Sang v Sudeall et Al

JurisdictionJamaica
JudgeWolfe, J.
Judgment Date22 October 1984
CourtSupreme Court (Jamaica)
Docket NumberE.2 of 1982
Date22 October 1984

Supreme Court

Wolfe, J.

E.2 of 1982

Sang
and
Sudeall et al
Appearances:

W. B. Frankson Q.C. for the plaintiff.

R. Carl Rattray Q.C. and Clarke Cousins for the defendants.

Contract - Sale of land Facts: Agreement stipulated that balance of purchase money would be paid within 90 days. Defendants/purchasers did not pay on the ground that they would do so only when title was transferred to them. Plaintiff/vendor seeking rescission of contract. No evidence that defendants repudiated contract. Held: Specific performance ordered. Had the defendants paid the balance of the purchase money at the time of demand the vendor would not have been in a position to satisfy the concurrent condition of supplying the registered title.

Specific performance — Contract — Sale of land. Facts: Circumstances under which remedy is granted — Agreement stipulating that balance of purchase price would be paid in 90 days — Defendants/purchasers failed to pay on ground that they would do so only when title was transferred to them — Plaintiff/vendor seeking rescission of contract — No evidence that defendants repudiated contract. Held: Finding that had defendants paid the balance of the purchase money at the time of demand the plaintiff would not have been in a position to satisfy the concurrent condition of supplying the registered title — Specific Performance ordered.

Wolfe, J.
1

The plaintiff and her husband Sydney Phang Sang are the registered proprietors of land under the Registration of Titles Act and registered at Volume 955 Folio 243 in the Register Book of Titles. The action by the plaintiff is for rescission of a contract, dated the 30 th day of March 1979, inter alia.

2

By an agreement dated the 30th day of March 1979 the plaintiff agreed to sell the defendants all that parcel of land part of Anchovy in the parish of Portland being the lot numbered one on the plan of Anchovy prepared by Mr. R. T. Gooden, Commissioned Land Surveyor on 31 st day of October 1978 with house thereon and being part of land registered at Volume 955 Folio 243 of the Register Book of Titles for the price of Fifty Thousand Dollars ($50, 000.00). The terms of payment as set out in the agreement are as follows:

“Five Thousand Dollars ($5, 000.00) on the signing of this agreement and the balance of forty five thousand dollars ($45, 000.00) within ninety (90) days from the date hereof”.

3

Up to this point in time the balance of the purchase money has remained unpaid.

4

On the 27 th day of August 1979 the plaintiff's attorneys-at-law Messrs Robinson, Phillips and Whitehorne addressed the following letter to the defendants' attorneys-at-law Messrs F.V. Grossett and Co.:

HIGHGATE

27th August, 1979.

Messrs. F.V. Grossett & Company,

Attorneys at Law,

P.O. Box 36,

2 Harbour Street,

Port Antonio, Portland.

Dear Sirs,

RE: SUBDIVISION LANDS PART ANCHOVY — PORTLAND SALE SYDNEY PHANG SANG ET UX TO CONLEY J. SUDEALL ET UX

We refer to previous correspondence herein ending with your letter to us of the 12 th June, 1979, wherein you advised us that the pre-checked diagram in regard to the above-mentioned matter has been lodged with the Titles Office.

As you are now aware, we are acting on behalf of the Phang Sangs in the above-mentioned matter and have prepared and hand you enclosed herewith Transfer in respect of the lot part Anchovy, being sold by the Phang Sangs to your client.

You will note that the Transfer has already been signed by the vendors and we would be obliged if you would have same signed by your clients as soon as possible, and returned to us.

We understand that the full purchase price is $50, 000, with a deposit of $5, 000 payable on signing of the Sale Agreement the balance of $45, 000 to be payable in exchange for Title. We are to confirm that that the deposit has been paid to your (sic) clients and the only thing left to be paid is the balance of $45, 000, together with your clients' moity and costs therein.

As you are aware, we came into this transaction after same had been commenced and we do not at this stage have enough money in hand to pay transfer tax and stamp duty on the sale, and in view of the large amount for these duties, we are not in a position to advance same.

In the circumstances, we write to request that you ask your clients to make to us a further payment on account of the balance purchase price of $45, 000 and we would suggest a further amount of $5, 000. We trust you will have no objections to our suggestion and would ask that you send us your cheque in this amount when returning the duly executed Transfer.

We would also ask that you send us with the Transfer and the aforesaid amount, your clients' moity (sic) with costs which are arrived at as under:–

Stamp duty on Transfer -

$1, 325.00

Registration fee on Transfer

50.00

Attorneys' costs — preparing and completing Transfer

1, 020.00

TOTAL COST

$2,395-00

one-half thereof payable by your clients

$1, 197.50.

We look forward to hearing from you in the very near future and receiving your cheque in the afore-mentioned amounts, together with the duly executed Transfer.

Yours faithfully,

ROBINSON PHILLIPS & WHITEHORNE

WCM/vb

P.S.

Please advise us of Mr. Sudeall's occupation when replying.”

5

Before a response was received to the above letter the plaintiff's attorneys-at-law addressed a letter dated the 12 th October 1979 to defendants' attorneys-at-law in the terms set out hereunder:

“HIGHGATE

WCM/pb:B:875 12th October, 1979.

Messrs. F.V. Grossett, & Company,

Attorneys-at-Law, P.O. Box 36,

2 Harbour Street,

Port Antonio,

Portland.

Dear Sir:

RE: SUBDIVISION LANDS PART ANCHOVY — PORTLAND, SALE, SYDNEY PANG SANG ET UX TO C. J. SUDEALL ET UX

We refer to our letter to you of the 27 th August, 1979, to which we have not yet received a reply.

We are to bring to your attention that we have now been handed Copy Sale Agreement dated the 30 th March, 1979 and made between the venders (sic) and the purchasers.

We note form (sic) the copy Sale Agreement that the balance purchase price of forty-five thousand dollars was made payable within ninety days from the 30 th March, 1979, which time has now long past.

In view of the foregoing we now write to demand that you pay to us on behalf of our clients the balance purchase price of forty-five thousand dollars, ($45, 000.00), together with the further sum of one thousand one hundred and ninety-seven dollars and fifty cents making a total of forty six thousand one hundred and ninety seven dollars and fifty cents ($46, 197.50), by the 30 th day of November, 1979 of which date, time, is hereby made of the essence of the contract of sale.

Should you fail to let us have the aforesaid amount of forty-six thousand one hundred and ninety-seven dollars and fifty cents by the said 30 th November, 1979 our clients will have no alternative, but to rescind the contract of sale and to forfeit the deposit paid thereunder.

Please let us hear from (sic) you by the said date and we would be obliged if you would when replying, return the duly executed transfer to us together with your cheque.

Yours faithfully,

ROBINSON PHILLIPS & WHITEHORNE

PER:

WCM/pb

REGISTERED”.

6

The defendants remained inactive notwithstanding the letters set out above and as a consequence thereof the plaintiff by notice dated the 17 th day of March, 1980 purported to make time of the essence of the contract. The notice making time of the essence evoked only a partial response from the defendants who by letters dated the 18 th and 19 th March 1980 forwarded to the plaintiff's attorneys-at-law the defendants' half costs of title and the transfer, duly executed. The balance of the purchase price was not forthcoming. This inaction on the part of the defendants as to the balance of the purchase price incurred the wrath of the plaintiff and on the 8 th day of April 1980 the plaintiff through her legal representatives addressed the following letter to the defendants' attorneys-at-law:

“HIGHGATE

WCM/pb: B-875 8 th April, 1980.

Messrs. F.V. Grossett & Co.,

Attorneys at Law & Notaries Public,

P.O. Box 36,

2 Harbour Street Port Antonio, Portland.

Dear Sir:

RE: PROPOSED SALE SYDNEY PANG SANG ET UX TO CONOLLY J. SUDEALL ET UX

We refer to previous correspondence herein ending with your letter to us of the 19 th March, 1980, and are to refer to our notice of rescission (sic) and forfeiture dated the 17 th March, 1980.

As we have not received the balance purchase moneys together with the costs in accordance with the sale agreement, we write to advise you out of courtesy that the contract of sale herein is hereby rescinded and the deposit of five thousand dollars paid by your clients to the vendors is hereby forfeited.

As a result, of this action we are returned (sic) enclosed herewith your cheque in the sum of one thousand one hundred and ninety seven dollars and fifty cents, representing the payment of the purchaser's costs in this matter.

Please be good enough to have your clients now take steps to vacate the premises, the subject of the sale by the 30 th April 1980, failing which we will have no alternative but to file action in the Resident Magistrate's Court to recover possession.

Yours faithfully,

ROBINSON PHILLIPS & WHITEHORNE

PER: WCM/pb ENCLOSURE

7

Such was the tone of the above letter that the defendant sought refuge in a change of attorney and Mr. Victor Robinson attorney-at-law letter dated the 25 th day of April 1980 took up the fight on behalf of the defendants. It is important to recite the contents of the said letter because for the first time during the mass of correspondence which flowed between the plaintiff and defendants one is given a bird's eye view of what the defendants contend:

“Your Ref. WCM/pb: B — 875 25 th April, 1980.

Messrs. Robinson Phillips & Whitehorne,

Attorneys at Law,

P.O. Box 2,

Highgate P.O.,

St. Mary.

“Attention” Mr. William McCalla

Dear Sirs,

re: Proposed Sale — Sydney...

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