Saed Habib Mattar v James Salmon
| Jurisdiction | Jamaica |
| Judge | D. Fraser J |
| Judgment Date | 17 April 2020 |
| Date | 17 April 2020 |
| Docket Number | CLAIM NO. 2012HCV06495 |
| Court | Supreme Court (Jamaica) |
[2020] JMSC Civ 48
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2012HCV06495
Mikhail H.R. Williams instructed by Taylor, Deacon & James for the claimant
Aon Stewart instructed by Knight, Junor & Samuels for the defendant
Sale of Land — Verbal agreement for sale of land — Whether valid agreement for sale — Whether elements of a valid tenancy agreement as part of sale agreement — Whether sufficient acts of part performance by party — Equitable remedy of specific performance — Circumstances where previous order may be varied or revoked
The claimant contended that he entered into an oral agreement for sale with the defendant, pursuant to which the latter was put into possession of premises situate at 19 Grosvenor Terrace, Kingston 8, St. Andrew (hereinafter referred to as “the subject premises”) with a monthly rental until a formal agreement for sale of the subject premises was completed. The defendant has however failed to pay the full purchase price and rent as agreed, while continuing to reside at the subject premises. The claimant therefore sought to recover possession of his property as also rental arrears.
The defendant agreed that there is an oral agreement for sale between the parties. He however categorically denied that he ever entered into possession as a tenant. He contended that in furtherance of the oral agreement for sale, he has paid a deposit, was put into possession, made instalment payments, expended significant sums and did work on the property, all such acts being done as an owner. The defendant accordingly counterclaimed for an order for specific performance of the oral sale agreement or in the alternative, damages for breach of contract.
I have considered all of the evidence, law and submissions in this trial. I shall however only refer to those aspects which are necessary for the court to arrive at a determination of the claim.
The claimant filed a fixed date claim form and affidavit in support on November 21, 2012 seeking the following relief:
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(1) An order requiring the defendant to vacate premises located at 19 Grosvenor Terrace, Kingston 8, St. Andrew; registered at Volume 1399 Folio 324 of the Register Book of Titles forthwith.
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(2) An order that the defendant pay to the claimant the sum of US$163,755.00 being rent due for the subject premises as at November, 2012 and continuing;
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(3) Interest on all sums found to be due to the claimant.
The affidavits of the defendant and his witness Canute Saddler were filed on July 01 and 05, 2013 respectively. However by order dated July 10, 2013 the matter was converted to proceed as if commenced by claim form. The claimant filed particulars of claim on August 23, 2013, in which he claimed the orders mentioned above and arrears of rent in the sum of USD$177,255.00 as at November 2012 and continuing.
The exhibits admitted into evidence were:
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(1) Cancelled Certificate of Title Vol. 733 Fol. 50 — Ex. 1;
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(2) Certificate of Title Vol. 1399 Fol. 324 (replaced Ex. 1) — Ex. 2;
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(3) Letter written by Arthur Hamilton to James Salmon dated March 03, 2000 — Ex. 3;
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(4) Letter to defendant demanding performance signed by Arthur Hamilton dated June 01, 2000 — Ex. 4;
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(5) Receipt dated May 31, 2001 in the sum of US$25,000.00 payment received from Joy Robertson — Ex. 5;
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(6) Receipt evidencing payment received from Jimmy Salmon in the sum of US$4,900.00 dated March 15, 2001 — Ex. 6; and
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(7) Witness statement of Paula Fletcher as amended — Ex. 7
The three primary issues that arise for determination are:
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(1) Whether there is/was a valid and subsisting oral lease agreement between the parties for the defendant to pay rent to the claimant at a monthly sum of USD$1,500.00? If so is the claimant entitled to arrears for rent and recovery of possession of the subject premises?
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(2) Whether there is an enforceable oral agreement for the sale of the subject premises based on sufficient acts of part performance by the defendant?
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(3) If the court finds that an enforceable oral agreement for sale exists between the parties is the defendant entitled to the equitable remedy of specific performance or alternatively, damages for breach of contract in lieu of specific performance?
The claimant's witness statement states that in the latter months of 1999, an oral agreement was reached with the defendant for him to rent the subject premises for US$1,500.00 pending the formalization of an agreement for sale between the parties. The rent was calculated monthly. He said the property was to be sold for US$250,000.00 the then Jamaican equivalent for which was J$10,000,000.00. The expected completion date was agreed to be the end of January 2000. The defendant was let into possession upon his down payment of J$1,000,000.00 in November 1999. This down payment was received from the defendant by Mr. David Gray and paid over to the claimant. The claimant gave no details as to how, when or under what circumstances he received this sum from Mr. Gray.
The claimant also stated that having received no further payments after the initial down payment, he attempted to make contact with the defendant but to no avail. Letters marked exhibits 3 and 4, addressed to the defendant at the subject premises, were sent by the claimant's attorneys-at-law. The first was dated March 3, 2000 after the defendant had been put into possession and some four months after the oral agreement between the parties had been reached. This letter identified arrears of rent from October 1999 to January 2000 and requested immediate payment of rental monies owed. Another letter was sent to the defendant dated June 1, 2000 making a further demand for outstanding rent for the period October 1999 to May 2000.
There was no response to any of these letters exhibited at the trial. The claimant said that he formed the view that the defendant was no longer interested in purchasing the subject premises, and set off the defendant's down payment against what he termed, arrears of rent for 16 months. This was with a view to the resumption of the sale of the property at some later date. In paragraph 17 of his witness statement, the claimant stated that there was no agreement for sale in respect of the subject premises based on his periodic receipt of funds and in his view the subject premises was under a rental agreement. He therefore took no steps to cause the defendant to vacate the property.
The claimant acknowledged that in early 2001 his sister had received payments of USD$4,900 (Exhibit 6) and USD$5,000 from the defendant and that she had issued receipts to the defendant, for the purchase of the subject premises, because she did not know much about the agreement between the parties. The claimant viewed these sums as “small amounts” and considered them to be rental payments from the defendant.
Talks resumed between the parties in May 2001 with a view to the formalization of the oral agreement for sale. At that time, the defendant paid the claimant USD$25,000.00 (the relevant receipt in that sum dated May 31, 2000 became exhibit 5.) It was the position of the claimant that in May 2001 there were no arrears of rent and that the defendant had “overpaid” to the tune of USD$4,900.00. The claimant said the payment of USD$25,000.00 was to be treated as “the initial payment towards the defendant's purchase of the property.” He stated that the rental agreement remained and at no time had he ever been asked by the defendant to review the rental agreement pending completion of the sale.
At paragraph 10 of his witness statement, the claimant said he fell into arrears with his mortgage payments on the subject premises sometime in the early 2000's. The defendant was sent a letter by the claimant's attorneys in an attempt to spur further payments and the resumption of discussions regarding the sale. The claimant indicated that the defendant did not respond to the letter, but having been told by the claimant that the outstanding balance of the mortgage was $1,400,000.00, the defendant paid it, resulting in the discharge of the mortgage in May 2006.
The claimant said that this mortgage payment was to be set off against the arrears of rent as the defendant remained in the subject premises. In cross examination the claimant disagreed with the suggestion that there was no agreement between himself and the defendant to treat this payment that was made regarding the arrears of the mortgage as payment for outstanding rental to him.
The claimant said that he has never considered the subject premises to be anything more than a rental property and whilst he was willing to sell it, he continued to pay property taxes because it had not yet been sold. He further stated that in or about 2004 after the passage of Hurricane Ivan, the defendant told him that the wall behind the house had been damaged and repaired and resulting from that, some work had been done to a neighbour's property at a cost of $1M. The claimant said he would have preferred to have been told about the work before it was carried out; however he did not object, as at the time the defendant was in arrears with his rent yet again. The claimant calculated that as at the time of giving his statement in July 2014, the defendant was indebted to him for approximately 97.02 months of rent, for a total of USD$145,530.00. In arriving at that sum, the claimant said he had taken into account the $1M that the defendant claimed to have spent to repair the wall because although there was no proof of the sum spent, he noted work had been done on the wall.
The claimant acknowledged that the defendant claimed to have paid sums totalling J$2,165,000.00,...
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