Neuman (Lilia) v Salmon (Delroye)
| Jurisdiction | Jamaica |
| Judge | LANGRIN, J.A. , PANTON, J.A. , DOWNER, J.A: , DOWNER. 3A: |
| Judgment Date | 23 June 2003 |
| Neutral Citation | JM 2003 CA 29 |
| Judgment citation (vLex) | [2003] 6 JJC 2301 |
| Court | Court of Appeal (Jamaica) |
| Date | 23 June 2003 |
REAL PROPERTY - Agreement for sale - Orde for recovery of possession, mesne profits and dismissal of counterclaim - Whether contract illegal - Agreement contains defendant's Canadian address - Whether transfer of land to a foreign national without approval of the Minister a contravention of the Exchange Control Act
This is an appeal from a judgment of Harris, J. in which she gave judgment for the plaintiff against the defendant as follows:
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1. That the Plaintiff be granted recovery of possession of that property known as 14 Churchill Avenue, Coral Gardens, in the parish of St. James, comprised in Certificate of Title, registered at Volume 843, Folio 5 of the Register Book of Titles.
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2. That the defendant pay to the plaintiff mesne profits in the sum of $2,635,554.62 with interest thereon at the statutory rate of 12 per cent per annum from the date of judgment until payment.
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3. That the counterclaim of the Defendant be dismissed.
The plaintiff is an attorney-at-law, with over 25 years experience. He is the registered owner of the property situated at Coral Gardens, Ironshore, St. James. This property is comprised of three (3) buildings. The main building is a villa operated as a guest house, registered with the Jamaica Tourist Board. There is also a one-bedroom flat in front of an outbuilding, a gazebo with pool bar, a large swimming pool and garden with floodlights.
The plaintiff and the defendant entered into an agreement on the 18 th December, 1987, whereby the plaintiff agreed to sell and the defendant agreed to purchase 13 Churchill Place, Carol Gardens, in the parish of St. James for the sum of $2,000,000.00. Under the agreement for sale the defendant was obliged to pay a deposit of $200,000.00 on the 18 th December, 1987; a further deposit of $200,000.00 on the 25 th February, 1988, and the balance purchase price was payable by way of mortgage to be provided by the plaintiff. The mortgage attracted a rate of interest at 12.5 per cent computed from the date of possession. It was agreed that possession was to pass on payment of first installment of $200,000.00, made on the signing hereof and on execution of the mortgage mentioned hereunder. The plaintiff had let the defendant into possession of the property on or about 31 st December, 1987 and she remained in possession.
It should be observed that the address stated by the defendant in the agreement was 238 Albion Road, Rexdale, Toronto, Canda. The consent of the Minister or of the Bank of Jamaica was not then or at any time obtained. It is the contention of the defendant that the plaintiff was acting in contravention of the law by not seeking the necessary consent of the Minister and was therefore committing an offence.
By statement of claim dated 26 th August, 1991, the plaintiff set out that he is the registered proprietor of premises situated at Coral Gardens, Ironshore Estate in the parish of Saint James and being the land comprised in Certificate of Title, registered at Volume 843 Folio 5 of the Register Book of Titles. The defendant is in possession of the said premise comprised in Certificate of Title registered at Volume 843, Folio 5 without any title thereto and refuses to give up possession. The plaintiff claims against the defendant:
"(a) An order for Recovery of Possession of premises comprised in Certificate of Title registered at Volume 843 Folio 5 now known as 14 Churchill Place, Coral Gardens, Saint James.
(b) Mesne Profit of $18,982,255.50 made up as follows: 9 rooms at US$80.00 per day; Net profit of US$30 per day for each room gives US$270 for the said villa:
(A) 16/5/89–31/12/89 for 228 days US$61,560.00 at J$5.75 to US$1 - J$ 353,970.00
(B) 1990 US$98,550.00 at J$7.18 to US$1 - J$ 707,589.00
(C) 1991 US$98,550.00 at J$l 2.85 to US $1 - J$l,266,367.50
(D) 1992 US$98,550.00 at J$23.01 to US $1 - J$2,267,635.50
(E) 1 993 US$98,550.00 at J$25.68 to US$1 - J$2,530,764.00
(F) 1 994 US$98,550.00 at J$33.35 to US$1 - J$3,286,642.50
(G) 1995 US$98,550.00 at J$35.54 to US$1 - J$3,502,467.00
(H) 1996 US$98,550.00 at J$35.40 to US $1 J$3,488,670.00
(I) 1 /1/97–16/6/79 US$45,090.00 at J$35.00 to US$1 - J$1,578,150.00
Total US$796,500.00 J$18.982.255.50
(c) Interest thereon at the going commercial rate or at such as to the Court seem just."
In light of the contention advanced by the defendant, it is necessary to refer to the relevant paragraphs of the Amended Defence and Counterclaim. They are as follows:
"8. That pursuant to the agreement for sale aforesaid a mortgage document for an indebtedness of One Million Six Hundred Thousand Dollars ($1,600,000.00) was signed by the Defendant and returned to the Plaintiff to be duly stamped and registered with the understanding that the Defendant's name would be endorsed on the Title.
9. That the Defendant made the first deposit on or about the 18 th day of December 1987 and entered into possession on or about the 31 st day of December, 1987 and has since then effected substantial repairs and improvements to the premises.
10. That on or about the 4 th day of April, 1989 the full purchase price for the said property was paid by your Defendant.
11. That the Plaintiff misrepresented to the Defendant that he had complied with the matters referred to in paragraph 8 of this defence by issuing memoranda dated the 31 st December 1987 and the 25 th day of February, 1988.
12. That to the date hereof the Plaintiff has failed to have the document stamped so as to effect the registration of the said property in the Defendant's name.
13. That the Defendant is the equitable owner in possession and the Plaintiff is not entitled to possession.
COUNTERCLAIM
14. That the Defendant repeats paragraph 3–13 Inclusive of the above defence and says that she entered into an agreement with the Plaintiff to purchase the property aforesaid together with its business assets for the sum of Two Million Dollars ($2,000,000.00).
15. THAT IN THE PREMISES THE DEFENDANT CLAIMS:
(1) Specific Performance of agreement for the sale of the said property with its business assets by the Plaintiff to the Defendant.
(2) An order that the Plaintiff present to the Defendant a registrable instrument of Transfer in respect of the said property together with the Duplicate Certificate of Title."
The relevant paragraphs of the Amended Reply and Defence to Counterclaim of the Plaintiff are set out as follows:
"3. As to paragraphs 5 and 6 of the Amended Defence, the Plaintiff will say that under the agreement dated the 15 th day of December, 1987, no reference was made to the payment of $1,000.00 but in computing the sum of $401,000.00 which the Defendant admitted was the only amount paid by her under the said agreement she was given credit therefor.
4. As to paragraph 7, the understanding was that the Defendant's name would only be endorsed on the title if she faithfully performed her obligations under the said agreement by making due payments under the said agreement; this the Defendant failed to do, even after the proper notice was served on her.
5. As to paragraph 9 of the Amended, Defence and Counterclaim, the Plaintiff will say that the Defendant accepted that the said agreement had been properly cancelled and agreed to accept compensation for the alleged repairs and improvements; that she was requested to substantiate the said repairs and improvements by furnishing bills, receipts and vouchers for moneys alleged to have been spent but that she was unable to produce any such bills and/or receipts and/or vouchers and accordingly no compensation was paid to her. That since the 14 th day of April, 1989, the date that the Defendant admitted that she made the last payment, she has made no further payment and has been occupying the said premises without paying for her occupation thereof.
6. As to paragraph 10 of the Amended Defence and Counterclaim, the Plaintiff will say that the Defendant by herself her attorney-at-law have admitted that she had paid only the sum of $401,000.00 out of the purchase price and/or that the full purchase price was never paid.
7. As to paragraph 11 of the Amended Defence and Counterclaim, the Plaintiff will say that the Defendant well knows that no misrepresentation was made to her as alleged or at all as he give her the memoranda in response to her entreaties to have them for use at the Embassy of the United States of America.
DEFENCE TO COUNTERCLAIM
8. The Plaintiff denies that the Defendant performed her obligations under any of the agreements and/or mortgage as alleged or at all. The Plaintiff repeats his Statement of Claim and Amended Reply.
9. In the premises, the Defendant is not entitled to any relief as claimed or at all.
10. Save as is hereinbefore expressly admitted, the Plaintiff denies each and every allegation contained in the Counterclaim as if the same were hereinbefore set out separately and traversed seriatim."
The issue which arises in the litigation is whether the plaintiff could by legal proceedings recover possession of certain lands from the appellant.
Certain statutory provisions must now be mentioned: The Exchange Control Act (hereinafter referred to as "The Act") in section 33(1), in so far as is relevant, provides:
" 33 .-
(1) Except with the consent of the Minister it shall not be lawful in the Island -
(a) for any person resident in the scheduled territories to transfer or do any...
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...consistent with Chapter III so as to give that Chapter its full force and effect. Such a situation arose in the case of Lilia Neuman v. Delroye Salmon S.C.C.A. 39 of 2000 delivered 23 rd June, 2003. This is a judicial task to be handled on a case by case basis where Parliament has not amend......