Bevad Ltd v Oman Ltd
| Jurisdiction | Jamaica |
| Judge | HARRISON, P. , HARRISON, J.A. , HARRIS, J.A.: |
| Judgment Date | 18 July 2008 |
| Neutral Citation | JM 2008 CA 54 |
| Judgment citation (vLex) | [2008] 7 JJC 1801 |
| Court | Court of Appeal (Jamaica) |
| Date | 18 July 2008 |
REAL PROPERTY - Contract for sale of land - Application to rescind contract for sale - Damages for loss of opportunity to carry out development - Whether agreement for sale null and void
I have read in draft the judgment of Harris, J.A. I agree with her reasoning and conclusion. There is nothing further I wish to add.
I also agree with the judgment of Harris, J.A. and I have nothing further to add.
This is an appeal from a decision of Jones, J. on November 15, 2005 which was made in favour of the respondent.
The facts giving birth to this appeal are founded upon two contracts for sale between the appellant and respondent. Sometime in 1996, Mr. Winston Crichton, a real estate agent, acting on behalf of the appellant approached the respondent, through its principal director Mr. Paul Harris, offering for sale, a package consisting of a lot of land on Hopedale Avenue in the parish of Saint Andrew owned by the appellant, and approved building plans for ten 2 bedroom, two 1 bedroom and two studio apartments.
Following this offer, Mr. Crichton took Mr. Harris to Hopedale Avenue. There he pointed out to him a lot on which Mr. Harris said a partially completed building was sited. Both Mr. Crichton and Mr. Harris asserted that the lot was situated to the right of an apartment building on 9 Hopedale Avenue.
Mr. Harris expressed an interest in the property for the construction of a residential apartment complex. He declared, however, that he voiced some concerns about the presence of the incomplete building on the property, as also, the inadequacy of parking spaces on the lot. In an effort to address these concerns, Mr. Crichton took him to the office of Mr. Dixie Adams, the principal director of the appellant. Mr. Harris stated that Mr. Adams showed him a set of drawings there. With these drawings, Mr. Harris declared, he expressed some dissatisfaction. In an effort to assuage his anxiety, Mr. Adams, he said, offered to take him to the property.
He went on to assert that approximately one week later, Mr. Crichton, Mr. Adams and himself visited the property. Mr. Adams pointed out a lot, approximately half an acre in dimension and after giving him an explanation as to the design and proposed location of the building, he indicated to him that the incomplete building thereon was not included in the plans. Mr. Adams, he said, outlined the boundaries and frontage of the land. He further related that Mr. Adams informed him that the appellant had obtained permission from the relevant authorities to utilize a part of the roadway for parking purposes.
Subsequent to these events, Mr. Harris instructed his attorneys-at-law to proceed with the purchase of the property. On April 11, 1996 the parties entered into an agreement for sale of lot 2 on the plan of 36 Beverley Drive, in the parish of Saint Andrew, (11 Hopedale Avenue) registered at volume 1082 and folio 341, for the sum of Four Million Dollars ($4,000,000.00) as well as an agreement for approved building plans for the construction of apartments on the property, for the sum of Three Million Three Hundred and Fifty Thousand Dollars ($3,350,000.00). Before the sale was completed, the respondent obtained a surveyor's identification report in respect of the land. This report, however, was never tendered in evidence. Following the receipt of the report, Mr. Harris issued instructions to his attorneys-at-law to proceed with the transaction. The sale was completed and the land was transferred to the respondent on July 12, 1996. There is evidence from Mrs. Jennifer Messado, the attorney-at-law who then acted for the appellant that approved building plans were delivered to the respondent's attorney-at-law.
Mr. Harris stated that, in 2002, due to a downturn in the real estate market, he decided to carry out development of the land with a view to constructing studio apartments only. As a consequence, he retained the service of an architect to re-design the plans. He declared that he then sought to locate the original approved plans, but this proved futile. This he stated, prompted him into embarking on a further visit to the property with a surveyor to carry out an engineering survey. The surveyor informed him that checks made by him revealed that the boundaries on earth did not conform with those on the plan annexed to the Certificate of Title.
Mr. Adams died in November, 1998.
On October 18, 2002 the respondent commenced action against the appellant, seeking to rescind the contracts of sale and for damages for loss of opportunity to carry out the proposed development and make a profit from the venture.
Judgment was entered for the respondent as follows:
"(a) First, the judgment will be to set aside the sale of the land comprised in Certificate of Title registered at Volume 1082 Folio 341 together with the sale of the building plans to the Oman Limited by Bevad Limited and declare that the Agreement for Sale of Land and the Agreement for Sale of Plans both dated April 11, 1996, between Oman Limited and Bevad Limited are null and void and of no legal effect.
(b) Second, a note of this judgment must be indorsed by the Registrar of Titles on the Certificate of Title registered at Volume 1082 Folio 341, and all documents of title for the said lot of land together with the building plans in the possession of Oman Limited possession must be given to the defendant, Bevad Limited.
(c) Third, Bevad Limited must repay the purchase-money, of $4,000,000.00 for the lot and $3,350,000.00 for the plans together with the proved expenses incurred by Oman Limited in consequence of the purchase of the land which amounts to $140,000.00.
(d) Fourth, General Damages assessed to Oman Limited for prospective loss of profit in the amount $20,689,585.00
(e) Bevad Limited to pay the cost of this action in accordance with the CPR 2002 and any other cost associated with the endorsement of the Certificate of Title; such cost to be agreed or taxed."
Leave was sought and obtained by the appellant to amend the grounds of appeal. Consideration will first be given to grounds (a), (b), (c) and (d):
"(a) The Learned Judge erred and misdirected himself as to the purport and effect of a Surveyor's Identification Report obtained by, or, on behalf of the Purchaser/Respondent prior to completion of the pending sale transaction, the subject of this appeal.
(b) The Learned Judge erred in failing to find that any representation allegedly made by Dixie Adams as to the location of the subject lot, was not relied on by the Purchaser/Respondent prior to completion but was superceded by the contents of the Surveyor's Identification Report obtained by or on behalf of the Purchaser/Respondent as the Purchaser/Respondent had a duty to satisfy itself as to the location of the land being purchased.
(c) That the Learned Judge erred and misdirected himself when he concluded that as a matter of law Dixie Adams in pointing wrong lot, [sic] which is not admitted, constituted fraudulent misrepresentation.
(d) The Learned Judge erred and misdirected himself as to the weight to be given to the representations attributed to Dixie Adams by the Respondent's agent Mr. Paul Harris in that:—
(i) These "representations" were first made known after the death of Dixie Adams.
(ii) Further these "representations" were made known in excess of six (6) years after the subject sale transactions were completed i.e. the title was transferred to the Respondent, the Plans in the possession of the Appellant were delivered to the Respondent's Attorney (and agent) and the agreed Purchase Price paid by the Respondent in full.
(iii) Mr. Dixie Adams, being dead was not in a position to give evidence in contradiction of the evidence of Mr. Paul Harris, the Respondent's agent.
(iv) That there was no documentary or other evidence whatsoever that the Purchaser/Respondent raised concerns or dissatisfaction about the location of the subject lot or the details of the plan during the lifetime of Mr. Dixie Adams."
The thrust of the appellant's submissions was that the learned trial judge failed to give any or adequate consideration to the evidence before him, thus rendering his findings and conclusions unreasonable. It was first contended that no representations were made by Mr. Adams and even if representations as alleged were made by him, there was no proof of fraud or recklessness on the part of Mr. Adams and further Mr. Harris, being an experienced purchaser of lands did not place reliance on Mr. Adams' representations, but relied on his own acumen.
The challenge to the learned trial judge's decision essentially brings into focus the question as to whether the judge's findings of fact can be assailed. An appellate court will not lightly depart from the decision of a trial judge which is grounded on facts found unless such findings are plainly wrong. The assessment of a witness' credibility resides within the province of a trial judge. An appellate court, therefore, will only disturb his findings of fact if it is satisfied that he had obviously erred on the facts as found. See Watt v. Thomas [1947] A.C. 484; 1947 1 All ER 582; Eldemire v. Eldemire [1990] 27 J.LR. 316; Industrial Chemical Co. (Jamaica) Ltd. v. Ellis 35 W.I.R. 303.
The critical issue arising is whether Mr. Adams had pointed out...
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