Perrault (June) v Derrick Fearon and Arlene Gaynor
| Jurisdiction | Jamaica |
| Judge | McDONALD-BISHOP, J. (Ag.) |
| Judgment Date | 24 November 2006 |
| Judgment citation (vLex) | [2006] 11 JJC 2401 |
| Court | Supreme Court (Jamaica) |
| Date | 24 November 2006 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
DAMAGES - Assessment of damages - Breach of contract - Loss and incurred expenses
REAL PROPERTY - Sale - Breach of contract
The claimant is an American citizen. On or about the 23 rd June, 1999, she entered into a written agreement with the first defendant to purchase from him an apartment at premises known as 209 Carib, Ocho Rios, St. Ann. The first defendant was at all material times the owner and vendor of the said premises. The second defendant was the attorney- at-law with carriage of sale. Ill- advisedly, she acted for both vendor and purchaser in the transaction.
The agreed purchase price was US$50,000.00 which was stated to be, for the purposes of stamp duty, the equivalent of JA$1,900,000. It was a term of the agreement that a deposit of 10%, being US$5000.00, was payable on the signing of the contract, a further payment of US$10,000.00 should be paid within four weeks of the signing and the balance of US$35,000.00 payable on or before the 30 th September, 1999. Completion was scheduled for ninety days upon payment in full of the purchase price and costs of transfer payable by the purchaser in exchange for the duplicate certificate of title with the purchaser's name noted thereon. The agreement also provided that possession would be upon completion.
The claimant testified that she paid the full purchase price along with all other sums set out in the purchaser's statement of account (as exhibited) in addition to outstanding maintenance costs that were due on the property. There were three receipts tendered into evidence as proof of payment of US$68,000.00 by the claimant to the second defendant on account of the first defendant. Part of this sum included payments for chattels purchased by the claimant from the first defendant.
It is the claimant's contention that upon fulfilling her part of the bargain, a letter of possession over the signature of the second defendant was given to her. However, she has not received the title and to date her name has not been endorsed on the tide pursuant to the sale agreement. No transfer was effected by the vendor. She said that she made requisitions of the second defendant to have her name placed on the title and she was informed by the second defendant that there was an outstanding mortgage against the property which had to be paid off before the property could be transferred.
Given the delay of the defendants to complete, the claimant subsequently procured a copy of the duplicate certificate of title from the Registrar of Titles that was admitted into evidence. Upon receiving the certificate of title, she discovered that the property was still encumbered by mortgages to Victoria Mutual Building Society and National Housing Trust. According to her, it was never disclosed to her that the property was subject to a mortgage. It is seen, as an expressed term of the agreement, that the property was to be sold "free of encumbrances save and except those restrictive covenants and easements (if any) endorsed on the certificate of title and such easements as are obvious and apparent."
Consequently, by an amended writ of summons and particulars of claim dated 16 th September, 2002, the claimant brought action for damages against the first defendant for breach of contract of sale and against the second defendant for negligence in that she acted negligently in not carrying out the proper investigations on various encumbrances existing on the property. She averred that as a result, she has suffered loss and incurred expenses. Accordingly, she seeks the following remedies:
"AND THE PLAINTIFF CLAIMS:
1. Damages.
2. Special Damages and interest pursuant to section 3 of the Law Reform ( Miscellaneous Provisions) Act.
3. Attorney's cost.
4. Costs.
5. Any further and other relief that this Honourable Court deems fit."
The defendants were served with the writ and accompanying particulars of claim but failed to file an acknowledgment of service and a defence within the prescribed time. Consequently, on 24 th October, 2002, interlocutory judgment in default of appearance and defence was entered against the defendants and it was ordered that the claimant recover damages to be assessed and costs to be agreed or taxed. Notice of assessment of damages was subsequently issued.
On 22 nd October, 2003, an application by the second defendant to set aside the interlocutory judgment was refused by Sinclair-Haynes, J (Ag) (as she then was). Thus, after several adjournments at the instance of the claimant, the matter eventually came before this court for damages to be assessed. The defendants have not attended.
It is expressly stated by the claimant that damages for breach of contract and negligence is the remedy being sought. Curiously though, in her evidence, she stated that she has been in possession of the apartment and that all she requires is for her name to be put on the title and for the property to be hers. This is clearly suggestive that the more appropriate remedy might have been one for specific performance to have the transaction brought to completion. This remedy was, however, never sought by the claimant and her counsel, Mr. Nicholson, made it clear in his submissions that the claimant is not seeking specific performance but, according to him, damages in lieu of specific performance.
He sought to remind the court that whereas the usual remedy for breach of contract for sale of land is specific performance, there is authority for an action for damages. He relied on the following principle stated in Halsbury's Laws of England, 4 th edn. vol. 42, paragraph 254 in support of his contention:
"The purchaser can maintain an action for damages for breach, but for this purpose there must be a contract enforceable at law. The claim may be made by a party who has elected to rescind the contract following the repudiatory breach by the other party. On the other hand, a party who elects to affirm the contract may claim in the alternative for specific performance or damages."
This, of course, is accepted as trite law. There is, however, no claim for specific performance or for damages in lieu of specific performance in this case and so Mr. Nicholson's submission has raised the question as to what remedy is the claimant entitled in all the circumstances. It is patently clear from the claimant's pleadings that this is an action at law and that the claim is for damages for breach of contract and negligence. Upon the application of the claimant, judgment was so entered in her favour for such damages to be assessed. This, as I see it, means damages at law- pure and simple.
Here the claimant has stated that she has done all that is required of her under the contract. It is, therefore, for the vendor to complete but the vendor has failed to do so. In such circumstances, she would have had two options opened to her upon the failure of the vendor to perform his part of the contract. In keeping with the same principle of law cited by Mr. Nicholson from Halsbury's Laws of England (supra), she could have affirmed the contract and elected to seek relief for the delay by way of specific performance or damages in lieu or in addition thereto or to accept the repudiation and rescind the contract and then sue for damages.
Faced with these options, the claimant has elected to sue for damages. She sought no equitable relief. What then is the effect of her election? Has she affirmed the contract or has she accepted it as been repudiated and as such is treating it as been rescinded? The resolution of this question is authoritatively provided for us in the pronouncements of the Judicial Committee of the Privy Council in Edwards v Cowan et al (1986) 23 J.L.R., 24.
In that case the respondents, who were purchasers, commenced proceedings against the appellants, the vendors, for specific performance and for damages in lieu of or in addition to specific performance. After the defence was filed, the respondents commenced proceedings for summary judgment for specific performance and damages. The specific performance claim did not proceed at that stage and a consent order was made in the proceedings for the respondent to recover damages against the appellants to be assessed. An order was made on a summons for that purpose for interlocutory judgment for damages to be assessed. Two years later, the respondents proceeded on the original summons for summary judgment for specific performance before Wolfe, J (as he then was). The order for specific performance was granted. The appellants appealed to the Court of Appeal who affirmed the decision of Wolfe, J. On appeal to the Privy Council, the Court of Appeal's decision was reversed.
Lord Oliver, in giving the decision of the Board, stated at pages 26 and 27:
"Their lordships find themselves unable to agree with the Court of Appeal. An interlocutory judgment for damages to be assessed for delay, entered at a time when it could not be known when, or even whether, a decree of specific performance would be made...
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