoke the doctrine of part performance and that none of the grounds argued by Walsh before the Court of Appeal had merit.

The Court of Appeal set aside the trial court's judgment and ordered that the contract to sell to Bjerkham be performed.

4 A controversial matter affected the proceedings before the Court of Appeal. Counsel for Walsh had requested two members of the Bench to recuse themselves based on perceived bias against him. The Court denied his application and Walsh has appealed against that order. We have decided to deliver a separate decision on the recusal issue at the end of this judgment.

5 The issues before this Court can be respectfully summarised, from the voluminous grounds of appeal and well researched legal submissions, under five broad headings. Whether:–

• i) The doctrine of proprietary estoppel can be applied;

• ii) Walsh had a right of pre-emption;

• iii) There was an enforceable contract between Ward and Walsh;

• iv) Ward should compensate Walsh for unjust enrichment; and

• v) Walsh should pay the costs of the proceedings.

REVIEW OF FINDINGS OF FACT

6 After review, we have concluded that the just solution of this case depends on its facts. It was generally conceded that the trial judge did not adequately address the task of finding the facts. He expressed preference for the credibility of Walsh and made very general conclusions on the facts without careful or thorough review of the factual context. Burgess, J.A. commented that the trial judgment was so inadequately reasoned that it was necessary to consider the powers of the court to interfere with the evidentiary findings. He concluded that the Court of Appeal could make any orders which ought to have been made by the court below and interfere with findings of fact [RSC Ord 59 r 5(1) of the Rules of Supreme Court of Judicature of Barbados, 1982 (which were the operative rules for this case), now repealed and replaced by the Supreme Court ( Civil Procedure) Rules, 2008]. He opined that the appellate court should exercise cautious reluctance before it reviews findings of primary fact which are based on assessments of the credibility of witnesses, but that it is in as good a position as the trial judge when it comes to drawing inferences which involve evaluating the evidence.

7 A significant feature of the trial judgment was the omission of findings of facts that were relevant to determine whether there was a partly performed oral contract. This deficiency has been amplified because Walsh invited the Court of Appeal to uphold the trial judgment on the basis of the doctrine of proprietary estoppel, the right of pre-emption, and the existence of a valid contract. Adjudication on these issues required a detailed review of the factual context to determine whether the elements that could give rise to the application of any of these rights existed. The Court of Appeal did not conduct a full review of the primary facts because it confined itself to evaluating the inferences to be drawn from the facts found by the judge. The deliberations of this Court required that we assess the facts that are crucial to the outcome of the case. These are special reasons why we need to review the evidence in detail. This review does not require assessments of credibility. The trial judge had concluded that the evidence of Walsh was to be preferred over that of Ward.

The parties acknowledged essentially the same factual scenario and the same sequence of events from which the disputes arise, and there was no challenge by any party that the evidence of Walsh should be accepted.

FACTUAL BACKGROUND

8 Ward was the owner of the approximately 125 acre Plantation. The Plantation consisted of about 80 acres of arable land, 41 acres of non-arable land and a yard with buildings and a water supply. Walsh, an Australian born farmer, resident for many years in Barbados, had been farming at Indian ground, St. Peter. He had observed that the soil type and water supply on the Plantation was very suitable for the vegetables he wanted to cultivate. In May 1996 he approached Ward, and had discussions with him. The Plantation was in a dilapidated condition, and the buildings on it were almost derelict. He was shown a 12 acre field south of the Plantation yard which he agreed to lease. Walsh requested and was allowed to start working the land before the legal arrangements were completed. He commenced working in May 1996 and invested in the electricity supply for water distribution and irrigation systems, made improvements on the buildings for storage use for the farm produce and staff changing rooms and three concrete sinks to wash lettuce and the herbs. He also built a hatchery over the pig pens, and eventually improved one of the buildings and resided there. These works were carried out with permission from Ward.

9 Walsh initiated discussions on purchasing the Plantation. On 31st July 1996 his attorney, Mr. John Hanschell wrote Ward, offering to buy 85 acres of arable land at $4,100.00 per acre and 50 acres of non-arable land at $1,200.00 per acre totalling $408,500.00. The letter also expressed an interest in securing “first refusal” rights for the sale of the property. Ward replied in writing on 26th August 1996. He rejected the proposal at the price offered and stated that he would only consider selling approximately 80 acres of arable land at $7,500.00 per acre (totalling $600,000.00) and approximately 4 acres of yard with water well and buildings for $300,000.00. He stated that he was in discussions with a realtor for the remaining 41 acres of non-arable land and was not in a position to make any commitment about it. He did not respond to the request for first refusal rights in his correspondence.

10 On 12th January 1997, a lease prepared by Walsh's attorney was executed. The tenant was not Walsh but a company called Nature's Produce Inc. that he had formed the previous year and through which he traded. The lease was for 5 years from 1st August 1996 with an option to renew. The rental was $700.00 per month plus a tenant's covenant to pay all electricity charges. It also included a provision that “the tenant would have a right of pre-emption to purchase the holding” during the term.

11 Walsh explained that he asked for and was granted the option to purchase “as a form of security because of the money he would have to put into the infrastructure”.

He estimated that he spent between $40,000.00 - $50,000.00 on the hatchery, approximately $27,000.00 on the irrigation system and around $45,000.00 on the garage.

12 In May 1997, Ward's father, Roy Ward, who had been in charge of running the Plantation, told Walsh that he no longer had time to run it and that he should consider working the whole Plantation. Walsh testified: “About the month of June [19]97 I approached Stephen Ward at MacEnearney and proposed a partnership between him and myself to work the remaining arable lands of the farm in vegetables. We discussed...