A & A Lime Hall Development Company Ltd v MB Development & Investment Ltd

• Jurisdiction: Jamaica
• Judge: Straw, J.A.,Brown, J.A.,Laing, J.A.
• Judgment Date: 11 April 2025
• Neutral Citation: JM 2025 CA 26
• Court: Court of Appeal (Jamaica)
• Year: 2025
• Docket Number: Suit No.: COA2024CV00056

A & A Lime Hall Development Company Limited

and

MB Development & Investment Limited

Straw, J.A.; Brown, J.A.; Laing, J.A.

Suit No.: COA2024CV00056

Court of Appeal

Appearances:

Ms. Arlene Gaynor, director of the appellant company, present.

Keith Bishop, Raoul Lindo and Janoi Pinnock instructed by Bishop & Partners for the respondent.

JUDGMENT OF THE COURT

Straw, J.A.

1 I have read, in draft, the reasons for judgment of Laing, J.A., which accords with my own reasons for concurring in the decision of the court. I have nothing to add.

Brown, J.A.

2 I, too, have read the draft judgment of Laing, J.A. and agree with his reasoning.

Laing, J.A.

3 This is an appeal against the order of Jackson Haisley, J. (‘the learned judge’) dated 8 February 2023 (‘the order’), in which she refused to grant the order sought by A & A Lime Hall Development Company Limited (‘the appellant’), in its notice of application for court orders filed on 18 January 2023, for summary judgment to be entered in favour of the appellant (‘the application’).

4 On 28 February 2025, we made the following orders:

We promised to give our reasons in writing, and this is in fulfilment of that promise.

• “1. The appeal is dismissed.

• 2. The matter is remitted to the Supreme Court for a date for the hearing of the case management conference to be fixed by the Registrar on the earliest possible date.

• 3. Costs of the appeal to the respondent to be agreed or taxed.

• 4. The respondent's attorneys-at-law to prepare, file and serve these orders.”

THE BACKGROUND

5 The appellant and the respondent are both limited liability companies duly incorporated under the laws of Jamaica. The appellant is the owner of a parcel of land, part of Cherry Hill in the parish of Saint Andrew, registered at Volume 1284 Folio 162 of the Register Book of Titles (‘the property’).

6 The parties entered into an agreement for sale, pursuant to which the appellant agreed to sell, and the respondent agreed to purchase, the property at the price of $40,000,000.00 (‘the agreement’). The agreement provided that the sale of the property would be completed within 60 days and required the respondent to pay a deposit of 5% of the consideration, with the balance payable on completion. The deposit was duly paid by the respondent.

7 The agreement contained special condition 3, which provides as follows:

“It is understood and agreed that if the Transfer Tax and Stamp Duty are assessed by the Stamp Commissioner on a value in excess of the purchase price herein, the Vendor shall be entitled to treat this Agreement as rescinded and to serve the Purchasers [sic] with a Notice of Rescission within 14 days of the said assessment in which event this Agreement shall automatically be rescinded, SAVE THAT, the Purchaser may within 14 days of the said assessment, pay to the Vendor' [sic], any additional increase in assessment.”

8 On or about 10 December 2021, the appellant's attorney-at-law advised the respondent's attorney-at-law by telephone that the Stamp Commissioner had assessed the transfer tax on a market value of $65,000,000.00 for the property. The effect of the Stamp Commissioner using this value was that the transfer tax payable was increased by the sum of $500,000.00 (‘the additional transfer tax’).

9 The respondent's attorney-at-law transmitted a copy of a manager's cheque for the additional transfer tax to the appellant's attorney-at-law at 3:12 pm on 10 December 2021. At approximately 3:41 p.m., the respondents' attorney-at-law received an email from the appellant's attorney-at-law, attaching a notice of rescission dated the same day, which indicated that on the instructions of the appellant, the notice was issued rescinding the agreement pursuant to special condition 3. The respondent's attorney-at-law, by a bearer, delivered the physical cheque, the copy of which was previously sent, to the appellant's attorney-at-law on 13 December 2021, and it was returned to the respondent's attorney-at-law on 14 December 2021.

10 Through its attorney-at-law, the appellant asserted that the agreement had been validly terminated. On 9 February 2022, the respondent filed a claim in the Supreme Court against the appellant, claiming a number of reliefs, including specific performance of the agreement and damages for unjust enrichment. The respondent also obtained an interim injunction on 5 April 2022, from Palmer Hamilton, J., restraining “… [the appellant] and/or its nominee/s, its agent/s and/or its servant/s… from selling, transferring, mortgaging, or otherwise disposing of or otherwise dealing in any matter whatsoever in respect of the [property]”. Following an inter partes hearing on 28 and 29 June 2022, on 21 October 2022, the injunction was granted on the same terms until the claim is determined or until further orders of the court.

11 On 18 January 2023, the appellant filed a notice of application seeking an order that summary judgment be entered in its favour and that the respondent's claim be dismissed. The appellant stated in its grounds that the application was pursuant to Part 15 of the Civil Procedure Rules 2002 (‘the CPR’) and that the respondent had no real prospect of succeeding on the claim. The appellant also relied on the following two grounds:

• “3. It is a matter of settled law that the parties are not at liberty to contract outside of a statute. The relevant statute here being the Transfer Tax Act of Jamaica [sic], and any such purported provision in a contract is invalid, void and unenforceable. Special Condition 3, insofar as the section purports to give permission to the purchaser/Claimant to pay Transfer Tax, is outside of the Transfer Tax Act and should be stricken from the Agreement dated October 12th, 2021, between the parties.

• 4. Having [r]egard to grounds 3 above the only legal interpretation of special condition 3 of the said agreement dated October 12, 2021, between the Claimant and the Defendant, is that the Defendant/Vendor is entitled to rescind and [treat] the said Agreement as rescinded and to serve the purchaser with a notice of Rescission. Which Notice of Rescission was validly sent by the defendant through its Attorney-at-law on December 10th, 2021. The contract was validly rescinded.”

12 On 8 February 2023, the learned judge denied the appellant's application for summary judgment. On 10 June 2023, the appellant filed an application for leave to appeal in the Supreme Court, which was heard and refused on 16 November 2023. The appellant then filed an application before this court for leave to appeal, which was granted on 10 April 2024. The appellant filed its notice of appeal and grounds of appeal on 24 April 2024.

THE GROUNDS OF APPEAL

13 The grounds of appeal filed by the appellant were as follows:

However, in the appellant's oral presentation on the appeal, it was submitted that these grounds could be subsumed under three main issues, and that was the approach adopted in the submissions to the court.

• “a) That at the hearing of the application for Summary Judgement made on February 8th 2023, the Learned Judge failed to accept the submission of the Appellant that the proceedings could be determined by the legal interpretation of special condition (3) of the Agreement for sale contracted between the Appellant and the Respondent. Which legal interpretation precluded the Respondent from paying the increased assessed amount for Transfer Tax. That the Learned Judge erred in not accepting the interpretation of Special condition 3 of the Agreement for Sale proffered by the Appellant and unchallenged by the Respondent. Had the Judge not erred, the proceedings would have ended and Summary Judgement granted in favour of the appellant and the Claim dismissed.

• b) The Learned Judge erred when she accepted the [Respondent's] contention that they could have a claim to Specific performance of the contract between the parties.

• c) The Learned Judge erred, in that she failed to examine the ultimate outcome of the Claim upon hearing the application for Summary Judgement, as she is required to do.

• d) The learned Judge at the hearing for Summary Judgement erred when she followed the approach taken by the Honourable Mrs. Justice Lisa Hamilton-Palmer when granting the Interlocutory Injunction and applied the same standard as Mrs. Justice Lisa Hamilton-Palmer. The standard required by the Judge upon an application for an Interlocutory Injunction ‘good and arguable case’ or ‘serious question to be tried’ is different from the standard required to be used by the Judge upon the hearing of a Summary Judgement application. The latter test being ‘an assessment of the ultimate result’. The learned Judge at the hearing for the application for Summary Judgement applied the wrong standard and therefore erred.

• e) There is no dispute as to the facts, and Summary Judgement is an appropriate remedy.

• f) Part 15 of Civil Procedure Rules 2002 allows the court to determine any issue of law on a Summary application and grant Summary Judgement where the Claimant has no real prospect of succeeding on the Claim. The interpretation of Special Condition 3 of the Agreement for sale between the parties is an issue of law.

• g) The Respondent/Claimant has no real prospect of succeeding on its Claim.

• h) The learned Judged [sic] failed to give her reasons in writing when denying the [appellant's] application for Summary Judgement on February 8th, 2023.

• i) It is just and equitable that the appeal should be allowed” (Emphasis as in the original)

THE APPELLANT'S SUBMISSIONS

14 The appellant argued that the grounds of appeal could conveniently be addressed by considering three issues framed as follows:

• (1) Whether the increased transfer tax assessed could be paid by the respondent by virtue of the agreement or at law;

• (2) If it is not permissible for the respondent to make the payments, whether specific performance...