Abrikian (Harry) Kolleen (Russell) and Athol (Smith) v Wright (Arthur) and Wright ( Vera)
| Jurisdiction | Jamaica |
| Judge | SYKES J |
| Judgment Date | 16 June 2005 |
| Judgment citation (vLex) | [2005] 6 JJC 1601 |
| Court | Supreme Court (Jamaica) |
| Date | 16 June 2005 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
REMEDIES - Specific performance
SPECIFIC PERFORMANCE OF CONTRACT FOR SALE OF LAND, ACTS OF PART PERFORMANCE, SECTION 36 OF THE STAMP DUTY ACT, SECTION 16 OF THE KINGSTON AND ST. ANDREW BUILDING ACT
1. This matter has its genesis in an unstamped, undated document headed agreement for sale in which Harry Abrikian, Kolleen Russell, Athol Smith (the claimants) and Arthur Wright (the first defendant) agreed to purchase land known as 5 Widcombe Way, from Vera Wright (the second defendant). The property is registered at Volume 991 Folio 688 of the Register Book of Titles.
2. Vera Wright has failed to transfer the property. The claimants, in an amended statement of claim, have sued for specific performance. They claimed damages in the alternative and damages in any event. Both defendants have resisted the claim on several grounds. Arthur Wright is the son of Vera Wright. Vera Wright's defences to the claim are:
-
(a) the claimants and first defendant were not co-purchasers of 5 Widcombe Way;
-
(b) Arthur Wright, on behalf of the claimants and himself, asked permission to use 4 Widcombe Way to make a house for her and use the property to make self-contained town houses with a common area;
-
(c) to give effect to the plan, she signed an agreement for sale in 1988 with completion set for June 30, 1991;
-
(d) the claimants paid Arthur Wright $256,500 between April 1991 and March 1993;
-
(e) Arthur Wright told her that the Kingston and St. Andrew Corporation had denied subdivision approval;
-
(f) she is not in breach of the agreement for sale for the reasons set out at (a) - (e) above;
-
(g) when she was told that subdivision approval was not granted she told Arthur Wright to refund the claimants their money;
-
(h) at the time of the execution of the agreement the claimants failed to pay the deposit. This failure prevented the stamping of the agreement. It was not stamped therefore the agreement is void and unenforceable;
-
(i) section 36 of the Stamp Duty Act made the written unstamped document inadmissible and unenforceable;
3. It is clear that what Vera Wright says at (b) and (e) was quite likely based upon what Arthur Wright told her because there i o evidence that Vera Wright communicated directly with the claimants at any time.
4. Arthur Wright's defence is as stated below:
-
(a) he denies that he and the claimants are co-purchasers of 5 Widcombe Way from Vera Wright;
-
(b) there was an agreement between himself and the claimants that they would seek subdivision approval for 5 Widcombe Way and make individual self-contained town houses;
-
(c) subdivision approval and building permission were conditions precedent to the sale. If any or both approvals were not granted then the sale was off;
-
(d) an agreement for sale was signed by the claimants, Vera Wright and himself in 1988 with completion set for June 30, 1991;
-
(e) the deposit of $45,000 was not paid on execution of the agreement and this is why the stamp duty and other relevant taxes were not paid;
-
(f) the money paid by the claimant was returned to them but they rejected it. This was in August 1994.
5. Only two witnesses testified in this matter. Miss Kolleen Russell gave evidence for all the claimants and Mr. Arthur Wright gave evidence for both defendants.
The areas of agreement
6. It is convenient to state the agreed facts:
-
(a) Arthur Wright was the agent of Vera Wright;
-
(b) Arthur Wright, at all material times, had authority to act as the agent of Vera Wright;
-
(c) an agreement for sale was executed by the claimants, Arthur Wright and Vera Wright;
-
(d) on or about April - June 1991, the claimants paid $225,000 to Arthur Wright;
-
(e) the claimants gave Arthur Wright a further $42,750 in 1993 to pay for drawings for the houses;
Analysis of the evidence
7. Mr. Wright was so thoroughly discredited that in virtually every area in which it was possible to test his evidence against documents, he was found wanting.
Was the sale agreement concluded in 1988?
8. Mr. Wright said the claimants and he conceived of a plan to build town houses at 5 Widcombe Way. He said that in order to do this, it was agreed that he would build a dwelling house for his mother on 4 Widcombe Way after which he and the claimants would build town houses on 5 Widcombe Way. He said that upon reaching agreement with the claimants he immediately began construction of the house for his mother (see paras, 6 and 7 of Arthur Wright's witness statement). The clear implication being that he did not begin to build his mother's house until (a) after he met all the claimants and (b) after they and he had concluded the agreement to purchase the property from his mother.
9. This account is untrue because the evidence from Miss Russell, which I accept, is that she did not meet Mr. Wright until after Hurricane Gilbert. This most powerful of hurricanes struck Jamaica on September 12, 1988. This is such a notorious fact that I can take judicial notice of it. This means that Miss Russell did not meet Mr, Wright until after September 12, 1988. Miss Russell provided credible evidence that convinced me that she did not meet Mr. Wright until late 1988. She gave an account of her places of abode before September 1, 1988, when she move o Carriage House. Before this date, she lived at Maryfield Apartments. It is agreed that the social relationship developed and blossomed to the point where they began to visit each other. She says that Mr. Wright only visited her at Carriage House.
10. Under cross-examination, Mr. Wright agreed that he began the construction of the house for his mother before Hurricane Gilbert. He had dug the trenches. He said that because of the hurricane he had to clear the trenches and trees. If this is so, then he and the claimants could not possibly have agreed that he (Wright) would make a house for his mother 4 Widcombe Way. The construction of the house had begun already. Later in cross-examination, he said that the house at number 4 Widcombe Way took two years to complete after it came out of ground. On this evidence, he began to make the house for his mother before he met Miss Russell. It necessarily follows that he is not speaking the truth when he said that he "immediately commenced construction of the dwelling house for my mother" after reaching agreement with the claimants.
11. The evidence from Miss Russell, which I accept, is that Mr. Abrikian and Mr. Wright met and became friends around 1989/90. Miss Russell was the mutual friend. This means that Mr. Wright and Mr. Abrikian did not meet in 1988 and therefore did not discuss the construction of a house for Vera Wright in 1988 as alleged by Mr. Wright. One of the inevitable consequences of this conclusion is that the claimants and Mr. Wright did not conclude any sale agreement in 1988, despite the appearance of the year "1988" in the document.
12. Miss Russell testified that at some point during her friendship with Mr. Wright, he told her that he wanted to sell a house that he had built for his mother. I accept her evidence o his point. I also believe her when she said that the first time she saw the house at 4 Widcombe Way, it was more or less finished. I accept that she saw the house before there was any concluded agreement for the sale of 5 Widcombe Way. This finding reinforces the conclusion that there was no agreement in 1988 between Vera Wright, Arthur Wright and the claimants concerning the sale of 5 Widcombe Way.
When was the agreement concluded?
13. Miss Russell testified that Mr. Smith and she visited 5 Widcombe Way. She said that during the visit, Mr. Smith said that he was not interested in the house at 4 Widcombe Way but he would be interested in a lot on which town houses could be built. She testified further that at that point Mr. Wright said that 5 Widcombe Way could be used for that purpose. The import of this conversation is that the house for Mr. Wright's mother was completed.
14. Miss Russell said that Mr. Harry Abrikian, Mr. Smith and she had discussions among themselves about purchasing 5 Widcombe Way. She spoke to one Mr. Vivian Brown about joining them in the purchase but he was unable to do so. Mr. Wright on the other hand contends that the claimants and he agreed to purchase the lot from his mother and a condition precedent of that purchase was that subdivision and building permissions had to be obtained. I do not accept Mr. Wright's account on this issue.
15. There is what may appear to be an inconsistency in Miss Russell's testimony which I now examine. She said in her witness statement that if it was possible they desired separate titles. In cross-examination she said that they agreed to purchase the lot with all names appearing on the title. She said, additionally, tha he decision for separate titles came after the agreement and money was paid. Mr. Wright tried to seize upon this to argue that this is proof that they all agreed to separate titles which in the context of town house construction could only have meant that subdivision and building approvals were necessary preconditions for the sale.
16. I do not accept Mr. Wright's view of the matter. Miss Russell's testimony on the point is consistent with no hard and fast position taken on the question of individual titles. The best, from...
To continue reading
Request your trial