Morrison v Morrison

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Downer, J.A.,Panton, J.A.
• Judgment Date: 04 November 2004
• Neutral Citation: JM 2004 CA 37
• Docket Number: Civil Appeal No. 58 of 2002
• Date: 04 November 2004

Court of Appeal

Downer, J.A.; Panton, J.A.; Clarke, J.A. (Ag.)

Civil Appeal No. 58 of 2002

Morrison

and

Morrison

Appearances:

David Henry and Priya Levers instructed by Priya Levers for the appellant.

Michele Champagnie instructed by Myers Fletcher and Gordon for the respondent.

Contract - Consent order — Construction of the word ‘sold’ in the context of a Consent Order — Agreement for sale — No enforceable contract for sale between the owners and the prospective purchaser — Appeal allowed.

Downer, J.A.

The issue of construction which was determined in this case was the meaning of the word “sold'' in the context of a Consent Order approved by Rattray, J., in the Supreme Court. The Agreement For Sale prepared by the attorneys-at-law for the respondent is also relevant to the determination of the issue. Sykes, J. (actg.) decided that the property in issue was sold. Mrs. Marjorie Morrison appealed against that order. She was entitled to a considerable advantage if the property was not sold by 31st January, 2002. Panton, J.A., has gone. fully into the facts, so I will concentrate on the issue of law.

THE RELEVANT DIVINE IN THE CONSENT ORDER

The Consent Order at page 12 of the Record was drafted by Mr. Stephen Shelton and firs, Priya Levers two very experienced lawyers. Clause 3 reads as follows:

“3.(a) That the plaintiff and the defendant each own 50% of the real property known as Lot 31 Millsborough Pines, Kingston 6 in the parish of Saint Andrew registered at Volume 1187 Folio 802 of the Register Book of Titles.

Clause 3 (b)(iii) is a valuable advantage to the appellant.

THE AGREEMENT FOR SALE

The word “sale” and “sold” in paragraph 3(b)(ii) and (iii) of the Consent Order must be considered in the context of the Agreement For Sale which is exhibited at pp 16-20 of the Record. The following paragraphs are pertinent in construing the word “sold”. The agreement begins thus at page 16 of the Record:

“AGREEMENT FOR SALE

Additionally, there are special conditions of which the following are of importance:

“1. It is a condition precedent to the coming into effect of this Agreement for sale that same shall first be signed by both the Vendors and the Purchaser and the deposit and further payment paid. In the event of the deposit and/or further payment being paid by cheque or other negotiable Instrument which is dishonoured on first presentation this Agreement shall be automatically rescinded.

The Schedule is also of importance.

The vendors stated thus at page 19 of the Record.

“2 VENDORS Harold Morrison, Architect of 10 Dude Drive, Kingston 8 and Marjorie Morrison, Housewife of Lot 31 Millsborough Pines, Kingston 6 (TRN # Harold Morrison:–

It is common ground that the appellant Marjorie Morrison did not sign the Agreement. The affidavit of Malcolm McDonald one of the attorneys-at-law for the appellant explains the circumstances. He said in part at pages 7 and 8 of the Record:

“9. That on the 31st January, 2002, Mrs. Priya Levers received the annexed Agreement for Sale marked “MM2” from the defendant's attorneys, Myers, Fletcher & Gordon, the 31st January, 2002 being the date specified in the Court Order by which the property should have been sold.

The following paragraphs at pages 26 and 27 from the affidavit of Stephen Shelton the attorney-at-law for the respondent Harold Morrison are pertinent:

“14. On January 31, 2002 Myers, Fletcher & Gordon wrote to Mrs. Levers, attorney-at-law on the record for the applicant and sent her all relevant correspondence and the Agreement for sale for execution by her client the applicant herein. I attach hereto a copy of the said letter marked “SMS 10” for identity.

Both affidavits purported to state principles of law when what was necessary was to state the facts. It seems that the judge accepted the implications of law in paragraph 22 of Mr. Shelton's affidavit. Here is how Sykes, J. (Actg.) approached the problems and certain issues in this case at page 110 of the Record:

“The affidavits do not disclose why the applicant refused to sign the sale agreement. There is no evidence that there was some defect in the agreement for sale that would affect its validity. The parties agreed to, in the order, a number of steps from valuation right onwards that would facilitate the sale of the property in accordance with the consent order.

With respect to the learned judge in this passage he has not attempted to construe the word “sold” in the Consent Order against the provisions in the Agreement For Sale.

Further the learned judge misconstrued paragraph 7 of the Consent Order which deals with transfers and would only come into effect after the property is sold pursuant to the Agreement. Here is how the learned judge states the position at page 111 of the Record:

“From what I have said it follows that the option to purchase could not have arisen in the circumstances of this case. By January 31, 2002 there was a valuation, there was a purchaser, there was a sale agreement that was executed by the purchaser and the respondent, there was even a deposit of JA$1,500,000.00. If Mr. Henry's interpretation is correct then paragraph 7 of the order has no meaning. Once it is accepted that the Registrar's powers could be invoked where one party refuses to sign the agreement for sale then that seems to put an end to the applicant's submissions. As I said before, Court orders are to be obeyed unless they are varied or set aside.”

Para graph 7 of the ‘Consent Order at page 13 of the Record reads:

“7. In the event of either of the parties failing to sign the respective transfers to give effect to this Order, then the Registrar of the Supreme Court is hereby empowered to sign the same on behalf of the party or parties.”

To reiterate a transfer would come into effect if there were an enforceable contract for sale and the Supreme Court or the Court of Appeal ordered Specific Performance. In such circumstances section 158 of the Registration of Titles Act would come into play and the Court would direct the Registrar of the Supreme Court to cancel the relevant Certificate of Title and substitute a new Certificate in accordance with the order for Specific Performance. In the instant case there was no enforceable Agreement for Sale so neither paragraph 7 of the Consent Order or section 158 of the above Act would be applicable.

THE AUTHORITIES WHICH SUPPORT THE APPELLANT'S STANCE

Photo Production Ltd. v. Securicor Transport Ltd. [1980] 1 All E.R. 556 contains useful statements of principle which are applicable to this case. Lord Diplock ;.it page 566 said:

“A basic principle of the common law of contract, to which there are no exceptions that are relevant in the instant case is that parties to a contract are free to determine for themselves what primary obligations they will accept. They may state these in express words in the contract itself and, where they do, the statement is determinative; but in practice a commercial contract never states all the primary obligations of the parties in full; many are left to be incorporated by implication of law from the legal nature of the contract into which the parties are entering. But if the parties wish to reject or modify primary obligations which would otherwise be so incorporated, they are fully at liberty to do so by express words.”

In the instant case the special conditions of the Agreement of Sale are determinative. The agreement was not signed by the appellant and that was mandatory for a completed Sale to take place pursuant to Clause I of the Special Conditions. The Agreement of Sale must be construed in the light of the primary obligations in the Consent Order.

For a specific authority for the sale of land in a Torrens jurisdiction the following passage from Scholium v. Barripp and Another [1916] N.Z. L.R. 1050 at 1055 is relevant:

“In Joel v. Barlow 22 N.Z. L.R. 900; 5 G.L.R. 450 it was -Held by His Honour the Chief Justice that, where a person enters into possession of a property under an agreement that he shall give up possession when the property is “sold,” the term “sold” must be construed in its ordinary popular meaning, and means that the property is “sold” when a binding bargain is made by the vendor to convey the property and by the purchaser to accept a conveyance. In the present case I am of opinion that the agreement between Matthews Bros. and the plaintiff was that the plaintiff was to retain possession up to the time the property was sold in the ordinary meaning of the term, and that his right to possession determined when he knew that a binding agreement of sale and of purchase was made between Matthews Bros. and Corringham.”

When this principle is applied to the facts of this case, it is clear that there was no enforceable contract for sale between the owners and the prospective purchaser. To reiterate, the appellant Mrs. Marjorie Morrison did not sign the contract. The draft contract was sent to her attorney-at-law Mrs. Priya Levers on the 31st January 2002. There was no time for the appellant to seek or consult her lawyers on the effect of the Consent Order or whether it was appropriate for her to sign the contract pursuant to special conditions adverted to previously. So this Court at the conclusion of the hearing delivered a judgment in favour of the appellant Mrs. Marjorie Morrison, to the effect that the property in issue was not sold by 31st January, 2002, and that she had an option to purchase the property at 20% less than the agreed value. There was also an order for taxed or...