Premium Finance Ltd v John Morgan

• Jurisdiction: Jamaica
• Judge: ELLIS J.
• Judgment Date: 27 May 1999
• Judgment citation (vLex): [1999] 5 JJC 2701
• Court: Supreme Court (Jamaica)
• Date: 27 May 1999

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

BETWEEN

PREMIUM FINANCE LTD

PLAINTIFF

AND

JOHN MORGAN

DEFENDANT

SPECIFIC PERFORMANCE - Oral agreement - Statute of Frauds (29 Carolus 2, C.3) s. 4 1677 UK

ELLIS J

1 In an amended Statement of Claim the plaintiff company claims:-

• (i) Specific Performance of Sale Agreements

• (ii) Specific Performance of oral agreement referred to in a letter dated 30th July 1997

• (iii) Such further or other relief as the court deems just.

• (iv) Costs.

2 The statement of Claim alleges that on the 16th of May 1996 the plaintiff who is a creditor of a company called "C.J.'s" Rent-A-Car Ltd. hereinafter called "C.J.'s" a Winding Up Order against the said "C.J.'s." In consequence of the Winding Up Order the Trustee in Bankruptcy was appointed as provisional liquidator. It is alleged that the defendant, John Morgan and his common law wife who were the shareholders in "C.J.'s", requested a meeting with the plaintiffs attorney-at-law, himself and his attorney-at-law and the Trustee in Bankruptcy.

3 It is alleged that the defendant requested the meeting towards the conclusion of an agreement to settle the debt owing to the plaintiff since the debtor "C.J.'s" was not able to discharge the debt.

4 The Trustee in Bankruptcy by letter dated August 5, 1997 informed the participants of the meeting of the agreement reached and according to the claim no one objected to the terms of the agreement. That letter is in evidence as Exhibit 2 and it is to be noted that it was not signed by the defendant.

5 The exhibit 2 speak to certain properties which are to be sold and the proceeds of sale should go towards the settlement of "C.J.'s" debt to the plaintiff.

6 The Trustee in Bankruptcy caused valuation of the properties to be made. Sale Agreement were approved by the defendant's then attorney-at-law but none was signed by the defendant.

7 In the light of those allegations the plaintiff says the defendant is in breach of an agreement between the parties and the Trustee in Bankruptcy. He therefore claims the reliefs already set out above.

8 The defendant in his defence admits that he negotiated with the Trustee in Bankruptcy on behalf of "C.J.s". He says he did not meet with the Trustee in Bankruptcy to broker any agreement, to personally pay "C.J.'s" debts.

9 He denies that he agreed to sell any property and to make the proceeds of any such sale available for the liquidation of "C.J.'s" debt. It is his admission however, that he did in March 1997 agree to sell certain properties towards the liquidation of "C.J.'s" debt to the plaintiff (Exhibit 13). In addition to the real property which he agreed to sell pursuant to the agreement of March 1997, he also submitted documents relating to a 1991 Mercedes Benz motor car with engine number 20398122070928.

10 Finally, he denies every alleged agreement save that of March 1997. He counterclaims and claims return of duplicate certificate of title registered at Vol. 1112 Folio 526, Volume 933 Folio 21, Volume 1060 Folio 905 and documents for the Mercedes Benz motor car.

11 The plaintiff in defence to the Counterclaim accepts draft agreement of March 1997 but says that that draft agreement contained excessive valuations of the reality. The black Mercedes Benz was falsely described as a 1991 model when in fact it was a 1988 model and it was returned to the defendant.

12 The certificate of title registered at Volume 1126 Folio 562 is being held by the plaintiff in pursuant to a new agreement between he parties (Exhibit 2). The certificate of title at Volume 933 Folio 21 is being held by the Trustee in Bankruptcy. No mention is made in respects of the certificate of title at Volume 1060 Folio 905 and the documents to the Mercedes Benz motor car.

13 The plaintiff evidenced its case by firstly calling Raymond Clough. Clough said that "C.J.'s" was indebted to the plaintiff and when that debt was not paid the plaintiff applied for a Winding Up Order against "C.J'.s". That order was made by the Supreme Court on 16th May 1996 and was upheld by the Court of Appeal on 30th October 1996.

14 Subsequent to the order to wind up "C.J.'s", negotiations began with the defendant towards his paying the debt. These negotiations were designed to prevent the appointment of a liquidator.

15 The negotiations as I understand Clough's evidence resulted in two agreements. The first in March 1997 and the second in August 1997 (5/8/97). He said his evidence relates to the first agreement. Those agreements are exhibits 13 and 2 respectively. It is to be noted that the first agreement Exhibit 13 is undated but is signed by the defendant and bears the seal of "C.J's Ltd." which is owned by the defendant.

16 The agreement (exhibit 13) purportedly transferred certain parcels of land and a black Mercedes motor car tot he plaintiff.

17 The properties and motor car are particularly described and identified in the first schedule to exhibit 13. Clough's evidence is that the properties transferred were valued...